https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/114

Farmers Choice Ltd v Commissioner of Domestic Taxes (Tax Appeal E027 of 2026) [2026] KETAT 114 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KETAT 114 (KLR) Republic of Kenya In the Tax Appeal Tribunal Tax Appeal E027 of 2026 RM Mutuma, Chair, G Ogaga, T Vikiru & JM Malla, Members June 26, 2026 Between Farmers Choice Limited Appellant and Commissioner Of Domestic Taxes Respondent Ruling 1.The Applicant filed a Notice of Motion dated 4th May 2026 seeking the following Orders: -a)That this Application be certified as urgent and be heard ex-parte in the first instance.b)That the Honorable Tribunal be pleased to grant leave to the Respondent to file and serve its statement of facts out of time.c)That the statement of facts dated 15th April 2026 and filed on 24th April 2026 be deemed to be properly on record.d)That the costs of and incidentals to this application abide in the cause. Grounds Of The Application 2.The Application, which is supported by an Affidavit sworn by Audrey Nzia on 4th May 2026, is premised on the following grounds: -a)That the Appellant filed the Appeal dated 12th January 2026 at the Tribunal.b)That it was an honest oversight on the part of Counsel and that mistake of Counsel should not be visited on an innocent litigant.c)That the Applicant is therefore apprehensive that without the intervention of the Honorable Tribunal, the Respondent will not have an opportunity to substantively defend the Appeal and will be condemned unheard.d)That the Respondent’s statement of facts is meritorious and raises pertinent issues of law.e)That the Appellant will not be prejudiced by the Application.f)That this Application has been made in the interest of justice and without delay. Respondent/Applicant’s Submissions 3.The Respondent/Applicant filed its Submissions dated and filed on 20th May 2026 in support of its Application. 4.The Respondent/Applicant submitted that due to heavy work exigencies, administrative pressures, and a bona fide administrative oversight within its Legal Services Department, the Statement of Facts was not finalized and uploaded within the standard 30-day window. 5.The Respondent/Applicant asserted that it prepared the statement of facts dated 15th April 2026. That during the mention on 23rd April 2026, its representative, acting under the honest belief that registry processes were fully updated or underway, communicated that the Respondent/Applicant’s response to the Appeal was filed and served on even date, and the Appellant's tax agent kindly provided verbal consent to its regularisation out of time. 6.That the Tribunal subsequently directed the Respondent/Applicant to serve the Appellant by the close of business on 23rd April 2026. 7.That regrettably, on 24th April 2026, the Respondent/Applicant discovered a technical breakdown: the electronic transmission/email instructing the process server to effect physical service and secure absolute registry confirmation had bounced. That upon identifying this technical and administrative hitch, the Respondent/Applicant immediately rectified the error and successfully filed the Statement of Facts on 24th April 2026. 8.That the Appellant/Respondent vide a letter unilaterally withdrew its consent, and the Respondent/Applicant timeously moved this Tribunal by filing the Notice of Motion and Certificate of Urgency on 4th May 2026. 9.The Respondent/Applicant submitted that the overarching issues for this Honourable Tribunal’s determination are:i.Whether the Applicant should be granted leave to file its appeal out of time.ii.Whether the Appellant will suffer any prejudice if the extension of time is granted.iii.Whether public interest and the dictates of Article 159(2)(d) of the Constitution require the matter to be heard on its merits.iv.Whether there was an alleged misrepresentation Whether the applicant should be granted leave to file its appeal out of time. 10.The Respondent/Applicant referred to Mansur Jiwani (sued wrongly as T/A Computer City) versus Ovidian Advertising and Design Limited – Civil Application No. NAI 369 of 2000 (unreported) where the Court quoted its earlier decision in Leo Sila Mutiso V. Rose Hellen Wangari Mwangi Civil Application No. NAI 251 of 1997 (unreported) where it expressed itself thus on the applicable principles on whether or not to grant an application for extension of time:-“It is now well settled that the decision whether or not to extent the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are first the length of the delay. Secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted.” Length Of Delay 11.The Respondent/Applicant submitted that there is no statutory or fixed definition of what amounts to inordinate delay. That the question is whether, in the particular circumstances of each case, the delay is so prolonged and unexplained as to lead the Court to the inescapable conclusion that it is inordinate. 12.That in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) it was held that: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 13.That in Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] eKLR it was held that: -“…what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues;whether the delay has been intentional and contumelious;whether the delay or the conduct of the plaintiff amounts to an abuse of the court;whether the delay is inordinate and inexcusable;whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; andwhat prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.” 14.The Respondent/Applicant submitted that ultimately, the court’s primary concern ought to be the advancement of substantive justice through the judicious and equitable exercise of its discretion. 15.That in the present case, there was a delay of approximately 2 months and 12 days, and such a delay viewed contextually and against the explanation tendered is neither prolonged nor inordinate so as to warrant the denial of leave to file the document out of time. Reason For The Delay 16.The Respondent/Applicant submitted that this court has unfettered discretion in granting leave to file Appeal out of time, as the jurisdiction is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant to the issues falling for consideration before the Court. 17.The Respondent/Applicant submitted that it has openly conceded that a delay occurred due to heavy work volume and structural administrative exigencies. It was its further submission that the law recognizes that advocates and public institutions face human and technical constraints. That the breakdown in communication regarding the bounced email on 24th April 2026 further compounds why the document faced a mechanical registry hitch. 