[2024] KETAT 436 (KLR)

Moledina v Commissioner of Domestic Taxes (Tax Appeal 1215 of 2022) [2024] KETAT 436 (KLR) (22 March 2024) (Judgment)

Neutral citation: [2024] KETAT 436 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 1215 of 2022

E.N Wafula, Chair, D.K Ngala, CA Muga, GA Kashindi, AM Diriye & SS Ololchike, Members

March 22, 2024

Between

Estate of the Late Sherbanu Hassanali Moledina

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

1. The Appellant herein is the Estate of Sherbanu Hassanali Moledina (hereinafter ‘the Estate’) represented by the administrators of the deceased’s estate namely Moledina Hanif Mohamed and Kiboijana Richard Tuhaise.

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 Respondent 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 Respondent is mandated to administer and enforce all the provisions of the written laws as set out in Part 1 & 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenue in accordance with those laws.

3. The late Sherbanu Hassanli Moledina was born in Uganda and moved to Kenya about 1980 wherein she acquired the suit properties, namely Land Reference Numbers 12325/54 and 12325/55 in 1985.

4. The deceased registered for a Kenyan Personal Identification Number (PIN) in 1994.

5. The Respondent placed a caveat on Land Reference Number 12325/55 on 22nd May 2001.

6. The Appellant wrote to the Respondent on 23rd September, 2022 requesting that the caveat be lifted as there was no justification for the same.

7. The Respondent replied on 26th September 2022 indicating that a notification of charge was issued by the Respondent pursuant to Section 103(2) of the Income Tax Act [now deleted], Cap 470 of Kenya’s Laws (hereinafter ‘ITA’) to secure/ realise the tax owed amounting to KShs. 17,000,000. 00.

8. Being dissatisfied with the decision of the Respondent refusing to lift the caveat, the Appellant filed a Notice of Appeal dated 14th October, 2022 and filed on 18th October 2022.

The Appeal 9. The Appeal is premised on the following grounds contained in the Appellant’s Memorandum of Appeal dated 14th October, 2022 and lodged with the Tribunal on 18th October 2022:a.That the Estate does not owe the Respondent any tax at all.b.That the Respondent has failed to provide an analysis of liability alleged of Kshs.17,000,000. 00. c.That the Respondent has failed to provide assessments or any other acceptable documents as proof of the alleged tax of Kshs.17,000,000. 00.

The Appellant’s Case 10. The Appellant’s case is set out in its Statement of Facts dated 14th October, 2022 and filed on 18th October 2022.

11. The Appellant stated that the late Mrs. Sherbanu Hassanali Moledina who died in Uganda in May 2021, was a Uganda national.

12. That Appellant also averred that the Properties were transferred to the late Mrs. Sherbanu Hassanali Moledina on 19th March 1985 [Land Reference Number 12325/55] and 31st May 1985 [Land Reference number 12325/54] respectively.

13. The Appellant further stated that from 1985, the late Sherbanu Hassanali Moledina did not accrue or derive any income from Kenya and that she substantially lived in Uganda.

14. The Appellant stated that the late Sherbanu Hassanali Moledina neither received any assessment from the Respondent under legacy nor raised a self-assessment under iTax and the Respondent’s records do not indicate any tax relating to the late Sherbanu at all.

15. The Appellant stated that on 22nd May, 2001, the Respondent placed caveats on Land Reference Number 12325/55 and 12325/54.

16. The Appellant averred that it demanded that the Respondent provides it with a breakdown/analysis of the liability of KShs. 17,000,000. 00 together with the related copies of tax assessments but the same went unattended.

17. The Appellant stated that its request to the Respondent to lift the caveat as there was no justification to retain it had not been attended to but instead the Respondent insisted that the demand for payment of KShs. 17,000,000. 00 be settled.

18. The Appellant prayed that the Tribunal directs the Respondent to unconditionally lift the caveat.

Respondent’s Case 19. In response to the grounds of appeal the Respondent addressed those grounds through its Statement of Facts dated 17th November, 2022 and filed on 18th November, 2022 wherein it averred as follows:

In response to grounds (a) (b) and (c) of the Memorandum of Appeal, the Respondent relied on the provisions of Section 40 of the Tax Procedures Act, No. 29 of 2015 (hereinafter ‘TPA’) which provides a basis for it to direct the Land Registrar to place charge on property as security for unpaid taxes. 20. The Respondent stated that pursuant to Section 32 (1) of the TPA a tax payable by a person under a tax law is construed to be a debt due to the Government and shall be payable to the Respondent unless a taxpayer pays the outstanding taxes. According to this Section of the TPA, the Respondent has a duty to collect the tax and the caveat cannot be lifted unless the tax debtor pays or provides alternative security.

