https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/144

Fox International Logistics Limited v Commissioner of Domestic Taxes (Tribunal Case E057 of 2026) [2026] KETAT 144 (KLR) (Civ) (4 May 2026) (Ruling) Neutral citation: [2026] KETAT 144 (KLR) Republic of Kenya In the Tax Appeal Tribunal Civil Tribunal Case E057 of 2026 RM Mutuma, Chair, JM Malla, E Ng'ang'a & G Ogaga, Members May 4, 2026 Between Fox International Logistics Limited Applicant and Commissioner of Domestic Taxes Respondent Ruling 1.The Applicant moved this Tribunal vide a Notice of Motion dated 12th March 2026 and filed on 16th March 2026 seeking the following Orders:i.That this Honourable Tribunal be pleased to direct and or engage the services of an independent Information and Communication Technology (ICT) specialist and or a digital forensic expert to examine and determine and thereafter prepare a report on whether the email purportedly sent on 11th December 2025 from Beatrice.kosgey@kra.go.ke to ACCOUNTS@FOXLOGISTICS.CO.KE was in fact sent and or delivered to the said email address.ii.Cost of the application be provided for. Grounds for the Application 2.The Application was supported by a sworn affidavit by Robert Ongeri the Applicant’s director dated on 12th March 2026 and filed on 16th March 2026 citing the following grounds:i.That the Objection decision was made outside the statutory period.ii.That it is evident from the Statement of Facts filed by the parties that the issue whether the email dated 11th December 2025 was dispatched and or received is highly contested.iii.That the determination of the said issue requires expert technical analysis opinion and or report to assist the Tribunal to determine whether the said e-mail was ever sent and or delivered.iv.That it is in the interest of justice and the fair determination of this appeal that an independent Information and Communication Specialist or digital Forensic Expert be engaged. Response to the Application 3.The Respondent supported its response by a sworn affidavit by Brian Wainaina an Officer of the Respondent dated 23rd March 2026 and filed on even date citing the following grounds:i.That the orders sought by the Applicant/ Appellant should not be granted by this Honourable Tribunal as they are an abuse of the court process and the Applicant/ Appellant is undeserving of the same for the following reasons:ii.That the Appellant/ Applicant raised similar issues to the ones raised herein in its application seeking to be allowed to file an appeal out of time which was responded to through a replying affidavit dated 29th January 2026.iii.That the Applicant/ Appellant has raised similar issues in its Memorandum of Appeal and Statement of Facts that has been responded to through the Respondent’s Statement of Facts.iv.That the issue raised by the Appellant/Applicant are issues pending determination by this Tribunal in the main Appeal.v.That the issue raised in this Application is not a novel matter that has never been determined before and that cannot be determined based on the facts, evidence and information provided by the parties in the main appeal.vi.That as stated in the Respondent’s Replying Affidavit in response to the earlier Appellant/ Applicant’s Application seeking to be allowed to file an appeal out of time, the Respondent communicated its Objection decision vide an email sent on 11th December 2025 which was attached to the Appellant/Applicant’s application at page 42 of its bundle.vii.That the Appellant/Applicant has again attached the same email correspondence in its bundle of documents attached to its Statement of Facts in the main appeal at page 133.viii.That the Respondent also relies on the same email correspondence that is attached to its earlier Replying Affidavit in response to the earlier application as well as attached to its Statement of Facts in the main appeal.ix.That the facts that the Appellant/ Applicant has the same copy of the email correspondence in its bundle is an indication that it was served with a copy of the Objection decision through the same email correspondence that was sent on 11th December 2025.x.That by interrogating the documents provided by the parties in the main appeal, the Tribunal members can easily decipher whether the email dated 11th December 2025 from Beatrice.kosgey@kra.go.ke was sent to the email address accounts@foxlogistics.co.ke without necessary engaging the services of an Information and Communication Technology (ICT) specialist and/ or a Digital Forensic Expert.xi.That the Application is an afterthought having been filed after the Respondent filed their Statement of Facts, brought in bad faith and should not be entertained by this Honourable Tribunal as it is frivolous, vexatious and an abuse of this Tribunal.xii.That in the circumstances, it is in the public interest that this Honourable Tribunal dismisses the Applicant’s / Appellant’s Notice of Motion application dated 12th March 2026 since the issues raised in this Application can be determined by the Tribunal in the main appeal.xiii.That the Respondent urges this Honourable Tribunal to dismiss the Application with costs to the Respondent. 4.The Respondent did not file any written submissions. Applicant’s submissions 5.The Applicant filed its submissions dated 31st March 2026 and filed on even date wherein it submitted that:- 6.The Appellant submitted that at the heart of the main appeal lies a narrow but decisive question whether the email dated 11th December 2025 attaching the Objection decision was ever delivered to the Applicant. That this is a question of fact that falls within the realm of technical verification through independent expert examination, rather than determination through contested and speculative narrative by the parties. 7.It further submitted that where a party, as in the present case resists objective clarification of such a matter, the Tribunal is entitled to treat the resistance with circumspection. 