Muruthi v Commissioner Legal Services and Board Coordination (Miscellaneous Case E034 of 2026) [2026] KETAT 145 (KLR) (26 June 2026) (Ruling)

Muruthi v Commissioner Legal Services and Board Coordination (Miscellaneous Case E034 of 2026) [2026] KETAT 145 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KETAT 145 (KLR) Republic of Kenya In the Tax Appeal Tribunal Miscellaneous Case E034 of 2026 RM Mutuma, Chair, JM Malla, G Ogaga & T Vikiru, Members June 26, 2026 Between Leah Wamahiga Muruthi Applicant and Commissioner Legal Services and Board Coordination Respondent Ruling 1.The Applicant vide a Notice of Motion application dated and filed on 29th April 2026 under certificate of urgency and supported by an affidavit sworn by the Applicant sought for the following Orders:-a.Spentb.Spentc.That the Honourable Tribunal be pleased to extend time for the Applicant to file an Appeal out of time against the Respondent's decision dated 30th December 2024 declining the Applicant's late objection.d.That leave be granted to the Applicant to file the Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time.e.That the Memorandum of Appeal and Statement of Facts annexed hereto be deemed as duly filed upon payment of the requisite fees.f.That the cost of this application be in the cause. 2.The application was premised on the following grounds:-a.That the Respondent issued a pre-assessment notice dated 18th December 2023 in respect of alleged Capital Gains Tax liabilities arising from the transfer of Land Reference Number Nyahururu Municipality Block 4/60.b.That upon receipt of the pre-assessment demand dated 18th December 2023, the Applicant noticed that incidental costs had not been taken into account and sought the default assessment to be amended accordingly.c.That despite the said request, the Respondent failed and/or neglected to factor in the incidental costs and did not amend the assessment.d.That the Applicant made subsequent follow-ups reiterating the request, but the Respondent failed to respond.e.That instead, the Respondent proceeded to issue a Demand Notice based on an assessment that did not consider the Applicant's legitimate adjustments.f.That the Applicant thereafter lodged an application for late objection, which was declined on 30th December 2024.g.That the intended Appeal raises arguable and meritorious grounds, particularly that the tax demanded is excessive as it does not factor in incidental costs.h.That the delay in filing the Appeal was occasioned by the Respondent's failure to respond and properly consider the Applicant's position, and is therefore excusable.i.That the Applicant stands to suffer irreparable prejudice if denied an opportunity to be heard on appeal.j.That it is in the interest of justice and fairness that this Application be allowed. 3.The Respondent filed a replying affidavit sworn by Mr. Ismael Cherutich, an officer of the Respondent raising the following grounds of opposition, that:a.The Tax Appeals Tribunal lacks jurisdiction to entertain the intended Appeal since there is no appealable decision pursuant to sections 51(12) and 52(1) of the Tax Procedures Act, Cap. 469B and/or section 13 of the Tax Appeals Tribunal Act, Chapter 469A Laws of Kenya.b.The Respondent’s Decision to decline an extension of time to object is not an appealable decision within the meaning of section 3 of the Tax Procedures Act, Cap. 469B as it is an administrative decision amenable to review by a judicial authority other than the Tax Appeals Tribunal.c.The Respondent’s decision under section 51(7) of the Tax Procedures Act, Cap. 469B is not subject to an appeal as the Respondent did not consider the Applicant’s objection on merit on account of the Applicant’s failure to lodge a valid objection pursuant to section 51(2) of the Tax Procedures Act.d.To the extent that there is no valid notice of objection and an appealable decision, the Application and the intended Appeal is bad in law and an abuse of the judicial process and thus should be struck out in the first instance with costs to the Respondent.e.There is no valid appeal that can be lodged against the assessments that have become due by operation of law and this militates against the Applicant’s argument that there is an arguable appeal.f.The Applicant’s failure to validly object against the Respondent’s assessment is not a mere technicality that can be cured under Article 159(2)(d) of the Constitution of Kenya, 2010 but a deliberate omission that runs on the face of clear statutory provisions.g.The fact that the Applicant has delayed in approaching the Tribunal, even though inappropriate, demonstrates how indolent and unrepentant the Applicant is in enforcing its rights.h.Contrary to the Applicant’s averments that she sought the amendment of the Pre-Assessment Notice, the Applicant never responded to the Respondent’s Pre-Assessment Notice and this is the reason why the Respondent issued a default assessment.i.Further, during the review of the Applicant’s late objection, the Applicant never produced any single documentary evidence to support her allegations despite being requested on 17th December 2024 with a reminder on 19th December 2024.j.The Applicant’s allegations of there