https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/236

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E377/2026 KERIWEST HOTEL AND RESTAURANT LIMITED VS KENYA REVENUE AUTHORITY RULING 1. The Applicant filed the Notice of Motion dated 27th March 2026 and filed on 28th March 2026 under certificate of urgency and supported by an Affidavit sworn by Kipkemoi Koech. The Applicant sought the following Orders: 1. Spent. 2. This Tribunal be pleased to extend the time for filing the notice of appeal, memorandum of appeal, statement of facts and tax decision. 3. The costs be in the intended appeal. # Grounds for the Application 1. The Application was based on the following grounds: 1. That the Respondent issued Additional Assessment Order to the Applicant dated 30th November 2022, with assessment order numbers KRA202219059144, on account of VAT for the period of December 2021, demanding sum of Kshs.845,966.89 being principal tax. 2. That Applicant, in turn, lodged late objection application to the Respondent's assessments on 8th July 2025 on grounds of reasonable cause as provided for in Section 51 of the Tax Procedures Act, 2015, citing that there was an oversight by the then Accountant who failed to notify the management of the Applicant in good time in order for it to facilitate timely objection to the Respondent's assessment. * 1. That the Applicant's in turn lodged a late objection application was received and acknowledged by the Respondent on the same date vide the objection application acknowledgement received referenced KRA202593581661. 2. The Applicant’s That the Applicant's in turn lodged a late late objection application was accepted by the Respondent and the Applicant provided evidential documentation in support of its grounds of objection. 3. The Applicant, in its objection application, averred that the VAT charged by the Responded evolved from the sales variance between revenue as per Income Tax Company return and VAT for the period ended 31st December 2021. 4. The established sales variance related to income generated by the Applicant for the period in dispute and that the same had not been declared in the VAT returns but declared in the Income Tax return to show the actual income position to enable it pay resultant income tax on the same. 5. The Applicant stated that the undeclared sales related to zero rated income that had been realized in the course of its business and that since the same was not subject to VAT at the general rate of 16%, and that it was not declared in the VAT returns as it did not have any VAT implication. 6. The Applicant deals in both vatable and zero-rated supplies and, therefore, not all income generated by it is subject to VAT at the general rate of 16%. 7. That the Applicant relied on the Value Added Tax Act Cap 476(VATA) in arriving at the decision of not charging VAT on the established undeclared sales for the period in dispute. 8. That the Applicant did submit both oral and evidential records to the Respondent during the objection review stage but none of them was considered by the Respondent while issuing its objection decision. 9. That the Applicant is in possession of all the relevant documentation in support of its case and that the Respondent violated the provisions of the VATA in subjecting the zero-rated income to VẤT at the general rate of 16%. 10. That the Respondent went ahead to inconsiderably reject the Applicant's objection on 4th September 2025 vide its confirmation assessment notice, disregarding examination of all the necessary documents and information availed by the Applicant in support of its grounds of objection. 11. That the Respondent, in its decision, failed to acknowledge that the Applicant had wilfully assessed itself and declared income in its income tax company return at the end of the year, in inclusion of such income that had not been declared in the VAT returns, to allow it pay the resultant tax on its taxable income. 12. That the Respondent also failed to acknowledge that the Applicant had made efforts to ensuring that it complies with the law by filing its VAT returns as well as ITC returns on time and paid the resultant taxes to the Commissioner of Domestic Taxes as required by law. 13. That the Respondent contravened the provisions of the VATA by subjecting the established sales variance to VAT at the general rate of 16%, contrary to what the law provided for. 14. That the Applicant did not deliberately delay in lodging this appeal to the Respondent's objection decision but was occasioned by Managing Director was attending to his father, who was seriously ill and admitted in hospital, and who subsequently passed away. * 1. That the Applicant, in the interest of justice, prays that it be allowed to file a late notice of appeal, memorandum of appeal and statement of facts out of time. 2. That the Applicant prays that this Honourable Tribunal have mercy to it as its managing director has recovered from the loss of his dad and with the help of its tax representative/agent, is willing to defend its case and provide supporting evidence and explanation to this Honourable Tribunal. 3. That unless the prayer for extension of time to file this appeal is allowed, the Applicant will suffer substantial financial loss as it shall be compelled to pay a colossal sum of money on taxes which is not lawfully due and for not getting an opportunity to defend itself. 4. That it shall be just and fair that this application is allowed. # Response to the Application 1. The Respondent did not file a response to this application. # Analysis and Findings **(a) Whether the application is competent** 1. An application for leave is initiated by an application supported by an affidavit. To this end, Rule 10 of the Tax Appeals Tribunals (Procedure) Rules, 2015 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.* 1. The evidence in support of the application is adduced through a properly commissioned and signed affidavit. Evidence adduced through an affidavit is not subject to cross-examination unless the court otherwise directs. It then follows that affidavits and documents adduced through affidavits must be given the seriousness they deserve. 2. The Tribunal examined the affidavit in support of the application and noted that it was not signed by the deponent rendering it irredeemably fatal. 3. The Supreme Court in [**Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others**](http://kenyalaw.org/caselaw/cases/view/164510/) **[2018] eKLR** stated as follows in relation to unsigned affidavits: *“We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has not legal value in the matter before us. We have cheeked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent.”* 1. The Court of Appeal in **Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent) [2021] KECA 97 (KLR)** stated as follows in relation to unsigned affidavits: *“With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.”* 1. On this basis, the Tribunal observes that the affidavit as filed by the Applicant has no value to the notice of motion and should be struck out. Consequently, the affidavit together with all documents filed in support of the notice of motion should be struck out. The net effect is that the Applicant would be in the same position as having filed an application without supporting evidence. 2. In addition to the unsigned affidavit, the Tribunal notes that the impugned affidavit by Kipkemoi Koech does not state his relationship to the Applicant. The Tribunal further notes that the Applicant is a corporate body while Koech is a natural person. Actions for or on behalf of a corporate body cannot be done by authorized agents can act for or on their behalf. For instance, under Section 34 of the Companies Act Cap. 486, directors have power to bind company. 1. It then follows that if Kipkemoi Koech swore an affidavit but did not state his relationship to the Applicant, the question is whether the said Kipkemoi Koech has powers to bind the Applicant or not. This remains a question before the Tribunal since he did not even sign the affidavit. 2. It is the Tribunal’s considered view that this application is dead on arrival since it is fatally defective because the supporting affidavit is of no value to the Applicant’s motion. While the shortest route would be to dismiss this application on the basis that the Applicant did not file documents to support its application, in the interest of justice, the Tribunal is cognizant of the fact that by doing so would be an extreme. On this basis, striking out the application is the best option to allow the Applicant put its house in order and regularize its application. 3. Based on the foregoing the Tribunal finds and holds that the Application is incompetent and is ripe for striking out. # DISPOSITION 1. In the circumstances, the Tribunal finds and holds that the Notice of motion dated 27th March 2026 is incompetent and orders as follows: 1. The Notice of Motion dated 28th March 2026 be and is hereby struck out; 2. No orders as to costs. 2. It is so ordered. **DATED** and **DELIVERED** at **NAIROBI** this 19TH DAY OF MAY **2026** SIGNED BY/FOR: HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-05-19 17:21:31