[2025] KETAT 172 (KLR)

Kenya Breweries Limited v Commissioner of Domestic Taxes (Tax Appeal 706 of 2021) [2025] KETAT 172 (KLR) (19 March 2025) (Ruling)

Neutral citation: [2025] KETAT 172 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 706 of 2021

CA Muga, Chair, AK Kiprotich & T Vikiru, Members

March 19, 2025

Between

Kenya Breweries Limited

Applicant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Applicant moved the Tribunal through an application dated and filed on 6th March, 2025 wherein it sought the following Orders:a.That the Tribunal be pleased to review and set aside its judgment and orders dated and delivered on 28th February 2025. b.That thereafter this Tribunal be pleased consider and determine appeal be substantively on its merits.c.That the costs of and occasioned by this application provided for.

2. The Application which was supported by an affidavit sworn by Mr. Walter Amoko, the advocate of the Applicant on the 6th day of March, 2025 was premised on the following grounds:a.On 28th February 2025, this Tribunal delivered its Judgment ("the Judgment") by which this Appeal was struck out on the ground that the appeal had been filed out of time without leave, a ground that quite properly had not be[sic] taken by the Respondent. This Tribunal was never addressed by either party on that ground and as a consequence of which it did not have before it the full and accurate facts relating to it.b.That in proceedings before this Tribunal designated as Tax Appeals Tribunal, Miscellaneous Application No. 112 of 2021 - Kenya Breweries Limited v Commissioner of Domestic Taxes ("the 2021 Application"), the Appellant had sought leave to file its Notice of Appeal, as well as Memorandum of Appeal and Statement of Facts out of time.c.The 2021 Application came up for hearing on 29th October 2021, when it was granted and directions given as follows:i.The Notice of Appeal dated 8th October 2021 be deemed to be filed, and leave granted for the Appeal out of time.ii.The Tribunal grants the Appellant leave to file its Memorandum of Appeal and Statement of Facts within the next 7 days.iii.The Respondent to file their response within 30 days upon service.d.The Applicant’s Memorandum of Appeal and Statement of Facts were filed electronically on 4th November, 2021 within the 7 days as directed with physical copies of them delivered to this Tribunal on 10th November 2025. The matter has proceeded since then on the basis that this appeal was thus timely, as it was.e.In the circumstances:i.There was a mistake and/or an error apparent on the face of the record in terms of sub-section 29A(2) of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya ( hereinafter “the TATA”) as the Applicant did not have the opportunity to present its case and make submissions on the question of the timeliness of its appeal contrary to the provisions of Section 26 of the TATA as well as the non-derogable constitutional guarantee of the right to a fair hearing under Article 50(9) of the Constitution.ii.In any event, there is sufficient reason to review the judgment and orders made under sub-section 29(2) of the TATA as it was made on the mistaken factual basis that the Applicant had neither sought nor obtained leave to lodge this appeal out of time when it fact it had.

3. The Respondent upon being served with the Application responded by filing the following grounds of opposition dated and filed on 10th March, 2025:a.The Applicant had not placed before this Tribunal a certified copy of the Orders of 29th October 2021 issued in Nairobi TAT Miscellaneous Application No. 112 of 2021 Kenya Breweries Limited vs Commissioner of Domestic Taxes.b.The Application herein did not meet the threshold for review, setting aside, varying or discharging this Tribunal’s Orders of 28th February 2025 and accordingly, should be dismissed with costs.

4. In a further Replying Affidavit dated and filed on 13th March, 2025 the Advocate of the Applicant, outlined the following additional grounds:a.That he swore an affidavit on 6th March 2025 in support of the Applicant’s application of the same date seeking to review the judgment and orders of this Tribunal on 28th February 2025 ("the Review Application"), in which, inter alia, he set out the circumstances under which the Applicant had sought and obtained leave to lodge this Appeal out of time in proceedings designated as TAT Misc. 112 of 2021. b.The proceedings in respect to the 2021 Application were not available at the Tribunal's registry by the time the Applicant’s advocate was making his first Affidavit. The file was traced and despite its best efforts, the Applicant had still not been able to extract the formal order granting extension of time as explained in paragraph 3 of the Applicant’s advocate 1st Affidavit, but the Case Tracking System (hereinafter “CTS”) showed that the Application was allowed by this the Tribunal on 29th October 2021 and the case marked as closed. The Advocate produced an extract from CTS.

5. On 14th March, 2025, the Tribunal directed parties to file and serve upon each other their written submissions on or before 17th March, 2025 and since both parties complied with the Tribunal’s directions, their written submissions have been carefully considered by the Tribunal.

Analysis and Findings 6. The Applicant sought a review of the decision of the Tribunal delivered on 28th February, 2025 on the basis that it had filed Miscellaneous Application Number 112 of 2021 and had been granted leave to file its Appeal out of time. A fact the Tribunal was unaware of when making its decision delivered on 28th February, 2025. The Respondent opposed the Application on the basis that the Order issued on 29th November, 2021 was not extracted and attached and that therefore the Application by the Appellant ought to be dismissed.

7. The Applicant has raised a pertinent issue in stating that the Tribunal could have disregarded the fact that the Appeal was filed late. The Tribunal also notes the ground by the Applicant that the Tribunal ought not to have considered the issue of the statutorily mandated timelines since neither party raised this issue in the Appeal. Section 13 of the TATA outlines the procedure for appeals and more particularly, Section 13 (1) and (2) of the TATA provide as follows:“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.(2)The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—(a)a memorandum of appeal;(b)statements of facts; and(c)the appealable decision; and(d)such other documents as may be necessary to enable the Tribunal to make a decision on the appeal.”

