[2023] KETAT 576 (KLR)

Namu v Commissioner of Domestic Taxes (Appeal 115 of 2023) [2023] KETAT 576 (KLR) (29 September 2023) (Judgment)

Neutral citation: [2023] KETAT 576 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 115 of 2023

E.N Wafula, Chair, Cynthia B. Mayaka, EN Njeru, RO Oluoch & AK Kiprotich, Members

September 29, 2023

Between

Catherine Wawira Namu

Applicant

and

Commissioner Of Domestic Taxes

Respondent

(An Appeal against the Respondent's objection decision dated 2nd August 2022)

Judgment

1. The appellant filed a notice of motion dated the March 6, 2023 under a certificate of urgency on March 11, 2023 and which is supported by an affidavit sworn by the appellant herself on the 6th day of March, 2023 seeking for the following orders, that:-a.Spentb.The honourable tribunal deems the appellant’s notice of appeal, memorandum of appeal and statement of facts filed on February 3, 2023 to be properly on record.c.Pending the hearing and determination of the application herein and the appeal, the honourable tribunal do issue orders restraining the respondent from initiating and/or continuing any enforcement action with respect to objection decision dated August 2, 2022. d.The honourable tribunal do issue orders it deems fit and proper.

2. The application was premised on the following grounds, that:a.Vide an application dated 6th December 2022, the Applicant sought leave of this Honourable Tribunal for enlargement of time to lodge an appeal to challenge the Respondent’s decision dated 2nd August, 2022, with respect to VAT Automated assessment for the period January, 2018 to May 2018. b.The said application came up for a hearing on December 9, 2022, when it was allowed and the appellant was ordered to file its Appeal and appeal documents within 15 days of the date of the ruling.c.The appellant filed its appeal on February 3, 2023. The delay to lodge the Appeal within the timelines as per the order was attributed to the failure of the Respondent to furnish her with documents like original documents which were taken by the Respondent during the period of objection review which were required to support the Appeal.d.The supply of the documents late by the Respondent is the main cause for the delay for this Appeal.

3. The Respondent opposed the application through a replying affidavit sworn by Cherutich Ismael Kibet, an officer of the respondent on April 3, 2023 wherein it was stated that:-a.The appellant’s notice of motion dated December 6, 2022 which was allowed required her to file the appeal on or before the December 24, 2022. However, the appellant failed to comply with the Tribunal’s directions without justified reasons.b.Filing of an appeal is not solely pegged on documents but it is also dependent on reasons issued in the objection notice. That no reason was provided for failure to use the objection decision to file the appeal.c.There is no proof that the said documents were in fact with the respondent.d.All the documents attached to the memorandum of appeal and statement of facts can be accessed by the appellant from her I-Tax portal and her own records.e.The respondent has never received any request for the supply of the said documents from the appellant.f.The Appeal lacks any chance of success.

Analysis And Finding 4. The application herein seeks for orders for the regularization of the appellant’s appeal documents which have been filed contrary to the directions and timelines issued by the tribunal on the 9th of December 2022.

5. Ojwang, J (as he then was) stated as follows in B. v Attorney General [2004] 1 KLR 431 on what would happen if parties are left to disregard orders of court.“The court does not, and ought not to be seen to, make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”

6. Orders of the tribunal are never issued in vain. They must therefore be obeyed and the Tribunal is enjoined with the responsibility of ensuring that they are indeed obeyed.

7. A party that faces difficulty in obeying and or complying with the orders of the Tribunal is required to come back to the Tribunal to explain the nature of the difficulty the party faces and the help such party requires from the Tribunal to aid the party to ensure that the orders are obeyed. This position was affirmed in Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi) [2018] eKLR, where the Court made the following observations;“It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying therewith, the honorable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order.”

8. The appellant in this appeal did not come back to tribunal with an application to explain that the respondent had refused to supply her with the required documents and there was therefore need for the Tribunal to intervene by issuing any appropriate order to compel the Respondent to supply her with the said documents.

9. In addition to the above, the Appellant has equally failed to prove on a balance of probability that she had requested for documents from the Respondent. No letter or any form of communication to prove this assertion has been tabled before the Tribunal.

10. The appellant has also not explained why she could not access her iTax portal to access these documents which were allegedly in the custody of the respondent.

11. It is also common knowledge that the documents are never filed before the Tribunal in their original format. The explanation given by the Appellant that she was waiting for the return of the original documents that had been submitted to the Respondent before she could file its Appeal is thus not tenable unless she was to intimate that she had not retained any copies of the original documents supplied to the Respondent. No such intimation of absence of copies of the documents was made.

12. It is for the above reasons that the Tribunal has concluded that the reasons given by the Appellant for its failure to comply with the Ruling of the Tribunal issued on the 9th December 2022 are not tenable and or plausible.

Disposition 13. The Tribunal hereby finds that the application lacks merit and the appeal filed therewith is a nullity and the Tribunal accordingly proceeds to make the following orders: -a.The application be and is hereby dismissed.b.The appeal be and is hereby struck out.c.No orders as to costs.

14. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2023. ERIC N. WAFULACHAIRMANCYNTHIA B. MAYAKAMEMBERELISHAH NJERUMEMBERRODNEY O. OLUOCHMEMBERABRAHAM KIPROTICHMEMBER