https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/140

Imarika Savings and Credit Cooperative Society Limited v Commissioner of Domestic Taxes (Tribunal Case E1138 of 2025) [2026] KETAT 140 (KLR) (4 May 2026) (Ruling) Neutral citation: [2026] KETAT 140 (KLR) Republic of Kenya In the Tax Appeal Tribunal Tribunal Case E1138 of 2025 RM Mutuma, Chair, G Ogaga, E Ng'ang'a & JM Malla, Members May 4, 2026 Between Imarika Savings and Credit Cooperative Society Limited Applicant and Commissioner of Domestic Taxes Respondent Ruling 1.The Applicant filed a Notice of Motion dated 5th March 2026 on 6th March 2026 seeking the following Orders: -a.That leave be granted to the Appellant to amend and merge the Statement of Facts dated 9th October 2025 and 19th November 2025 and filed with this Tribunal on 10th October 2025 and 19th November 2025 respectively,b.That this Honourable Tribunal be pleased to grant leave to the Appellant to include and file documentary evidence and additional information in support of matters already mentioned in the Statement of Facts but which were not previously supported by documentary evidence, the said information and documents being material and necessary for the just determination of this Appeal.c.That the amended Statement of Facts be deemed as duly filed and served upon the Respondent.d.That such further or other orders as this Honourable Tribunal may deem fit and just to grant.e.That the cost of the Application abides in the Appeal. 2.The Application dated 5th March 2026 is premised on the following grounds: -a.That the amendment is necessary for the just, fair, and complete adjudication of the matter before the Tribunal.b.That the Appellant inadvertently omitted to attach critical documents, specifically the member register and the volume of business from each of the category of members mentioned in the Statement of Facts.c.That the documentary evidence sought to be introduced through the proposed amendments is material and necessary for the just and effectual determination of this appeal. That they will clarify key issues and assist the Tribunal in reaching a fair and informed decision on the matter.d.That the proposed amendments will not alter the character of the original Appeal.e.That the amended Statement of Facts only seeks to bring out the factual explanation contained in the documents within the knowledge of the parties and exchanged prior to issuance of the Objection decision.f.That no prejudice shall be occasioned to the Respondent by allowing the amendment and inclusion of additional information.g.That the Applicant’s interest stands to suffer great prejudice if this application is not granted. 3.The Applicant further filed on 12th March 2026 Amended Memorandum of Appeal and Amended Statement of Facts both dated 12th March 2026 and the additional documents it referred to in its Notice of Motion Application dated 5th March 2026. 4.The Applicant filed a further a follow up Notice of Application dated 19th March 2026 on even date seeking the following orders:a.That the Amended Memorandum of Appeal and Amended Statement of Facts filed on 12th March 2026 be expunged from the record.b.That the Appellant be granted leave to substitute the same with an Amended Memorandum of Appeal and a Supplementary Statement of Facts.c.That the annexures filed on 12th March 2026 be deemed as properly filed.d.That the cost of the Application be in the cause. 5.The Application dated 19th March 2026 is premised on the following grounds:a.That the document currently on record contains an incorrect heading and contains details relating to the years 2020 to 2023 which were inadvertently included at the time of filing.b.That the substitution is necessary to correct the record and ensure clarity and accuracy in the proceedings.c.That no prejudice will be occasioned to the Respondent.d.That it is in the interest of justice that the document with correct heading and annexures be placed on record. Appellant’s Submissions 6.The Appellant filed on even date its Submissions in support of its Application dated 7th April 2026 submitting as follows:a.That this Tribunal has wide powers to allow the amendment of pleadings, production of additional documents/evidence, and to take evidence by way of witness statements and oral testimony by witnesses. That these powers are provided for in, inter alia, Sections 15 and 20 of the Tax Appeals Tribunal Act and Rules 10 and 21 of the Tax Appeals Tribunal (Procedure) Rules.b.That in Sergon v Commissioner of Domestic Taxes (Tax Appeal E248 of 2023) [2024] KETAT 1076 (KLR) (19 July 2024) (Ruling) this Tribunal discussed in detail the test for allowing additional or further documents and referred to various decisions of the courts, including: The Supreme Court decision in Mohamed Abdi Mahmud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR. The Court of Appeal decision in Tarmohamed & Another v Lakhani & Company [1958] EA 567. The Court of Appeal decision in Wanjie & Others v Sakwa & Others [1984] KLR 275. c.That the additional documents that the Appellant seeks to produce are critical in assisting the Tribunal to clarify the facts of the dispute and to arrive at a just and fair determination. That the amendments to the Memorandum of Appeal, information introduced in the Supplementary Statement of Facts and the additional documents all relate to matters that were already pleaded but which needed to be made clearer and further supported with additional material.d.That the additional documents go to the crux of the Appellant’s challenge to the tax assessment and are thus