21. The Respondent averred that the provisions on abandonment/write-off/waiver of tax debt are found under the Public Finance Management Act, No. 18 of 2012 and the Public Finance Management (National Government) Regulations, 2015. The Appellant did not invoke the relevant agencies for the same and therefore the tax liability stands

22. The Respondent relied on the provisions of Section 56(1) of the TPA which states that:“In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect”.

23. The Respondent therefore invited the Appellant to disprove its decision with evidence and prayed that its decision be upheld and the Appeal be dismissed with costs.

Parties Submissions 24. The Respondent filed a Preliminary objection for which it filed submissions dated 17th February, 2023 on even date. The Appellant filed its written submissions dated 27th January 2023 on even date whilst the Respondent’s submissions in respect to the Appeal were dated 14th February, 2023 and filed on even date. The Tribunal adopted the submissions by both parties on 18th July, 2023.

25. In its written submissions, the Appellant identified eight issues for determination as outlined hereunder:

Whether the Section 3(2) and Part II of the ITA is applicable. 26. The Appellant submitted that Section 3(2) of the ITA details taxable income in general assessments and taxes are based on taxable income under this Section. The principal person herein, the deceased, was a Ugandan who got married in Kenya and had no income at all. The two properties Land Reference Number 12325/54 and 55 were transferred to the deceased on 19th March, 1985 and 31st May, 1985, respectively, and on 22nd May 2001, a caveat was placed on one of the properties namely, Land Reference Number 12325/55. The late Mrs. Sherbanu Hassanli Moledina did not have income which could have resulted in a tax liability of Kshs.17,000,000. 00.

(ii) Whether Section 52 and Part VIII of ITA is applicable. 27. The Appellant submitted that Section 52 of ITA required filing of tax returns which the Respondent would use to raise an assessment and which would result to a tax liability. The Appellant submitted that this matter was prior to the self-assessment and i-Tax regimes.

28. That the late Mrs. Sherbanu Hassanli Moledina had no income and was not required to file tax returns and so no tax liability would have arisen. Part VIII of ITA is about various types of tax returns required to be filed that could have been required of the deceased but none was actually filed and so no tax would have resulted without the Respondent receiving a return and assessing tax on it. The Appellant submitted that the conclusion was that there was no assessment, either per return or on estimate basis.

(iii) Whether the Respondent invokes Section 73 and Part VI of ITA 29. The Appellant submitted that the Respondent had the duty to raise an assessment on returns filed or on an estimated return where there was no return or there was a return that was not acceptable. The Respondent did not raise any assessment under Section 73 or any other Section under Part VI of ITA. The Respondent having not raised an assessment, there was no way a tax liability would have arisen and or existed amounting to Kshs.17,000,000. 00.

(iv) On whether Section 35 and Part VI of ITA was applicable 30. The Appellant submitted that Section 35 deals with withholding tax from certain incomes. That Part VI deals with recovering tax from source. The Appellant stated that both Section 35 and Part VI are not applicable in this case as the deceased had no income or resources from which a liability to the tune of Kshs.17,000,000. 00 would have been recovered.

(v) On whether the Respondent applied Part XI of ITA. 31. The Appellant submitted that Part XI of the ITA relates to collection, recovery and payment of tax similar to Part IX of ITA, 2015 (sic). The Appellant contended that the Respondent has not demonstrated a trail of collection efforts to the point of placing the caveat and that the Appellant only came to know about the liability after carrying out a search on the parcels of land in 2022.

32. The Appellant submitted that the Respondent did not produce an assessment when requested by the Appellant, to prove the tax liability and that there is a high likelihood that the liability related to another taxpayer and was only mistakenly posted on the deceased’s property.

(vi) On whether there was a liability of Ksh.17,000,000. 00 relating to late Sherbanu Hassanali by 31st May, 1985 and 22nd May, 1985 when cautions were placed on L.R. Nos.12325/54 and 55 respectively. 33. The Appellant submitted that the late Mrs. Sherbanu Hassanali Moledina came to Kenya in 1980 and got married. That between the time of coming to Kenya in 1980 and when the cautions were placed on the properties, it was impossible for the deceased to have earned such income as to generate tax liability of Kshs.17,000,000. 00. The Appellant argued that this was thus a difficult imagination. The Appellant submitted that the Respondent has completely failed to prove existence of the liability now claimed.

