[2025] KETAT 256 (KLR)

Hapag-Lloyd (Kenya) Limited v Commissioner of Domestic Taxes (Tax Appeal E114 of 2025) [2025] KETAT 256 (KLR) (27 June 2025) (Judgment)

Neutral citation: [2025] KETAT 256 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E114 of 2025

CA Muga, Chair, BK Terer, E Ng'ang'a & SS Ololchike, Members

June 27, 2025

Between

Hapag-Lloyd (Kenya) Limited

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant, a company incorporated in Kenya is the shipping agent of Hapag Lloyd AG (hereinafter “the Principal”), a non-resident shipping line registered in Germany pursuant to an Agency Agreement (hereinafter “the Agreement”) concluded between the Appellant and its shipping agent which became effective on 1st March 2021.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws (hereinafter “the Act”). Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. The Appellant lodged an application refund VAT claim pursuant to Section 17(5) of VAT Act, CAP 476 of the Laws of Kenya (hereinafter “VAT Act”) on i-Tax on 19th November, 2024 in respect of the periods 1st March 2023 to 31st March, 2023 and 1st June, 2024 to 31st October, 2024 amounting to Kshs. 1,076,661. 00. The Respondent reviewed the claim and rejected it on 22nd December, 2024.

4. Being dissatisfied with the Respondent's refund decision, the Appellant filed its notice of appeal dated 21st January, 2025 on 22nd January 2025.

The Appeal 5. The Appeal was predicated on the following grounds as outlined in the Memorandum of Appeal dated and filed on 4th February, 2025:a.The Respondent's directive that the Value Added Tax (VAT) refund application and ascertainment process awaits the outcome of other ongoing cases contravened Section 47 of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”) which designates the VAT refund process as a time-bound process.b.The Respondent misconstrued the provisions of section 13(5) of the Value Added Tax, CAP 476 of the Laws of Kenya (hereinafter “VAT Act”) which relates to the ascertainment of the taxable value of a supply and has no bearing whatsoever on the question of whether a recipient of a taxable supply has incurred input VAT costs.c.The Respondent's decision rejecting the Appellant's VAT refund application violated the Appellant's right to fair administrative action in light of the Respondent's letter of 17th September 2024 purporting to appoint the Appellant as a withholding VAT agent.

Appellant’s Case 6. The Appellant’s statement of facts were dated and filed on 4th February, 2025 wherein the Appellant stated as follows:

7. The Appellant stated that as a shipping agent, it is responsible for supporting the Principal with respect to the services as set out at article 2 of the Agreement which outlines the duties customarily performed by a shipping agent representing a container carrier and by an inland transport operator. The Appellant provides these services in its capacity as an agent of the Principal. The Appellant further stated as follows:

8. That in the course of its business and to sustain its existence as a business entity and the nature of its business as a shipping agent notwithstanding, the Appellant incurs expenses unique to its business and other expenses similar to those that any typical entity would incur in its business operations. Such expenses traverse across overhead expenses, hiring suppliers and purchasing goods in order to sustain its business.

9. That the expenses incurred by it in the course of its business are taxable supplies which are subject to Value Added Tax (hereinafter “VAT”) and that it therefore incurs VAT as part of its costs in the performance of its services. It was not in dispute that the Appellant's services are taxable services pursuant to the provisions of the VAT Act.

10. That its services to the Principal are consumed by the Principal outside Kenya and qualify as exported services pursuant to the provisions of the VAT Act. Accordingly, such services qualify as zero-rated supplies under paragraph 23 of Part A of the Second Schedule to the VAT Act. The services are also zero-rated supplies under paragraph 6 of Part A of the Second Schedule to the VAT Act on account of them being taxable supplies rendered to an international sea carrier.

11. That having regard to the nature of its services and through an application dated 19th November, 2024, the Appellant applied in the prescribed manner to the Respondent for a refund of Kshs 1,707,661. 00 being excess input tax resulting from zero rated supplies for the period 1st March 2023 to 31st March 2023 and 1st June, 2024 to 31st October, 2024. The application was made pursuant to Section 17(5)(a) of the VAT Act.