likely to have an influence on how the Tribunal will reach its decision after the interrogation of the documents. That if the documents have the potential of influencing the Tribunal’s decision, they ought to be admitted as excluding them will lead to a decision made without the benefit of all relevant documents.e.That while filing the appeal, the additional documents that the Appellant now seeks to produce were inadvertently left out of the bundle of documents filed before the Tribunal.f.That the additional documents that the Applicant seeks to produce were already made available to the Respondent during the objection process and during an ADR exercise conducted during the pendency of this appeal. That the Objection process and ADR process are part of the tax dispute resolution process which is anchored in law. That where material demonstrating that an assessment is erroneous is produced during the objection or ADR process, it ought to persuade the Respondent to settle the tax items that are demonstrated to have been erroneously assessed. That the additional evidence having been made available to the Respondent during those processes which were unsuccessful, it is only fair that the Tribunal also has sight of it and considers it when determining the appeal.g.That the additional evidence sought to be produced by the Applicant will remove any vagueness or doubt over the dispute and will have a direct bearing on the main issue in the appeal. That the documents clarify and further support points that have already been made by the Appellant when originally filing the appeal.h.That the additional documents are not too voluminous and will not be difficult or impossible for the Respondent to review and respond to effectively. That the documents had, in any event, been shared with the Respondent during the objection process and ADR process and have already been reviewed by the Respondent.i.That the Respondent has not demonstrated to the Tribunal any grave prejudice that they are likely to suffer should the additional documents the Appellant seeks to adduce be admitted by the Tribunal. That if anything, the Respondent does not stand to suffer any prejudice. That as a Commissioner of the State agency for the collection of revenue, the Respondent does not have any interest in collecting taxes that are not due or in overcharging taxes. That in addition, the Respondent will have an opportunity to review, analyse and respond to the evidence produced by the Appellant. That on the other hand, the Applicant will suffer immense prejudice if production of the additional documents is not allowed as it is likely to be subjected to the payment of taxes that are not due. 7.The Respondent filed a Replying Affidavit of Brian Wainaina dated 10th April 2026 and filed on 27th April 2026 citing the following as the grounds of opposition to the Application:-a.That procedure is not there for no reason and parties ought to abide by it. That procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality.b.That procedure is the handmaiden of justice and should be adhered to and not disregarded.c.That as an officer of the Respondent, it is evident that the documents intended to be adduced could easily be adduced during the objection by the Applicant before the Respondent made a decision on the matter in an attempt to settle the dispute.d.That the Appellant/Applicant has not indicated whether the documents it is purporting to introduce at this late stage were ever presented to the Respondent prior to issuance of the Objection decision.e.That Section 13(6) of the Tax Appeals Tribunal Act states that the Appellant/Applicant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which the decision relates.f.That it would be unreasonable and not in the interest of justice to allow additional documents which were not present nor availed when the Respondent made its decision on the extra taxes payable.g.That the Respondent adhered to all statutory timelines and performed its part of the obligations imposed by the Tax Procedures Act and it is only fair that the Appellant/ Applicant be made to do the same.h.That Courts and Tribunals cannot aid in the bending or circumventing of rules and shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.i.That the additional documents would prejudice the Respondent’s case and efficiency as it would force the Respondent to review the said documents and make a decision based on the new evidence disregarding the earlier documents used.j.That litigation must come to an end and it is evident that the Appellant/Applicant at the slightest idea of defeat decided to entangle us all in a tedious cycle of litigation in the guise of seeking leave to adduce additional documents so as to prolong and delay the determination of the substantive suit by the Tribunal.k.That this is especially true considering that the Appellant/Applicant sought to file this Application after the Respondent had been given pre-trial directions for filing submissions and the Respondent had even complied with filing of its submissions.l.That to ensure the maxim equity aids the vigilant and not the indolent is breathed into life this application which would prejudice the Respondent ought not to be allowed but struck out to give ample time and efficiency in determining the substantive suit.m.That the Appellant/Applicant wants to use this application to delay the determination of the suit and essentially delay the collection of the tax in dispute.n.That the Application having failed to meet the threshold for granting leave to adduce additional documents lacks in merit