18.The Respondent/Applicant asserted that there was absolutely no intention to mislead this Honourable Tribunal or the Appellant during the mention of 23rd April 2026. That any statements made by Counsel were made in bona fide reliance on internal processing timelines and lack the element of bad faith required to establish "material misrepresentation" or "fraud" to vitiate the proceedings. It argued that a procedural mistake or coordination breakdown should not shut the doors of justice against a party. 19.The Respondent/Applicant urged that the omission was honest, inadvertent and deeply regretted. It submitted that such an excusable mistake of counsel ought not to be visited upon an innocent litigant. 20.In response to the Appellant/Respondent’s argument that because the Respondent/Applicant is a well-resourced government agency, the rule that "the mistakes of counsel should not be visited upon a party" does not apply, the Respondent/Applicant submitted that this distinction is legally flawed. It maintained that in-house counsel face identical procedural, technical, and human limitations as private practitioners. 21.The Respondent/Applicant referred to the holding in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] KECA 361 (KLR) to support its submissions: -“In the circumstances of this application since counsel has taken full responsibility for noncompliance with the rules, it is my view that it would be not only unfair but unjust to pin responsibility on the client for noncompliance and use this as basis for withholding the exercise of discretion in the applicant’s favour.” Chances Of Success 22.The Respondent/Applicant submitted that they have a good case with chances of success on appeal according to the statement of facts. 23.That an arguable defence is not one that must necessarily succeed but is one which ought to be argued fully before court so long as it raises a bona fide issue for determination by the Court, and the right to be heard is not only constitutionally entrenched, it is also the cornerstone of the rule of law. Whether the appellant will suffer any prejudice if the extension of time is granted. 24.The Respondent/Applicant submitted that the Appellant has not demonstrated any irreparable prejudice that cannot be rectified by a swift framework for hearing the substantive appeal. 25.That no substantive hearings have taken place, therefore, granting an extension of time simply levels the playing field and ensures that both sides are heard. That conversely, refusing to grant an extension creates severe prejudice to the public interest by preventing a critical assessment of revenue from being adjudicated on its factual merits. Whether public interest and the dictates of article 159(2)(d) of the constitution require the matter to be heard on its merits. 26.The Respondent/Applicant submitted that Article 159(2)(d) of the Constitution of Kenya mandates that justice shall be administered without undue regard to procedural technicalities. That procedural rules are handmaidens of justice, meant to facilitate—not blind—the dispute resolution process. 27.The Respondent/Applicant submitted that Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 others [2014] eKLR, the Supreme Court of Kenya underscored that extension of time is a matter of administrative and judicial discretion to be exercised contextually to ensure a fair trial. That striking out or expunging the Respondent/Applicant’s Statement of Facts on the grounds of a technical filing date discrepancy would represent the very type of procedural technicality that Article 159(2)(d) seeks to prevent. 28.It was the Respondent/Applicant’s submission that the underlying tax appeal involves substantial revenue key to national development and public service delivery. That while statutory timelines are vital for order, the ultimate target of the Tax Appeals Tribunal is to determine the correct tax liability of a taxpayer based on facts, audit findings, and law. That dismissing the Respondent/Applicant’s application would create a scenario where colossal tax disputes are decided by default rather than by truth and law. Whether there was an alleged misrepresentation 29.The Respondent/Applicant submitted that it vehemently denies the Appellant’s characterization at Paragraphs 4 through 9 of the Replying Affidavit and throughout the Appellant’s submissions that seeks to elevate an unfortunate administrative and technological mismatch into a "material misrepresentation" designed to mislead this Honourable Tribunal. It submitted that it is both legally unsustainable and contextually flawed. 30.The Respondent/Applicant submitted that to establish a case of misrepresentation capable of completely vitiating proceedings or barring a statutory body from seeking equitable relief, there must be a demonstration of mala fides (bad faith) or an intentional design to deceive. 31.It argued that in the present case, the statement made by the Respondent's representative on 23rd April 2026 indicating that the Statement of Facts was finalized and being put on the record was made in absolute bona fide reliance on internal compliance and documentation workflows. Counsel was acting under the honest belief that the electronic transmission instructing the registry processing and service was smoothly underway. 32.That it was not until the following morning, 24th April 2026, that the Respondent/Applicant's Legal Services Department detected a technical communication failure: the instruction email directed to the process server to verify absolute portal confirmation and execute physical service had bounced. 33.That it is therefore evident that the discrepancy between the verbal statement made during the mention and the portal status at that exact hour was the product of an innocent technological delay and administrative misalignment, not a deliberate misrepresentation. 34.That the Appellant/Respondent relies heavily on the strict position that “whether or not a misrepresentation is deliberate is immaterial to its legal effect”. That while this strict contractual rule applies to commercial pacts, it cannot be rigidly super-imposed onto procedural court mentions where counsel routinely update tribunals on the status of documents moving through digital pipelines. That to penalize a public institution over a technical systemic lag by completely expunging its pleadings would beat the core purpose of a dispute resolution tribunal. 