[2023] KETAT 980 (KLR)

Ravasam Development Company Limited v Commissioner of Investigations and Enforcement (Miscellaneous Appeal E713 of 2023) [2023] KETAT 980 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KETAT 980 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Miscellaneous Appeal E713 of 2023

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

December 11, 2023

Between

Ravasam Development Company Limited

Applicant

and

Commissioner of Investigations and Enforcement

Respondent

Ruling

1. The application which was by way of a Notice of Motion dated the 24th October 2023 filed under a certificate of urgency on the even date is supported by an Affidavit sworn by the Respondent’s Representative, CPA Oluoch Daniel Ollocho, on the even date sought for the following Orders:-a.Spent.b.That the Respondent gives an objection decision to the Appellant’s Objection filed on 3rd August 2020. c.That the Tribunal pronounces itself that the Objection decision to be given violates Section 51(11) of the Tax Procedures Act.d.That a ruling be made that the Respondent had accepted the Appellant’s Objection without amendments.e.That stay of execution of the restraint orders issued by the Respondent until the Appeal is heard and determined.f.That all the agency notices issued both to the Appellant’s bank accounts and tenants on 11th August 2023 and 1st August 2023, respectively, be lifted.g.The Appellant be allowed to file the Appeal out of time.h.The cost of this application be provided for.

2. The application was premised on the following grounds, that:-a.The Appellant shall suffer substantial loss if the Respondent proceeds with enforcement of the Restraint Order Notice dated 30th January 2023 issued to the Appellant’s tenants.b.The Respondent issued the Appellant with a tax assessment of Kshs. 757,817,410. 00 which the Appellant objected in conformity with the provisions of Section 51 of the Tax Procedures Act No. 29 of 2015. c.On 2nd November 2020, the Commissioner made an Invalidation of the Appellant’s Objection and henceforth has failed to issue an Objection decision to enable the Appellant to pursue its rights of appeal under Section 52 of the Tax Procedures Act No. 29 of 2015. d.The Respondent issued agency notices to the Appellant’s bankers and tenants on 11th August 2023 and 1st August 2023, respectively.e.The Respondent be restrained from issuing Agency Notices to the Appellant’s bank accounts and the agency notices already issued be lifted.f.The Appellant has an appeal with the likelihood of success and unless this Honourable Tribunal promptly intervenes to grant a stay of execution of the Restraint Order, the Appeal will be rendered nugatory and the Appellant will suffer irreparable loss.g.It is in the interest of justice that this application be allowed.

3. The Appellant subsequently filed written submissions on the 6th November, 2023 in which it raised the following issues as falling for determination in the application:-a.Whether the Respondent erred in its decision to invalidate the objection by the Appellantb.Whether the Respondent’s invalidation dated 2nd November, 2020 is proper and in conformity with the law.c.Whether the Appellant has justifiable grounds to warrant enlargement of time

a. On whether the Respondent erred in its decision to invalidate the Objection by the Appellant 4. The Appellant relied on Section 51(3) and (4) of the Tax Procedures Act and submitted that the Respondent erred in its decision to invalidate the objection submitted in strict adherence to the taxation laws of Kenya.

5. It further submitted that the common principle is where the deadlines are expressly given in law, no other meaning is to be given to that particular Section of the Act by either the Appellant or the Respondent.

6. It relied on the case of Mangin v Inland Revenue Commissioner (1971) AC 739 and contended that the Respondent has no power to infer meaning to cause an ambiguity that injures the taxpayer where the law provides a clear definition of a term.

7. It reiterated that the Invalidation Notice dated 2nd November 2020 was given a year after the Objection was lodged and at no time did the Respondent request what was listed in its Invalidation notice acknowledging that the Appellant supplied the records as per the Respondent’s letter dated 14th February 2020.

b. On whether the Respondent’s Invalidation Notice dated 2nd November 2020 is proper and in conformity with the law 8. The Appellant relied on Section 51(3)(c) of the Tax Procedures Act 2015 and submitted that it provided all the relevant documents at the Objection stage but the Respondent failed to review and/or ask for further documentation during review hence the Appellant was convinced that the documentation was sufficient for the review.

9. It cited Section 51(4) and (11) of the Tax Procedures Act and asserted that the Invalidation came after one year and the Respondent failed to abide by the provisions of the law thus its Objection is deemed to be allowed.

10. The Appellant cited Article 47(1) and (2) of the Constitution and argued that the taxation and review processes should be consultative in line with the principles of administrative Justice.

11. It reiterated that the Respondent has not shown in any instant that it informed the Appellant of the invalidity of its objection decision even though the Respondent averred that the Appellant failed to provide relevant documents to validate its Objection as provided under Section 51(3)(c) of the Tax Procedures Act 2015.

12. It maintained that the Respondent averred that it requested documentation including accounting for withholding income tax on qualifying payments in the project; evidence of financing, land purchase agreement and completion documents; transaction documents supporting the stated amounts; and evidence of VAT payment by the Garnishee for 2018. It added that all the relevant documents to the Objection were provided and at no time did the Appellant object to any tax raised in 2018as the assessment periods were between 2009 to 2012 and 2017.

13. It asserted that the Respondent erred from asking for evidence of payment for taxes not assessed and objected to therefore out of the scope of the Objection before the Respondent.

14. The Applicant further cited the following authorities in support of the foregoing arguments:-a.Republic v National Land Commission & 2 Others Ex-Parte Archdiocese of Nairobi Kenya Registered Trusteed (St. Joseph Mukasa Catholic Church Kahawa West 2018));b.Republic v Kenya Revenue Authority Ex Parte Yaya Towers Limited [2008] eKLR;c.Mungagia Tea Factory Company Limited & Others v Commissioner of Domestic Taxes [2020] eKLR;d.Westminster Corporation v London and Northwestern Rail Co. [1905] AC 426 at p 430e.Highlands Mineral Water Limited v Commissioner of Domestic Taxes Tax Appeal No. E026 of 2020; andf.The Kenya Revenue Authority Mission Statement

15. The Appellant concluded by submitting that the Respondent failed to apply the tenets of administration of justice as enshrined in the Constitution of Kenya and the Tribunal should protect the taxpayer from such.

c. On whether the Applicant has justifiable grounds to warrant enlargement of time in compliance with Section 13(3) and (4) of the Tax Appeals Tribunal Act No 40 of 2013. 16. The Appellant cited Sections 13(3) and (4) and Section 51(8) of the Tax Procedures Act and submitted that no decision has been given to it todate by the Respondent, only enforcement and restraint orders are being issued by the Respondent thus the Appellant has been denied its right of appeal as enshrined in the law.

17. It reiterated that there is no undue delay and that it shall not only suffer the unjustified additional assessment which affects it adversely unlike the Respondent who will suffer no prejudice by allowing the extension of time.

18. It cited the cases of Esso Motors Sales v Commissioner of Domestic Taxes Misc. Application No. 136 of 2021; and Patrick Maina v Waweru Peter [2015] eKLR in which the finding in the case of United Arab Emirates v Abdel Ghafar & Others 1995 IRLR 243 was relied on and contended that the Respondent has not demonstrated in any way how it shall suffer prejudice if the Appellant is allowed the extension of time to file an appeal.

19. It relied on the case of TAT No. 115 of 2017 Digital Box Limited v Commissioner of Investigation & Enforcement and maintained that the Respondent failed to exercise the best judgment principle in its assessment.

20. The Respondent in response to the application filed a Replying Affidavit sworn by Billy Mwangi, an officer of the Respondent, on the 6th day of November, 2023 and filed on the 8th November, 2023, in which it raised the following as the grounds of opposition:-a.That on 5th November 2023, the Respondent demanded unpaid taxes of Kshs. 1,357,469,210. 00 for Corporation tax covering January 2009 to December 2012, and Kshs, 20,182180. 00 for Withholding tax for the period 2009 and 2010. b.That the Respondent raised additional VAT assessments of Kshs. 3,096,254. 00 on 7t May 2018 and Kshs. 1,180. 40 on 15th May 2018 totaling Kshs 3,097,434. 78 following a desk compliance review.c.That the Respondent vide a demand letter dated 3rd October 2019 demanded that the Appellant pay taxes on Corporation tax and VAT amounting to Kshs 761,828,987. 44. d.That the Appellant did not object to the aforesaid assessments within the 30-day timeline.e.That the Appellant filed an application on 6th November 2020 requesting to be allowed to file a late objection.f.That on 19th December 2019, the Appellant was allowed to file the Objection together with supporting documents to enable the Respondent to review.g.That based on the letter dated 19th December 2019 the Appellant’s application to file a late Objection was allowed on condition that the Appellant provides all the necessary supporting documents supporting its Objection.h.That the Appellant availed part of the documents requested on 17th January 2020 with a promise to avail the remaining documents thereafter.i.That the Applicant failed to provide the remaining additional documents as promised.j.That on 14th February 2020 the Appellant was notified that its Objection was and remained invalid pursuant to the provisions of Section 51(3) of the Tax Procedures Act. That vide the same letter the Appellant was duly informed that the assessed demanded amount of Kshs 761,546,332. 40 remained due and payable.k.That aggrieved by the said information the Appellant filed an appeal at the Tribunal (TAT No. 163 of 2019). That the said Appeal was heard and substantively determined by the Tribunal vide a Judgment rendered on 7th May 2021 where the Appeal was struck out with each party directed to bear its own cost.l.That the Appellant never appealed and or sought review of the Tribunal’s Judgment hence making the Judgment of the Tribunal to be a decision of finality.m.That the Appellant’s Appeal (TAT No. 163 of 2019) having been struck out and the Appellant, having not challenged the said Judgment, the Respondent expected the Appellant to proceed and pay the demanded taxes of Kshs 761,546,332. 40 or approach it for a payment plan.n.That contrary to the Respondent’s expectations, the Appellant failed to pay and/or approach the Respondent for a payment plan leaving the Respondent with no other option but to commence enforcement mechanisms to recover outstanding taxes.o.That in order to enforce payment of the outstanding taxes, the Respondent pursuant to the provisions of Section 40 of the Tax Procedures Act issued a Restraint Order over Property L.R. No. 2/186 and notified the Appellant of the same.p.That on 14th March 2023, the Appellant filed a Miscellaneous Application Number 33 of 2023 seeking the following orders. That:-i.This application be certified as urgent and service thereof be dispensed with at the first instanceii.The Respondent gives an objection decision to the Appellant’s Objection filed on 3rd August 2020. iii.The Tribunal pronounces itself that the Objection decision to be given violates Section 51(11) of the Tax Procedures Activ.A ruling be made that the Respondent had accepted the Appellant’s Objection without amendmentsv.Pending hearing and determination of this appeal there be a stay of execution of the restraint order dated 30th January 2023vi.The cost of the application be provided for.q.That the Respondent opposed the application dated 13th March 2023 vide its Replying Affidavit sworn on 20th March 2023. r.That the Respondent filed an application dated 24th April 2023 challenging the capacity of the Appellant’s deponent, one Mr. Erick Agbeko.s.That both the Appellant’s application dated 13th March 2023 and the Respondent’s application dated 24th April 2023 are pending a determination before this Honourable Tribunal.t.That before this Tribunal could render itself on the pending applications in Miscellaneous Application Number 33 of 2023 the Appellant filed a Notice of Withdrawal of the Application and immediately filed the instant application.u.That the Appellant has not given reasons why it would withdraw one application and immediately file another that is exactly similar to the one withdrawn.v.That the Appellant’s action of withdrawing one application and filing another is not only irritating and annoying but also raises speculations.w.That it is the Respondent’s belief that the Appellant knew that its application (Miscellaneous Application Number 33 of 2023) was defective, on the fact that the supporting affidavit was sworn by an unauthorised person and since the Respondent had raised the issue the Appellant is attempting to steal a match by filing another application where the Affidavit is deponed by a different person.x.That it is the Respondent’s honest belief that the Appellant’s actions of filing multiple applications between the same parties on the same cause of action and withdrawing the applications even before they are determined without justification is not only irritating and annoying but is also an abuse of court process.y.That the fact that the Notice of Withdrawal of Miscellaneous Application Number 33 of 2023 is yet to be adopted by the Tribunal means the matter is still alive and pending determination.z.That the instant application is exactly similar to Miscellaneous Application Number 33 of 2023 which is pending determination before the Tribunal. That being the case, the instant application amounts to abuse of the court process.aa.That based on the Memorandum of Appeal attached to the instant application, the Appellant's intention is to revive and relitigate matters that had already been heard and determined by this Honourable Tribunal in TAT No. 163 of 2019 hence the intended appeal is res judicata and an abuse of court process.ab.That the Tribunal having rendered Judgment on this matter is now functus officio.ac.That the Tribunal being functus officio, it is the Respondent’s case that the instant application is bad in law and ought to be dismissed with costs to the Respondent.ad.That other than the Tribunal being functus officio the matter is also res judicata and as such bad in law.ae.That this application is an abuse of the court process, incompetent, bad in law, and fatally defective.af.That the Appellant has not demonstrated that it deserves favourable discretion of this Honourable Tribunal and the application should be dismissed with costs to the Respondent.

21. The Respondent filed written submissions dated the 7th November, 2023 and filed on the 9th November in which it raised the following three issues as falling for determination:-a.Whether this Honourable Tribunal is functus officio;b.Whether the application amounts to abuse of court processc.Whether the application has merit

a. On whether this Honourable Tribunal is functus officio 22. The Respondent submitted that based on the Appellant’s Memorandum of Appeal attached, the Appellant’s intention is to revive and relitigate matters that had already been heard and determined by this Honourable Tribunal in TAT No. 163 of 2020 thus making this Honourable Tribunal functus officio the moment the Tribunal rendered its decision on 7th May 2021.

23. It reiterated that the only way the Tribunal would have considered this matter is if any party would have made an application for review under Section 29A of the Tax Appeals Tribunal Act.

24. It argued that the moment the Appellant failed to make an application for review in this matter meant that it was left with only two options: to appeal the decision to the High Court per Section 53 of the Tax Procedures Act and Section 32 of the Tax Appeals Tribunal Act or to comply with the Judgment of the Tribunal.

25. It relied on the Black's Law Dictionary, 9th Edition’s definition of functus officio and the cases of Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR; and Raila Odinga & 2 Others v Independent Electoral and Boundaries Commissions and 3 Others [2013] and contended that whereas the doctrine of functus officio has exceptions, these exceptions are anchored in the Civil Procedure Act and Civil Procedures Rules 2010 which do not apply in the proceedings of the Honourable Tribunal per Section 14 of the Tax Appeals Tribunal Act, 2013.

b. On whether the Applicant’s Application amounts to an abuse of judicial process 26. The Respondent relied on the case of Graham Rioba Sagwe & 2 Others v. Fina Bank Limited & 5 Others [2017] eKLR and submitted that the application is an abuse of judicial process because the Appellant was aggrieved by the Respondent’s communications contained in its letters dated 19th December 2019 and 14th February 2020 and filed an Appeal which was heard and determined but the Appellant failed to appeal against the Judgment and/or seek review of the same.

27. It reiterated that it therefore proceeded to enforce the collection of taxes it had demanded vide a letter dated 3rd October 2023 by way of placing a restraint over the Appellant’s property.

28. It contended that the Appellant, aggrieved by the enforcement action by the Respondent, the Appellant filed an application dated 13th March 2023 which was opposed by the Respondent and after both parties filed their respective submissions awaiting the Ruling, the Appellant filed the instant application seeking the same prayers as sought in the previous application dated 13th March 2023 relying on the same grounds.

29. It asserted that two weeks after filing the application, the Appellant filed a Notice of Withdrawal which is yet to be adopted by the Tribunal meaning the Miscellaneous Application No. 33 of 2023 is still alive and pending determination.

30. It asserted that it was opposed to the casual withdrawal of the Miscellaneous Application No. 33 of 2023 and expressed a wish to know the reasons for withdrawal in the absence of which the Tribunal should render its decision on the application.

31. It argued that it has not made any decision other than the ones contained in the letters dated 19th December 2019 and 14th February 2020 which were subject to Appeal in TAT No. 163 of 2020 and thus cannot be subject to another appeal before the same adjudication body. It added that allowing the Appellant to institute a fresh appeal on the said letter will still amount to filing multiple suits hence an abuse of judicial process.

32. The Respondent submitted that the prayer to extend the time to appeal cannot be granted unless the Appellant clearly indicates which decision it seeks to appeal and the reasons for the delay in challenging the said decision.

33. It maintained that the action of the Appellant to file the instant appeal when Miscellaneous Application No. 33 of 2023 is pending amounts to filing a multiplication of suits over the same subject matter against the same party hence an abuse of judicial process.

34. It added that the Appellant in seeking leave to appeal out of time has not revealed which decision it seeks to appeal out of time and what caused the delay to deserve being accommodated by the Tribunal.

c. On whether the Applicant’s Application has merit 35. The Respondent submitted that the Applicant’s application is not merited because it is an abuse of court process, the Tribunal is functus officio and the Appellant has not revealed which decision it is seeking to appeal and the reasons it was late in appealing the same.

36. It argued that once the Tribunal delivers its judgment in any matter, an aggrieved party can make an application for review as provided for under Section 29A of the Tax Appeals Tribunal Act; appeal the decision in the High Court per Section 53 of the Tax Procedures Act and Section 32 of the Tax Appeals Tribunal Act; or comply with the judgment of the Tribunal.

37. It contended that the Appellant neither sought a review of the Judgment of the Tribunal in TAT No. 163 of 2023 nor appealed the decision to the High Court thus the Appellant was left with only one option which is to comply with the Judgment of the Tribunal.

38. It asserted that the Appellant has not complied with the Judgment by remitting the demanded taxes therefore the Respondent legally commenced enforcement measures through the issuance of Restraint Orders and Agency Notices.

39. It maintained that it cannot be stopped from employing the enforcement measures to collect taxes given that its enforcement measures were legal.

Analysis and Findings 40. The Tribunal has traversed the application, Affidavits and the submissions and finds the following to be the issues falling for its for determination in this application:-a.Whether the Tribunal has jurisdiction to hear and determine the Applicationb.Whether the application is proper in law.c.Whether the Appellant should be granted leave to file its Appeal out of time

41. The Tribunal will proceed to determine the application on the basis of the foregoing issues separately as hereunder:-

a. Whether the Tribunal has jurisdiction to hear and determine the Application 42. The Respondent contended that the application filed is defective as the Tribunal lacks the jurisdiction to hear and determine the Appeal since it had already pronounced itself on the same issues by the same parties in TAT Appeal No. 163 of 2020 and the matter was struck off with each party to bear its own costs.

43. It further contended that having pronounced itself on the matter, the Tribunal is therefore functus officio and thus unable to entertain the matter. It added that the only options available to the Appellant after the initial matter was struck out was to apply for a review of the Tribunal’s decision, appeal the Tribunal’s decision at the High Court or comply with the assessment orders.

44. The Appellant did not address or present any arguments on this matter.

45. In the case of Republic v Magistrates Court, Mombasa; Absin Synergy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) (24 January 2022) (Judgment), Mativo J. stated as follows:-“In common parlance, the term jurisdiction means the power of the courts to decide and try a case or issue. “Jurisdiction may be defined to be the power of the court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. Jurisdiction means the power conferred by law upon the court to try and hear the cases and give appropriate judgements.”

46. Further, in the case of Enock Kirao Muhanji v Hamid Abdalla Mbarak [2013] eKLR, the court held as folows with regard to relitigation on determined disputes:-“It is true, as argued by the Applicant, that when a suit is dismissed, one might not be allowed to file a fresh suit unlike in a situation where a suit has been struck out… The words “dismissed” and struck out” are terms of art and are not supposed to be used interchangeably in a Ruling or Judgment…”

47. The Respondent affirms in the Replying Affidavit that the Appeal filed before the Tribunal under TAT No. 163 of 2021 was struck out by the Tribunal and not dismissed upon determination of the tax dispute on its full merits.

48. It is trite that a matter being struck out does not mean that the matter is substantively dealt with never to be revisited by the aggrieved party. As long as the legal defect that led to the striking out of any cause of action or pleading has effectively been cured by the offending party, the matter may for good cause be revisited and otherwise determined on its proper merits.

49. Thus, striking out of actions acts as a comma and not a full stop to proceedings before the court. It generally leaves the door open for the party negatively affected by the court’s decision to cure the defect that caused the court to strike out the proceedings in the first place and resume to the seat of justice for any appropriate remedy.

50. To this end the Tribunal is of the view that even with a matter being struck out, the Tribunal is still clothed with the jurisdiction to hear and determine any subsequently ensuing appeal on its merit.

51. The Appellant filed the Appeal in TAT No. 163 of 2020 that was anchored on the Respondent’s letter dated 14th February, 2020. The Memorandum of Appeal dated 24th February, 2020 in the previous Appeal was filed on the 28th April, 2020. The present Appeal is predicated upon an invalidation decision indicated to have been issued on the 2nd November, 2020.

52. The Tribunal in the circumstances finds that the causes of action for the two appeals are distinct and to that extent the Tribunal is properly seized of the jurisdiction to deal with the present Appeal and any interlocutory proceedings.

a. Whether the Applicant’s Application is proper in law 53. The Respondent averred that the application is an abuse of the Tribunal’s process as the Appellant had already filed a similar application with the Tribunal under Miscellaneous Application Number 33 of 2023 and which an application the Appellant sought to withdraw subsequent to the filing of this application.

54. The Tribunal being well versed with the matters raised in the previous application and noting that the Appellant filed a Notice of withdrawal of the application in the Miscellaneous Application Number 33 of 2023 points out that the withdrawal was endorsed by the Tribunal in the presence of the Respondent’s Counsel on record.

55. The question of the contents of the previous application being the same as the one currently filed by the Appellant is neither here nor there as the issue for the withdrawal of the previous application has since been dealt with conclusively at the withdrawal of the application stage. The Respondent remains at liberty to challenge the order for the withdrawal of the application otherwise than before a forum of the Tribunal.

56. The Appellant is manifestly challenging an invalidation decision issued on the 2nd November, 2020 which is a decision issued subsequent to the filing of the previous Appeal. The TAT No. 163 of 2020 was struck out for having been filed prematurely prior to the issuance of an appealable decision as relates to the Appellant’s notices of objection.

57. The present application is the one falling for determination by the Tribunal on its proper merits and is properly before the Tribunal.

a. Whether the Appellant ought to be granted leave to file its Appeal out of time 58. The Tribunal is enjoined to determine the length and reason for the delay when considering an application for the extension of time to appeal out of time. The power to extend time is discretionary and unfettered but the same must be exercised judiciously and it is not a right to be granted to the Applicant.

59. In determining whether to extend time, the Tribunal was guided by the decision in the case of Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), where the Court expressed itself as thus:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled 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 reason 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.”

60. The Tribunal, guided by the principles set out in Wasike V Swala [1984] KLR 591, Joseph Ondiek Tumbo v Sony Sugar Co Ltd [2014] eKLR and Section 13 of the Tax Appeals Tribunal Act, 2013 used the following criteria to consider the application.a.Whether the appeal is merited.b.Whether there will be prejudice suffered by the Respondent if the extension is granted?c.Whether there is a reasonable cause for the delay?

a. Whether the Appeal is merited 61. The Tribunal examined whether the actions complained of by the Appellant were merited and there was an arguable appeal before the Tribunal or the Appeal was frivolous and would only result in a waste of the Tribunal’s time.

62. An appeal being merited does not mean that it should necessarily succeed rather it is arguable. The Tribunal is guided by the findings of the court in Kenya Commercial Bank Limited Vs Nicholas Ombija (2009) eKLR where it was held that: “an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.”

63. The Tribunal notes that the basis for the intended appeal relates to an invalidation decision that was indicated to have been issued out of time with the consequence that the Appellant’s notice of objection could possibly be deemed to have been allowed by operation of law.

64. In the circumstances, the Tribunal finds that the ensuing appeal is likely to pose serious legal issues for determination which need to be interrogated fully at the trial.

b. Whether there will be prejudice suffered by the Respondent if the extension is granted 65. The Respondent did not demonstrate how it would suffer prejudice if the prayer for expansion of time was granted. On the other hand, the Appellant’s recourse to justice lies in an appeal to the Tribunal. Thus, the Appellant would suffer prejudice if it is not granted leave to file its appeal considering that the amount of money claimed is of a significant amount.

66. It is the view of the Tribunal that the Respondent would otherwise still collect the taxes together with penalties and interest should the Applicant be found to be at fault.

67. The Tribunal finds that the Respondent will not suffer prejudice if the extension is granted.

c. Whether there is a reasonable cause for the delay 68. In considering what constitutes as a reasonable reason for delay, the court in Balwant Singh v Jagdish Singh & Ors (Civil Appeal No.1166 of 2006), held that: “The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention”.

69. The events preceding the instant application as discernible from the convulated objection proceedings and related appeal process it is understandable that the commencement of the intended appeal would be delayed given the preliminary matters that ensued and had to be dealt with by both parties.

Disposition 70. The upshot to the foregoing analysis is that the Tribunal finds the appeal to be merited and the Orders that recommend themselves to the Tribunal are as follows:-a.The Appellant be and is hereby granted leave to fie an appeal out of time.b.The Notice of Appeal and the Appeal documents filed on the 24th October, 2024 be and are hereby deemed as duly filed and served.c.The Respondent to file and serve its Statement of Facts within Thirty (30) days of the date of delivery of this Ruling.d.The Restraint Order placed over Property L.R. No. 2/186 and the Agency Notices issued to the Appellant’s bankers and tenants be and are hereby lifted.e.No orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF DECEMBER 2023………………………ERIC NYONGESA WAFULACHAIRMAN………………………ELISHAH N. NJERUMEMBER………………………MUTISO MAKAUMEMBER…………………………EUNICE N. NG’ANG’AMEMBER……………………………………ABRAHAM K. KIPTROTICHMEMBER