12. That by a VAT claim rejection order (the refund decision) made on 22nd December, 2024, the Respondent directed that the Appellant re-apply for the refund upon determination of its separately filed appeals at the Tribunal and proceeded to state as follows:“Claim rejected as there are several pending appeals related to the rejection of your previous refund claims, specifically concerning the principal -agent relationship under Section 13 (5) of the VAT Act. As your contract agreement remains unchanged and the outcomes of these appeals are critical for the technical interpretation and assessment of future claims”

13. The Appellant further analyzed the grounds raised in its Memorandum of Appeal as set out below:

I. The Respondent's directive requiring the appellant to await the outcome of the cases pending at the Tribunal and at the High Court runs contrary to the time-bound nature of the refund process under section 47 of the TPA 14. The Appellant stated that it incurs expenses in the course of its business and other expenses similar to those that any typical entity would incur in its business operations. It further stated that such expenses traverse across overhead expenses, hiring suppliers and purchasing goods in order to sustain the appellant's business. The expenses incurred by the Appellant in the course of its business are taxable supplies which are subject to VAT. The Appellant therefore incurs input VAT in the course of its business and in the performance of its services.

15. It was undisputed that the Appellant provides taxable services to its Principal, an international sea carrier resident in Germany which are zero rated for VAT purposes pursuant to paragraphs 6 and 23 of Part A of the Second Schedule to the VAT Act which provide as follows:“Where the following supplies, excluding hotel accommodation, restaurant or entertainment services where applicable, take place in the course of a registered person's business, they shall be zero rated in accordance with the provisions of section 7-6. The supply of taxable services to international sea or air carriers on international voyage or flight ...23. The exportation of taxable services.”

16. Having supplied VAT zero rated services to its Principal, the Appellant stated that it was entitled to a VAT refund having met the requirements set out under Section 17(5)(a) of the VAT Act as read with regulation 8 of the Value Added Tax (VAT) Regulations, 2017. Section 17(1) and 17(5)(a) of the VAT Act provide as follows:“17(1)Subject to the provisions of this Act and the regulations, input tax an a taxable supply to, or importation made by, a registered person may, at the end of the tax period in which the supply or importation occurred, be deducted by the registered person in a return for the period, subject to the exceptions provided under this section, from the tax payable by the person an supplies by him in that tax period, but only to the extent that the supply or Importation was acquired to make taxable supplies(5)Where the amount of input tax that may be deducted by a registered person under subsection (1) in respect of a tax period exceeds the amount of output tax due for the period, the amount of the excess shall be carried forward as input tax deductible in the next tax period:Provided that any such excess shall be paid to the registered person by the Commissioner where-a.such excess arises from making zero rated supplies;”

17. The Appellant stated that Regulation 8(1) of the VAT Regulations, 2017 provides as follows:“A registered person who makes taxable supplies at both the general rate and zero rate, shall only be entitled to a refund arising from making zero rated supplies.”

18. The Appellant met the requirements set out both in Section 17 of the VAT Act and Regulation 8 of the VAT Regulations 2017 in view of the following:a.The Appellant is a VAT registered person;b.The Appellant made purchases from suppliers during the periods 1st March 2023 to 31st March 2023 and 1st June 2024 to 31st October 2024. The purchases were made on account of overhead expenses, hiring suppliers and purchasing of goods;c.The Appellant was charged VAT by its suppliers. The invoices from the suppliers clearly delineated the consideration charged on the supply and the VAT amount charged on the consideration. The Appellant paid the charged VAT (input VAT) while settling the suppliers' invoices. This was undisputed;d.The input VAT was incurred by the appellant for purposes of making supplies to the Appellant's Principal which services are listed under Article 2 of the Agency Agreement;e.None of the services listed under Article 2 of the Agency Agreement are exempt supplies since none of them is listed under the First Schedule to the VAT Act. All the said services thus qualified as taxable supplies as defined under Section 2(1) of the VAT Act; andf.The services supplied by the Appellant to the Principal are zero-rated supplies. This was undisputed.

19. Having met the above requirements, the Appellant lodged its VAT refund application for Kshs. 1,707,661. 00 on 19th November 2024 which was well within the 24 months period from the date the input tax was paid as required under Section 17(5)(d) of the VAT Act.

20. Consequently, the excess input tax claimed for the period of claim was duly incurred and the claim was made within the prescribed statutory timeline for consideration. As a result, the Respondent had a proper refund claim before it which it ought to have considered.