35.That furthermore, the Respondent/Applicant did not sleep on its rights or attempt to "sanitise" the record covertly as alleged. That immediately upon realizing the technical hitch on 24th April 2026, the Respondent finalized the portal upload and promptly moved this Tribunal on 4th May 2026 through the instant Notice of Motion to formalize and regularize the record. That this proactive step demonstrates clean hands, transparency, and deep respect for the procedural oversight of this Honourable Tribunal. 36.The Respondent/Applicant submitted that the Appellant’s immediate and unilateral rescission of its verbal consent on the afternoon of 23rd April 2026 is precisely what created the need for the Respondent’s Notice of Motion. That while the Appellant/Respondent was within its rights to notify the Tribunal of its change of stance, its withdrawal of consent does not extinguish this Tribunal’s independent, statutory, and inherent power to extend timelines in order to deliver substantive justice under Section 15(4) of the Tax Appeals Tribunal Act and Article 159(2)(d) of the Constitution. 37.The Respondent/Applicant maintained that it approaches this Tribunal with clean hands, having formally applied for an extension of time immediately after realizing that a formal order was required to solidify the record. Appellant/ Respondent’s Replying Affidavit 38.The Appellant/Respondent filed its Replying Affidavit dated 11th May 2026 and filed in 13th May 2026 in opposition of the Application. 39.The Appellant/Respondent stated that save where expressly admitted, the contents of the said Supporting Affidavit are denied in their entirety and the Respondent is put to strict proof thereof. On the alleged "inadvertent error" and misrepresentation 40.That contrary to the averments at paragraphs 2, 3, 8 and 9 of the Supporting Affidavit, the issue raised by the Appellant is not one of mere inadvertent administrative omission, it is a material misrepresentation made on the record before the Honourable Tribunal by an officer of the court. 41.That during the mention of the matter on 23rd April 2026, the Respondent/Applicant’s counsel expressly represented to this Honourable Tribunal and to the Appellant/Respondent’s tax agent that the Statement of Facts had already been filed and was on record. 42.That at the time the said representation was made on 23rd April 2026, the Statement of Facts had not been filed, was not on record, and had not been served upon the Appellant. That this is confirmed by a search of the Tribunal's electronic portal conducted immediately after the mention, a screen shot of which is exhibited herein as Exhibit A, showing that the number of documents uploaded at the registry stood at zero (0) at the material time, with the sole entry on record being the Appellant’s own filing dated 12th January 2026. 43.That the Respondent/Applicant’s attempt to re-characterise this misrepresentation as a "mistake of counsel" is disingenuous, illegal, improper and an abuse of the Court process. That this re-characterisation only arose after the Appellant formally challenged the misrepresentation before the Honourable Tribunal and is therefore an afterthought designed to sanitise court records through lies and illegalities. 44.That the Respondent/Applicant’s further averment in paragraph 8 of their Supporting Affidavit that the failure was "solely due to unforeseen technical errors" arising from a bounced email is raised for the first time in the Supporting Affidavit and is unsupported by any documentary evidence whatsoever. That the Respondent/Applicant does not annex the email, any delivery failure notification, or any other corroborating evidence. 45.That it is well established in law that a consent that is not properly and lawfully derived cannot stand and, whether or not a misrepresentation is deliberate is immaterial to its legal effect. That a consent obtained on the basis of a false representation cannot stand and is void ab initio. On prejudice and procedural fairness 46.That the Respondent/Applicant’s affidavit is silent on the prejudice occasioned to the Appellant/Respondent by the misrepresentation, particularly:(a)The misleading of the Tribunal as to the true status of pleadings on record;(b)The distortion of procedural timelines under the Tax Appeals Tribunal (Procedure) Rules, 2015;(c)The erosion of the Appellant's right to a fair and transparent and expeditious process; and(d)The wasted time and costs incurred by the Appellant in filing this Replying Affidavit and supporting submissions; costs which would not have been incurred but for the Respondent's conduct. 47.That it is untenable for the Respondent to invoke the equitable principle that "mistakes of counsel should not be visited on a party" where the very conduct complained of is the misleading of this Honourable Tribunal and undermining the integrity of its proceedings. 48.That in any event, the Respondent is not a vulnerable private litigant of limited resources. It is a well-resourced government institution with a dedicated Legal Services and Board co-ordination Department. That no credible basis exists for the assertion that such an institution could, without explanation or evidence, failed to meet a statutory obligation for nearly three and a half (3.5) months. On consent and alleged waiver 49.That paragraphs 5, 6 and 7 of the Supporting Affidavit are misleading in so far as they suggest that the Appellant/Respondent consented to the regularisation of an already completed procedural impropriety. 50.That the Appellant/Respondent’s tax agent provided a conditional verbal consent during the mention of 23rd April 2026 conditional upon the truth of the Respondent/Applicant’s representation that the Statement of Facts was already filed and on record. That foundational condition was not met, and the consent accordingly had no legal effect. 51.That upon discovering the misrepresentation, the Appellant acted immediately and on the same day, 23rd April 2026, and formally notified this Honourable Tribunal and the Respondent of the withdrawal and rescission of the verbal consent. 52.That any correspondence exchanged after 23rd April 2026 was undertaken without prejudice to the Appellant/Respondent’s rights and cannot retrospectively cure a misrepresentation already made on the Tribunal record. 