(vii) On whether Section 40 of the TPA is applicable to the recovery of the said liability. 34. The Appellant submitted that firstly, the TPA was a recent legislation when viewed against the alleged liability which arose in 1985 and that Section 40 of the TPA applied to a taxpayer who owns land or a security on building and fails to pay tax by the due date. The Appellant submitted that in its case, no assessment when demanded had been produced. No document or proof of existence of income had also been adduced. The Appellant submitted that therefore, Section 40 of the TPA cannot be applied as there is no unpaid tax.

35. The Appellant submitted that in any case, the Respondent erred in not complying with the proviso to Section 40(1) of the TPA which required it to notify the taxpayer in writing within seven days from the notification to the Land Registrar of the placement of the caveat or charge.

viii. On whether the Respondent's Statement of Facts of 17th November 2022 covers the substance of the liability. 36. The Appellant submitted that the Respondent has not substantiated the liability being recovered via the provisions of Section 103(2) of ITA [now deleted] and Section 40 of the TPA. The Appellant submitted that the Respondent’s statement of facts dwells on collection of tax without touching on the disputed genuineness of the tax liability which is the issue of contention herein.

37. The Respondent identified a single issue for determination in its submissions as regards its Preliminary Objection as outlined below:

ix. Whether the appeal is premised on an appealable decision that can be subjected to the jurisdiction of the Tribunal 38. The Respondent filed a Preliminary Objection that there is no appealable decision pursuant to Section 52(1) of the TPA as read together with Section 12 of the Tax Appeals Tribunal Rules and consequently, the Tribunal has no jurisdiction to hear and determine the matter.

39. The Respondent submitted that it was important for the Tribunal to determine and interrogate the decision that was intended to be challenged to ensure that it was one that the Tribunal has jurisdiction to determine. The Respondent argued that there had to be an appealable decision, and no appeal could be filed or made to invite intervention of the Tribunal on decisions that were not appealable in nature and not within its mandate.

40. The Respondent also submitted that as demonstrated under the Appellant's Memorandum of Appeal and Statement of facts there was no disputed assessment that has been submitted before the Tribunal for determination.

41. The Respondent submitted that even where a decision was made in this manner, the same still amounted to a tax decision which could not be subject to an appeal at the Tribunal, unless and until an objection was lodged, the objection was considered and consequently, an objection decision was made. It is only then that the decision would crystallize to an appealable decision.

42. The Respondent relied on the definition of an appealable decision under Section 2 of the TPA which provides that an “appealable decision” means an objection decision and any other decision made under a tax law other than

a. a tax decision or (b) a decision made in the course of making a tax decision. 43. The Respondent submitted that a tax decision is defined under section 2 of the TPA to mean:(a)an assessment;(b)a determination under section 17(2) of the amount of tax payable or that will become payable by a taxpayer;(c)a determination of the amount that a tax representative, appointed person, director or controlling member is liable for under sections 15, 17, and 18;d.a decision on an application by a self-assessment taxpayer under section 31(2);d.a refund decision;(f)a decision under section 48 requiring repayment of a refund; org.demand for a penalty;”

44. The Respondent submitted that in this case, there was an assessment issued pursuant to the provisions of Section 75A (1) of the ITA [now deleted], no payment had been made with respect to the amount indicated in the assessment and therefore this is what is construed to be a tax decision.

45. The Respondent submitted that accordingly, the notice to charge was issued on 22nd May, 2001 in line with Section 103(2) of the ITA [now deleted] to recover the taxes. This is an administrative enforcement mechanism.

46. The Respondent submitted that the notice to charge invited the Appellant to write a letter to the Respondent on 23rd September, 2022 wherein the Appellant indicated that the said taxes were non-existent and requested the Respondent to lift the charge.

47. The Respondent submitted that the Respondent, vide a letter dated 26th September, 2022 responded to the Appellant and advised the Appellant to settle the tax liability. For avoidance of doubt, that letter was not an objection decision and cannot be construed to be an objection decision. The letter was merely communication providing an explanation on the reasons for charge and not a decision on any tax issue or dispute.

