Makokha v Kenya Revenue Authority (Tax Appeal E299 of 2026) [2026] KETAT 226 (KLR) (19 May 2026) (Ruling)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E299/2026 ROBERT CHUKUNWE MAKОКНА VS KENYA REVENUE AUTHORITY RULING 1. The Applicant filed a Notice of Motion dated 11th March 2026 and filed on 13th March 2026 under certificate of urgency and supported by an Affidavit sworn on 11th March 2026 by Robert Chukunwe Makokha the Applicant herein, seeking the following Orders: 1. *Spent.* 2. That pending the hearing and determination of the application this Honourable Tribunal be pleased to stay the issuance by the Respondent of any other further demands the agency notices or commencement of any intended Action by Respondent of further enforcement proceedings in connection with payments of additional taxes. 3. That the Applicant be granted extension of time with regard to filing the notice of appeal, memorandum of appeal and statement of facts to this Honourable Tribunal out of time. 4. That the notice of appeal be deemed as duly filed and served. 5. That this Honourable Tribunal be pleased to grant any other orders, as it may deem just expedient. # Grounds for the Application 1. The application is based on the following grounds: 1. That the Applicant and the Respondent are embroiled in a tax dispute. 2. That the Respondent issued an objection decision rejecting the objection application on 18th October 2023 yet the Applicant provided all supporting documents showing the fuel products was exempt during the year 2017 but the Respondent admitted the mistake and never reversed the additional assessment. 3. That Applicant learned later that his KRA pin was transferred to Premier Tax Office in Nairobi. 4. That the Applicant is willing and ready to engage the Respondent at the Alternative Dispute Resolution. 5. That the amount being demanded is not correct since variance between the sales declared in Monthly vat returns for year 2017 and sales in IT1 return was due to sales from fuel which was not declared in monthly vat returns but it declared in IT1 return and during the year 2017 such sales were exempt from VAT. 6. That the Respondent subjected the variance to vat rate of 16% while it was exempt sales. 7. That the Applicant is ready to provide all the required documents relating to all those expenses. 8. That the Applicant has paid all taxes which are not in dispute. # Response to the Application 1. The Respondent filed grounds of opposition dated 29th April, 2026 wherein it stated as follows: 2. That the Respondent issued an invalidation notice on 18th October 2023 and that the Appellant has failed/refused/neglected to file a Notice of Appeal within the statutory provided timelines. 3. That pursuant to Section 12 and 13 of the Tax Appeals Tribunal Act Cap 469A, a person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law, may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal within thirty days upon receipt of the decision of the Commissioner. 4. That the Appellant’s Notice of Appeal ought to have been submitted to the Respondent on or before 18th November 2023, however the Applicant has only filed an application seeking to file the same on 11th March 2026 more than two (2) years and three (3) months later. 5. That the Appellant has failed to show reasonable cause of delay in filing the application seeking leave to appeal out of time or produce evidence in support of its assertions why the Appeal has been lodged late. 6. That as the Applicant failed to file an Appeal within the prescribed timelines, the Respondent’s Objection Decision was deemed allowed by operation of law, thereby prompting the issuance of agency notices to enforce recovery of the taxes due. 7. That pursuant to Section 13(3) & (4) of the Tax Procedures Act, the Tribunal can allow an application by a taxpayer for extension of time for filing the Notice of Appeal under subSection (4): - 8. owing to absence from Kenya 9. sickness 10. Other reasonable cause that may have prevented the Taxpayer from filing the notice of Appeal or submitting the documents within the specified period. 11. That the Appellant has failed to demonstrate any reasonable or sufficient cause to justify the delay in lodging the Appeal within the prescribed statutory timelines following the issuance of the invalidation notice, and consequently failed to file the Notice of Appeal, Memorandum of Appeal and Statement of Facts within the required timelines. 1. That the Appellant’s Application lacks merit as it does not meet the threshold and should therefore not be allowed. 2. That the Appellant is guilty of undue delay of over two (2) years and three (3) months and the Application should therefore be dismissed with costs to the Respondent. 3. The Respondent filed written submissions dated 29th April 2026 wherein it submitted that the Applicant has not met the criteria set out in Section 13(4) of the Tax Appeals Tribunal Act; that the Applicant has not given sufficient reason for the delay; and that there was inordinate delay on the part of the Applicant. 4. The Respondent cited the case of **Jomusons Investment Limited v Commissioner of Domestic Taxes [2020] eKLR** where the Tribunal held as follows: *“The Tribunal is guided by the criteria set in the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR where it was held that:-* *‘‘Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.”