https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/234

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E788/2025 MAKO LIFT COMPANY LIMITED VS KENYA REVENUE AUTHORITY JUDGMENT # BACKGROUND 1. The Appellant is a limited liability company incorporated within the Republic of Kenya. 2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. 3. The Respondent undertook tax return review of the Appellant for the period February and March, 2015. Consequently. the Appellant was issued with default Value Added Tax assessments on iTax on 21st May, 2015 and 25th May, 2015. The assessments were not on record. 4. The Appellant vide application dated 4th June 2024 sought leave from the Respondent to file the objection against the assessments out of time. Upon receipt of the said application, the Respondent vide emails dated 7th June, 2024 and 12 th June 2024 wrote to the Appellant directing the Appellant to validate the notice of objection so as to comply with the provisions of section 51(3) of the Tax Procedures Act Cap 469(TPA). The Appellant was required to provide proper reasons for late objection and furnish statutory required documents in support of the objection failure to which their objection would be invalidated. 5. In the absence of any action from the Appellant, the Respondent issued an invalidation notice dated 18th June, 2024. Consequently, the Respondent issued late objection rejection notices dated 19th June 2024. 6. The Appellant being dissatisfied with the Respondent's decision lodged this appeal vide notice of appeal dated 23rd July 2025 and filed on even date. # THE APPEAL 1. The Appeal was founded on the memorandum of Appeal dated 23 rd July 2025 and filed on even date. The Appellant raised the following grounds of appeal: 1. That the VAT liabilities declared by Respondent in February and March 2015 was as result of error of commission. 2. That the Respondent erred in determining the VAT liabilities for February and March 2015 without subjecting the total sales of the company at that particular period as output VAT as well total purchases of the company at that particular period as input VAT as per Value Added Tax Act Cap 476(VATA). 3. That the Respondent erred in taxing the taxpayer VAT on basis of missing ETR machine without taking into account sales and purchases of that particular period that is error of commission. 4. That the Respondent did not ask for the sales ledger and purchases ledger and other supporting documents like bank statement from taxpayer and issued additional assessment without the mentioned documents. # THE APPELLANT’S CASE 1. The Appellant filed statement of facts on 23 rd July 2025. It did not file written submissions. 2. The Appellant stated that on 18 th June 2024 the Respondent issued a confirmation of assessment for VAT tax amounting to Kshs 2,400,000 for February and March 2015. It stated that the assessment was due to misplacement of ETR machine when Respondent visited his Premises. 3. According to the Appellant, the Respondent did not ask for supporting documents that is sales ledger, purchases ledger and bank statement. It maintained that the Respondent incorrectly raised the VAT for February and March 2015. # Appellant’s prayers 1. The Appellant prayed that: 2. The confirmation of assessments of VAT for the months of February 2015 and March 2015 dated 18th June 2024 be nullified; and 3. The Respondent be restrained from commencing any recovery process regarding the confirmed taxes. # THE RESPONDENT’S CASE 1. In opposition to the Appeal, the Respondent filed its Statement of facts dated and filed on 4th September 2025. The Respondent also lodged written submission dated 3rd March 2026 and filed on 5th March 2026. 2. The Respondent averred that the period within which a notice of objection should be lodged is within thirty days as prescribed under the provisions of Section 51 (2) of the TPA but the Appellant can make an application to the Commissioner for extension of time to lodge a notice of objection. It stated that the Appellant must demonstrate the reasons that occasioned such delay. 1. The Respondent stated that the Appellant delayed to file objection to the assessments but it sought leave to lodge late objection. According to the Respondent, the Appellant alleged that it was not able to lodge the objection within the statutory timelines on account of "other reasonable cause" on the basis that its account and office manager passed away. 2. The Respondent stated that it requested the Appellant to avail documents in support of the application vide emails dated 7th June, 2024 and 12th June, 2024, however. The Appellant did not avail anything. 3. The Respondent stated that the Appellant did not satisfy the criteria set out under the provisions of Section 51(7) of the TPA. It also stated that the objection did not meet the requirements under Section 51(3) of the TPA as the Appellant failed to provide necessary documents to support the objection. 4. The Respondent averred that whereas Section 24 of the TPA allows a taxpayer to submit tax returns in the approved form and manner prescribed by the Respondent, the Respondent is not bound by the information provided therein and can assess for additional taxes based on any other available information and to the best of the Commissioner's judgement. 5. It stated that the assessments were in accordance with Section 31 of the TPA which gives the Respondent leeway to issue additional assessments based on the available information and on best of judgement. 6. The Respondent stated that pursuant to Section 56 of the TPA and Section 30 of the Tax Appeals Tribunal Act Cap 469A (TATA), the burden of proof lies on the Appellant to demonstrate that it discharged the tax liability. The Respondent stated that this burden was never discharged as no documentary evidence was availed to the Respondent to enable it render a meritious decision in the circumstances. 7. The Respondent also stated that thee Appellant's assertion that the Respondent did not request for documentations is incorrect and misleading. 