48. The Respondent submitted that the Appellant has not and is not challenging the Respondent’s assessment, and in Kenya Revenue Authority v Man Diesel Turbo Se, Kenya [2021] eKLR the Court stated that burden of proof is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail.

49. The Respondent submitted that consequently, it is clear from the facts of this case that the premise upon which this Appeal was brought was to purely lift the charge arising from assessment of taxes and nothing else. There was no appealable decision that can be subject to premise the Appeal for determination.

50. The Respondent submitted that this was stated by the Tribunal in TAT Misc 185 of 2022 EMV Investments Limited-vs-Commissioner of Domestic Taxes:“With no appealable decision disclosed the Tribunal lacks the jurisdiction to grant any leave for the Applicant to pursue a non-existent right to appeal”

51. The Respondent thus prayed for the Appeal to be dismissed with costs.

52. The Respondent also filed submissions in respect to the main Appeal and submitted on a single issue that it had identified for determination as follows:Whether the Respondent erred in subjecting and sustaining a charge against the Appellant for unpaid taxes.

53. The Respondent submitted that the notification of charge was issued on 22nd May, 2001 under the provisions of the ITA. The request to lift the caveat was made by the Appellant on 23rd September, 2022. The Respondent further submitted that Section 103(2) of ITA [now deleted] allowed the Respondent to place a charge on a taxpayer who fails to pay tax due by them and is the owner of an identified property. Section 103(2) of ITA [now deleted] provided as follows:“If a person on whom a notice has been served under this section fails to make payment of the whole of the amount of the tax specified in the notice within thirty days of the date of the service of the notice, the Commissioner may by notice in writing direct the Registrar of Lands that the land or building, to the extent of the interest of the person therein, be the subject of security for tax of a specified amount, and the Registrar shall, without fee, register the direction as if it were an instrument of mortgage over or charge on, as the case may be, the land or buildings and thereupon that registration shall, subject to any prior mortgage or charge, operate while it subsists in all respects as a legal mortgage over or charge on the land or building to secure the amount of the tax.”

54. The Respondent submitted that the provisions of Section 103 of the ITA [now deleted] are more or less similar to the current Section 40 of the TPA and further that it was it was not in dispute that the late Mrs. Sherbanu Hassanali Moledina was registered for tax liability in Kenya.

55. The Respondent submitted that Section 98 of the ITA [now deleted] then made provisions for collection of taxes from persons living or having left Kenya assessed under then Section 75 of the ITA [now deleted] which provided as follows:“75A.(1)Notwithstanding any other provision of this Act, where the Commissioner has reason to believe that any tax payable by any person is at risk of non-payment-a.due to the imminent departure of the person from Kenya; orb.where the person, being a company, is about to be liquidated or otherwise wound up or cease business; or the Commissioner may, whether or not the due date for the payment of that tax has arrived, by notice in writing served on that person require that person to pay the tax within the time specified in the notice.”

56. The Respondent submitted that the Appellant as the legal representative of the late Mrs. Sherbanu Hassanali Moledina, had not demonstrated that at the time of the caveat being placed in 2001, the late Mrs. Sherbanu Hassanali Moledina did not receive a notice of assessment and subsequently a notice of charge.

57. The Respondent submitted that it can only discharge the charge upon payment of the whole of the secured amount.

58. The Respondent submitted that it is the duty of the Appellant to prove the position of the late Sherbanu and to prove that the Respondent erred in its assessment. This position is provided under Section 56(1) of the TPA which provides that the burden shall be on the taxpayer to prove that a tax decision is incorrect.

59. The Respondent submitted that the burden of proof is on the Appellant to show that no income was accrued from the late Mrs. Sherbanu Hassanali Moledina in Kenya and that the Respondent was mistaken in placing the caveat. To support its submission on this point, the Respondent relied on the case of Digital Box Limited v Commissioner of Investigations and Enforcement [2020] where it was held by the Tribunal that:“The question of burden of proof in taxation matters is provided for under the Tax Procedures Act as well as the Tax Appeals Tribunal Act. Section 56(1) of the Tax Procedures Act states that: In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect. Section 30 of the Tax Appeals Tribunal Act similarly provides that: “In a proceeding before the Tribunal, the Appellant has the burden of proving- (a) Where an appeal relates to an assessment, that the Assessment is excessive; or (b) in any other case, that the Tax Decision should not have been made or should have been made differently.”