53.That consent cannot be implied where the foundational issue concerns accuracy of representations made to a judicial body. On timelines and compliance with statutory procedure 54.That the Respondent/Applicant concedes that it failed to comply with prescribed timelines for filing the Statement of Facts. That the Respondent/Applicant was obligated to file within 30 days of service by the Appellant and failed entirely to do so for a period of nearly three and a half (3.5) months, without making any formal application for extension of time during that period. 55.That notwithstanding the withdrawal of the Appellant/Respondent’s verbal consent and the formal notification of the same on 23rd April 2026, the Respondent proceeded on 24th April 2026 to file the Statement of Facts dated 15th April 2026 without first obtaining a formal order from this Honourable Tribunal granting leave to do so. That filing was and remains irregular and without legal basis. 56.That discretionary relief is an equitable remedy which can only be granted where the applicant approaches the Tribunal with clean hands. That the Respondent/Applicant’s conduct of making a false representation to obtain consent, then filing without authority after that consent was lawfully withdrawn falls far short of that threshold. On the respondent’s claim of "urgency" and being "condemned unheard 57.That the Respondent's Certificate of Urgency, certified by Audrey Nzia, is misconceived and self-serving. That the Appellant/Respondent filed the instant Appeal on 12th January 2026. That the present Application was not filed until 4th May 2026, a period of nearly three and a half (3.5) months. A party cannot manufacture urgency through its own inaction. 58.That the Respondent/Applicant’s assertion that it will be "condemned unheard" without the intervention of this Honourable Tribunal is an overstatement of its position. That the dismissal of the Notice of Motion does not preclude the Respondent from participating in the substantive hearing of the Appeal. What it does preclude is the Respondent by-passing the procedural requirements of the Tax Appeals Tribunal (Procedure) Rules, 2015 without consequence. That the Respondent/Applicant had every opportunity to file its Statement of Facts within the prescribed period and chose not to do so. 59.The Appellant/Respondent asserted that the Respondent/Applicant’s Supporting Affidavit fails to controvert the core issue raised by the Appellant/Respondent, namely that this Honourable Tribunal was materially misled during the mention of 23rd April 2026. That instead, the Respondent/Applicant attempts to re-characterise the misrepresentation as an inadvertent error. 60.That the Notice of Motion and Supporting Affidavit amount to an attempt to retrospectively legitimise an irregularity rather than to address it transparently. 61.That the Appellant/Respondent is convinced that this is an appropriate and justifiable case for this Honourable to invoke its inherent mandate to set aside the consent order thereby ensure the ends of justice are served and to avert any possibility of abuse of the Court’s processes. 62.That in the circumstances, the Appellant/Respondent prayed that this Honourable Tribunal be pleased to:a.Dismiss the Notice of Motion dated 4th May 2026 with costs to the Appellant;b.Expunge from the record the Statement of Facts dated 15th April 2026, filed on 24th April 2026 without leave, and without valid consent; andc.Grant such other relief as this Honourable Tribunal may deem just and expedient. Appellant/ Respondent’s Submissions 63.The Appellant/Respondent filed its submissions dated 1th May 2026 and filed on 13th May 2026 in opposition to the Application. It submitted on its issues for determination under 11 headings. a) Whether the notice of motion and supporting affidavit was fundamentally flawed. 64.That the Respondent/Applicant, in addressing their notice of motion and supporting affidavit, have not addressed the underlying issue which is the material misrepresentation made on the record before this Honourable Tribunal. That instead, the documents seek to re-characterise this misrepresentation as a mistake of counsel whilst ignoring the fact that this only arose after the representation had been formally challenged, and is therefore an afterthought intended to sanitise the record. 65.That the Respondent/Applicant's affidavit is internally inconsistent. The Respondent, on one hand, avers that it acted on the Appellant's consent and instructed the process server to effect service, yet simultaneously states there was no intention to mislead. That however, the fact remains that a positive representation was made to this Honourable Tribunal and to the Appellant's tax agent that the Statement of Facts was "filed and on record" when, as confirmed by the electronic registry, it was not. That whether or not the misrepresentation was deliberate is immaterial: a consent obtained on the basis of a false representation cannot stand. 66.That it is a foundational principle of law that consent procured by misrepresentation is void ab initio and confers no rights upon the party who made the misrepresentation. That the Respondent/Applicant cannot therefore rely upon a consent that it obtained through a false statement of fact. 67.That furthermore, the Respondent's Supporting Affidavit raises, for the first time, the claim that the failure to file was caused by a "bounced email." That the Respondent/Applicant avers that on 24th April 2026, it discovered that the email attaching the Statement of Facts had bounced, meaning the process server never received the instruction. That this explanation is advanced entirely without documentary support, no email, no delivery failure notification, and no corroborating communication has been annexed. That a bare, unsubstantiated averment is not evidence and cannot discharge the Respondent/Applicant’s burden of proof. That further, even if this explanation were accepted, it accounts only for the service failure on 24th April 2026 and does not begin to explain why the Statement of Facts was not filed in the preceding three and a half (3.5) months from January to April 2026. 68.That additionally, the Respondent itself concedes in the Certificate of Urgency that it has not filed a Statement of Facts in response to the Memorandum of Appeal. That the entire case for the application therefore rests on the Respondent/Applicant’s characterisation of its own default as an "oversight," without placing any probative material before this Honourable Tribunal to substantiate that characterisation. b) Whether the alleged "honest oversight" on the part of the counsel constitutes grounds for extension of time 69.The Appellant/Respondent submitted that "Honest oversight" is not a legal standard recognised under the Tax Appeals Tribunal (Procedure) Rules or at law. That the Respondent/Applicant, in its Supporting Affidavit, asserts that the failure to lodge the Statement of Facts within the prescribed timelines was inadvertent and occasioned by a bona fide administrative oversight resulting from heavy work exigencies, and that the mistake of counsel should not be visited on an innocent litigant. That a mere bare assertion of inadvertence, unsupported by any evidence, does not meet that threshold. 