21. The Respondent's singular contention in the refund decision issued on 22nd December 2024, was that the Appellant should re-apply for its VAT refund upon determination of the appeals (disputes) which are currently pending at the Tribunal and at the High Court.

22. The implication being that the Respondent did not find fault in the merit of the application or the application's compliance with the laid down procedure. Instead, the Respondent directed the appellant to reapply at a later date. This is notwithstanding the fact that the VAT refund application process is a time-bound process while the time for the determination of the appeals pending at the Tribunal and the High Court is indeterminate. The Respondent's directive and ultimate VAT rejection decision is thus tainted with unreasonableness and is at the very least, absurd.

23. Section 47(2) of the TPA, requires the Respondent to substantively and conclusively consider an application for VAT refund that has been lodged in the prescribed form in the following terms:“47(1)Where a taxpayer has overpaid a tax under any tax law, the taxpayer may apply to the Commissioner, in the prescribed form-a.to offset the overpaid tax against the taxpayer's outstanding tax debts and future tax liabilities; orb.for a refund of the overpaid tax within five years, or six months in the case of value added tax, after the date on which the tax was overpaid.(2)The Commissioner shall ascertain and determine an application under subsection (1) within ninety days

24. The above provision is couched in mandatory terms and obligates the Respondent to determine, in absolute terms, the substantive status of a taxpayer's VAT refund application. It gives no discretion to the Respondent in whatever shape or form to hide beneath the veneer of awaiting the outcome of other ongoing appeals as the respondent has purported to do in its refund decision of 22nd December 2024. The Respondent's decision of 22nd December 2024 falls short of a refund decision as envisaged under Section 47(2) of the TPA.

25. The Appellant stated that the Respondent had not made an absolute and substantive refund decision as envisaged under Section 47(2) of the TPA and it could not purport to do so now, having kickstarted and triggered the instant Appeal. The Respondent could not resuscitate the process of issuance of a refund decision having inconclusively and un-procedurally rendered a defective decision on 22nd December 2024.

26. The Appellant stated that Section 47(3) of the TPA, should take its course and the Appellant's refund application be deemed as having been allowed on merit and that on this ground alone, the instant Appeal should be allowed and the Respondent's refund decision be vacated in its entirety.

II. The Respondent misconstrued the provisions of section 13(5) of the VAT Act which relates to the ascertainment of the taxable value of a supply and has no bearing whatsoever on the question of whether a recipient of a taxable supply has incurred input VAT costs 27. In its refund decision of 22nd December 2024, the Respondent stated as follows:“Claim rejected as there are several pending appeals related to the rejection of your previous refund claims, specifically concerning the principal-agent relationship under Section 13(5} of the VAT Act. 2013.

28. Section 13(5) of the VAT Act provides as follows:“In calculating the value of any services for the purposes of subsection (1), there shall be included any incidental costs Incurred by the supplier of the services in the course of making the supply to the client:Provided that, if the Commissioner is satisfied that the supplier has merely made a disbursement to a third party as an agent of his client, then such disbursement shall be excluded from the taxable value.”

29. The Appellant stated that the above provision had no basis whatsoever and neither did it answer, the question of whether input VAT has been incurred and by whom. Instead, the provision strictly related to and guides on the issue of ascertainment of the taxable value of a supply where disbursements are made incidental to the provision of an underlying service (an anchoring service).

30. In the instant case, there is no issue regarding the taxable value of the purchases procured by the Appellant and on account of which the Appellant was charged input VAT that necessitated and culminated in the Appellant's VAT refund application of 19th November 2024. It was worth-noting that the Respondent never challenged the taxable value of the supplies made by the Appellant's suppliers to the Appellant and the Respondent had not placed any material on record to demonstrate otherwise. The taxable value of the purchases made by the Appellant occasioning the input VAT costs is therefore not in question.

31. Similarly, there was no question regarding the taxable value of the supplies made by the Appellant to its Principal. The Respondent's reliance on section 13(5) of the VAT Act which relates to ascertainment of the value of a taxable supply in rejecting the Appellant's VAT refund application on account of the Appellant's non-incurrence of the input VAT costs is thus misguided and erroneous.

32. In any event and without prejudice to the foregoing argument that the Respondent had no basis to place reliance on Section 13(5) of the VAT Act, the Respondent clearly misinterpreted the concept of disbursements and in the process equated it to reimbursements consequently arriving at an erroneous outcome.

33. The Appellant stated that VAT is based on the concept of value addition along a supply chain. A reimbursement of costs within the supply chain does not in any way change the colour or form of the value addition nature of a supply within the supply chain. The incidence of incurrence of costs for VAT purposes does not change on the sole basis that the person incurring the cost has been reimbursed on account of the costs, the fact that there is an agency agreement notwithstanding.

Ill. The Respondent's decision rejecting the Appellant's VAT refund application violates the Appellant's right to fair administrative action in light of the Respondent’s letter of 17th September 2024 purporting to appoint the Appellant as a withholding VAT agent. 34. Although the Respondent directed the Appellant to await the outcome of the pending cases at the Tribunal and the High Court, the Respondent disregarded pertinent intervening circumstances occasioned by the Respondent's active conduct. In a letter dated 17th September 2024 the Respondent informed the Appellant that the Appellant was eligible to be appointed as a Withholding Valued Added Tax ("VAT") Agent (WH VAT agent") pursuant to the provisions of Section 42A of the TPA. In that letter, the Respondent sought to designate the Appellant as a WH VAT Agent noting that the obligations of such an appointment would include“Withholding two percent (2%) of taxable value indicated on a tax invoice upon purchasing taxable supplies at the time of paying a registered supplier".

35. It is clearly evident that in the letter of 17th September 2024, the Respondent unequivocally admitted that the Appellant purchases taxable supplies and consequently incurs input tax which was why the Respondent intended to appoint the appellant as a WH VAT agent. It is worth-noting that the Respondent's averments in the pending appeals is that the Appellant did not incur the input VAT costs upon which its VAT refund applications (including the one necessitating this appeal) are anchored. Without prejudice to the merits of the other ongoing appeals at the Tribunal and the High Court, it is inconceivable how the Respondent can draw parallels between those other ongoing appeals and the refund application of 19th November 2024, the pertinent intervening circumstances occasioned by the letter of 11th September 2024 notwithstanding.

36. The Appellant stated that it bears noting that the Respondent's refund decision rejecting the Appellant's VAT refund application and the Respondent's letter of 17th September 2024 were issued approximately 2 months apart.

37. The Appellant stated that at the very least, the Respondent, as a public body vested with the mandate to administer and collect taxes has a duty to promote certainty in the administration of tax laws and guarantee certainty of outcomes in the discharge of its mandate. The Respondent's refund decision dated 22nd December 2024 viewed against its letter of 17th September 2024 defied this significant tax principle.

38. In conclusion, the Appellant's refund claim was merited in substance and complied with the requirements of Section 17(5) of the VAT Act and the Respondent ought to have substantively and absolutely determined the Appellant's refund application dated 19th November 2024. This, the Respondent did not do in contravention of Section 47(2) of the TPA.

Appellant’s Prayers 39. The Appellant sought the following reliefs from the Tribunal:a.That the Appeal be allowed.b.The refund rejection decision made on 22nd December, 2024 be set aside;c.The Respondent be ordered to consider the Appellant’s refund claim of 19th November, 2024d.Costs of this Appeal be awarded to the Appellant.

Respondent’s Case 40. The Respondent replied to the Appeal through its statement of facts dated 17th April, 2025 and filed on 22nd April, 2025.

41. From the outset, the Respondent contended that the matter of refund applications for input VAT as regards transactions between the Appellant herein and its related party Hap Lloyd BV(sic), and the application of Section 13(5) of the VAT Act to this relationship, has been heard and determined by this Tribunal in numerous Appeals filed by the Appellant herein against the Respondent.

42. It was the Respondent’s contention that the Appellant was abusing this Tribunal’s process by filing a multiplicity of follow up suits subsequent to the Tribunal’s decision, ostensibly to buy time as it pursues multiple Appeals at the High court against the decisions of this Tribunal.

43. It was the Respondent’s humble contention that instead of the Appellant using this Tribunal’s process for its own ends, it ought to apply the law as laid down by statute and clarified in the decisions of this Tribunal as well as those of the High Court, which this Tribunal affirmed in its judgements regarding the issues in dispute.

44. In response to ground (b) in the memorandum of appeal the Respondent stated that the Appellant’s contract with Hapag Lloyd AG outlines an agency principal relationship and therefore the input is not claimable as per Section 13(5) of the VAT Act and expenses incurred are reimbursed by the principal.