8.The Applicant identified the following issues for determination:i.Whether the Application is an afterthought and an abuse of the court process.ii.Whether the Applicant has met the threshold for the appointment of an independent expert. i. Whether the Application is an afterthought and an abuse of the court process. 9.The Applicant/Appellant submitted that it cannot, by any standard or stretch of imagination, be said that the issue raised in the application is an afterthought. The issue of non-service of the Objection Decision has been at the center of the Applicant’s grievance throughout. 10.It submitted that by an email dated 13th January 2026, the Applicant’s auditors wrote to the Respondent as follows: “Kindly note that we have received rejection of our objection application (confirmation of assessment) through itax but you have not yet shared the Objection Decision . kindly share the objection decision. 11.That by a further email dated 12th January 2026(page 134) the Applicant communicated to the respondent as follows: ‘we had 4 email addresses and none has received the said December 11, 2025 objection decision email from Beatrice. This will definitely be investigated at the right time.” 12.That by an email dated 13th January 2026, the Applicant wrote to the Respondent as follows:“Subject: Request for Email Headers: _message _ from [Particulars Withheld]go.ke Dated December 11, 2025Dear Karen Korir,I hope this email finds you well.We are writing to follow up on the correspondence sent by b[Particulars Withheld]go.ke on December 11, 2025. It appears that this email did not reach our designated inboxes at Fox Logistics Kreston and google (Gmail account), as we are currently investigating the issue with our email hosts.To assist in tracing the delivery problem, could you kindly share the full email headers of the original message sent by Beatrice? The headers will provide critical routing information that will help identify where the email may have been delayed or filtered.Steps to retrieve headers in Outlook are simple1.Open the sent message by double-clicking it.2.Navigate to File>Properties3.In the Internet Headers section, select and copy all the content4.Paste the headers info a reply and send them to us at accounts@foxlogistics.co.ke.” 13.That Notably and tellingly, the Respondent declined and or failed to provide the requested email headers. 14.That by an email report dated 15th January 2026, the Applicant's host company M/s HOSTAFRICA (page 141), confirmed that “as for foxlogistics.co.ke, we have checked the email logs (cprd9-exim_mainlog-20251214.gz7) and found no email activity from b[Particulars Withheld]go.ke” 15.That Paragraph 1, 2, 3 and 4 of the Memorandum of Appeal raise the legal question whether failure to issue an Objection Decision within 60 days renders the appellant’s objection deemed allowed by operation of law. 16.The Applicant submitted that, in light of the foregoing, the issue raised in the application under consideration cannot be said to be an afterthought or an abuse of the court process. ii. Whether the Applicant has met the threshold for the appointment of an independent expert. 17.Section 48 of the Evidence Act describes an expert as follows:-(1)“When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.” 18.The Applicant submitted that a court or Tribunal may call for or commission an expert report where a resolution of a question of fact requires specialized knowledge outside or beyond judicial competence. That the following circumstances may necessitate an expert opinion: -a.Where an issue requires a specialized or technical knowledge.b.Where there are two diabolically opposed positions on a technical issue or conflicting opinions.c.Where the court requires neutral assistance.d.Where the evidence before the court is insufficient or unclear.e.Where the justice of the matter and fair determination dictates an independent expert opinion. 19.The Applicant relied on the case of Wang'ondu V. Ark Ltd [2016] KEHC 3449 (KLR), where the court observed as follows: -“The fundamental characteristic of expert evidence is that it is opinion evidence. Generally speaking, lay witnesses may give only one form of evidence, namely evidence of fact. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert's opinions are well founded.Expert opinions are admissible to furnish courts with information which is likely to be outside their experience and knowledge. The evidence of experts has proliferated in modern litigation and is often determinative of one or more central issues in a case.To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess.” 20.The Applicant submitted that part of the present dispute turns entirely on whether an email was delivered. Such a question involves technical considerations such as: Server logs Delivery protocols Bounce-back records Metadata analysis, and System-level verification 21.That these matters fall outside ordinary judicial knowledge and cannot properly be resolved through affidavit evidence or submissions of counsel alone. That in the absence of expert interrogation, the Tribunal would be left to choose between competing assertions, rather than objective technical proof. 22.It further submitted that it is precisely the need to avoid such an outcome that Section 23 of the Tax Appeals Tribunal Act was enacted to permit — and indeed courage—the use of independent experts. 23.That the Respondent’s opposition to the application is therefore misplaced. That the Applicant does not seek to introduce partisan expert evidence, but rather on independent expert's report appointed by the Tribunal itself. That indeed, such a report may ultimately support the Respondent's position. 24.That the question whether the email allegedly sent on 11th December 2025 (page 123) was delivered is scientifically and technically verifiable. That no prejudice will be occasioned to any party by subjecting the matter to independent scrutiny. 25.That where a party resists the production or interrogation of evidence, particularly within a technical domain, the court or Tribunal is entitled to treat such resistance with circumspection as encapsulated in the maxim omnia praesumuntur contra spoliatorem (All things are presumed against a wrongdoer or one who withholds evidence). 26.The Applicant submitted that the overriding duty of any court or Tribunal is to arrive at a just, expeditious, proportionate and informed determination of a dispute. That it is therefore in the interest of justice that an expert opinion be obtained on this technical issue. Analysis and Findings 27.The Tribunal has carefully considered the Application, the affidavits on record and the submissions by both parties. 28.The Tribunal distils a single issue for determination:Whether the Applicant has established sufficient basis for the Tribunal to appoint an independent ICT expert at this stage of the proceedings. 29.The Applicant moved this Tribunal vide a Notice of motion seeking, inter alia, that an independent Information Communication Technology (ICT) specialist or a digital Forensic Expert be engaged to examine whether an email allegedly sent on 11th December 2025 conveying the Objection decision was in fact dispatched and or delivered. 30.On the other hand, the Respondent opposed the Application on the grounds that the Application is an abuse of the Tribunal process; that the issues raised are already pleaded in the main Appeal and that the Tribunal is capable of determining the issue based on the evidence on record without recourse to an independent expert. 31.The Tribunal takes note that it is not in dispute that the issue of whether the email dated 11th December 2025 was sent and delivered is a contested question of fact and forms part of the substantive dispute before the Tribunal. 32.Section 23 of the Tax Appeals Tribunal Act provides as follows: -“23.Expert evidence(1)The Tribunal shall have powers to engage the service of an independent expert in any proceedings as may be appropriate upon such terms and conditions as the Chairperson may determine.(2)The Tribunal may use the views of the expert referred to in subsection (1) in making decision on an appeal.” 33.The Tribunal has duly considered the provisions of Section 23 of the Tax Appeals Tribunal Act above which grants it powers to call for expert assistance where necessary. However, the Tribunal is not persuaded that this is an appropriate case to invoke that discretion. The Tribunal finds that the discretion must be exercised judiciously and only in circumstances where justice cannot be attained through the ordinary adversarial process. The issue of service of the Objection decision is neither novel nor incapable of being solved through the pleadings by both parties and the evidence already placed before the Tribunal. 34.The Tribunal notes that the dispute herein particularly on the question of service of the Objection decision has already been fully pleaded by both parties in their respective Statement of Facts and supporting documents and forms part of the substantive issues for determination. 35.The Tribunal further notes that the role of the Tribunal at this interlocutory stage is not to determine contested factual matters, but rather to ensure that the dispute proceeds to hearing in a fair and orderly manner. 36.While Section 48 of the Evidence Act allows for expert evidence in appropriate circumstances, such evidence is ordinarily introduced by the parties during the hearing, subject to examination and cross examination. 37.The Tribunal draws guidance from the Wang'ondu V. Ark Ltd [2016] KEHC 3449 (KLR), which underscores that expert evidence derives its probative value from being tested within the other evidence before the court including cross examination. The court observed as follows:“To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess.” 38.The Tribunal observes that the Applicant’s request effectively seeks to have the Tribunal assume the role of gathering evidence on behalf of a party which is not the role of the Tribunal. The role of the Tribunal is to evaluate evidence presented before it and not to generate or procure evidence on behalf of any party. 39.The Tribunal is guided to consider the persuasive authority of the Ugandan case of Libyan Arab Uganda Bank for Foreign Trade and Development & another v Adam Vassiliadis [1986] UG CA 6, wherein the Court of Appeal of Uganda (Odoki, JA, as he then was) cited with approval the celebrated dictum of Lord Denning, MR in Jones v National Coal Board [1957] 2 QB 55 at 63-64: -“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries." 40.The burden of proof as provided under Section 56(1) of the Tax Procedures Act, rest with the Applicant, who must establish its case by way of evidence. In this regard, the Tribunal finds that the Applicant is at liberty to engage an ICT expert of its choice and call such expert as a witness during the substantive hearing for purposes of producing and explaining any technical findings. 41.It is the Tribunal’s view that such an approach will ensure that the evidence is properly tested through cross examination and the Respondent is afforded an opportunity to challenge the expert opinion. The Tribunal therefore finds that engaging an expert at this stage is premature and unnecessary, particularly where the matter has been pleaded and the Appeal is ready for hearing. 42.Consequently, the Tribunal finds and holds that the Applicant has not established sufficient basis for the Tribunal to appoint an independent ICT expert at this stage of the proceedings. Disposition 43.In the circumstances, the Tribunal finds and holds that the Notice of Motion dated 12th March 2026 and filed on 16th March 2026 is not merited and orders as follows:a.The Notice of Motion be and is hereby dismissed; andb.No orders as to costs. 44.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF MAY 2026...............................................ROBERT M. MUTUMACHAIRMANJIMMY M. MALLA..............................................EUNICE NG’ANG’AMEMBER MEMBER..............................................GLORIA A. OGAGAMEMBER