70.The Appellant/Respondent argued that the Respondent/Applicant is a sophisticated government institution with dedicated legal counsel and an entire Legal Services and Board Co-ordination Department. That there is no reasonable basis for the assertion that such an institution could, without explanation or evidence, overlook a statutory obligation to file a Statement of Facts for such an extended period without seeking to follow the proper channels to lodge a late application. That furthermore, the assertion that "the mistake of counsel should not be visited on the litigant" cannot serve as a universal shield against the consequences of non-compliance. That the Tax Appeals Tribunal (Procedure) Rules, 2015 exist to ensure the orderly and expeditious conduct of proceedings, and to allow that mantra, to excuse all procedural failures would render the Rules meaningless. 71.That in any event, the invocation of the "mistake of counsel" principle is particularly inapt on the facts of this case because it is the same counsel - Audrey Nzia - who both made the misrepresentation to the Tribunal on 23rd April 2026 and then deposed to facts in the Supporting Affidavit filed 4th May 2026. That the Respondent is not an innocent party who has been let down by external counsel acting without its knowledge. That the counsel is an in-house advocate employed by the Respondent/Applicant in its own Legal Services and Board Coordination Department. That the distinction between the Respondent/Applicant and its in-house counsel, for the purpose of accountability, is therefore negligible. c) Whether the certificate of urgency is unsustainable and contradicted by the respondents own conduct 72.That the Respondent/Applicant has tiled a Certificate of Urgency, certified by Audrey Nzia, asserting that the application requires to be placed before the Honourable Tribunal for hearing forthwith. That the Certificate of Urgency is, with respect, misconceived and must be set aside. That the Appellant/Respondent filed the instant Appeal on 12th January 2026. That the present Application was not filed until 4th May 2026, a delay of nearly three months and a half (3.5) months. That a party cannot manufacture urgency through its own inaction and neglect. 73.The Appellant/Respondent submitted that the law is settled that urgency that is self-created through a party’s own delay and neglect cannot found a valid Certificate of Urgency. That the Respondent asserts that the application was made "in the interest of justice and without delay," an assertion that is plainly contradicted by the undisputed chronology of events. 74.That further, a discrete and additional procedural irregularity arises from the face of the documents themselves. That the Certificate of Urgency bears an electronic tiling stamp of 30th April 2026, yet the same Certificate of Urgency is dated 4th May 2026. That the same discrepancy applies to the Notice of Motion. That this inconsistency between the electronic filing date and the date appearing on the face of the document has not been explained by the Respondent and raises questions as to the accuracy and integrity of the documents tiled. d) Whether the inordinate delay has prejudiced and will continue to prejudice the appellant 75.That the Respondent/Applicant avers that the Appellant will not be prejudiced by the inordinate delay in submitting their Statement of Facts. That the assertion is denied and is unsupported by any particulars or evidence. 76.The Appellant/Respondent submitted that it has suffered, and will continue to suffer, prejudice in the following material respects:a.Procedural uncertainty and disruption: That the Respondent/Applicant’s conduct of making a false representation at a Tribunal mention, obtaining a direction premised on that misrepresentation then filing documents without valid authority on the following day has created significant procedural uncertainty in these proceedings. That the Appellant/Respondent was required to monitor the registry, investigate the misrepresentation, issue a formal withdrawal letter on 23rd April 2026, and now prepare and file its Replying Affidavit and supporting submissions. That all of this was entirely avoidable had the Respondent complied with the Rules from the outset.b.Wasted costs: That the Appellant/Respondent has incurred legal and quantifiable costs in investigating the misrepresentation, drafting the withdrawal letter of 23rd April 2026, and preparing their replying affidavit and supporting Submissions, costs which would not have been incurred but for the Respondent's failure to comply with the Tax Appeals Tribunal Rules and its subsequent misrepresentation.c.Delay in resolution of the appeal: That the Appellant/Respondent filed this Appeal on 12th January 2026. That the Respondent/Applicant’s non-compliance and subsequent irregular conduct have stalled the progression of this matter thus delaying justice to the Appellant/Respondent. That any further indulgence by this Honourable Tribunal will compound that delay.d.Damage to the integrity of proceedings: That the misrepresentation made to this Honourable Tribunal on 23rd April 2026 was not a private act between the parties. That it was a representation made in open proceedings before a judicial body. That the Appellant/Respondent, as a party to those proceedings, has a direct and legitimate interest in ensuring that the record of proceedings before this Honourable Tribunal accurately reflects what transpired: an interest that has been materially compromised by the Respondent's conduct. e) Whether the legal standard for extension of time has been met; 77.The Appellant/respondent Submitted That Sections 13(3) and 13(4) of the Tax Appeals (Tribunal) Rules, 2015 provides that the Tribunal may extend time for filing a Notice of Appeal or submitting documents if the applicant proves the delay was caused by absence from Kenya, sickness, or other reasonable causes. That an application for extension of time to file a Statement of Facts before this Honourable Tribunal requires, at minimum, that the applicant establish the following:i.that there has been non-compliance with the Rules;ii.that a reasonable and satisfactory explanation exists for the failure to comply;iii.that the application was been made timeously upon the applicant becoming aware of the non-compliance; andiv.that the opposing party will suffer no prejudice, or that the balance of justice nonetheless favours the grant of the extension. 