60. The Respondent submitted that the late Mrs. Sherbanu Hassanali Moledina did not appreciate the provisions of the law on income tax liability until her demise as the charge has been in place since 2001.

61. The Respondent prayed that the Tribunal finds the charge as proper until the tax due is settled and for the dismissal of the Appeal with costs to the Respondent.

Issues for Determination 62. The Tribunal having carefully considered the parties’ pleadings, documentation and Submissions finds that this matter distils into two issues that call for its determination as follows:a.Whether the Tribunal has jurisdiction to determine this Appeal.b.Whether the Respondent correctly subjected and sustained a charge against the Appellant’s, property, for unpaid taxes.

Analysis and Findings (a) Whether the Tribunal has jurisdiction to determine this Appeal. 63. The Tribunal has observed that this dispute arose when the Appellant, discovered a that a caveat had been placed as a charge against its property by the Respondent. The caveat was placed by the Respondent as a result of the debt owed to it amounting to Kshs. 17,000,000. 00 in unpaid assessed taxes.

64. The Tribunal finds that the Respondent was indeed exercising its rights pursuant to Section 40 of the TPA which states as follows:“40. Security on property for unpaid tax1. Where a taxpayer, being the owner of property in Kenya, fails to pay a tax by the due date, the Commissioner may notify the Registrar in writing that the property, to the extent of the taxpayer’s interest in the property, shall be the subject of a security for the unpaid tax specified in the notification:Provided that the Commissioner shall, within seven days from the date of the notification to the Registrar, by notice in writing inform the taxpayer and any other person who may have an interest in the property about the notification.2. Where the Registrar has been notified by the Commissioner under subsection (1), the Registrar shall, without levying or charging a fee, register the Commissioner's notification as if it were an instrument of restraint on the disposal, mortgage on, or charge, as the case may be, the property specified in the notification.3. A registration under subsection (2) shall, subject to any prior restraint on disposal, mortgage or charge, operate as a legal restraint on the disposal, mortgage, or charge on, the property to secure the amount of the unpaid tax, and any prior restraint shall supersede the Commissioner’s notification.4. The Commissioner shall, upon the payment of the whole of the amount of unpaid tax secured under this section, direct the Registrar in writing to cancel the notification made under subsection (2), and the Registrar shall, without levying or charging a fee, record the cancellation of the notification and the notification shall cease to apply.5. Where the taxpayer fails to pay the tax liability described in the notification under subsection (1) within two months after receipt of the notification, the Commissioner or authorised officer may, at the cost of the taxpayer, dispose of the property that is the subject of the restraint on disposal, mortgage or charge, by public auction or private treaty, or as provided for under the relevant Act for the recovery of the tax:Provided that where a plan has been agreed between the taxpayer and the Commissioner, the liability shall be settled within the agreed payment plan before the notification by the Commissioner is lifted.6. Subject to section 34, where the property is subj ect to a prior restraint, that prior restraint shall have priority if the property is disposed of under subsection (5).7. For the purpose of this section—“property” means land or building, aircraft, ship, motor vehicle, or any other property which the Commissioner may deem sufficient to serve as security for unpaid taxes;“Registrar” includes—a.the Land Registrar defined in section 3 of this Act;……………………..…………(e) any other person who the Commissioner is satisfied hasauthority to hold property sufficient to serve as security for unpaid taxes; “relevant Act” includes the Kenya Maritime Authority Act, 2006 (No. 5 of 2006), Merchant Shipping Act, 2009 (No. 4 of 2009), Civil Aviation Act, 2013 (No. 21 of 2013), Land Registration Act, 2012 (No. 6 of 2012), Land Act 2012 (No. 3 of 2012), National Transport and Safety Act, 2012 (No. 33 of 2012), or any other Act that provides for the registration of property.”

65. The Tribunal finds that upon the discovery by the Appellant that a caveat had been placed on the property of the Late Mrs. Sherbanu Hassanali Moledina known as Land Reference Number 12325/55, by the Respondent; it wrote to the Respondent requesting that the same be lifted. The Respondent declined the request upon which the Appellant filed this Appeal.