* 1. The Respondent relied on the case of **Income Tax Appeal No. 31 of 2017 Commissioner of Domestic Taxes vs Mayfair Insurance Company Limited (2017) eKLR** wherein the court held that:- *“One of the reasons stated under the Rule is that the court may extend time where there is reasonable cause for the delay. Effectively. the court’s powers and discretion to extend time is unlimited. It is however not to be capriciously exercised. Time, in other words, is not to be extended as a matter of right. Each case is to be viewed sui generis and on its own circumstances and facts. The starting point is that the Applicant ought to advance sufficient and reasonable grounds for any delay on its part.”* 1. Based on the foregoing, the Responded urged the Tribunal to dismiss the Applicant’s application with costs. # Analysis and Findings **Whether the Tribunal has jurisdiction to hear and determine the application** 1. The Applicant seeks to appeal against the decision contained in the letter dated 18th October 2023 wherein the Respondent rejected the Applicant’s application for extension of time to file objection out of time. Therefore, the issue is whether the Tribunal has jurisdiction to entertain the intended appeal. 2. Nyarangi J in the *locus classicus* case of **Owners of Motor Vessel “Lilian S” v Caltex Oil (K) Limited [1989] eKLR** observed that, jurisdiction is everything without it, a court must down its tools. Consequently, the Tribunal has to find out whether it has jurisdiction to hear and determine the intended appeal. 1. The law requires that when a taxpayer receives an assessment is to object to the assessment within thirty days. Section 51(2) the Tax Procedures Act Cap 469B (TPA) provides as follows: *(2) A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the* ***Commissioner within thirty days of being notified of the decision****.* 1. The law anticipates that a taxpayer may delay to file objection against the assessments. Consequently, the law has a remedy. Section 51(6) of TPA provides: *A taxpayer may apply in writing to the Commissioner for an extension* *of time to lodge a notice of objection.* 1. It is upon a taxpayer to satisfy the Respondent by demonstrating why there was a delayed in filing an objection. Section 51(7) of the TPA provides as follows: 2. *The Commissioner shall consider and may allow an application under subSection* [*(6)*](https://new.kenyalaw.org/akn/ke/act/2015/29/eng%402025-07-01) *if—* 1. *the taxpayer was prevented from lodging the notice of objection within the period specified in subSection* [*(2)*](https://new.kenyalaw.org/akn/ke/act/2015/29/eng%402025-07-01) *because of an absence from Kenya, sickness or other reasonable cause; and* 2. *the taxpayer did not unreasonably delay in lodging the notice of objection*. 3. Pursuant to Section 51(7) of the TPA, the Respondent has discretion to allow or reject the application. In the event that a taxpayer holds the view that the Respondent has misused the discretion, a taxpayer has a right to seek judicial review remedy from a court of competent jurisdiction. This Tribunal does not have jurisdiction to issue judicial review orders. The High Court in ***Commissioner of Investigations & Enforcement v Vyas t/a Rocon Enterprises (Income Tax Appeal E144 of 2021) [2022] KEHC 16027 (KLR)*** stated that the Tribunal does not have jurisdiction to entertain decisions under Section 51(7) of the TPA for the reason that the decision is not appealable decision. The High Court went as step further and noted that such decisions are subject to judicial review proceedings not appeal. 4. Considering that the Respondent rejected the Applicant’s application for extension of time to file the objection, it means that the Applicant did not successfully lodge an objection against the impugned assessment. This being the case, Section 51(1) of TPA is activated. It provides as follows: ***51. Objection to tax decision*** *(1) A taxpayer who wishes to dispute a tax decision* ***shall first lodge an objection*** *against that tax decision under this Section* ***before proceeding under any other written law****.* 1. Section 51(1) of the TPA speaks to the doctrine of exhaustion wherein the taxpayer has to exhaust the available remedies before approaching this Tribunal. 2. Taking into account that the Applicant did not object to the assessment, then, the intended appeal cannot arise. An appeal would have arisen if the Applicant filed an objection to the assessment followed by objection decision from the Respondent. 3. Considering that the Tribunal does not have jurisdiction to issue judicial review orders, taking into account that the Applicant did not object to the assessment, this Tribunal lacks jurisdiction to entertain the intended appeal. 4. Based on the foregoing analysis, the Tribunal finds and holds that the application is incompetent and ought to be struck out. # DISPOSITION 1. The upshot of the foregoing is that the Application is incompetent and the Tribunal proceeds to make the following orders: 2. The Notice of motion dated 11th March 2025 be and is hereby struck out; 3. No orders as to costs. 4. It is so ordered. **DATED** and **DELIVERED** at **NAIROBI** this 19TH DAY OF MAY **2026** SIGNED BY/FOR: HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. JIMMY MUSEMBI MALLA **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER HON. JIMMY MUSEMBI MALLA** Tax Appeals Tribunal Tribunal Date: 2026-05-19 17:03:16