78.That in the circumstances the Respondent does not meet any of the above conditions: That as to (i): Non-compliance is admitted. That as to (ii): No reasonable explanation is provided. Bare assertions of "honest oversight" and "work exigencies," unsupported by evidence, do not constitute a satisfactory explanation for a delay of nearly three and a half (3.5) months. That as to (iii): The application was not made timeously. The Respondent/Applicant was at all times aware of its own non-compliance from January 2026 to April 2026 and took no formal steps to regularise its position throughout the entire period. That as to (iv): The Appellant has demonstrated real, quantifiable and continuing prejudice as set out above. 79.That the interests of justice do not favour the grant of the extension in the circumstances of this case. The interests of justice are served by upholding the Rules of this Honourable Tribunal, by holding parties, and, particularly well-resourced institutional parties, to their procedural obligations, and by ensuring that the proceedings are conducted with integrity. They are not served by condoning misrepresentation or rewarding procedural laxity. f) Whether the respondent is entitled to the orders sought 80.The Appellant/Respondent argued that the Respondent/Applicant is not entitled to the orders sought. That discretionary relief is an equitable remedy available only to an applicant who approaches the Tribunal with clean hands. That the Respondent/Applicant’s conduct of misrepresenting the filing status of the Statement of Facts to obtain consent, then filing without authority after that consent was lawfully withdrawn disqualifies it from equitable relief. 81.That additionally, the maxim nullus commodum capere potest de injuria sua propria - "no person can take advantage of their own wrong" applies squarely to the facts of this case. That the Respondent/Applicant is in the predicament it finds itself entirely because of its own non-compliance over a period of three and a half (3.5) months, its misrepresentation before this Honourable Tribunal on 23rd April 2026, and its subsequent filing of the Statement of Facts without authority the following day. That it cannot now invoke the equitable jurisdiction of this Honourable Tribunal to extricate itself from the consequences of its own conduct. g) Whether the respondent's invocation of article 159{2)(d) of the constitution is appropriate in the circumstances 82.That the Notice of Motion is brought, in part, pursuant to Article 159(2)(d) of the Constitution of Kenya, 2010, which provides that justice shall not be delayed and shall not be defeated by technicalities of procedure. That the Appellant/Respondent respectfully submits that the Respondent’s reliance on Article 159(2)(d) is misconceived and inappropriate for the reasons below. 83.That first, Article 159(2)(d) has been consistently interpreted by the courts as a principle aimed at preventing procedural technicalities from becoming instruments of injustice. That it is not, and has never been held to be, a general licence to disregard procedural rules entirely or to nullify the consequences of a party's own deliberate non-compliance. That the requirements of the Tax Appeals Tribunal (Procedure) Rules, 2015 as to the filing of a Statement of Facts are not a "technicality", they are a fundamental structural requirement of the adverse process that ensures the orderly conduct of proceedings and gives the Appellant notice of the case it is required to meet. 84.That second, the constitutional provision invoked by the Respondent/Applicant, that "justice shall not be delayed" operates equally in favour of the Appellant/Respondent. The Appellant stated that it filed the instant Appeal on 12th January 2026 and has a constitutional right to have this matter resolved expeditiously. That the Respondent/Applicant’s non-compliance and irregular conduct have themselves caused a delay in excess of three and a half (3.5) months. That the Respondent/Applicant cannot simultaneously invoke the principle against delay whilst being the primary author of the very delay that is prejudicing the Appellant/Respondent. 85.That third, Article 159(2)(d) must be read in conjunction with the overriding principle in Article 159(2)(b) that justice shall not be delayed. That these twin constitutional imperatives must be balanced. That in this case, the balance falls firmly in favour of the Appellant. That granting the application would reward the Respondent's non-compliance and misrepresentation whilst further delaying the resolution of the Appellant’s legitimate challenge to the tax assessment. 86.That fourth, the courts have held that Article 159(2)(d) cannot be invoked in a manner that causes injustice to the opposing party. That specifically, it cannot be used to deprive a party of the procedural protections afforded to them by the Rules. That to grant the application in the circumstances of this case would be to use Article 159(2)(d) as a vehicle for rewarding the conduct of a party that misrepresented the status of proceedings to this Honourable Tribunal, an outcome that cannot have been contemplated by the framers of the Constitution. 87.The Appellant/Respondent referred to Boss Freight Terminal Limited v. Commissioner of Domestic Taxes {2015] eKLR, where the High Court addressed whether missing a filing deadline for a tax appeal was a "technicality" curable by Article 159(2)(d). That the Court held that procedural requirement, including filing timelines, are essential for the orderly administration of justice. That similarly, in Ali v Commissioner Domestic Taxes (Tax Appeal 1381 of 2022), the TAT found an appeal filed 47 days late without seeking leave of the Tribunal to file out of time, to be incompetent, untenable, and not properly before the Tribunal. h) Whether the supporting affidavit is procedurally irregular by response of the deponent being the advocate on record. 88.That a further and discrete irregularity noted afflicts the Respondent's Supporting Affidavit. The Supporting Affidavit is sworn by Audrey Nzia, who identifies herself as an Advocate of the High Court of Kenya employed by the Respondent/Applicant in its Legal Services and Board Coordination Department, having conduct of the matter on behalf of the Respondent and full authority to swear the affidavit on the Respondent/Applicant’s behalf. That Audrey Nzia is simultaneously the advocate on record for the Respondent/Applicant in this matter and the deponent of the Supporting Affidavit upon which the application is founded. 89.That this creates a fundamental procedural tension. That an advocate who deposes to the facts of a matter in which they are the advocate on record renders themselves a witness in their own cause. That the advocate’s duty to the court and their duty as a witness, which includes being subject to cross-examination on the contents of the affidavit, are irreconcilable in circumstances where the facts deposed to are disputed. That the credibility, accuracy, and completeness of the Supporting Affidavit cannot be properly tested without the deponent being available for cross-examination, yet if the deponent is cross-examined, the advocate on record becomes a witness, thus exposing a conflict of roles that is inconsistent with proper professional conduct. 90.The Appellant/Respondent submitted that the procedural irregularity of an advocate swearing a supporting affidavit in a contested application in which they are the advocate on record further undermines the weight and propriety of the Supporting Affidavit, and that this Honourable Tribunal should take this irregularity into account in assessing the application. i) Whether the application for an ex-parte hearing is legally sustainable 91.That prayer 1 of the Notice of Motion seeks that the application be certified as urgent and be heard ex-parte in the first instance. That the Appellant/Respondent respectfully submits that there is no basis whatsoever for an ex-parte hearing in the circumstances of this case. 92.That an ex parte application is one made in the absence of and without notice to the opposing party. That it is appropriate only in circumstances of the utmost urgency where there is a real risk that giving notice to the opposing party would defeat the purpose of the application, such as in injunction proceedings where assets may be dissipated. No such circumstances exist here. That the Appellant is already on record as a party to these proceedings, has been served with the Notice of Motion and Supporting Affidavit, and has actively contested the application by filing this Replying Affidavit and these submissions. That the basis for an ex parte hearing has therefore been extinguished by the effluxion of time and the Appellant's participation in the proceedings. 93.That moreover, the Respondent/Applicant did not at any stage demonstrate why giving notice to the Appellant would defeat the purpose of its application for extension of time. That the Respondent/Applicant’s failure to provide any such justification renders the prayer for an ex-parte hearing untenable and it should be struck out or dismissed accordingly. j) Whether the respondent's "condemned unheard" and "meritorious response" arguments have any legal merit 94.That the Respondent/Applicant asserts that without the intervention of this Honourable Tribunal, the Respondent/Applicant will not have an opportunity to substantively defend the Appeal and will be condemned unheard. That this assertion is, with respect, a significant overstatement of the Respondent's position. 95.The Appellant/Respondent submitted that the principle of audi alteram partem - "the right to be heard" - is a fundamental pillar of natural justice. That however, the right to be heard is not absolute and unconditional. That it is a right to be heard within the procedural framework established by the relevant rules of procedure. That it does not confer upon any party the right to participate in proceedings on its own terms, at a time of its own choosing, and without regard to the procedural obligations imposed upon it by those rules. 96.The Appellant argued that the dismissal of the Notice of Motion does not preclude the Respondent from participating in the substantive hearing of the Appeal. That the Respondent retains the right to appear at the hearing, to make submissions, and to be heard on any issue that arises. That what the dismissal of the application does preclude is the Respondent/Applicant bypassing its procedural obligation to file a Statement of Facts within the prescribed period without appropriate consequence. That the Respondent was given every opportunity to comply with the Rules from 12th January 2026 onwards. That its failure to do so for nearly three and a half (3.5) months is not a circumstance that this Honourable Tribunal is obliged to indulge indefinitely in the name of natural justice. 97.That further, the Respondent/Applicant asserts that its Statement of Facts is "meritorious and raises pertinent issues of law." That this bare assertion is made without setting out what those pertinent issues are, without exhibiting the Statement of Facts, and without identifying the specific grounds upon which the Respondent contends the Statement of Facts has merit. That a bald assertion of merit, entirely unsupported by particulars, cannot substitute for the proper procedural foundation that the application lacks. That this Honourable Tribunal is not able to assess the merits of a statement of facts that it is simultaneously being asked to admit into the record, and the Respondent's assertion of its own merit is, with respect, self-serving and entitled to no evidential weight.k)Whether the Respondent's appeal to the "national interest" in colossal tax amounts is a relevant consideration 98.That the Respondent asserts in its Supporting Affidavit that unless the application is granted, the Applicant is at danger of suffering irreparable harm to its access to justice. That the Respondent further argues that it is in the interest of justice that the Respondent be allowed to make its case, "taking into account that the taxes involved are colossal amounts which is much needed in the running of the day to day operations of the country." 99.The Appellant/Respondent submitted that this argument is irrelevant, improper, and ought to be given no weight whatsoever by this Honourable Tribunal. That the quantum of tax in dispute is not a factor recognised under the Tax Appeals Tribunal Act, 2013 or the Rules as a basis for granting an extension of time. That if it were, the inevitable consequence would be that the Kenya Revenue Authority, as the Respondent in all matters before this Tribunal, could effectively disregard its procedural obligations in any case involving a sufficiently large tax amounts by invoking the national interest. That this would create an impermissible two-tiered system in which the KRA’s procedural compliance obligations diminish in inverse proportion to the magnitude of the assessments under appeal. 