[2025] KETAT 202 (KLR)

Jogoo Investment Limited v Commissioner of Investigation & Enforcement (Tax Appeal E261 of 2025) [2025] KETAT 202 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KETAT 202 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E261 of 2025

CA Muga, Chair, T Vikiru & BK Terer, Members

April 4, 2025

Between

Jogoo Investment Limited

Appellant

and

Commissioner Of Investigation & Enforcement

Respondent

Ruling

1. The Applicant moved the Tribunal vide the Notice of Motion application dated 12th March 2025 which was supported by an undated Affidavit sworn by Gopal D Patel, a director of the Applicant, seeking the following Orders:a.An extension of time within which the appellant is to file memorandum of appeal, Statement of facts and the supporting documents.b.That the costs of this application be provided for.

2. The Application was premised on the grounds set out on the face of the application and deponed in its affidavit, in summary that:i.The Applicant’s director has been sick, being in and out the country seeking treatment.ii.That the director is aware that the Respondent issued a confirmation of assessment dated 3rd July 2024 but that however, he did not receive the Respondent’s decision until March 2025. iii.That the Applicant was dissatisfied with the assessment dated 3rd July 2024. iv.That the Applicant’s director has been sick for the last four years and even when in the country he has still been under medication.v.That if the orders herein are not granted the Appellant shall suffer irreparable financial loss.vi.That this Tribunal has the power to extend the time for filing the Memorandum of Appeal and the supporting documents.vii.That it is just and equitable for this Tribunal to grant the orders and admit the Notice of Appeal herein as duly filed and served.

3. The Respondent did not oppose the Application.

Parties Submissions 4. The Tribunal directed that the application was to be canvassed by way of written submissions, however, neither party complied with the directions of the Tribunal.

Analysis and Findings 5. The Tribunal is enjoined to determine the Applicant’s application for leave to extend time for the filing of the Appeal out of time.

6. The Applicant was issued with an assessment for VAT and Income Tax on 23rd April 2024, in response thereof it filed its objections challenging the assessments on 15th May 2024, which process culminated with the issuance of the Objection Decision dated on 3rd July 2024.

7. The Applicant’s position was that it did not receive the Respondent’s decision dated 3rd July 2024 until March 2025 thereby delaying the filing of the Appeal.

8. The Tribunal’s jurisdiction to entertain applications of this nature is anchored on Sections 13 (3) and (4) of the Tax Appeals Tribunal Act, cap 469A of the Laws of Kenya (hereinafter “TATA”).

9. With regard to the grounds upon which a party seeking leave to lodge an appeal out of time, Section 13 (4) of the Tax Appeals Tribunal Act prescribes three as follows:“(4)An extension under subsection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause[emphasis ours] that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.”

10. Furthermore, Rule 10 (3) of the Tax Appeals Tribunal (Procedure) Rules, 2015 provides as follows:“(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.”

11. The Applicant outlined the following as its challenges that led to its failure in bringing its Appeal within the timelines prescribed in law:a.It did not receive the Objection Decision in time to enable timely action on its part.b.It’s director was unwell; andc.As a result of his sickness, its director was in and out of the country for treatment.

12. With regard to the time that the objection decision was received by the Applicant, the Tribunal could not establish the veracity of its claim given that it did not provide evidence of the same and further that, the Respondent did not file a response to this application.

13. To support the ground of sickness, the Applicant’s director attached a medical test report dated 3rd June 2024. The Tribunal however observed that the medical report filed by the applicant was unsigned and did not indicate the nature of the applicant’s sickness and the doctors instructions/remarks thereof.

14. The Tribunal was therefore at a loss in evaluating the import of the applicant’s medical condition on its failure to lodge its Appeal given that the medical report was also dated more than 8 months before the filing of the instant application. The Tribunal cannot therefore rely on the medical report only as the basis for allowing this Application, since it is unsigned and the nature of the sickness is unknown. The Tribunal cannot grant the Applicant leave to file its appeal out of time on the sole basis that its director was sick. The Tribunal must therefore consider the other evidence adduced by the Applicant in this regard and can construe that the hospital was out of the country having sighted the Title of the medical report.

15. The view of the Tribunal is that the Applicant’s director sought medical treatment abroad and therefore during the material time of the dispute, he was out of the country. The Applicant’s director attached a copy of his travel passport which indicated his entry to and exit from the country (Kenya) on various occasions during the period between the date of the objection decision and the date of the instant application. The Tribunal noted the relevant travel dates as follows:a.Arrival in India 21 May 2024, return to Kenya 22nd December 2024; andb.Arrival in India 17th January 2025.

16. The Tribunal therefore finds that the grounds advanced by the Applicant for delay fall within those envisaged by the provisions of Section 13(4) of the TATA. In addition, the finding of the Tribunal is that the delay was not inordinate and has been explained to the satisfaction of the Tribunal, which is minded to exercise its discretion in favour of the Applicant.

17. Consequently, the Applicant’s application succeeds.

Disposition 18. Based on the foregoing analysis, the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders:a.The Application be and is hereby allowed.b.The Applicant is hereby granted leave to file its Appeal out of time.c.The Notice of Appeal dated 12th March, 2025 and filed on 14th March, 2025 be and is hereby deemed as properly filed and served.d.The Applicant to file and serve its Memorandum of Appeal and Statement of facts within 15 days of the date of delivery of this Ruling.e.The Respondent to file its Statement of Facts within 30 days of this Ruling.f.No orders as to costs.

19. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 4TH DAY OF APRIL, 2025. CHRISTINE A. MUGA - CHAIRPERSONDR. TIMOTHY B. VIKIRU - MEMBERBONIFACE K. TERER - MEMBER