https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/217

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E1030/2025 MILES CONSTRUCTION LIMITED VS KENYA REVENUE AUTHORITY JUDGMENT # BACKGROUND 1. The Appellant is a registered taxpayer based in Thika town dealing in the business of infrastructure development. 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. Following a return verification exercise covering January 2016 to May 2020, the Appellant was issued with an assessment notice on 19th February 2021 in relation to corporate tax amounting to Ksh 2,915,213.00 and Value Added Tax (VAT) amounting to Ksh 25,526,912.00 and withholding tax (WHT) amounting to Ksh 40,975.00 4. On 26 th September 2024, the Respondent issued demand notice for the corporation tax VAT and WHT amounting to Ksh 26,545,724.37. 5. The Appellant requested for extension of time to lodge an objection against the demand notice vide a letter dated 4th October 2024 having appointed a tax agent on 3rd October 2024. 6. On 6 th November 2024, the Appellant requested for extension of time to provide the requested information and availed medical report of its Director who was unwell at the time. 7. The Respondent in an email of 14th November 2024 acknowledged receipt of Appellant’s application and medical report while subsequently reminding the Appellant to submit its grounds alongside excel reconciliations and any other supporting documents not later than the 19th November 2024. However, on the 19th November 2024, the Appellant requested for three days to finalise preparing the objection documents. 8. The Respondent confirmed the assessments in an Objection Decision dated 6th December 2024. 9. Dissatisfied by the Respondent’s Objection Decision, the Appellant lodged its Notice of Appeal dated 17th September 2025 and filed on 18th September 2025. 10. In a Ruling dated 13 th February 2026, the Applicant’s application to be granted a Tax Compliance Certificate and be removed from Special table was granted. # THE APPEAL 1. The Appellant’s case was founded upon its Memorandum of Appeal dated 17th September 2025 and filed on 18th September 2025 wherein the Appellant raised the following grounds: 1. That the Respondent erred in law and in fact by subjecting already declared sales to additional VAT at the standard rate of 16%. 2. That the Respondent erred in law and in fact by treating already declared sales as omitted sales giving rise to and subjecting the same to VAT and corporation tax at the rate of 30% and 16% respectively for the years ending 31st December 2016, 2017 and 2019. # THE APPELLANT’S CASE 1. The Appellant’s case was anchored upon its Statement of Facts dated 2 nd September 2025 and filed on 18th September 2025 together with documents attached thereto. The Appellant did not file its written submissions as directed by the Tribunal on 5th May 2026. 2. According to the Appellant, the Respondent acted in total disregard of the provisions of Section 31(1) of the Tax Procedures Act (TPA) in raising amended assessments yet the Appellant had filed all tax returns for the said periods. 3. That the Respondent failed to consider responses and information shared by the Appellant through the detailed letter of objection contrary to Article 47 of the Constitution of Kenya, 2010 (Constitution) which guarantees the right to fair administrative action and entails consideration of explanations and information availed by a party against whom an assessment is made. That this position was supported by the High Court decision in the case of **Nizaba Internationa Trading Company Limited v Kenya Revenue Authority [2000]eKLR** and **Republic v Kenya Revenue Authority ex-parte Amsco Kenya Limited[2014]eKLR.** # The Appellant’s Prayers 1. The Appellant prayed that the Tribunal grants following Orders; 1. That this appeal be allowed. 2. That the Honourable Tribunal forthwith sets aside the decision of the Commissioner dated 6th December 2024. 3. That the Honourable Tribunal considers all the material records and facts presented by the Appellant. 4. That the Honourable Tribunal bars the Respondent from enforcing the assessed taxes until the matter is conclusively determined. 5. That the Honourable Tribunal awards costs to the Appellant. # THE RESPONDENT’S CASE 1. The Respondent replied to the Appeal through its statement of Facts dated and filed on 14th November 2025; and written submissions dated 27th August 2026 and filed on 28th August 2026. 2. According to the Respondent, its return verification exercise covering January 2016 to May 2020 established variances between turnover figures reported in Appellant’s income tax returns, audited financial statements, VAT returns, WVAT sales and bankings. That this variance was treated as undeclared income and subjected to tax through the notice of assessment dated 19th February 2021. 3. That the Appellant was given adequate time and opportunity but failed to respond to the assessment by providing grounds of objection, reconciliations or any other supporting documentation and the Respondent conscious of the statutory timelines binding it proceeded to issue its Objection Decision as no substantiation was rendered by the Appellant in support of its objection. 4. The Respondent further averred that the Appeal as filed offended Section 13 of the Tax Appeals Tribunal Act (TAT Act) as it was not filed within the required statutory timelines of thirty (30) days and no leave was granted to do so by the Tribunal. 5. The Respondent asserted that Section 29 of the TPA empowers it to issue default assessment where a taxpayer fails to submit a tax return for a reporting period in accordance with provisions of a tax law and based on such information as may be available. 6. It was the Respondent’s case that the Appellant’s objection failed the requirements of Section 51(3) of the TPA and the despite Section 56(1) of the TPA placing the burden of proof upon the Appellant, the Appellant failed to demonstrate the incorrectness of the tax decision therefore the assessments remain due having been properly founded in fact and law. 7. The Respondent in its submission identified three issues for determination as follows; 1. The competence of the Appeal and whether the jurisdiction of the Tribunal has been properly invoked? 