8. The Respondent submitted that the Appellant failed to object to the assessment orders within the prescribed 30 days contrary to Section 51(2) of the TPA. 9. It further submitted that the Appellant did not adduce any evidence such as death certificate to prove the claim for demise of the account manager and to justify the delay in objecting to the assessment therefore, it rejected the application for leave to object out of time. It relied on the case of **Far East** # Connection Limited v Commissioner of Domestic Taxes wherein the Tribunal held that: *"....the Appellant having failed to disclose any reasonable cause that could have possibly preventing it in lodging the notice of objection within the statutory timelines, the Respondent cannot be conceivably faulted in any manner for disallowing the application for lodging a late notice of objection.’’* 1. The Respondent also submitted that the Appellant failed to discharged the burden of proof. # Respondent’s prayers 1. The Respondent prayed that: 2. The Tribunal be pleased to find that the Respondent's decision rejecting the late objection and the consequent confirmation of the assessment of Kshs 2,400,000 being the Appellant's VAT liability was proper in law and in conformity with the VATA and TPA; and 3. The Appeal be dismissed with costs. # ISSUES FOR DETERMINATION 1. The Tribunal having considered the parties’ pleadings, puts forth the following issues for determination: 1. Whether the appeal is valid; and 2. Whether the Respondent erred in confirming the assessment. # ANALYSIS AND FINDINGS 1. Having identified the issues for determination the Tribunal proceeds to analyse the same as hereunder; # Whether the appeal is valid 1. Whereas we have pointed out above that the assessments were not on record, it is not disputed that the assessment were issued on 21st May, 2015 and 25th May, 2015. It is also not disputed that the Appellant filed an application seeking leave to lodge notice of objection out of time. 2. Whereas the Appellant sought leave from the Respondent to object to the assessments out of time, the Respondent vide a letter dated 18th June 2024 rejected the application on the basis that the Appellant did not provide justification for the delay. The Respondent then confirmed the assessments. The Appellant being aggrieved, filed this appeal. 3. Section 51(1) of TPA is instructive. It provides that, ‘‘ *a taxpayer who wishes to dispute a tax decision shall first lodge an objection against that tax decision under this section before proceeding under any other written law.’’* 4. The import of Section 51(1) of the TPA is that it prohibits a taxpayer from relying on any other tax law unless the taxpayer files an objection against an assessment within the required timelines, or if the taxpayer delays to file objection within time, the taxpayer must obtain leave from the Commissioner before filing the objection. 5. It then means that if the taxpayer fails to lodge notice of objection within required timeline, the taxpayer cannot, lawfully, invoke the powers of this Tribunal under the under TATA. Section 51(1) of the TPA mandates the taxpayer to exhaust the available remedies before seeking refuge at the Tribunal. 1. There is no doubt that the first step that a taxpayer must take is to object to the assessment within thirty days (30) once an assessment is received. Section 51(2) the TPA provides as follows: *(2) A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the* ***Commissioner within thirty days of being notified of the decision****.* 1. The law anticipates that a taxpayer may delay to file objection against the assessments and provides a remedy to that effect. Consequently, Section 51(6) of TPA provides: *A taxpayer may apply in writing to the Commissioner for an extension of time to lodge a notice of objection.* 1. The taxpayer has to satisfy the Respondent by demonstrating why it delayed to file an objection to the assessment. As such, Section 51(7) of the TPA provides as follows: 2. *The Commissioner shall consider and may allow an application under subsection* [*(6)*](https://new.kenyalaw.org/akn/ke/act/2015/29/eng%402025-07-01) *if—* 1. *the taxpayer was prevented from lodging the notice of objection within the period specified in subsection* [*(2)*](https://new.kenyalaw.org/akn/ke/act/2015/29/eng%402025-07-01) *because of an absence from Kenya, sickness or other reasonable cause; and* 2. *the taxpayer did not unreasonably delay in lodging the notice of objection*. 3. Pursuant to Section 51(7) of the TPA, the Respondent has discretion to allow or reject the application. We hasten to add that the discretion should be applied objectively. Should the taxpayer hold the view that the Respondent has misused the discretion, it has a right to seek judicial review remedy from a court of competent jurisdiction. 4. This Tribunal does not have jurisdiction to issue judicial review orders. The High Court in ***Commissioner of Investigations & Enforcement v Vyas t/a Rocon Enterprises (Income Tax Appeal E144 of 2021) [2022] KEHC*** ***16027 (KLR)*** stated that the Tribunal does not have jurisdiction to entertain decisions under Section 51(7) of the TPA for the reason that the decision is not appealable decision. The High Court went as step further and noted that such decisions are subject to judicial review proceedings not appeal. 1. A Court of law and indeed this Tribunal cannot make a move without jurisdiction. In the *locus classicus* case of **Owners of the Motor Vessel** **“Lillian S” v Caltex Oil (Kenya) Ltd [1969] KLR**, Nyarangi JA held, inter alia as follows: *‘‘…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”* 1. The Appellant appealed to this Tribunal in light of the decision contained in the letter dated 18th June 2024 which was issued under Section 51(7) of the TPA. 2. Considering the foregoing, this Tribunal find and holds that the appeal is invalid therefore, the Tribunal does not have jurisdiction to determine it. Consequently, the appeal is available for striking out. This being the case, analysis of the remaining issue is rendered moot. # FINAL DECISION 1. The upshot of the foregoing the Tribunal finds and holds that the Appeal is invalid and makes the following orders; 1. The Appeal be and is hereby struck out; and a) Each party to bear its own cost. 1. It is so ordered. **DATED** and **DELIVERED** at **NAIROBI** this 19TH DAY OF MAY **2026** SIGNED BY/FOR: HON. ROBERT MUGAMBI MUTUMA (CHAIRPERSON) HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU **★ TH E JUDICIAR Y O F KENY A ★** **HON. ROBERT MUGAMBI MUTUMA (CHAIRPERSON) HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-05-19 16:50:07