https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/154

Susuna General Suppliers Limited v Commissioner of Domestic Taxes (Appeal E749 of 2025) [2026] KETAT 154 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KETAT 154 (KLR) Republic of Kenya In the Tax Appeal Tribunal Appeal E749 of 2025 RM Mutuma, Chair, G Ogaga, T Vikiru & JM Malla, Members June 2, 2026 Between Susuna General Suppliers Limited Appellant and Commissioner of Domestic Taxes Respondent Judgment Background 1.The Appellant is a duly incorporated limited liability company under the Companies Act of Kenya. Its principal business involves general supplies and contracting services within Kenya. 2.The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 469 Laws of Kenya (KRA Act). Under Section 5 (1) of the Act, KRA is an agency of the Government for the collection and receipt of all revenue. For the performance of its function under Subsection (1), the Authority is mandated under Section 5(2) of the Act to administer and enforce all provisions of the written laws as set out in Parts I and II of the First Schedule to the KRA Act to assess, collect, and account for all revenues under those laws. 3.The Respondent in assessment orders dated 18th September 2024 issued the Appellant with Corporation tax additional assessments for the years 2020, 2021, 2022 and 2023 and Value Added Tax (VAT) additional assessments for the periods December 2021, December 2022 and December 2023. 4.The Appellant filed a late Objection to the assessments on 18th January 2025. 5.The Respondent issued an Objection decision on 14th March 2025 confirming the assessments. 6.The Appellant, being dissatisfied with the Respondent’s Objection decision, filed its Notice of Appeal dated 24th June 2025, having been granted leave by the Tribunal to lodge its Appeal out of time. The Appeal 7.The Appeal is premised on the Memorandum of Appeal dated 26th July 2025 and filed on 15th September 2025 which raised the following grounds: -a.That the Respondent erred in law and in fact in holding that the Appellant’s reason for late filing of the Notice of Objection – namely the unavailability of the iTax system – was not a valid reason under Section 51(3) of the Tax Procedures Act, 2015, without appreciating that system downtime is a matter beyond the taxpayer’s control and falls within “other reasonable cause” as envisaged under the law.b.That the Respondent acted in breach of Section 51(4) and (11) of the TPA by purporting to invalidate the objection without considering the substantive merits of the Appellant’s case, thereby elevating procedural requirements above substantive justice.c.That the Respondent erred in fact and law by relying solely on banking analysis to impute undeclared turnover without considering the nature of deposits, including non-income items, inter-account transfers, customer advances, and capital injections, contrary to established jurisprudence.d.That the Respondent failed to discharge its duty under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act by failing to consider the documentary evidence provided by the Appellant in support of their Objection.e.That the Respondent erred in fact by ignoring the Appellant’s audited financial statements for 2021 and 2022, which materially differed from the bank deposit analysis and provided credible evidence of the Appellant’s true taxable income.f.That the Respondent’s decision is excessive, punitive, and contrary to law in demanding principal tax of Kshs. 86,818,016 together with interest and penalties amounting to Kshs. 32,124,838.11, totaling to Kshs. 118,942,854.11, without proper basis in law or fact. Appellant’s Case 8.The Appellant’s case is premised on the following documents:a.The Appellant’s Statement of Facts dated 29th July 2025 and filed on 15th September 2025 and the documents attached to it; andb.The Appellant’s written submissions dated 19th March 2025 and filed on 23rd March 2026. 9.The Appellant stated that the Respondent issued a notice of intention to audit the affairs of the Appellant, pursuant to the provisions of Section 59 of the Tax Procedures Act, 2015 vide an email dated 23rd October 2023, requesting that the Appellant furnishes it with documents, among others; Signed audited financial accounts, general ledgers and trial balances, bank statements for the period. 10.That the Appellant, wrote to the Respondent vide an email dated 23rd November 2023 attaching the audited accounts and bank statements for the years 2020 to 2023, as requested by the Respondent and notified the Respondent that they will share the other documents in due course. 11.That following receipt of the documents, the Respondent commenced a Return Review exercise covering the years of income 2020 to 2023. 