2. The propriety of the Respondent’s assessments upon the Appellant and the validity of the Appellant’s objection? 3. Discharge of the Appellant’s burden of proof? 8. As per the Respondent the appeal herein did not properly invoke the Tribunal’s jurisdiction thus was incompetent as the Respondent’s Objection Decision having been rendered on 6th December 2024, the Appellant lodged its pleadings on 17th September 2025 which was 10 months late contrary to Section 51(12) of the TPA as read with Section 13(1) of the TAT Act. 9. That the Appellant failed to utilise legal frameworks as provided for under Section 13(3) and (4) of the TAT Act to regularise this legal misstep through seeking leave to file the appeal of out time a position the Respondent supported by citing the holding in the cases of; # Commissioner of Domestic Taxes v Lifecare International Brokers Limited [2020]KEHC 3188(KLR) 1. **Jitihada Furniture Centre Ltd v Commissioner of Domestic Taxes.** 2. **Nicholas Kiptoo Arap Korir Salat vs The Independent Electoral and Boundaries Commission and 6 Others [2013] eKLR** 3. The Respondent submitted that assessments against the Appellant were issued as a result of variances between turnover figures reported in Appellant’s income tax returns, audited financial statements, VAT returns, WVAT sales and bankings which was proper and had legal backing under Section 31 of the TPA. That it was the Appellant’s objection that was invalid and failed to meet the threshold as provided for under Section 51(3) of the TPA and was not lodged within the legal timeframe provided under Section 51(2). 1. That despite being allowed to lodge a late objection under Section 51(6) TPA, the Appellant failed to provide requested documents thus the said objection remained invalid leading to confirmation of the assessments vide the Objection Decision as required by Section 51(4A) of the TPA. The Respondent buttressed this position citing the holding in the case of **Republic v Commissioner for** # Domestic Taxes & 2 Others Ex parte Samuel Kimondo Theuri [2016] KEHC 7624(KLR) and Ngurumani Traders Limited v Commissioner of Investigation and Enforcement [2019] KETAT 21(KLR) 1. As per the Respondent, the Appellant bears the burden of proof in demonstrating the Commissioner’s decision as incorrect or excessive and can only be discharged through production of documentary evidence which was not the case herein. That despite being notified on invalidity of its objection, the Appellant failed to present the requested documents thus failed to discharge its burden as couched under Section 56(1) of the TPA as read with Section 30 of the TAT Act. The Respondent supported its argument by relying on the cases of **Tumaini Distributors Company(k) Limited vs Commissioner of Domestic Taxes (2020) eKLR** and **Kenya Revenue Authority v Maluki Kitili Mwendwa [2021] eKLR** 1. The Respondent insisted that despite Appellant’s assertions that its case is supported by audited financial statements for years 2016 to 2020, all VAT and income tax returns for the period under review, bank statements and other documents, the same failed to disprove the Respondent’s assessments. 2. In conclusion, the Respondent urged the Tribunal to find that the Appellant’s appeal as being improperly before it for failure to seek leave to file the same out of time as required under Section 13(3) of the TAT Act. # The Respondent’s Prayers 1. The Respondent prayed that the Tribunal; 1. Dismisses the appeal in its entirety. 2. Upholds the tax assessments dated 19th February 2021 as confirmed by the Objection Decision dated 6th December 2024. 3. Orders the Appellant to pay costs of the appeal. # ISSUE FOR DETERMINATION 1. The Tribunal having carefully considered the parties’ pleadings, documentation and the Respondent’s submissions adduced before it notes that a single-issue calls for it determination; **Whether the Appeal is properly before** # the Tribunal. **ANALYSIS AND FINDINGS** 1. The Tribunal having established sole issue for determination will proceed to analyse the same as follows; # Whether the Appeal is properly before the Tribunal. 1. The Tribunal notes that the dispute at hand relates to Respondent’s verification exercise for the January 2016 to May 2020 where the resulting variances established between Appellant’s turnover returns reported and income tax returns, audited financial statements, VAT returns, WVAT sales and bankings were subjected to tax. 2. The Tribunal notes that the Respondent’s Objection Decision was dated 6th December 2024. The appeal against the same was dated 17th September 2025 and filed by the Appellant on 18th September 2025. 3. Section 13(1) (b) of the TAT Act reads as follows; *“A notice of appeal to the Tribunal shall—* 1. *…* 2. *be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.”* 3. Similarly, Section 51(12) of the TPA provides that; *“A person who is dissatisfied with the decision of the Commissioner under subsection (11) may appeal to the Tribunal within thirty days after being notified of the decision.”* 1. In this Appeal, the Appellant filed its pleadings more than nine (9) months after the Respondent’s Objection Decision and without leave of the Tribunal as couched under Section 13(3) and (4) of the TAT Act. 2. The Tribunal seeks guidance in the holding of the Court in the case of **Patrick Kiruja Kithinji v Victor Mugira Marete MRU CA Civil Appeal No.** # 48 of 2014 [2015] eKLR that: *‘‘It is our view, whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159.’’* 1. The Tribunal finds that the Appellant herein failed to properly invoke the Tribunal’s jurisdiction to determine the Appeal as filed. 2. Consequently, the Tribunal will not depart from prior precedence and what the law provides in regards to late appeals without leave of the court. # FINAL DECISION 1. The upshot of the foregoing is that the Tribunal accordingly proceeds to make the following Orders: 2. The Appeal be and is hereby struck out. 3. Each party to bear its own costs. 4. It is so Ordered. # DATED AND DELIVERED AT NAIROBI ON THIS 26TH DAY OF JUNE 2026 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. SANKALE SPENCER OLOLCHIKE** **HON. BERNADETTE MUTHIRA GITARI** **HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-06-26 15:30:18