[2023] KETAT 588 (KLR)

Kiraba v Commissioner of Investigations & Enforcement (Appeal 605 of 2021) [2023] KETAT 588 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KETAT 588 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 605 of 2021

E.N Wafula, Chair, Cynthia B. Mayaka, RO Oluoch, EN Njeru & AK Kiprotich, Members

June 29, 2023

Between

Charles Warutere Kiraba

Applicant

and

Commissioner of Investigations & Enforcement

Respondent

Ruling

1. The application which was by way of a Notice of Motion dated 8th September 2023 and filed under a certificate of urgency on the same date is supported by an Affidavit sworn by Faith Onyango, Counsel for the Applicant, seeking the following orders;i.Spent;ii.That pending hearing and determination of this Application, the Honorable Tribunal be pleased to stay any further proceedings in the main appeal.iii.That the Honorable Tribunal be pleased to review and set aside the proceedings of 18th August 2022 and the resultant orders.iv.That the Honorable Tribunal be pleased to make a declaration that the Respondent/Applicant’s Statement of Facts dated and filed on 10th July 2022 was duly filed and the same to be deemed as properly filed and duly on record.v.That the Honorable Tribunal be pleased to make a declaration that the Respondent has since been served with the Applicant’s Statement of Facts which had been filed on 10th July 2022. vi.That the cost of this application be in the course.

2. The application is anchored on the following grounds;i.That the matter came up for mentions on the 18th August 2022 when the Tribunal declared that Appeal was undefended and proceeded to issue directions on hearing.ii.That the Applicant had already filed its Statements of Facts on 10th July 2022 which was received and stamped by the Honorable Tribunal.iii.That when the matter came up for mention on 18th August 2022, the Applicant was also not given an opportunity to explain why the Statement of Facts filed on 10th July 2022 had not been received by the Respondent despite the same having been filed.iv.That should the matter proceed for hearing as per the Honorable Tribunal’s direction, the Applicant will be greatly prejudiced as it will be condemned unheard.v.That the urgency that then suffices is that the Applicant herein is desirous of having the matter heard wherein its pleadings including Statements of Facts dated and filed on 10th July 2022 have been considered as required by the rules of substantive justice and therefore prays that the proceedings of 18th August 2022 and the resultant orders therein be reviewed and set aside.vi.That unless the Tribunal certifies this application as urgent and reviews its orders issued on 18th August 2022 by setting the same aside and declaring that the Applicant herein is at danger of suffering irreparable harm to its access to justice where this Honorable Tribunal issues a decision without appreciating the facts leading to the Applicant filing its Statement of Facts on 10th July 2022. vii.That this application has been made without inordinate delay, since the matter has not been set down for hearing, and upon Counsel for the Applicant noting that its Statement of Facts had not been served on 18th August 2022, which information Counsel only became aware of on 18th August 2022 when the matter came up for mention.viii.That the Applicant is desirous of defending itself in this Appeal vide the documents files herein which includes Statements of Facts dated 10th July 2022. ix.That it is in the interest of justice that this Honoranble Tribunal allows this application and for the Applicant to be heard on its defense in this appeal.x.That no prejudice will be suffered by the Appellant if the orders sought herein are allowed.xi.That the Honorable Tribunal has jurisdiction to grant the orders sought.

Analysis and Findings 3. The Respondent/Applicant in this application is seeking to have its Statement of Facts dated and filed on 10th July 2022 to be deemed as properly filed and duly on record.

4. The Applicant stated that when the matter came up for mention on 18th August 2022, the Applicant was not given an opportunity to explain why the Statement of Facts filed on 10th July 2022 had not been received by the Respondent despite the same having been filed.

5. The Tribunal noted that the Appellant had filed and served the Appeal on 10th June 2022 therefore the Respondent ought to have filed and served its Statements of Facts on or before 10th July 2022. The Tribunal noted that in this case, although the Respondent filed the Statements of Facts on time 10th July 2022 the same were not served on the Appellant.