and ought to be dismissed with costs to the Respondent. Respondent’s Submissions 8.The Respondent filed on 28th April 2026 its submissions in support of its Application dated 15th April 2026 submitting as follows:a.The Respondent submitted that Appellant/Applicant has not met the threshold for grant of leave to file new documents at this stage and the application should be dismissed on that ground.b.That the Appellant/Applicant has filed a Notice of Motion Application that does not comply with Rule 10(2) of the Tax Appeals Tribunal (Procedure) Rules, 2015 as it is not accompanied with an affidavit stating reasons why the Appellant/Applicant was unable to submit the documents in time.c.That the Appellant/Applicant has also not provided any reason that meets the threshold of Rule 10(2) of the Tax Appeals Tribunal (Procedure) Rules, 2015.d.That further, the Supreme Court in Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR laid down the principles for allowing additional evidence.e.That the Court of Appeal in Safe Cargo Limited v Embakasi Properties Limited & 2 Others (2019) eKLR held as follows: -“ 12.This Court in discussing its power to admit additional evidence under Rule 29 (1) stated as follows in Republic v Ali Babitu Kololo (2017) eKLR“It has been said time and again that the unfettered power of the Court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal.”” f.The Respondent submitted that the Tribunal should consider the following issues among others to determine whether or not it will grant leave as sought by the Appellant:(a)whether there is additional new evidence;(b)if that evidence could have been obtained by the applicant after reasonable diligence before and during hearing;(c)if there is a probability the additional evidence would have an important influence on the result of the case and finally,(d)based on the foregoing, is there sufficient reason to admit the additional evidence;(e)whether the Application was filed without unreasonable delay(f)proportionality and prejudice of allowing the additional evidence. a. Whether there is additional new evidence;g.That the Appellant/Applicant has not indicated whether the documents that it seeks to introduce at this juncture were presented to the Respondent prior to issuance of the Objection decision.b. If that evidence could have been obtained by the Appellant/Applicant after reasonable diligence before and during hearing;h.The Respondent submitted that the additional evidence herein has been in custody of the Appellant/Applicant and the Appellant/Applicant therefore had every opportunity to adduce the same but failed to. That all the documents sought to be filed are not new and were at all material times in the custody of the Appellant/Applicant.i.The Respondent submitted that the documents were in custody of the Appellant/Applicant and it only required keenness and reasonable diligence to avail the same for consideration by the Respondent or the Tribunal and on that ground, the Application fails.c. If there is a probability the additional evidence would have an important influence on the result of the case;j.The Respondent submitted that the documents sought to be introduced by the Appellant/Applicant ought to have formed part of the documents submitted by the Appellant/Applicant for consideration by the Respondent during processing of the objection application. That a detailed objection application together with all the supporting documents should be made before the Respondent for its consideration and not at this point of the appeal.k.The Respondent submitted that inviting the Tribunal to consider documents not presented before and for consideration by the Respondent, would be inviting the Tribunal to usurp the mandate of the Respondent as granted under Section 5 of the Kenya Revenue Authority Act which is not only unprocedural but also unlawful. That on that ground, the Application fails.d. Whether there a sufficient reason to admit the additional evidencel.That the Court of Appeal in Attorney General v Torino Enterprises Limited [2019] eKLR in dealing with an application to introduce additional documents stated that: -“In Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] eKLR, it was expressed that under Rule 29 (1) (b), additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason”. Though what constitutes ‘sufficient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. Before this Court can permit additional evidence under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing; two, the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible.”m.That from the reading of the Application, the Appellant/Applicant has not indicated whether the documents were availed for consideration by the Respondent at the objection stage.n.That in addition, the Appellant/Applicant has not demonstrated any difficulty it had in obtaining and/or submitting the supplementary documents before the Respondent.o.The Respondent submitted that there is no plausible reason why the Appellant/Applicant failed to produce the documents before the Respondent and/or the Tribunal. That on that ground, the Application fails.e. Whether the Application was filed without unreasonable delayp.That the Court of Appeal in the case Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another (2014), eKLR held: -“There is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. We are of the considered view that the learned judge in considering the application, should have looked at the appellant’s conduct from the time the appeal was filed up to the date the application for reinstatement