[2024] KETAT 490 (KLR)

Limute Contractors Limited v Commissioner of Domestic Taxes (Tax Appeal E751 of 2023) [2024] KETAT 490 (KLR) (19 April 2024) (Ruling)

Neutral citation: [2024] KETAT 490 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E751 of 2023

E.N Wafula, Chair, E Ng'ang'a, EN Njeru, M Makau & AK Kiprotich, Members

April 19, 2024

Between

Limute Contractors Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Appellant filed this application vide a Notice of Motion dated 31st October 2023 and filed on 1st November 2023 under Certificate of urgency supported with an Affidavit, sworn by Teresio Muchira Nyaga, a Director of the Appellant, on the 31st October, 2023 seeking the following Orders:a.Spent.b.That this Honourable Tribunal be pleased to lift the Agency Notice dated 4th September 2023 sent to Equity Bank Limited as against the Appellant.c.That this Honourable Tribunal do further grant leave to the Appellant to file the Appeal out of time.d.That the Memorandum of Appeal and Statement of Facts annexed to this application be deemed to have been filed and served.e.That the Appellant be at liberty to apply for further orders and the Honourable Tribunal do give any and/or any directions it deems fit and just to grant in the circumstances.f.That cost of this application be in the cause.

2. The application is based on the following grounds:i.That the Appellant is a construction company based in Kiambu County and carrying out business within the Republic of Kenya.ii.That the Respondent issued an additional VAT assessment on iTax platform on 15th June 2021 and the Appellant did not object on time.iii.That the Appellant filed an application for extension of time to lodge an Objection dated 15th February 2022 but the same was rejected vide a correspondence by the Respondent purportedly dated 14th April 2021. iv.That the Appellant was further served with a demand notice dated 22nd August 2023 followed by an agency notice to the Appellant's bank Equity Bank and copied to the Appellant dated 4th September 2023. v.That over and above; statutorily, the Appellant is out of time within which it ought to have lodged its Notice of Appeal and substantive Appeal therefore occasioning bringing out this instant application for purposes of regularizing the process.vi.That the demand notice is an appealable tax decision since the Appellant is not in any way indebted to the Respondent as per the tax decision it arrived at.

3. The Respondent did not file any response in opposition to the application and the application is to that extent deemed unopposed.

Analysis and Findings 4. The power to expand time for filing an appeal is donated by Section 13(3) of the Tax Appeals Tribunal Act which provides that:“The Tribunal may, upon application in writing, extend the time for filing the Notice of Appeal and for submitting the documents referred to in subsection (2)”.

5. Conditions that the Appellant has to satisfy are stipulated under Section 13(4) of the Tax Appeals Tribunal Act which provides as thus:-“An extension under subsection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.”

6. Similarly, Rule 10 of the Tax Appeals Tribunal (Procedure) Rules reiterates the foregoing statutory provision in the following terms: -(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.”

7. Before excising its powers, the Tribunal has to verify that the application before it meets bare minimum. Upon perusing the Notice of Motion, the Tribunal noted that the Supporting Affidavit is not commissioned by Commissioner for Oaths.

8. Section 5 of the Oaths and Statutory Declarations Act, Cap 15 of the laws of Kenya provides as follows:-“5. Particulars to be stated in jurat or attestation clause Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

9. On the other hand, Section 8 of the Oaths and Statutory Declarations Act, Cap 15 of the laws of Kenya provides as follows:“8. Power to take declarationsA magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.”

10. What the Appellant has filed in support of the Notice of Motion is not an Affidavit. It is not a legal document. The consequence is that the Notice of Motion is incompetent. It is a nonstarter. Without commissioning, the Respondent is not bound by the assertions in the document neither is the document binding.

11. In Re MWO (Minor) [2021] eKLR the court stated as follows at paragraphs 38 to 41 with regard to a validity of an Affidavit:-38. It is a legal requirement that an Affidavit be commissioned by either a Magistrate, a Commissioner of Oaths or by a Notary Public. An Affidavit is a sworn statement which contains matters of evidence deponed on oath and as such legal consequences such as perjury would attend if one is found to have sworn a false affidavit. Therefore an Affidavit must be executed on oath by the deponent. An Affidavit which has not been properly commissioned is at best a mere signed statement of facts.39. It is the commissioning of the Affidavit by an authorized officer which elevates the signed statement to the status of an Affidavit. Therefore commissioning of the document is a crucial step without which the statement cannot be deemed to be an Affidavit. Failure to commission an Affidavit cannot be dismissed as a mere technicality and is an omission which cannot be ignored and/or overlooked by the court.40. In the circumstances the Affidavit dated 14th June 2019, Annexture EWW’2’ which appears at Page 9 of the Record of Appeal is not a legal document and cannot be taken as proof that service actually occurred.41. In the premises based on the above I do find that service was not properly effected upon the Appellant. As such, the orders made by the trial court on 17th June 2019 were made without proper notice being served upon the Appellant. In the circumstances, such orders are null and void and are hereby set aside.”

12. Enough is said in the aforecited authority with regard to a valid and legally sustainable Affidavit and the Tribunal is to that extent appropriately guided.

Disposition 13. In the circumstances, the Tribunal finds that the Affidavit in support of the application is incompetent and unsustainable in law and the Orders that commend themselves are as hereunder:-a.The application be and hereby is struck out.b.No orders as to costs.

14. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF APRIL, 2024ERIC NYONGESA WAFULACHAIRMANEUNICE NG’ANG’A ELISHAH NJERUMEMBER MEMBERMUTISO MAKAU ABRAHAM K. KIPROTICHMEMBER MEMBER