[2016] KETAT 16 (KLR)
The Tribunal held that adjournment of appeals cannot be effected by informal correspondence such as letters, and that a formal application must be made before the Tribunal. The appellant's failure to appear and failure to properly seek an adjournment justified the dismissal of the appeal. The Tribunal further found...
Source-derived case information.
- Citation
- [2016] KETAT 16 (KLR)
- Parties
- Appellant: Nyeri Water and Sewerage Company Limited; Respondent: The Commissioner of Domestic Taxes
- Court
- Tax Appeal Tribunal
- Jurisdiction
- Kenya
- Case Number
- Appeal 197 of 2015
- Procedural Posture
- Tax Appeal / Ruling on Application for Dismissal Due to Non Appearance
- Outcome
- appeal dismissed for non-appearance; costs awarded to respondent and Tribunal
- Legal Topics
- Appeal Dismissal, Non Appearance, Adjournment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyeri Water and Sewerage Company Limited
Appellant
The Commissioner of Domestic Taxes
Respondent
Procedural Posture
Tax Appeal / Ruling on Application for Dismissal Due to Non Appearance
Legal Issues
- 1 Whether an appeal can be adjourned by letter without formal application before the Tribunal.
- 2 Whether the respondent is entitled to dismissal of the appeal and costs due to the appellant's non-appearance.
Ratio Decidendi
The Tribunal held that adjournment of appeals cannot be effected by informal correspondence such as letters, and that a formal application must be made before the Tribunal. The appellant's failure to appear and failure to properly seek an adjournment justified the dismissal of the appeal. The Tribunal further found that the respondent, having incurred costs in preparation for the hearing, was entitled to an award of costs. The Tribunal therefore dismissed the appeal and ordered the appellant to pay specified sums to both the respondent and the Tribunal within fourteen days.
Court Disposition
appeal dismissed for non-appearance; costs awarded to respondent and Tribunal
Orders
- The appeal is dismissed.
- The appellant shall pay the respondent Kshs. 45,000 within fourteen (14) days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE TAX APPEALS TRIBUNAL
APPEAL NO. 197 OF 2015
BETWEEN
NYERI WATER AND SEWERAGE COMPANY LIMITED....APPELLANT
AND
THE COMMISSIONER OF DOMESTIC TAXES ...................RESPONDENT
RULING
When this Appeal was first called out at 9. 15 a.m. this morning during the call over the Appellant did not appear, the Respondent appeared with a large team ready to proceed for hearing, directions were given at that point that the Appeal would proceed later. It is now 12. 47 p.m. the Appeal having been called out and there is still no appearance for the Appellant.
When the Appeal was initially called out in the morning the registry brought to the attention of the, Tribunal a letter purportedly written by the firm of Sichangi & Co. Advocates on the 23rd March, 2016 requesting that this matter be taken out of today's cause list as the advocate who was to deal with this matter was not able to attend the hearing.
The Tribunal takes great exception to the letter, disregards the contents thereto entirely and wishes to point out for the record that adjournment of Appeals cannot be done by mere letters. Before the matter could proceed, the Respondent applied for the Appeal to be dismissed and for costs to be paid for the reason that four officers who were coming
to participate in the Appeal namely Mr. Majiwa, Mr. Koome, Ms. Mwende and Ms. Njambi travelled from Nyeri yesterday and spent a night in Nairobi ready for the Appeal to proceed this morning.
The Tribunal having considered this application very carefully and in obedience to Section27(2) of the Tax Appeals Tribunal Act and Rule11(1) of the Tax Appeals Tribunal Rules it is of the considered view that the Respondent's application is merited with the result that this Appeal is dismissed.
The Tribunal further orders that the Appellant pay the Respondent the sum of Kshs. 45,0001=which sum of money should be paid within fourteen (14) days from the date hereof and a sum ofKshs. 20,0001=to the Tribunal.
These are the orders of the Tribunal.
Dated and delivered in Nairobi this 7th day of April, 2016.
A.G.N KAMAU (CHAIRMAN)
JOSEPHINE K. MAANGI
OMAR J. MOHAMMED
PONANGIP ALII R. RAO
WILFRED N. GICHUKI