[2024] KETAT 1490 (KLR)

Planet Technical Solutions Limited v Commissioner of Domestic Taxes (Miscellaneous Tax Appeal E096 of 2024) [2024] KETAT 1490 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KETAT 1490 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Miscellaneous Tax Appeal E096 of 2024

CA Muga, Chair, BK Terer, EN Njeru, E Ng'ang'a & SS Ololchike, Members

October 31, 2024

Between

Planet Technical Solutions Limited

Applicant

and

Commissioner of Domestic Taxes

Respondent

Ruling

Background 1. The Applicant moved the Tribunal vide a Notice of Motion Application dated 25th September 2024 and filed on 26th September 2024 seeking the following Orders:i.That the Applicant be granted leave to file its Memorandum of Appeal and Statement of Facts out of time.ii.That Agency notice for tax in arrears dated 18th September 2024 be lifted pending the hearing and determination of this Application/Appeal.iii.That Memorandum of Appeal and Statement of Facts annexed hereto be deemed as duly filed and served.iv.That the Respondent be at liberty to file a response if it so wishes.v.That the cost of this Application be costs in the cause.

2. The Application was predicated on the following grounds:i.That the Applicant objected to the Respondent’s additional assessments dated 11th February 2022 on 13th December 2023 and received an objection decision dated 2nd February 2024. ii.That the Applicant could not attend to official duties during the entire period of objection decision after being taken ill and was admitted in hospital in December 2023 with the medical condition deteriorating through to March 2024. Further, that the Agency Notice issued by the Respondent on 18th September 2024 paralysed the Applicant’s business.iii.That the Respondent proceeded to arbitrarily issue demand notice for tax arrears without affording the Applicant a fair hearing in clear violation Article 47 of the Constitution of Kenya, 2010 (hereinafter “the Constitution”) which guarantees fair administrative action.iv.That the Application herein would not occasion any prejudice to the Respondent as the delay was not inordinate and the Appeal had a high probability of success and it would be highly prejudicial to the Applicant if Leave was not granted.v.That in the interest of justice, the Applicant be granted leave to file its Appeal out of time.

Response to the Application 3. The Respondent upon being served with the Application filed an opposing Replying Affidavit sworn by Daniel Lemaiyan, an officer of the Respondent, dated 2nd October 2024 and filed on even date citing the following as the grounds:a.That the Appellant neither filed nor signed any supporting affidavit, thus, the Application was void, lacked merit and ought to be struck out.b.That the Application was filed 7 months after the Respondent’s objection decision was issued thus was out of time.c.That the Applicant did not provide any reasonable cause for the delay in filing the Appeal herein.d.That declaration of no inordinate delay could not be passed by the Tribunal without sufficient grounds by the Appellant.e.That the Applicant failed to justify its lateness on the alleged illness between December 2023 to March 2024 to the satisfaction of the Tribunal for extension of time to file an Appeal. Additionally, the Applicant failed to annex any medical records to justify its allegation of sickness.f.That the Applicant did not meet the conditions as set in Section 13(4) of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”) to warrant exercise of the Tribunal’s discretion in its favour thus the Application should be dismissed with costs to the Respondent.

Analysis and Findings 4. The Tribunal notes that the Appellant herein was seeking the Tribunal to exercise its discretion and grant the Applicant leave to file its Memorandum of Appeal and Statement of Facts out of time against the Respondent’s objection decision dated 2nd February 2024. At the same time, the Applicant was seeking the lift of Agency notice in respect of tax arrears dated 18th September 2024 pending the hearing and determination of this Application and/or Appeal.

5. The Tribunal notes that in the Application, the Applicant did not attach an Affidavit in support of its notice of motion as couched under Rule 10 (2)(a) of the Tax Appeals Tribunal (Procedure) Rules, 2015 which provide as follows:“(2)An application for extension of time referred to in rule 10(1) shall be-(a)supported by an affidavit stating reasons why the applicant was unable to submit the documents in time.(b)served on the respondent by the applicant within two days of filing with the clerk.”

6. The Tribunal associates with the holding in the case of Speaker of the National Assembly vs James Njenga Karume [1992] eKLR where Kwach, Cockar & Muli JJ A) held as follows:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament. that procedure should be strictly followed. Accordingly. the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

7. Accordingly, it is the finding of the Tribunal that the Application was improperly lodged before it.

Disposition 8. The upshot of the foregoing is that the Tribunal finds that the Application fails and accordingly proceeds to make the following Orders:i.The Application be and is hereby struck out.ii.No orders as to costs.

9. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF OCTOBER, 2024. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER