https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/302

**REPUBLIC OF KENYA** **IN THE TAX APPEALS TRIBUNAL AT NAIROBI** **TAX APPEAL NO E746 OF 2026** **GULIYES GROUP LTD…………………………………….....……APPLICANT/APPEALANT** **VERSUS** **THE COMMISSIONER DOMESTIC TAXES………….………….……………..RESPONDENT** **RULING** **THE APPLICATION** 1. The Applicant, vide a Notice of Motion dated and filed on 23rd June, 2026, under a Certificate of Urgency, and supported by the Supporting Affidavit of Muhamud Ahmed Mohamed, sought the following orders: - * + - 1. THAT the application be certified urgent and heard *ex parte* in the first instance. 2. That the Applicant/Appellant be granted an extension of time with regard to the filing of the Notice of Appeal, memorandum of appeal and the statement of facts herein. 3. THAT the Applicant/Appellant be granted leave to file its Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time against the Respondent’s decision issued on 19th July 2021. 4. THAT the Honourable Tribunal be pleased to deem the annexed Notice of Appeal, Memorandum of Appeal and Statement of Facts as being properly on record. 5. THAT the tax decision dated 19th July 2021 and any other consequent tax demands be stayed pending the hearing and determination of this application. 6. THAT the costs of this Application be in the main Appeal. 2. The Application is based on the grounds contained in the Affidavit of GULIYAS GROUP LTD, Written Submissions dated 22nd July 2026, and the following grounds: * + - 1. THAT the Applicant/Appellant was sick during this period of the assessments and objection and had engaged another tax representative to handle its tax affairs, who failed to respond on time as stipulated in law. 2. THAT due to the situation of health issues and lapse on the part of the previous tax representative to follow up the Appeal came to the Applicant/Appellant’s attention after receipt of a tax demand from the Respondent. 3. THAT upon follow-up with the Respondent’s office, the Applicant/Appellant was informed of the failure of the previous tax representative to execute the appeal, despite the director being unwell during this period, and was therefore advised to institute this appeal afresh for the matter to be resolved. 4. THAT it incessantly tried to reach the said tax representative, but the latter was unreachable and had already left his former place of work. 5. THAT it was thus forced to engage the current agent to help it with its institution. 6. THAT in ***Aspire Kenya Limited V Commissioner of Domestic Taxes [2025] KETAT 302 (KLR),*** the Appellant was in a similar conundrum as the Applicant because its agent had committed an inadvertent mistake that led to the failure to file a tax appeal within the statutory timeline as envisaged in the law. 7. THAT it is a trite and well-settled legal position that “*a taxpayer should not be punished for the mistake of their tax agent/ representative.”* 8. THAT its appeal was aligned with the principles for extension of time in ***Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] eKLR*** *and* ***Wasike V Swala [1984] KLR 591.*** 9. THAT it has an arguable appeal, as was advised by the Court of Appeal in ***Stanley Kang’ethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR.*** 10. THAT it had demonstrated that there was a reasonable cause for the delay, as per the Supreme Court’s holding in ***County Executive of Kisumu V County Government of Kisumu & others [2017] KESC 16 (KLR).*** 11. THAT there was no inordinate delay as was enunciated in ***Joseph Odide Walome V David Mbadi Akello [2022] eKLR.*** 12. THAT the orders, if granted, won’t prejudice the respondent, as was guided in ***Edith Gichungu Koine V Stephen Njagi Thoithi (2014) eKLR, Patrick Maina Mwangi V Waweru Peter [2015] eKLR*** and ***United Arab Emirates V Abdel Ghafar & others 1995 IR LR 243:*** **THE RESPONSE** 1. The Respondent filed its Replying affidavit dated 20th July 2026 and written submissions dated 22nd July 2026 against the Application, outlining the following grounds: * + - 1. THAT the Applicant has not met the conditions of section 13(4) of the Tax Appeal Tribunal Act to warrant the exercise of the Tribunal's discretion in its favour. 2. THAT the delay has not been sufficiently explained, as it was merely indolent in filing its appeal or objection. 3. THAT it is in the public interest that the application be dismissed. * + - * 1. THAT the applicant has failed to satisfy the principle of extension of time enunciated in the case of ***Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] eKLR and Mwangi v Kenya Railway*s** as cited in the case of ***APA Insurance Limited v Kinyanjui Muturi 2016 eKLR*.** 2. THAT the appeal was filed late by years, and that equity aids the vigilant and not the indolent, as was explained in ***Yussuf Mohamed Salat v Idris Ali Ahmed [2009] eKLR and Mwangi S. Kimenyi v Attorney General & Another (2014) eKLR.*** 3. THAT the Applicant did not meet the threshold set out in the above-cited case in the following ways: The Applicant failed to demonstrate a reasonable cause of its failure to appeal within the statutory timelines. The Applicant did not demonstrate the existence of a prima facie arguable appeal; a cursory perusal of the filed Memorandum of Appeal utterly fails to disclose grounds for appeal. The Applicant will cause the Respondent prejudice should this application be allowed, since the collection of the due taxes would be further delayed. * + - * 1. THAT the exercise of discretion cannot favour the Applicant, as was explained in the case of ***Cleophas Wasike v Mucha Swala [1984] eKLR.