45. It was therefore the Respondent’s case that it is only the principal who may deduct input VAT made to an agent on behalf of the Principal.

46. The issue in the instant appeal before the Tribunal is similar to the dispute heard and determined by the High Court in Nairobi High Court Income Tax Appeal No E101 of 2020 Commissioner of Domestic Taxes Versus Dutch Flowers Group Kenya Limited, the learned judge in arriving at his decision reviewed the service agreements between the Appellant and stated at paragraph 16 of the judgment stated as follows:“… I firmly hold that notwithstanding that the agreement does not expressly state that the Respondent is a commission agent of FRE, the net effect of the clauses set out above spells the relationship between the two, the two are in an agency relationship. The income of the Respondent is controlled by the FRE in that the two agree at the beginning of the year on a budget on the costs for which FRE pays the same to the Respondent plus 5% thereon as the income for the latter.””The Court went on to conclude as follows:“…allowing the Respondent to claim input VAT would be to allow it to claim a cost belonging to FRE and not itself. The Appellant was right in declining the claim…”

47. This Tribunal in a judgment delivered on 18th November 2022 in Nairobi TAT Appeal No 838 of 202 Dutch Flowers Kenya Limited Vs Commissioner of Domestic Taxes adopted the Superior Court’s determination and held that the Taxpayer being an agent of the contracting principals cannot claim costs (input VAT) belonging to the Principals.

48. In addition, in TAT No. 217 of 2023 Hapag Lloyd Kenya Limited Versus The Commissioner of Domestic Taxes, which was an Appeal by the Appellant herein over similar facts to this instant Appeal, this Tribunal (in its Judgement of 12th July 2024), agreed with the finding in the Dutch Flower case quoted above and cited with affirmation the finding of the court in that case, agreeing with the Respondent’s position that the principal-agent relationship between the Appellant and its related entity precluded the Appellant from claiming the input VAT refunds.

49. It is the Respondent’s contention that since the Appellant herein has pending Appeals at the High court against the decision of this Tribunal in TAT No. 217 of 2023 and several other similar Appeals, the Respondent was right in rejecting the refund claims on this very ground and the grounds presented in its rejection notice.

50. In further response to ground 2, the Respondent contends that Section 13 (5) of the VAT Act provides as follows:“In calculating the value of any services for the purposes of subsection (1), there shall be included any incidental costs incurred by the supplier of the services in the course of making the supply to the client: Provided that, if the Commissioner is satisfied that the supplier has merely made a disbursement to a third party as an agent of his client, then such disbursement shall be excluded from the taxable value.”

51. It was the Respondent’s contention that the services offered by the Appellant are purely shipping management services to its parent holding company Hapag-Lloyd AG and therefore the Respondent reiterates its position that the Appellant is not entitled to claim input VAT under the circumstances.

52. In response to ground (c) in the Memorandum of appeal, on the averment that the Respondent contravened Article 47 of the Constitution and breached the Appellant’s right to fair administrative action:a.It was the Respondent’s contention that the refund process as established under the TPA was properly applied by the Respondent culminating in a refund rejection notice herein appealed against.b.That it is trite law, under the doctrine of exhaustion, that where a remedy has been provided under a statute, a person aggrieved by a breach under that statute may only pursue the remedy provided under that statute before seeking any other remedies as may be provided under fair administrative action provisions. It is therefore unprecedented for the Appellant herein to seek to pursue administrative action remedies within this Appeal when the TPA has properly provided an Appeals process against refund rejection decisions by the Respondent.c.That it was the Appellant who is seeking to abuse the Tribunal’s process by instituting a multiplicity of suits over the same subject matter that has already been heard and determined by this Tribunal in a series of previous appeals between the Appellant and the Respondent, whilst pursuing Appeals in these decisions at the same time.d.It was the Respondent’s contention that the Appellant ought to apply the decisions of this Tribunal in its current tax computations and refrain from bogging down this Tribunal’s process to preside over matters it has already made determinations over.

53. The Respondent therefore contended that the ground on breach of the Appellant’s Fair administrative action rights was misplaced and lacked merit.

54. The Respondent further stated that in order to claim input VAT, the Appellant and any other taxpayer is bound by and is required to comply with Section 17 of the VAT Act.