was filed… We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High Court and/or the delay in filing the application for reinstatement constitute an excusable mistake or was it meant to deliberately delay the cause of justice……. Why didn’t she set the appeal down for hearing for almost 14 years”? The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.”q.That the Tribunal had initially directed that this matter proceeds to hearing on the basis of submissions and the Respondent had already complied with filing its Submissions and hence this Application amounts to unreasonable delay. That the Application also fails on that ground.f. Proportionality and prejudice of allowing the additional evidencer.That in Raila Odinga and 5 Others Versus I.E.B.C. and 3 Others [2013] eKLR, the Supreme Court held: -“The other issue the Court must consider when exercising its discretion to allow a further affidavit, is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other Party is able to respond to it, than the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence is such as to make it difficult or impossible for the other Party to respond effectively the Court must act with abundant caution and care. In the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of addition evidence…”s.The Respondent submitted that the nature of the documents that the Appellant/Applicant seeks to introduce are documents that were in custody of the Appellant prior to filing of its Appeal before this Tribunal.t.That the Appellant/Applicant has not provided a plausible reason why it did not present the documents at the time of filing its appeal. That in essence the Appellant/Applicant is trying to bolster and fill in the gaps that were not filled before the Respondent by sneaking in the documents at a later stage.u.The Respondent submitted that this is a ploy by the Appellant/Applicant to introduce documents and litigate new issues at this advance stage when the same ought to have been determined by the Respondent.v.That the Appellant/Applicant is trying to circumvent a clearly laid down procedure of issuing tax decisions and challenging them and the Tribunal should not exercise its discretion in favor of such a party.w.The Respondent submitted that where there is a clearly laid down procedure to issue and challenge a decision, it is in the interest of justice to follow the laid down procedure and allow parties to follow that.x.That the Court in the case of Kenya Agricultural and Livestock Research Organization v Leah Okoko & another [2022] eKLR stated that: -“Having evaluated and considered each of the items of additional evidence sought by the Applicant against the detailed guidelines and criteria laid down by the Supreme Court in the Mohamed Abdi Mohamud supra case, and reiterating the holding by the Court of Appeal in the case of Attorney General v Torino Enterprises Limited [2019] eKLR, I observe that the clear guidelines issued by the Supreme Court directed at Appellate Courts are not conjunctive. However, an applicant must substantially comply with the guidelines.”y.The Respondent submitted that the Appellant/Applicant is required to meet substantially the laid down guidelines. That as demonstrated hereinabove, the Appellant has not met any of the guidelines.z.It was the Respondent’s submission that the Appellant/Applicant has not met the threshold for grant of leave to file supplementary list of documents and the Application should be dismissed.aa.The Respondent submitted that the Appellant/Applicant is an indolent and frivolous litigator and the Tribunal should not exercise its discretion in favour of such a party. Analysis and Findings 9.The Tribunal has considered the orders sought by the Applicant in the Notice of Motion Application dated 19th March 2026 to have the Amended Memorandum of Appeal and Amended Statement of Facts both dated and filed on 12th March 2026 expunged from the record and substituted with the Amended Memorandum of Appeal and Supplementary Statement of Facts both dated and filed on 19th March 2026, and the grounds in support thereof. 10.The Appellant averred that the document dated and filed on 12th March 2026 contains an incorrect heading and contains details relating to the years 2020 to 2023 which were inadvertently included at the time of filing. 11.The Tribunal has reviewed the Amended Memorandum of Appeal and Amended Statement of Facts both dated 12th March 2026 which the Appellant had filed on 12th March 2026 and notes that the pleadings presented in those documents included issues on assessments for the years 2020 to 2023, which are not the period of the assessment in the impugned decision that is the subject of the Applicant’s Appeal. 12.The Tribunal has reviewed the Amended Memorandum of Appeal and Supplementary Statement of Facts both dated 19th March 2026 and filed by the Applicant in the Application dated 19th March 2026 and notes that they have excluded the issues for the years 2020 to 2023, as asserted by the Applicant. The Tribunal finds that the substitution of the earlier submitted documents with the pleadings submitted on 19th March 2026 would ensure that the pleadings on record cover the period relevant to the Appeal. 13.Based on the foregoing, the Tribunal finds that expunging the Amended Memorandum of Appeal and Amended Statement of Facts dated and filed on 12th March 2026 from the record and allowing their substitution with the Amended Memorandum of Appeal and Supplementary Statement of Facts both dated 19th March 2026 and filed with the Notice of Motion Application dated 19th March 2026 would not occasion prejudice to the Respondent. 