https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/297

REPUBLIC OF KENYA IN THE TAX APPEALS TRIBUNAL MISC APPLICATION NO 686 OF 2026 GHANEEMA ENTERPRISE LIMITED...............................................................APPLICANT VERSUS COMMISSIONER OF LEGAL & BOARD SERVICES......................................RESPONDENT RULING THE APPLICATION 1. The Applicant, vide a Notice of Motion filed under a Certificate of Urgency dated 10TH June 2026 and filed on the same date, sought the following Orders: a) THAT pending inter-partes hearing and determination of this application, this Honorable Tribunal be pleased to set aside the whole demand for the short-levied VAT import duties assessment of the Respondent totaling Kshs. 906,548, exclusive of penalties and interest. b) THAT this Honourable Tribunal be pleased to grant the Applicant leave to appeal out of time against the whole VAT import duties additional assessment by the Respondent totaling Kshs. 906,548, exclusive of penalties and interest. c) THAT in line with prayers 1 and 2 above, this Honourable Tribunal be pleased to lift the Departure Prohibition Order (DPO) issued against the company director, Alibashir Mohamed Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 1 of 6 Board Nurow, holder of National ID No. 29277855 and KRA PIN: A006773627B, to the Director of Immigration Services by the Commissioner of Investigation & Enforcement on 2nd June 2026, which is annexed herewith. d) THAT this Honourable Tribunal be pleased to make any order that it deems fit and just. e) THAT costs of this application be on cause. 2. The Application was supported by the Supporting Affidavit of ALIBASHIR MOHAMED NUROW, which was premised on the following grounds that: i. The appellant’s lead director was adversely sick, hospitalized, and did not see or respond to the email communication. ii. The Appellant will be highly prejudiced unless this application is granted. iii. The Respondent will suffer no prejudice as the application seeks to allow the Appellant an opportunity to file a late appeal. iv. It is in the interest of justice to grant the orders sought. RESPONSE TO THE APPLICATION 3. In response to the Application, the Respondent relied on its grounds of opposition dated 25th June 2026, in which it stated as follows: i. THAT the orders sought, particularly lifting of the Departure Prohibition Order, are unenforceable and would be issued in vain, as this is an administrative power given to the Commissioner under section 45 of the Tax Procedures Act, 2015, to safeguard taxes. Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 2 of 6 Board ii. THAT Section 45 of the Tax Procedures Act, 2015, is elaborate and clear, and does outline the conditions to be met or the remedies the Applicant can pursue to have the Respondent lift the Departure Prohibition Order. iii. THAT the law requires the Applicant to move the Respondent by demonstrating that there are other less restrictive means of enforcing compliance, such as security for the taxes, or the demonstration of assets capable of offsetting the taxes due. iv. THAT in the absence of such demonstration, the taxpayer has not exhausted the requisite statutory remedies and, as such, the invocation of the Jurisdiction of the TAT or any other judicial forum is not only premature but ill-conceived. v. THAT the Applicant is a flight risk and has no known assets in Kenya that can be relied on to offset the taxes due. vi. THAT the Respondent is, however, not opposed to the prayer to be allowed to file an Appeal out of time since the Applicant has justified his reasons for lateness with evidence of illness. 4. The Respondent urged the Tribunal to dismiss the Application, in particular with regard to the lifting of the Departure Prohibition herein, for want of merit, with costs to the Respondent. ANALYSIS AND FINDINGS 5. The Tribunal has admitted the respondent’s grounds of opposition dated 25th June 2026 into the record considering that the delay in filing the same by about seven days was not inordinate. Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 3 of 6 Board 6. Prayer (a) in the Application sought orders setting aside the whole demand for the short-levied VAT import duties assessment of the Respondent, totaling Kshs. 906,548, exclusive of penalties and interest. 7. This prayer for setting aside the whole demand by the Respondent is premature as it requires the hearing of the main suit to determine to obtain the said orders. The same is dismissed for lack of merit. 8. The Respondent is not opposed to Prayer (b), the same is thus allowed. 9. Prayer (c) in the Motion is opposed by the Respondent on the grounds that it is an administrative action and that it is premature. 10. The Tribunal reiterates that it has the power to lift prohibition orders if presented with sufficient evidence to do so. Any order issued by the Commissioner in pursuance of a tax liability that is in dispute falls squarely within the jurisdiction of the Tribunal under Section 12, as read with Section 29 of the TAT Act. 11. Courts and Tribunals exist to check and determine the fairness of administrative actions and decisions issued by persons in authority. The Respondent’s assertion that this is its administrative action of issuing Departure Prohibition Orders (DPO) is beyond the remit of the Tribunal; is accordingly misplaced and erroneous. 12. That said, the Tribunal has gleaned, through the Applicant’s affidavit sworn by Alibashir Mohamed Nurow, and is not able to discern the grounds upon which it seeks to have its DPO lifted. 13. An order cannot emanate from the Tribunal as of right. The Applicant was under a duty to explain and justify the reasons upon which it sought the intervention/help of the Tribunal. More so now that the Respondent had averred that he was a flight risk with no known assets in Kenya that might be relied on in the event that the tax in dispute crystallizes. Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 4 of 6 Board 14. At the very least, the Applicant ought to have explained whether he wanted to travel to attend an event, obtain treatment, purchase goods for his stock, meet investors abroad, whatever it is. The same ought to have been explained so that the inconvenience and prejudice suffered from the issuance of the DPO could be discernible. 15. The Applicant’s failure to justify or support the grounds upon which it sought the DPO to be lifted was its Waterloo in this Application. FINAL ORDERS 16. The upshot of the foregoing analysis is that the Application succeeds partially, and the Tribunal shall proceed to make the following orders: a) The application be and is hereby partially allowed. b) Prayers (a) in the Notice of Motion is dismissed. c) The Applicant’s Memorandum of Appeal and Statement of Facts, both dated 10th June 2026, together with the documents attached thereto, be and are hereby deemed as duly filed and served. d) The Respondent is at liberty to file its response within the statutory timelines from the date of this ruling. e) The Applicant’s prayer for the lifting of the Departure Prohibition Orders issued against its director, Alibashir Mohamed Nurow, on 2nd June 2026, is hereby dismissed. f) Each party to bear its costs. 17. It is so ordered. Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 5 of 6 Board DATED and DELIVERED at NAIROBI this ………3rd …...…… Day of …… July...…… 2026 ..........................………………………. DR. RODNEY ODHIAMBO OLUOCH CHAIRPERSON .…..….……………………. …. ………………………. CYNTHIA MAYAKA ABDULLAHI MEMBER MEMBER DIRIYE Ruling TAT MISC. No. E686 of 2026 – Ghaneema Enterprise Limited -vs- Commissioner of Legal Services Page 6 of 6 Board