*** 2. THAT the Applicant’s appeal was not arguable, as asserted in the case of ***Joseph Gitahi Gachau & Another v. Pioneer Holdings(A) Ltd. & 2 Others, Civil Application No. 124 of 2008.*** 3. THAT Applicant has not demonstrated any merit in their intended appeal to warrant the exercise of discretion in their favour. **ANALYSIS AND FINDINGS** 1. The Applicant herein seeks leave to file its appeal out of time on the grounds that it has an arguable appeal; its director was unwell, and the tax agent that was instructed to file the appeal failed to do so without informing the Appellant. 2. The Respondent avers that the delay in filing the appeal is inordinate, not well explained, and the appeal in issue is bereft of merit. 3. The power of the Tribunal to enlarge the time for filing appeals beyond the time provided for in the statute is granted by Section 13 of the Tax Appeals Act (Cap. 469A), which provides as follows: - *“Section 13 (3) The Tribunal may, upon application in writing or through electronic means, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).* *(4) An extension under subsection (3) may be granted owing to absence from Kenya, sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.”* ***(emphasis added).*** 1. The Tribunal has emphasized on several occasions that its power under Section 13 of the Tax Appeals Tribunal Act (Cap. 469A) is discretionary and must be exercised with an abundance of caution to serve the ends of justice. The High Court in ***Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997,*** outlined the factors that Tribunals and Courts of Law should consider in extending time as follows: - *“It is now settled that the decision whether to extend the time for appealing is essentially discretionary.” It is also well stated 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 reasons 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.”* 1. In the instant application, the applicant insists that its director was unwell and yet nothing was attached to the supporting affidavit to support this allegation. It additionally asserted that the failure to lodge the appeal was an error on the part of its erstwhile tax agent and yet it filed nothing to confirm the existence of, or any communication between it and the said agent regarding this issue. 2. Considering that Section 30 of the TAT Act has placed the burden of proof on the Applicant, the said Applicant was obliged to discharge this burden to support its averments by way of evidence. This was not done. 3. The late attempt by the Applicant to cure this gap by attaching medical documents to its submission was futile because submissions are legal arguments, not evidence, and must reference properly filed material. Put another way, evidence cannot be introduced through submissions as was explained in the case of Daniel ***Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR*** where it was stated that: *“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it.”* 1. In the end, the evidence attached by the applicant to its submissions to support its application militates against the law and could not aid it in his application. 2. The Objection decision in this case was issued on 21st May 2021. Leave to file an appeal out of time was this filed five years later. Accordingly the Appellant had the onerous task of explaining * + - 1. why it took it five years to file the present application. 2. Why it took it five years to realise that the tax agent had not filed the appeal? * + - * 1. Why it did not follow up with the tax agent on the status of its case for five years, and yet a tax case affects a company’s financial status and is a major issue that needs constant review by the board. 2. Why has it not provided evidence of who are directors of the applicant are, and whether there was any other director who could deal with these tax issues during the five-year period in the possible absence of one director. 3. Why the company has continued to operate in the absence of the director who was allegedly sick, and why the person in charge during the five years could not deal with this pending tax issue. 1. The absence of answers regarding the clarity of these issues has led the Tribunal to conclude that the Applicant has failed to discharge its burden of proof to explain the cause of the delay and the reasons for the inordinate delay, as required of it under Section 13(4) of the TAT Act and the case of ***Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.*** 2. Flowing from the foregoing analysis, the Tribunal holds that the Applicant’s application has not met the threshold set out under Section 13(4) of the Tax Appeals Tribunal Act (Cap 469A) to obtain the orders it seeks. **FINAL ORDERS** 1. The upshot of the foregoing is that the instant Application lacks merit and the Tribunal shall proceed to make the following orders: - 2. The Application be and is hereby dismissed. 3. Each party to bear its costs. 4. It is so ordered. **DATED and DELIVERED at NAIROBI this ………7th...……. Day of ……August..…… 2026** **..........................……………………….** **DR. RODNEY ODHIAMBO OLUOCH** **CHAIRPERSON** **.…..….……………………. ..….……………………….** **CYNTHIA B. MAYAKA DR. ERICK KOMOLO** **MEMBER MEMBER** **………………………………** **ABDULLAHI DIRIYE** **MEMBER**