Equator Bottlers Limited v Commissioner of Domestic Taxes

**THE REPUBLIC OF KENYA** **IN THE TAX APPEALS TRIBUNAL AT NAIROBI** **TAX APPEAL NO. E158 OF 2026** **EQUATOR BOTTLERS LIMITED …………….……………..… APPELLANT/APPLICANT** **VERSUS** **COMMISSIONER OF DOMESTIC TAXES ………………….………..…… RESPONDENT** **RULING** 1. The Applicant filed a Notice of Motion dated 12th August 2026 and filed on the same date seeking the following Orders: - a) That the Tribunal be pleased to grant the Applicant leave to file supplementary submissions in response to new issues raised in the Respondent’s submissions which were not pleaded or raised in the Respondent’s Statement of Facts. b) That the costs of this Application be in the appeal. 1. The Application, which is supported by an Affidavit sworn by Joe Mutisya, the Applicant’s Finance Director, on 12th August 2026 and filed on the same date, is premised on the following grounds: a) That on 9th June 2026, the Tribunal directed both parties to file and serve their submissions by 21st July 2026. b) That in compliance with those directions, the Applicant filed and served its submissions dated 17th July 2026 upon the Respondent on the same date, whereas the Respondent did not file within the stipulated timeline and sought a further extension until 4th August 2026. c) That the Respondent proceeded to rely upon and introduce new facts and issues in its submissions, which issues were neither pleaded nor raised in its Statement of Facts, thereby depriving the Applicant of a fair opportunity to respond to the same. d) That the introduction of these new facts at the submissions stage has expanded the Respondent’s case beyond the matters placed before the Tribunal and denied the Applicant a fair opportunity to address the same. e) That unless the Applicant is granted an opportunity to file supplementary submissions in response thereto, it will be irreparably prejudiced. **Appellant/Applicant’s Case** 1. The Applicant’s case rests upon the grounds appearing on the face of the Notice of Motion, as amplified by the Affidavit of Mr. Joe Mutisya, who deposes as the Applicant’s Finance Director and describes himself as duly authorised and competent to swear the same. 2. The deponent traced the procedural history of the Appeal. He recorded the Tribunal’s directions requiring both parties to file and serve their submissions by 21st July 2026, and confirmed that the Applicant filed and served its submissions dated 17th July 2026 on that very date. 3. He faulted the Respondent for failing to adhere to the stipulated timelines and for thereafter seeking an extension of time within which to file its submissions, which extension the Tribunal granted until 4th August 2026. 4. It was his deposition that the Respondent, enjoying access to the Applicant’s submissions, proceeded to build its own argument upon them, and to introduce additional facts which formed no part of its Statement of Facts dated 9th March 2026. 5. Upon information from the Applicant’s Tax Agent on record, which he verily believed to be true, the deponent complained that the Respondent had, for the first time and at paragraphs 5 to 15 of its Written Submissions, contended that the Notice of Appeal was lodged out of time and that the Tribunal consequently lacks jurisdiction to hear and determine the Appeal. 6. He characterised that contention as false and factually incorrect, and emphasised that it found no place in the Respondent’s Statement of Facts dated 9th March 2026. 7. On the same information and belief, the deponent expressed the apprehension that unless the Applicant is afforded an opportunity to file supplementary submissions answering the new grounds and issues, its case will be irreparably prejudiced, the Applicant having been denied any chance to address matters which the Respondent neither pleaded nor raised. **Respondent’s Opposition** 1. When the Application came up for hearing, the Respondent opposed it. Both Parties canvassed the Application by way of oral highlighting. The Parties thereafter elected to proceed on the basis of their respective pleadings on record. 2. The Respondent’s opposition rests upon the position it has taken at paragraphs 5 to 15 of its Written Submissions in the Appeal, that the Notice of Appeal was lodged outside the period prescribed by law and that the Tribunal is in consequence without jurisdiction to entertain the Appeal. **Analysis and Findings** 1. The Tribunal has considered the Notice of Motion dated 12th August 2026, the supporting Affidavit of Mr. Joe Mutisya, the Respondent’s opposition, the pleadings on record and the applicable law. Flowing from that material, two issues fall for determination: first, whether the jurisdictional objection raised for the first time in the Respondent’s Written Submissions is properly before the Tribunal; and second, whether the Applicant has established a basis for leave to file supplementary submissions. 2. One preliminary matter arising on the face of the Application may be disposed of at the outset. This concerns the complaint at ground (b) that the Respondent failed to file its submissions within the time stipulated. The Tribunal notes that the extension until 4th August 2026 was granted by the Tribunal itself, upon application, and the Respondent’s filing within the extended period was therefore regular. No grievance lies in the mere fact of an indulgence which the Tribunal already saw fit to allow. **A. Whether the jurisdictional objection raised for the first time in the Respondent’s Written Submissions is properly before the Tribunal** 1. The Applicant’s central grievance is that the Respondent has travelled outside its Statement of Facts. Section 15 of the Tax Appeals Tribunal Act obliges the Commissioner, upon being served with an appeal, to file a statement of facts including the reasons for the tax decision, together with any other document necessary for the review of that decision by the Tribunal. That requirement is not a formality. Pleadings mark out the boundaries of the dispute, fix the issues upon which the Tribunal may pronounce, and secure each party against being ambushed by a case which it has had no opportunity to meet. 2. In **Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR**, the Court of Appeal, adopting the reasoning of the Supreme Court of Nigeria in **Adetoun Oladeji (Nig) Ltd v Nigeria Breweries PLC SC 91/2002**, held that parties are bound by their pleadings, which in turn limit the issues upon which a trial court may pronounce. 