[2024] KETAT 1048 (KLR)

Parliamentary Service Commission v Kenya Revenue Authority (Tax Appeal E399 of 2023) [2024] KETAT 1048 (KLR) (12 July 2024) (Ruling)

Neutral citation: [2024] KETAT 1048 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E399 of 2023

E.N Wafula, Chair, M Makau, EN Njeru, E Ng'ang'a & AK Kiprotich, Members

July 12, 2024

Between

Parliamentary Service Commission

Appellant

and

Kenya Revenue Authority

Respondent

Ruling

1. The Respondent moved the Tribunal vide a Notice of Motion application dated 4th March 2024 and filed under a Certificate of urgency on the 5th March, 2024 and which application is supported by an Affidavit sworn on 4th March 2024 by Lillian Nyaringita, an Advocate for the Respondent, seeking for the following Orders: -a.Spent.b.The Honourable Tribunal be pleased to grant leave for the Respondent to file their Supplementary List of documents.c.That the Honourable Tribunal be pleased to admit the Respondent’s List of Documents dated 28th February 2024 on record as duly filed.d.That the cost of this application be in the cause.

2. The application is premised on the grounds, that: -i.The matter is fixed for hearing on 26th March 2024 and unless the Respondent is granted leave to file their Supplementary list of documents, the Tribunal shall not have the benefit of making a fair and just determination.ii.The Respondent is desirous of demonstrating the date of service of its objection decision to enable the Tribunal come to fair and just determination of the dispute.iii.The contention of the correct date of service of the Respondent’s Objection decision was raised by the Appellant in its Supplementary submissions.iv.The Respondent is desirous of presenting the correct position in its defence of the matter through the information contained in the Supplementary list of the documents to be filed in this case.v.The Respondent holds the right to be heard and accorded a fair hearing pursuant to Article 50 of the Constitution of Kenya 2010. vi.No prejudice will be suffered by the Appellant in the Appeal if the orders sought herein are allowed as both parties have an equal and just opportunity to present the issues before the Tribunal.vii.The Honourable Tribunal has jurisdiction to grant the orders sought.

3. The Appellant upon being served with the instant application opposed the application vide a Replying Affidavit sworn on 14th March 2024 by Jeremiah Nyengenye, the Clerk of the Senate and the Secretary of the Appellant, which raised the following grounds, that;a.Upon being issued with an assessment, the Clerk to the National Assembly and the Clerk of the Senate filed Objections dated 27th March 2023 on 28th March 2023 to which the Respondent rendered it Objection decision dated 29th May 2023 and delivered to the office of the Clerk of the Senate on 5th June 2023 in hard copy.b.The Respondent is bound by Article 47 of the Constitution and by the Fair Administrative Action Act to discharge its duties in a manner that is expeditious, effective, lawful, reasonable and procedurally fair.c.The Respondent’s decision was received on 5th June 2023 in the Appellant’s office and the Appellant filed the Notice of Appeal on 5th July 2023 which is within the period provided for in Section 13 of the Tax Appeals Tribunal Act.d.The Respondent has no valid reason to change the mode of delivery to email when the parties had at all times exchanged correspondences in hard copy.e.Based on Sections 73 and 74 of the Tax Procedures Act, 2015, the Appellant submitted all documents to the Respondent by post and therefore the Objection decision was received when the hard copy was delivered to the Appellant’s offices on 5th June 2023. f.The Appellant filed its Memorandum of Appeal on 20th July 2023 which is within 14 days of lodging its Notice of Appeal.g.The Respondent failed to adhere to the provisions of Section 51 (11) of the Tax Procedures Act by delaying in communicating the Objection decision from 29th May 2023 to 5th June 2023 which was outside the period of 60 days provided for in Section 51 (11) of the Tax Procedures Act.

Parties Submissions 4. The Respondent in its written submissions dated 3rd April, 2024 and filed on 4th April, 2024, submitted as follows;a.The Respondent submitted that it served the Appellant with an Objection decision on 30th May 2023 at around 5:33 pm through its email address on the iTax portal. Further, the law allows the Respondent to effect service electronically and the Applicant relied on Section 74 (1) (c) of the Tax Procedures Act.b.The Respondent submitted that the Appellant has neither disputed receipt of the Objection decision nor the email address not belonging to itself. Additionally, the Appellant’s reason for disputing electronic service is baseless.c.The Respondent submitted that the Appellant has been serving its pleadings upon the Respondent via electronic means, therefore it is in bad faith and improper for the Appellant to choose the mode of service to its convenience.d.The Respondent relied on the Supreme Court decision in the case of Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR.