6. The relevant statutory provision as relates to the timelines for effecting service of the Statement of Facts on the part of the Respondent is Section 15(3) of the Tax Appeals Tribunal Act which reads as follows:-“The Commissioner shall serve the appellant with a copy of the statement of facts and other documents required under this section within two working days from the date of submission to the Tribunal.”

7. In situations where the Statement of Facts has not been served on time, the legislature deliberately and purposefully provided a remedy to the Respondent upon default in the timeous filing and service of the same by providing as follows under Section 15(4) of the Tax Appeals Tribunal Act:-“The Tribunal may, upon application in writing by the Commissioner, extend the time for submitting and serving the statement of facts and the documents referred to in this section, where it is proved to the satisfaction of the Tribunal, that the delay is not inordinate or other reasonable cause that may have prevented the Commissioner from submitting and serving the statement of facts and the documents within the specified period.”

8. The Applicant in this case stated that its application has been made without inordinate delay since the matter had not been set down for hearing, and upon counsel for the Applicant noting that it’s Statement of Facts had not been served on 18th August 2022, which information counsel only became aware on 18th August 2022 when the matter came up for mention.

9. The Tribunal noted that the counsel for the Applicant admits failure to ensure service as required by law as it only noted during the mention on 18th August 2022 that the documents had not been served on the Appellant.

10. The Tribunal is persuaded by the Ugandan case of Bamanya v Shain Sherahi Zaver CA No. 70 of 2001 (as cited in Callistus Ihah Thoya (DCD Suing through Phoebian Rehema Kalenga & another v Ronald Wanje Jembe [2020] eKLR) that“mistakes, faults, lapses and dilatory conduct of counsel should not visit on the litigant, and further that where there are serious issues to be tried, the Court ought to grant the application.”

11. The courts have held that in considering whether to extend time, due regard must be given to whether the extension will prejudice the opponent. In determining this, the Judge in Patrick Maina Mwangi v Waweru Peter [2015] eKLR quoted the finding in United Arab Emirates v Abdel Ghafar & Others 1995 IR LR 243 in which it was stated that:-“…….a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of cost cannot compensate………”

12. The test, therefore, as set out in the case above is whether the other party will suffer irreparable prejudice if the application to admit the Respondent’s Statement of Facts is granted.

13. The Respondent had stated that should the matter proceed for hearing as per the Tribunal’s direction, it will be greatly prejudiced as it will be condemned unheard.

14. That the urgency that then suffices is that the it was desirous of having then mater heard wherein its pleadings including Statements of Facts dated and filed on 10th July 2022 have been considered as required by the rules of substantive justice and therefore prays that the proceedings of 18th August 2022 and the resultant orders therein be reviewed and set aside.

15. The Tribunal did not find any prejudice to be suffered by the Appellant if the Respondent’s Statement of Facts were admitted. Further, the Tribunal found that there was no inordinate delay in filing this application. Additionally, it was the Tribunal’s view that in the interest of justice the Respondent’s Statement of Facts ought to be considered in the determination of the Appeal.

16. Consequently, the Tribunal finds that the Appellant will not suffer prejudice if the orders sought are granted.

Disposition 17. Based on the foregoing, the Tribunal finds that the application is merited and proceeds to make the following Orders:i. The application be and is hereby allowed.ii. The orders made on 18th August 2022 with regard to the Appeal being undefended are hereby set aside.iii. Respondent/Applicant’s Statement of Facts dated and filed at the Tribunal on 10th July 2022 be and is hereby deemed as duly filed and served.iv. No orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2023. ........................................ERIC N. WAFULACHAIRMANCYNTHIA B. MAYAKA RODNEY O. OLUOCHMEMBER MEMBER.........................................ELISHAH N. NJERU ABRAHAM K. KIPROTICHMEMBER MEMBER