8. The firm view of the Tribunal is that timelines within which an Appeal can be filed are statutorily mandated. The Tribunal notes the opinion of J Mativo [as he then was] in Equity Holdings Ltd vs Commissioner of Domestic Taxes Civil Appeal E069 and E025 of 2020(2021) KEHC 25(KLR) that express statutory edicts are not procedural technicalities and that further, Article 159 (2) (d) of the Constitution was not meant to oust express statutory provisions and to open a window for disregard of statutory requirements. It is the Tribunal’s strong view that the law is settled that statutory timelines are not a procedural technicality. Statutory timelines are set in mandatory terms and are express statutory edicts.

8. “Jurisdiction is everything” as held by Nyarangi J in the case Owners of Motor Vessel “Lilian S” V Caltex Oil (K) Limited (1989) eKLR. In any matter before it, the Tribunal must first establish if it has jurisdiction to exercise its adjudicatory powers and as held in the case Bwana Mohamed Bwana vs. Silvano Buko Bonaya and 2 Others (2015) eKLR , a court cannot exercise the adjudicatory powers conferred by the law or the Constitution where an appeal is incompetent. In tax matters such as TAT Appeal no.706 of 2021, late filing of an Appeal is not a simple matter that can be ignored and wished a way by an appellant. The time within which an Appeal should be filed is statutorily mandated and accordingly the same should be complied with and if it is not complied with, the Tribunal cannot hear the matter on its merits. The Tribunal in establishing whether it has jurisdiction or not is compelled to consider whether an Appellant or Respondent has complied with the mandatory statutory provisions and timelines set out in statute.

9. The Tribunal reiterates that Section 13 of the TATA was drafted in mandatory terms as regards the timelines in filing an Appeal. Accordingly, the Tribunal is of the further firm view that the consequence of an incompetent Appeal is that the Tribunal cannot exercise its adjudicatory powers. The Tribunal also notes that the incompetence of an Appeal may or may not be curable.

10. The Tribunal notes that the Applicant, in its record of Appeal ought to have notified the Tribunal that its Appeal was late but that it had sought the requisite leave to file its pleadings out of time. The lapse in time was obviously outlined in the pleadings and the Tribunal could not disregard that fact on the basis that none of the parties raised this ground in their respective pleadings. The Applicant must be aware that the Tribunal is a court established pursuant to Article 162 (4) of the Constitution and that therefore the Rule of Law must prevail as it makes its decisions. Further the Applicant ought to be aware, based on established authoritative precedents, that statutory timelines are not merely procedural technicalities but are statutory edicts.

11. The Tribunal having now been made aware that the Applicant was indeed granted leave to file its Appeal out of time will proceed to examine if it can review its Orders. The Tribunal’s powers to review its Decrees or Orders are as set out under Section 29A of the TATA which provides as follows:“(1)a person aggrieved by a decree or an order from which no appeal has been preferred from the Tribunal to the High Court, may apply for review of the decree or the order within seven days from the date the decree or order was made by the Tribunal.(2)Applications for review of decree or orders under subsection (1) may be made –a.upon the discovery of new or important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by the applicant at the time when the decree was passed or the order was made;b.on account of some mistake or error apparent on the face of the record; orc.for any other sufficient reason.”

12. On 28th February, 2025 the Tribunal delivered its Judgement in respect of TAT Appeal No. 706 of 2021 wherein it decreed that the Appeal was incompetent and proceeded to make its Orders as set out below:“Final Decision55. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal is incompetent therefore, the Tribunal makes the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own cost. 56. It is so Ordered. “

13. The Tribunal notes that the Applicant has made an application for the review by the Tribunal of its Orders within the statutory limit of seven (7) days pursuant to and in compliance with Section 29A(1) of the TATA , the Tribunal therefore has the jurisdiction to consider the Application. The TATA specifically refers to the issue of review of decrees or orders in order for the Tribunal to consider the matter in its full merits it must consider whether it is capable of doing so first and will therefore rely on the following holding by Mativo J in the case Bethuel Omondi Okal vs. Managing Director KPLC & Co. [2017] eKLR where the decision in National Bank of Kenya Ltd vs. Ndungu Njau (1996) KLR 469 (CAK) was upheld at page 381 :“A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.”

14. The Tribunal in this instance notes that the apparent error was the omission of the consideration in making its determination, that the Applicant was indeed granted leave by the Tribunal to file its Appeal out of time on 29th October, 2021.

Disposition 10. The upshot of the foregoing is that the Application has merit and the Tribunal proceeds to make the following Orders:a.The Application be and is hereby allowed.b.The Judgement delivered by the Tribunal on 28th February, 2025 in TAT APPEAL NO. 706 of 2021 is hereby set aside.c.TAT APPEAL No. 706 of 2021 is referred back to TAT Panel 3 for consideration of the case on its merits.d.Each party to bear its own cost.

11. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 19TH DAY OF MARCH, 2025. …………………………………CHRISTINE A. MUGA - CHAIRPERSON……………………………**ABRAHAM K. KIPROTICH - MEMBER……………………………TIMOTHY V. VIKIRU (DR.) - MEMBER