14.The Applicant in the Notice of Motion Application dated 5th March 2026 seeks to amend its Memorandum of Appeal and Statement of Facts, and to submit documents that were allegedly inadvertently omitted from its bundle of documents. The Applicant asserts that these are documents that had been sighted by the Respondent prior to the issuance of the Objection decision. The Respondent, on its part, asserts that the documents were not present nor availed when the Respondent made its decision on the extra taxes payable. 15.The Tribunal’s power in determining applications of this nature is anchored in Section 13(3) and (4) of the Tax Appeals Tribunal Act which provides thus: -“ 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, or 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.” 16.The determination before the Tribunal is whether to allow the Appellant to file additional documents in support of its Appeal. Section 13(6) of the Tax Appeals Tribunal Act provides as follows with regard to the determination of an appeal on the basis of documentation filed before the Tribunal:-“(6)The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which the decision relates.” 17.Consequently, in determining whether to allow additional or further documents, the Tribunal should be cognizant of whether the documents that the Applicant seeks to produce are limited to the decision against which it had lodged an appeal. 18.In this regard, the Tribunal is further guided by the case of Commissioner of Income Tax v Total Kenya Limited [2021] eKLR, where it was held: -“In Tarmohamed & Another v Lakhani & Company [1958] EA 567, the Court of Appeal for Eastern Africa adopted the decision in Ladd v Marshall [1954] WLR 1489 and stated:"Except in cases where the application for additional evidence is based on fraud or surprise: to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. "” 19.From the foregoing, it is clear that the power to admit additional evidence is discretionary. However, it should be exercised restrictively. That the evidence should be necessary and not meant to patch up an applicant’s case on appeal. Finally, the power should be exercised sparingly for the ends of justice. 20.In the present case, the Applicant has shown evidence that it had shared these documents with the Respondent at the pre-assessment, assessment and objection stages of the tax dispute, but the said documents were inadvertently omitted from its bundle of documents. This fact has not been demolished or proved to be false by the Respondent. 21.From the documents adduced by the Appellant, the Tribunal notes that the Respondent makes reference to the same documents presented by the Appellant, including member registers, audited financial statements, the Sacco by-laws, and the information contained therein in its pre-assessment notice, notice of assessment and Objection decision. From the Tribunal’s cursory perusal, these documents appear to be the basis of what informed the Respondent’s decision, that is, the Applicant’s membership composition. 22.It is the Tribunal’s considered view that failure to admit these documents would prejudice the Applicant if the Tribunal ends up making a decision without sighting or citing these documents which appear to have been supplied to the Respondent. On the other hand, the Respondent would suffer no prejudice as it would have the chance to file supplementary pleadings and reflect on whether the documents have probative value. 23.The Supreme Court has also spoken to this issue in the Mohamed Abdi Mahmud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR when it expressed itself thus: -“ 79.We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:(a)The additional evidence must be directly relevant to the matter before the court and be in the interest of justice.(b)It must be such that, if given, it would influence or impact upon the result of the verdict although it need not be decisive;(c)It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence.(d)Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;(e)The evidence must be credible in the sense that it is capable of belief.(f)The additional evidence must not be so voluminous as to make it difficult or impossible for the other party to respond effectively.(g)Whether a party would reasonably have been aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process.(h)Where the additional evidence discloses a strong prima fade case of willful deception of the Court;(i)The Court must be satisfied that the additional evidence is not utilised for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.(j)A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.(k)The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 24.Based on the foregoing guidance by the Supreme Court, the Tribunal has interrogated whether the said evidence seeking to be adduced is relevant to the case, and to this, the Tribunal is of the view that the documents presented in the Application which the Applicant seeks to adduce before the Tribunal are critical in assisting the Tribunal towards clarifying the facts of the dispute and in helping the Tribunal in arriving at a just and fair determination. 25.On whether it would impact or influence the result of the case if adduced, the Tribunal is of the view that the said documents appear to go to the crux of the Appellant’s argument against the tax assessment, therefore, the same are likely to have an influence on how the Tribunal is likely to reach its decision after the interrogation of such documents. 