55. It was the Respondent’s position that the input VAT claim was legally and procedurally rejected and the assessment legally and procedurally issued and that the Appellant’s objection was accordingly measured and objection decision made as per the law.

Respondent’s Prayers 56. The Respondent sought the following reliefs:i.That the Tribunal upholds the Respondent’s refund rejection notice as proper in law and in conformity with the provisions of the VAT Act and the TPA.ii.That this Appeal be dismissed with costs to the Respondent as the same is devoid any merit.

Parties’ Written Submissions 57. The Appellant’s written submissions dated 6th May, 2025 and filed on even date were adopted by the Tribunal during its hearing on 4th June, 2025. The Respondent did not comply with the direction of the Tribunal to file its written submissions.

58. The Appellant reiterated its statement of facts which were based on an analysis of its grounds for appeal and accordingly the Tribunal will not re-hash the same. However, the Appellant outlined the case of Mount Kenya Breweries Limited v Commissioner of lnvestigation and Enforcement (Tax Appeal E111 of 2023) (2024) KETAT 746 (KLR) (24 May 2024) (Judgment) wherein emphasis was placed on the principle of certainty in tax administration, holding the following at paragraph 81:“The Tribunal notes that the canon of certainty is the hall mark of a good tax administration or policy and a long-held practice and principle.”

59. The Respondent's duty to exercise clarity and certainty was further emphasized in Republic v Commissioner of Domestic Taxes Large Tax Payer's Office Ex-parte Barclays Bank of Kenya Ltd /2022/ KEHC 1988 (KLR) where the High Court held as follows at paragraph 39:“the respondent is obligated by law to state with clarity its claim and state how the transaction falls within the terms of the statute. The respondent cannot exercise its duty like a trailer in the deep seas expecting all the fish by casting its net wide. The respondent’s decision in this respect falls below this standard and the transaction caught by the decision cannot be said to fall within the statutory definition of the tax”

60. The Appellant submitted that it then followed that the Respondent’s decision of 22nd December, 2024 fell short of the principle of certainty in taxation. The decision is also far from a fair administrative decision owing to the inconsistencies and the shifting of goal posts demonstrable by the Respondent.

Issues For Determination 61. The Tribunal having carefully considered the parties’ pleadings, documentation deduced in evidence and the Appellant’s written submissions has identified a single issue for determination.

Whether the Appeal is properly before the Tribunal. Analysis and Findings 62. The Tribunal having established the issue for determination will proceed to analyze it as follows:

Whether the Appeal is properly before the Tribunal. 63. This dispute arose when the Respondent rejected the Appellant’s refund tax claim through a rejection notice issued on 22nd December, 2024. The basis of the Appeal was first that the Respondent held that the Appellant did not incur input VAT costs whilst it did, second that the Respondent erred in its decision that the Appellant was not entitled to claim input tax or a refund and it further erred in failing to treat the Appellant and its Principal as distinct entities.

64. The Tribunal notes that the refund decision was issued on 22nd December, 2024 and that the Appellant filed its Notice of Appeal on 22nd January, 2025 a day later than that on which it should have done so. The following provisions of Section 13 of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”) provide the timelines within which and Appeal ought to be filed by a taxpayer:“13. Procedure for appeal(1)A notice of appeal to the Tribunal shall—(a)be in writing or through electronic means;(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner….”

65. The Tribunal notes that ‘Jurisdiction is indeed everything’. In the case Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited (Civil Appeal No. 50 of 1989) Nyarangi J held as follows:‘……Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. [emphasis]…..’

66. The Tribunal, upon establishing that the appeal was filed a day late, finds that it lacks jurisdiction to consider the instant Appeal on its merits. In the case of Equity Group Holdings Limited v Commissioner of Domestic Taxes (Civil Appeal E069 & E025 of 2020) [2021] KEHC 25 (KLR) (Commercial and Tax) (23 August 2021) Justice Mativo held as follows:“Article 159(2) (d) of the Constitution in clear terms talks about procedural technicalities. A statutory edict is not procedural technicality. It’s a law which must be complied with.”

67. Consequently, the Tribunal finds that the Appeal is improperly before it and is available for striking out.

Final Decision 68. The upshot of the foregoing is that the Appeal herein fails and accordingly the Tribunal proceeds to make the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own costs.

69. It is so ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF JUNE 2025. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER