[2025] KETAT 254 (KLR)

Mos Oils & Fuel Company Limited v Commissioner of Domestic Taxes (Miscellaneous Appeal E026 of 2025) [2025] KETAT 254 (KLR) (Appeals) (27 June 2025) (Ruling)

Neutral citation: [2025] KETAT 254 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeals

Miscellaneous Appeal E026 of 2025

CA Muga, Chair, AK Kiprotich & T Vikiru, Members

June 27, 2025

Between

Mos Oils & Fuel Company Limited

Applicant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Applicant vide a Notice of Motion dated the 6th May 2025 and filed on 7th May 2025 under Certificate of Urgency and supported by an Affidavit sworn by Gladwell Jesire Tungo Cheruiyot sought for the following Orders:i.Spent.ii.That the intended Applicant be granted an extension of time with regard to filing Notice of Appeal and Memorandum of Appeal to the Tribunal.iii.That the Tribunal do issue an order restraining the Respondent either by itself, its agents, employees, servants or through any other person at its behest, from issuing Agency Notices against the Applicant's Bank Accounts or any Account held and/or owned by the Applicant in any other company, until this Application and the Main Appeal is heard and determined.iv.That the cost of this application be in the cause.v.That this Tribunal be pleased to issue any such orders as it deems just and expedient.

2. The Application was premised on the following grounds:i.That due to factors beyond control the intended Applicant missed the statutory deadline for filing the Notice of Appeal and Memorandum of Appeal to the Tribunal.ii.That the Applicant was ill and was under medical care-based remedy. That the Applicant learnt of the late objection decision later after recovering electronic mail used at the business which was being managed by the deceased director who was actively involved in the business operations.iii.That the intended Applicant approached the Tribunal at the earliest juncture and failure to file the Notice of Appeal within the stipulated timelines is as a result of factors beyond the Applicant's control as she was on medical observation and was unable to access i-Tax ledgers and company electronic mails.

3. In its supporting affidavit, the Applicant stated that on 18th October 2023 the Respondent issued additional assessments for income tax. That it objected on 27th November 2023 and the Respondent issued its decision on 24th January 2024.

4. The Tribunal notes that the Respondent did not file its response to the Application inspite of having been directed by the Tribunal to do so by close of business on 30th May 2025. The Tribunal can therefore infer that the Respondent was not opposed to the instant Application.

5. On 30th May 2025, the Tribunal directed parties to file and serve their respective written submissions by the 9th June 2025. The Tribunal notes that neither party filed submissions as directed and therefore in making its determination, the Tribunal will rely on the pleadings of the Applicant as filed.

Analysis And Findings 6. In spite of the application being unopposed on the part of the Respondent the Tribunal retains the residual authority to determine if the Application satisfies the legal threshold for the grant of the orders sought on the part of the Applicant.

7. The main prayer made the Applicant is for extension of time to file ots Appeal out of time. The power to expand time for filing an Appeal is donated by Section 13(3) of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”) which provides as follows:“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).”The power of the Tribunal in this regard is discretionary power and not merely a right to be granted to the Applicant.

8. In determining whether the expand time, courts have in the past considered a number of factors. These factors were discussed in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 where the Judge held as follows:“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this court takes into account in deciding whether to grant an extension of time are, first the length of the delay, secondly the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted.”

9. The court in Wasike v Swala [1984] KLR 591 provided the hierarchy of the factors to consider when it stated the following:“an applicant must now show, in descending scale of importance, the following factors: -a)That there is merit in his appeal.b)That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; andc)That the delay has not been inordinate….”

10. The Tribunal, guided by the principles set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997, Wasike v Swala [1984] KLR and Section 13 of the Tax Appeals Tribunal Act 2013 used the following criteria to consider the application:a.Whether there is a reasonable cause for the delay.b.The merits of the complained action.c.Whether there will be prejudice suffered by the Respondent if the extension is granted.a.Whether there is a reasonable cause for the delay.

11. The Applicant cited illness as a reason for the delay. The Applicant stated that its director was under medical care-based remedy and that it learnt of the late objection decision later after recovering electronic mail used at the business which was being managed by the deceased director who was actively involved in the business operations.

12. That the intended Applicant approached the Tribunal at the earliest juncture and failure to file the Notice of Appeal within the stipulated timelines is as a result of factors beyond the Applicant's control as she was on medical observation and was unable to access i-Tax ledgers and company electronic mails.

13. The statutory timelines and provisions to file an appeal have been clearly set out in the TATA. Section 13 (3) of the TATA provides as follows with regard to the statutory timelines in commencing appeal process:“A notice of appeal to the Tribunal shall—(a)be in writing;(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.(2)The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—(a)a memorandum of appeal;(b)statements of facts; and(c)the tax decision.”

14. In addition, Section 13(4) of the TATA provides as follows in regard to grounds under which an Applicant can be granted leave to file sits Appeal out of time:“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..”

15. The Tribunal notes that although the Applicant cited illness of its director, it did not provide any further details document in support of its averment. Further the Applicant did not provide the decision it seeks to appeal against to demonstrate when the Respondent decision was issued. Additionally, the Applicant did not state when it became aware of the Respondents decision and therefore the Tribunal could not determine whether the Application was brought without undue delay.

16. The Tribunal’s position is that for it to exercise its discretion to expand time, the Applicant ought to have provided justifiable reason(s) for the delay of more than 11 months for consideration by the Tribunal as provided for under Section 13(4) of the TATA.

17. In the circumstances the Tribunal finds that the Applicant did not advance any reasonable cause of delay to vindicate its right to appeal against the objection decision by the Respondent.

18. The Tribunal is further persuaded by the decision in Abdul Aziz Ngoma v Mungai Mathayo [1976] Kenya LR 61, 62, where the court stated as follows:“We would like to state once again that this Court’s discretion to extend time under rule 4 only comes into existence after ‘sufficient reason’ for extending time has been established and it is only then that other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.”

19. Having entered the above finding and guided by the above case law, the Tribunal did not find it necessary to delve into the other issues for its determination as they were rendered moot.

Disposition 20. Based on the foregoing analysis, the Tribunal finds that the application lacks merit and proceeds to make the following Orders:a.The Application be and is hereby dismissed.b.Each party to bear its own costs.

21. It is so Ordered.

DATED AND DELIvERED AT NAIROBI ON THIS 27TH DAY OF JUNE, 2025. ..............................CHRISTINE A. MUGACHAIRPERSON...............................