5. The Appellant in its written submissions dated 2nd April 2024 and filed on 3rd April 2024, submitted as follows;a.The Appellant submitted that it has legitimate expectation that communication between itself and the Respondent would be processed in the same manner at all times.b.The Appellant submitted that the Respondent’s actions are unfair, unreasonable and breach the Appellant’s legitimate expectation which violates the Appellant’s right to fair administrative action.c.The Appellant relied on Section 13 (1) (b) of the Tax Appeals Tribunal Act and reiterated that the decision was received on 5th June 2023 and the Notice of Appeal was filed on 5th July 2023, which was within the prescribed timelines in law.

Analysis and Findings 6. The Tribunal upon perusal of the application, Affidavits in support and opposition thereof and the submissions filed by the parties shall proceed to consider the application on its merits.

7. The Tribunal’s power in determining applications of this nature is anchored in Section 15 (4) of the Tax Appeals Tribunal Act and under Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015.

8. The Respondent contended that its sought leave of the Tribunal to file additional documents with the view of articulating the period and time as to when the Objection decision was served upon the Appellant as this forms the crux of the Appeal.

9. The grounds upon which the Respondent relied upon was, inter alia, that it realized that there was a dispute as to the date of service of the Objection decision upon being served with the Appellant’s submissions.

10. The Respondent in invigorating it arguments placed reliance on the provisions of Article 50 of the Constitution of Kenya, which seeks to ensure that each party is afforded an opportunity to present or defend their cases fairly.

11. Article 50 (1) of Constitution of Kenya 2010, provides that;“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”

12. The Appellant in its response, challenged the period of service, nevertheless did not demonstrate how it would be placed in a position of prejudice if the orders sought were granted.

13. The Tribunal observes that the Appeal was yet to be heard, neither party had prosecuted its case and that the application herein was made before the date scheduled for the hearing of the Appeal.

14. It is the Respondent’s argument that the additional documents shall assist the Tribunal to have a clear and full picture of issues while dispensing justice.

15. The Tribunal having perused the additional documents notes that the same are copies of extract of an email as between the Respondent and the Appellant herein.

16. In the Tribunal’s view, the additional documents that the Respondent seeks to include and rely on at the hearing of the Appeal, do not appear to be new documents to the Appellant, the Appellant will not therefore be ambushed with fresh documents that it has not already been furnished with.

17. It is the Tribunal’s view that there is no provision in law that bars a party from presenting further evidence obtained pursuant to the institution on the case, it is generally an acceptable practice in law that with sufficiency of reasonable cause to the Tribunal, a party may be allowed to file additional or supplementary documents.

18. Further, the Tribunal notes that it would be reasonable for some evidence intended to be relied upon in any proceedings to come to the attention or knowledge of such party after the institution of the suit or Appeal.

19. The Tribunal is persuaded that the additional documents shall aid the Tribunal to have a clear picture of the issues and will also afford the parties a fair trial as well as shade more light to the issues in controversy.

20. There is no prejudice that may manifest upon the Appellant’s case or grant the Respondent undue advantage, if the Orders sought are granted in the Tribunal’s view the Appellant shall have an opportunity to review and respond to the said documents without any undue advantage being extended to any party to these proceedings.

21. The Tribunal finds that the grounds advanced by the Respondent for the delay in filing the documents are reasonable.

Disposition 22. In view of the foregoing analysis, the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders: -a.The Respondent be and is hereby granted leave to file and serve a Supplementary List of documents limited to the documents annexed and marked as “LN - 1” to the Affidavit in support of the application.b.The Respondent to file and serve the Supplementary List of documents within Three (3) clear days of the date of delivery of this Ruling.c.The Appellant be and is hereby granted a corresponding leave and is at liberty to file a Supplementary list of documents in response to the Respondent’s Supplementary list of documents within Seven (7) days of the date of being served by the Respondent.d.The matter to be mentioned on the 13th day of August, 2024 for directions on the hearing of the main Appeal.e.No orders as to costs.

23. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY JULY, 2024ERIC NYONGESA WAFULA - CHAIRMANMUTISO MAKAU - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBERABRAHAM K. KIPROTICH - MEMBER