being incidental costs were only raised after the Applicant’s late objection had been reviewed and a decision issued on 30th December 2024 declining to grant extension of time.k.The issue of disallowed incidental cost is raised for the first time after the fact through a letter dated 28th March 2025 and 17th April 2026 at a time the Respondent had concluded a review under Section 51(7) of the Tax Procedures Act, Cap. 469B.l.Contrary to the Applicant’s allegations that there were follow ups, there is no proof that the Respondent had given an undertaking or representation that the decision of 30th December 2024 will be reviewed. The Respondent responded to the Applicant’s application and late objection dated 13th December 2024 promptly and within statutory period of 14 days as required by law. Thus, the Applicant’s allegation that she delayed appealing because the Respondent failed to respond and properly consider its position is false and amounts to misrepresentation of facts.m.Further, the Applicant has not given satisfactory reasons for her failure to file an appeal or seek a review of the Respondent’s Decision within the statutory timelines. The Applicant has not given any good reason and provided documentary evidence in support to justify her failure to lodge a timeous application and the appeal.n.The Respondent stands to suffer greater and irreparable loss if the Appellant is entertained to hold further the revenue which have crystalized. That statutory timelines give rise to substantive rights and obligations and thus the Respondent will be prejudiced by extension of time as it will not be in a position to collect taxes which have crystallized. 4.The Tribunal further on the 5th May 2025 directed the parties to file and serve their written submissions within 7 days, the Respondent filed its written submissions dated 16th May, 2026 which have been duly considered. The Appellant did not file written submissions. Analysis and Findings 5.The Tribunal is enjoined to determine the length and reason for the delay when considering an application for the extension of time to appeal out of time. 6.Before the Tribunal pronounces itself on the issue of the application for an extension of time, there exists an argument from the Respondent that the Tribunal lacks the jurisdiction to hear the current application as there exists no appealable decision since the Respondent never issued an Objection decision because the Appellant did not file a valid objection. 7.The Applicant contended that she was unable to lodge a timely objection because of difficulty in accessing her iTax account. 8.Section 51 (6) and (7) of the Tax Procedures Act provides as follows with regard to lodging late notices of objection:-“(6)A taxpayer may apply in writing to the Commissioner for an extension of time to lodge a notice of objection.(7)The Commissioner shall consider and may allow an application under subsection (6) if—(a)the taxpayer was prevented from lodging the notice of objection within the period specifed in subsection (2) because of an absence from Kenya, sickness, or other reasonable cause; and(b)the taxpayer did not unreasonably delay in lodging the notice of objection.” 9.The Respondent has asserted that the Applicant did not provide clarification and documentary evidence in support of her reason for late objection. The Tribunal perused correspondence between the parties and notes that the Applicant failed to provide proper and substantiated reasons for the late objection. The late notice of objection having been properly rejected the Applicant has no cause to challenge the rejection. 10.The Applicant has equally not provided any documents in support of the application for the enlargement of time to file an appeal out of time. The Applicant merely states that she has approached the Tribunal late due to the failure by the Respondent to respond to her requests for re-computation of capital gains to accommodate incidental costs. The Applicant has not substantiated her claim that she made several follow-ups on her request leading to her filing of the appeal out of time. 11.In the absence of a valid objection to be considered by the Respondent the tax assessment crystallized and the demand notice was justified. Having established that the Applicant never lodged a valid and timeous notice of objection, the Tribunal is left with no option but to find that there is no appealable decision for the Tribunal to consider. 12.The Tribunal notes that the appellant filed the application simultaneously with the Appeal documents on the very 29th April 2026. The Tribunal has made a finding that there is no appealable decision. The appeal filed therewith is incompetent and unsustainable in law. Disposition 13.The Tribunal in the circumstances finds the application to be unmeritorious and the Appeal to be incompetent and accordingly proceeds to make the following Orders;-i.The Application be and is hereby dismissed;ii.The Appeal be and is hereby struck out; andiii.No order as to costs. 14.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.……………………………ROBERT M. MUTUMACHAIRMAN……………………………… ……JIMMY M. MALLA.MEMBER………………………………GLORIA A. OGAGAMEMBER………………………………DR. TIMOTHY B. VIKIRUMEMBER