66. The Tribunal finds that before it is an Appeal against the refusal by the Respondent to discharge the caveat/charge against the property. An Appeal can be made against an ‘appealable decision’. Both an appealable and tax decision are defined in Section 3 of the TPA which provides as follows:“an appealable decision” means an objection decision and any other decision made under a tax law other than—a.a tax decision; orb.a decision made in the course of making a tax decision;”“tax decision” means—a.an assessment;b.a determination under section 17(2) of the amount of tax payable or that will become payable by a taxpayer;c.a determination of the amount that a tax representative, appointed person, director or controlling member is liable for under section 15, section 17 and section 18d.a decision on an application by a self-assessment taxpayer under section 31(2);e.a refund decision;f.a decision under section 48 requiring repayment of a refund; org.a demand for a penalty;

67. The Tribunal finds that the Respondent raised a Preliminary Objection that there was no appealable decision pursuant to Section 52 of the TPA and consequently, the Respondent was of the view that the Tribunal has no jurisdiction to hear and determine this matter. Section 52 of the TPA provides that:(1)A person who is dissatisfied with an appealable decision may appeal the decision to the Tribunal in accordance with the provisions of the Tax Appeals Tribunal Act, 2013 (No. 40 of 2013).(2)A notice of appeal to the Tribunal relating to an assessment shall be valid if the taxpayer has paid the tax not in dispute or entered into an arrangement with the Commissioner to pay the tax not in dispute under the assessment at the time of lodging the notice.

68. Section 12 of the Tax Appeals Tribunal Act, No. 40 of 2013 (hereinafte ‘TAT’) provides as follows:“12. Appeals to the TribunalA person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal, provided that such person shall before appealing, pay a non-refundable fee of twenty thousand shillings.”

69. The Tribunal has noted that the Appellant pleaded that the Respondent never raised an assessment upon the late Mrs. Sherbanu Hassanali Moledina but instead, it was only when the Appellant was in the process of administering her assets that it found a caveat against the properties at the Land’s Registry.The Tribunal notes at this point that the caveat was only placed against one property known as Land Reference Number 12325/55. The Tribunal also notes that the Appellant was perplexed upon reviewing records/ledgers on the old legacy system as well as the I-Tax system it did not find that it owed taxes. Additionally, the late Mrs. Sherbanu Hassanali Moledina did not owe taxes, according to the Appellant.

70. The Tribunal having reviewed the pleadings finds that the Appellant was of the view that the purported tax liability had no basis and it immediately requested the Respondent to lift the caveat. When the Respondent replied to its letter on 26th September, 2022, confirming that it had indeed issued the notification of charge and that it had placed it to secure and ensure realization of the tax owed by the Appellant amounting to Kshs.17,000,000. 00, the Appellant presumed that the said letter was an objection decision. However, in the said letter the Respondent merely reiterated that the charge would be in force until the tax due was settled and it was provided with evidence of settlement.

71. The Tribunal having reviewed the said letter dated 26th September, 2022 finds that it was not an objection decision but was communication providing an explanation on the reasons for the caveat/charge. The letter was not a decision on any tax issue or dispute.

72. The Tribunal also finds that the Appellant did not challenge the Respondent’s assessment. In Kenya Revenue Authority v Man Diesel & Turbo Se, Kenya [2021] eKLR the Court stated that burden of proof is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or“standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail.“In other words, a taxpayer challenging a tax assessment will need to collect and present evidence in order to disprove the Commissioner's position. This is the basic principle...".

73. The Tribunal further finds that the premise upon which this Appeal was brought was to purely lift the caveat arising from assessment of taxes. There was therefore no appealable decision that can be subject to premise the appeal for determination. In TAT Misc 185 of 2022 EMV Investments Limited-vs-Commissioner of Domestic Taxes the Tribunal held that:“With no appealable decision disclosed the Tribunal lacks the jurisdiction to grant any leave for the Applicant to pursue a non-existent right to appeal.”

74. The Tribunal therefore finds that as there is no appealable decision in this case, the result is that it is deprived of its jurisdiction. As such, having found that it lacks jurisdiction to entertain this Appeal, the Tribunal will not delve into the second issue for determination as the same has been rendered moot.

Final Decision 75. The upshot of the foregoing is that the Appeal lacks merit and the Tribunal accordingly proceeds to make the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own costs

76. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MARCH, 2024. ERIC NYONGESA WAFULA - CHAIRMANDELILAH K. NGALA - MEMBERCHRISTINE A. MUGA - MEMBERGEORGE KASHINDI - MEMBERMOHAMMED A. DIRIYE - MEMBERSPENCER S. OLOLCHIKE - MEMBER