100.That furthermore, every tax appeal by definition involves monies that would, if upheld, flow to the public revenue. That the magnitude of the assessment is therefore a constant feature of all tax litigations before this Honourable Tribunal and cannot, of itself, elevate the Respondent's position above the procedural requirements that govern the conduct of all parties equally. 101.That Article 47(1) of the Constitution of Kenya, 2010 guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 102.That therefore, we submit that the Respondent/Applicant’s conduct of misrepresenting the filing status of its Statement of Facts to this Honourable Tribunal, and then filing documents without authority, is inconsistent with its obligations as a public body under Article 47(1). That the Kenya Revenue Authority, in the conduct of proceedings before this Tribunal, is exercising functions of a public nature and is bound accordingly. That in addition, Article 47 has been implemented under Section 4(1) of the Fair Administrative Action Act that stipulates: -“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” 103.That administrative action is defined in the FAA to include the powers, functions and duties exercised by inter alia authorities (including KRA). Analysis And Findings 104.The Tribunal acknowledges the extensive arguments and submissions by the Parties as regards this Application and notes that the Notice of Motion Application is for Respondent/Applicant primarily seeking leave of the Tribunal to submit and serve its statement of facts out of time. The Tribunal therefore identifies the following as the issue of determination: - Whether the respondent/applicant has met the threshold for extension of time to submit and serve its statement of facts. 105.The timeline for the Commissioner to file and serve its statement of facts in its reply to an Appeal is provided in Section 15(1) and (3) of the Tax Appeals Tribunal Act (TAT Act) which states: -“15. (1)The Commissioner shall, within thirty days after being served with a copy of an appeal to the Tribunal, submit to the Tribunal enough copies as may be advised by the Tribunal, of—(a)a statement of facts including the reasons for the tax decision; and(b)any other document which may be necessary for review of the decision by the Tribunal.(3)The Commissioner shall serve the appellant with a copy of the statement of facts and other documents required under this section within two working days from the date of submission to the Tribunal.” 106.Section 15(4) of the TAT Act provides the legal test for grant of an application to extend the time for the Commissioner to submit and serve the statement of facts and documents out of time. It provides thus: -“15. (4)The Tribunal may, upon application in writing by the Commissioner, extend the time for submitting and serving the statement of facts and the documents referred to in this section, where it is proved to the satisfaction of the Tribunal, that the delay is not inordinate or other reasonable cause that may have prevented the Commissioner from submitting and serving the statement of facts and the documents within the specified period.” 107.The Tribunal analysed the issue for determination under the legal test provided in statute, being that the Tribunal may grant extension of time to the Commissioner to submit and serve the statement of facts and documents, upon application in writing by the Commissioner, when either of the two following circumstances are demonstrated:a)Where the delay is not inordinate; orb)Other reasonable cause that may have prevented the Commissioner from submitting and serving the statement of facts and the documents within the specified period. Whether the delay is not inordinate. 108.The Appellant/Respondent filed its Appeal its memorandum of appeal and statement of facts, the objection decision and supporting documents at the Tribunal on 12th January 2026. 109.The Respondent/Applicant filed a Notice of Motion Application at the Tribunal seeking leave to file its statement of facts in response to the Appeal on 4th May 2026. 110.Section 15(1) of the TAT Act provides that the Commissioner is required to submit to the Tribunal its statement of facts, within thirty (30) days after being served with a copy of an Appeal. 111.The Tribunal observes that the Respondent/Applicant ought to have submitted its statement of facts by 11th February 2026, but failed to do so within time, subsequently filing this Application to be allowed to file its statement of facts out of time on 4th May 2026, which was one hundred and twelve (112) days from the date it was served the Appeal. 112.The Tribunal finds that the Applicant’s Application for leave to file its Statement of Facts out of time has been brought to the Tribunal without undue delay as 112 days is not an inordinate delay. 113.Having established that the Respondent/Applicant’s delay in filing its statement of facts was not inordinate, the Tribunal finds no merit in delving into the second test. 114.The Tribunal further notes that the Appellant/Respondent has not demonstrated that it would suffer an irreparable loss should this Application be allowed. In light of this, it is the Tribunal’s view that the Appellant/Respondent would otherwise still argue its case and have recourse to justice should the Respondent/Applicant be found to be at fault. The Tribunal, therefore, finds that the Appellant/Respondent will not suffer prejudice if the extension of time is granted. Disposition 115.Based on the foregoing, the Tribunal finds that the application is merited and accordingly proceeds to make the following orders: -a.The Notice of Motion Application dated and filed on 4th May 2026 be and is hereby allowed.b.The Respondent/Applicant be and is hereby granted leave to submit its statement of facts out of time.c.The Respondent/Applicant’s statement of facts dated 15th April 2026 and filed on 24th April 2026 be and is hereby deemed as duly filed and served.d.No order as to costs. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.……………………………ROBERT M. MUTUMACHAIRMAN………………………………GLORIA A. OGAGAMEMBER……..….……..…………….DR. TIMOTHY B. VIKIRU MEMBER………………………………JIMMY M. MALLAMEMBER