3. The Supreme Court restated that position in **Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR**, holding that no party should be permitted to travel beyond its pleadings, and that a party is bound to plead all necessary and material facts in support of the case which it sets up. 4. It follows that written submissions are neither pleadings nor evidence. They are argument upon a case already pleaded. A party which seeks to introduce a fresh factual case through its submissions introduces nothing at all, and the Tribunal would ordinarily disregard such material. 5. Were the Respondent’s contention a matter of ordinary defence, that would be the end of the enquiry. The contention is, however, of a different order. The Respondent asserts that the Tribunal is without jurisdiction to hear the Appeal at all, and jurisdiction occupies a particular place in our law. 6. In **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, Nyarangi, JA held that a question of jurisdiction ought to be raised at the earliest opportunity; that the court seized of the matter is then obliged to decide the issue at once upon the material before it; and that, without jurisdiction, a court has no power to make one more step. 7. The Court of Appeal carried the point further in **Jamal Salim v Yusuf Abdulahi Abdi & another [2018] eKLR**, holding that jurisdiction either exists or it does not; that it cannot be conferred by the consent of the parties, nor assumed from their acquiescence; and that it may be raised at any stage of the proceedings, even on appeal. 8. To the same effect is **Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR**, in which the Court of Appeal described jurisdiction as fundamental and over-arching in any judicial proceeding, a threshold question best taken at inception, and held that a party cannot confer jurisdiction upon a court through the craft of pleading where the law confers none. 9. The proposition drawn from the **Salim** and **Hamisi** cases cuts both ways. If jurisdiction cannot be created by pleading, then neither can it be extinguished by a failure to plead. The Respondent’s omission to raise the time-bar contention in its Statement of Facts dated 9th March 2026 does not disable it from raising the point, and the Applicant’s objection cannot dispose of it. 10. The Tribunal accordingly finds that the objection raised at paragraphs 5 to 15 of the Respondent’s Written Submissions is properly before it and must be determined. Whether that objection is well founded is a question reserved for the Judgment in the Appeal, and upon it the Tribunal expresses no view whatsoever at this stage. **B. Whether the Applicant has established a basis for leave to file supplementary submissions** 1. On the second issue, the Tribunal begins with the source of its power. Neither the Act nor the Rules makes express provision for supplementary submissions. Rule 27 of the Tax Appeals Tribunal (Procedure) Rules, 2015 supplies the answer, permitting the Tribunal to determine an appropriate procedure where the Rules and the Act provide none. The Rule states as follows: - *“27. The Tribunal may determine an appropriate procedure where there are no applicable procedures under these Rules or the Act.”* 1. That power is not exercised at large. Section 24(1) of the Act declares the proceedings of the Tribunal to be of a judicial nature, and proceedings of a judicial nature carry with them the incidents of the fair hearing guaranteed by Article 50(1) of the Constitution. Foremost among those incidents is the rule *audi alteram partem*. 2. The sequence of events on the record is decisive. The Applicant filed and served its submissions on 17th July 2026, within the time directed. The Respondent filed thereafter, upon an extended timeline and with the benefit of having read the Applicant’s argument. The Applicant has had no opportunity of reply. 3. A party which files first cannot ordinarily complain of that ordering, for the risk of the last word is inherent in any timetable. The present complaint is of a different character. What the Respondent placed in its submissions was not a fuller answer to a pleaded case, but a wholly new contention going to the competence of the Appeal itself. 4. The prejudice that could be occasioned to the Applicant is therefore real rather than merely tactical. Were the Application refused, a contention capable of terminating the Appeal *in limine* would fall to be determined without the Applicant ever having addressed it. Such an outcome would be difficult to reconcile with Article 50(1) of the Constitution. 5. Against that, the Tribunal discerns no prejudice to the Respondent. It has already deployed its argument in full. Granting leave to the Applicant restores the equality of arms rather than disturbing it, and occasions no more than a short and measurable delay in a matter otherwise ready for judgment. 6. Leave must nonetheless be confined. A supplementary filing is a right of reply, and not a licence to reopen the Appeal, to reargue matters already canvassed, or to introduce evidence which ought to have accompanied the Statement of Facts. The Tribunal will therefore restrict the leave to the matters raised at paragraphs 5 to 15 of the Respondent’s Written Submissions. 7. In view of the foregoing, the Tribunal finds that the Applicant has established a basis for leave to file supplementary submissions, limited in the manner set out above. **Disposition** 1. The Tribunal finds that the Application is merited and accordingly proceeds to issue the following Orders: - a. The Notice of Motion dated 12th August 2026 be and is hereby allowed. b. The Applicant is granted leave to file and serve supplementary submissions confined to the matters raised at paragraphs 5 to 15 of the Respondent’s Written Submissions, within five days of the date of this Ruling. c. The Appeal shall thereafter proceed to judgment on 21st September 2026. d. No order as to costs. 1. It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2026.** **……………………………..….** **ROBERT M. MUTUMA** **CHAIRMAN** **……………………………… ……..….……..……………..** **GLORIA A. OGAGA DR. TIMOTHY B. VIKIRU MEMBER MEMBER** **………………………………** **JIMMY M. MALLA** **MEMBER**