26.The Tribunal has also looked into the list provided by the Applicant and finds that the additional documents are not overtly voluminous, therefore, it might not be difficult or impossible for the Respondent to respond effectively. It is also apparent from the pre-assessment notice, notice of assessment and Objection decision that the Applicant shared the documents with the Respondent during the audit and objection proceedings. 27.The Tribunal has not been shown any evidence to suggest that the Applicant’s intended documents indicate a calculated willful deception of the Tribunal by the Applicant, nor does it seem to be the case that the documents sought to be produced are calculated to be utilised for the purposes of removing lacunae and filling gaps in evidence. The documents are relevant to the Appeal, and it is in the interest of justice and fairness to allow the same to be admitted in evidence. 28.The Respondent has not demonstrated to the Tribunal what kind of grave prejudice it is likely to suffer should the additional documents the Applicant seeks to adduce be admitted by the Tribunal. 29.It is thus the view of the Tribunal that the tests prescribed in the Mohamed Abdi Mahmud case (supra) have been met to the extent that the additional evidence sought to be adduced will generally help the Tribunal to resolve the issue in dispute and make a fair determination on whether the Respondent’s tax assessment against the Applicant was justified. 30.The balance of convenience therefore falls in favour of the Applicant who has shown a prima facie case deserving of the orders sought thereto. 31.The Tribunal is, in the circumstances, inclined to exercise its discretion in favour of the Applicant and allow a similar latitude in filing any additional documents to the Respondent for the purposes of balancing out the competing interests of the Parties in the Appeal. 32.The Tribunal also analysed the merits of the Respondent’s submission in opposition to the Application, where the Respondent submitted that the Appellant/Applicant has filed a notice of motion application that does not comply with Rule 10(2) of the Tax Appeals Tribunal (Procedure) Rules, 2015 as it is not accompanied by an affidavit stating reasons why the Appellant/Applicant was unable to submit the documents in time. 33.Rule 10(2) of the Tax Appeals Tribunals (Procedure) Rules provides as follows: -“ 10.Extension of time for submitting documents(1)Where the documents referred to in rule 3(2) are not filed within the time specified therein, the Tribunal may, upon application in writing, extend the time for submitting the documents.(2)An application for extension of time referred to in rule 10(1) shall be—(a)supported by an affidavit stating reasons why the applicant was unable to submit the documents in time;(b)served on the respondent by the applicant within two days of filing with the clerk.(3)The Tribunal may grant the extension of time if it is satisfied that the applicant was unable to submit the documents in time for the following reasons—(a)absence from Kenya;(b)sickness; or(c)any other reasonable cause.” 34.The Tribunal notes that Rule 10(2)(a) of the TAT (Procedure) Rules provides that the application for extension of time shall be supported by an affidavit stating reasons why the applicant was unable to submit documents in time. The Tribunal, however, also takes note that the Applicant herein has already given the reasons for the delay within the Application, being that the Applicant inadvertently omitted to attach the documents to its Statement of Facts, which reason the Tribunal has found to be a reasonable cause. 35.The Tribunal further notes that the Applicant already attached the documents which the Tribunal found to have been documents already sighted and reviewed by the Respondent during the pre-assessment, assessment and objection stages of the dispute. 36.Consequently, despite the technical defect in the Applicant’s Application, the Tribunal finds that because the lateness was explained, the documents are already presented at the Tribunal, the documents are necessary for the determination of the dispute, and the Respondent will not be prejudiced by the Tribunal’s grant of leave to the Applicant to file the additional documents, the Application remains competent. Disposition 37.Based on the foregoing, the Tribunal finds that the Application is meritorious and accordingly proceeds to issue the following Orders: -a.The Applications dated 5th March 2026 and 19th March 2026 be and are hereby allowed.b.That the Amended Memorandum of Appeal and Amended Statement of Facts both dated and filed on 12th March 2026 be and are hereby expunged from the record.c.The Appellant be and is hereby granted leave to file its Amended Memorandum of Appeal and Supplementary Statement of Facts both dated 19th March 2026, and the additional documents limited to the documents identified in the Application dated 19th March 2026.d.The Amended Memorandum of Appeal and Supplementary Statement of Facts both dated 19th March 2026, and the additional documents be and are hereby deemed to have been duly filed and served to the Respondent.e.The Respondent be and is hereby granted a corresponding leave to file and serve a Supplementary Statement of Facts and additional documents (if necessary) within Fifteen (15) days of the date of the delivery of this Ruling.f.No order as to costs. 38.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF MAY 2026.………………………………ROBERT M. MUTUMACHAIRMAN………………………………GLORIA A. OGAGAMEMBER………………………………EUNICE N. NG’ANG’AMEMBER………………………………JIMMY M. MALLAMEMBER