12.That the Respondent, after the return review exercise, noted that, the Turnover as per the Income Tax Declarations for the years 2023, 2022, 2021 and 2020 was Kshs. 80,321,359, Kshs. 23,682,209, Kshs. 71,635,927 and NIL respectively and the turnover for the same period for VAT was Kshs. 80,321,359, Kshs. 23,682,209, Kshs. 71,635,927 and NIL, and that there was no variance in turnover as per the Income tax returns and the VAT returns. 13.That the Respondent analysed the Appellant’s bank statements from Equity Bank PLC and established the gross bankings, and further compared the established sales as per the gross bankings with the sales declared by the Appellant and noted variances in the sales. 14.That the Respondent proceeded to bring to charge for taxation the established variances for both VAT and Corporation tax raising additional assessments amounting to Kshs. 89,325,844.09. 15.The Appellant averred that it held a physical meeting with the Respondent and explained that the variances noted were as a result of the non-revenue bank deposits received in the Appellant’s bank account and provided audited financial statements to show the correct tax position of the Appellant. 16.That on 18th September 2024, the Respondent raised additional assessment orders through the iTax Portal for Corporation tax and VAT for the years 2020 to 2023 totalling Kshs. 86,702,544 in principal tax plus interest and penalties. 17.The Appellant averred that the Respondent did not issue a notice of assessment pursuant to the Section 31 of the Tax Procedures Act (TPA), making it difficult for the Appellant to lodge their objection in time as provided for by Section 51 of the Tax procedures Act. That the Appellant, having not been served with a formal Notice of Assessment, faced procedural difficulty in lodging an objection within the statutory timelines. 18.That on 18th January 2025, the Appellant formally applied to lodge an objection out of time under Section 51(6) of the TPA, citing reasonable cause. The Respondent granted the request and accepted the late objection. 19.The Appellant wrote to the Respondent vide a Notice of Objection 18th January 2025, objecting to the additional assessments. 20.The Appellant averred that the Respondent wrote to the Appellant vide an email dated 24th January 2025, noting that the late objection had been granted and requiring the Appellant to file documents to validate their Notice of Objection. 21.The Appellant stated that it shared further documents among them, audited financial statements and bank statements to support their ground for the Objection. 22.That the Respondent issued their Objection decision dated 14th March 2025, confirming the additional assessments in their entirety. 23.That aggrieved by the actions of the Respondent, the Appellant filed the Notice of Appeal dated 24th June 2025. 24.It was the Appellant’s position that the Respondent’s additional assessments are unlawful in form and substance. That they impermissibly treat all bank credits as taxable sales, were issued (or varied) without a legally compliant notice of assessment that sets out the computation and reasons, and tax gross variances instead of net chargeable income after allowing statutory deductions. 25.The Appellant made submissions to support its pleadings under the following issues for determination:i.Whether the Respondent lawfully applied the banking analysis method in raising the additional assessments;ii.Whether the assessment was fair, rational, and made in compliance with procedural and constitutional requirements;iii.Whether the appellant is entitled to the reliefs sought. Taxation of Non-income Bank Deposit 26.It was the Appellant’s averment that the Respondent erred in law and fact by using a blanket bank deposit analysis method, assuming every deposit constituted income and that the Respondent's failure to distinguish between taxable receipts and non-taxable financial movements renders the assessment arbitrary, excessive, and contrary to the Income Tax Act (ITA), the VAT Act, and established jurisprudence. 27.The Appellant averred that the Respondent’s approach of equating all bankings to sales contravenes basic principles of taxation. It argued that not all deposits constitute taxable turnover. That by failing to exclude non-revenue deposits such as loans and capital injections, the Respondent overstated taxable income and VAT liability. 28.The Appellant submitted that equating every bank deposit to sales contradicts the Income Tax Act and the VAT Act. That tax is charged on income or taxable supplies, not on raw bank movements. That where KRA uses the “banking analysis” method, it must still separate non-revenue items, for example, loan proceeds, capital injections, inter-account transfers, refunds, deposits for cancelled sales, and third-party pass-throughs, from genuine trading receipts. 29.It was the Appellant’s submission that Kenyan Tribunals and Courts have repeatedly confronted this exact problem and have emphasized that deposits may be revenue only where the taxpayer fails to produce credible records or explanations; otherwise, non-sale bankings must be excluded. 30.The Appellant contended that income tax is chargeable on gains or profits; the measure is net chargeable income, not gross cash inflows. That Section 15(1) recognizes that determining taxable income requires deducting qualifying business expenditure. 31.The Appellant further argued that VAT is chargeable on a taxable supply made by a registered person; “taxable supply” is defined, and VAT applies to consideration for a supply (Value Added Tax Act, s.5, s.13–14). The Appellant submitted that a bank deposit is not itself a “supply”. 32.The Appellant placed reliance on the case of Afya -X -Ray -Centre -Ltd -v-Commissioner- of -Domestic- Taxes [2019] eKLR, where the Honourable Tribunal determined that: -“…The Tribunal is concerned with the status or better yet, the validity of an assessment that has relied only on Bank Statements. It is common knowledge that every deposit in an account is not necessarily income to the account owner. The Respondent in this case could have used industrial margins to determine the Appellant’s profits and then subject that figure to the 30% for corporate Tax rather than a topline 30% on Bank Deposits…” 33.The Appellant asserted that the Respondent overstated both income tax and VAT by failing to exclude non-revenue deposits and by treating bank credits as a proxy for sales. That approach is contrary to Kenyan tax statutes and to recent TAT jurisprudence on banking-analysis assessments. Failure to Issue a Notice of Assessment 34.The Appellant averred that the Respondent erred in law and fact by failing to issue them with a notice of assessment, contrary to the provisions of Section 31 of the TPA. 35.It submitted that the TPA obliges the Commissioner to serve a written notice of an assessment and, when amending assessments, to specify the assessed amount, penalties/interest, the reporting period, the due date, and “the manner of objecting”. That a notice bereft of reasons and computation frustrates the Appellant’s right to know the case to meet and to object in time. 36.The Appellant argued that the failure to issue such a notice deprived the Appellant of its statutory right to be informed, to respond meaningfully, and to object within prescribed timeframes. That this omission violated principles of fair administrative action under Article 47 of the Constitution. 37.That a deficient notice also violates Article 47 of the Constitution (right to lawful, reasonable and procedurally fair administrative action) and Section 4 of the Fair Administrative Action Act, which require written reasons for adverse administrative decisions. 38.That therefore, the Respondent’s failure to issue a compliant assessment notice deprived the Appellant of statutory and constitutional procedural safeguards, rendering the assessments unlawful. Taxation of the Gross Established Variance 39.The Appellant submitted that the Respondent erroneously subjected the entire variance between declared sales and bank deposits to Corporation tax without considering deductible expenses allowable under Sections 15(1) and 16(1) of the Income Tax Act (Cap 470). That this amounted to taxation on gross turnover, contrary to established principles that only net profits constitute taxable income. 40.The Appellant argued that even for VAT, the charge is on taxable supplies and the taxable value is tied to consideration for that supply. That taxing a gross deposit that is not linked to a supply for example, a bank loan or capital, offends the statute. 41.The Appellant maintained that the additional assessments as they stand are therefore null and void and should be vacated entirely as the Respondent acted ultra vires the law in raising the same. That by treating the gross variance as taxable income (and, for VAT, as taxable supplies) without performing the required deductibility analysis, or tying deposits to actual supplies, the Respondent engaged in a method contrary to the Income Tax Act and the VAT Act, and inconsistent with recent Tribunal reasoning on banking-analysis cases. 42.The Appellant submitted that in matters of statutory interpretation, the law requires that taxing provisions be applied strictly, leaving no room for assumptions or equitable considerations. That this principle was articulated in Cape Brandy Syndicate v I.R. Commissioners (1921) and echoed by the Court of Appeal in Mount Kenya Bottlers Ltd & 3 Others v Attorney General & 3 Others, Civil Appeal No. 164 of 2023, where it was held that: -“In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment… if a person falls within the four corners of the statute, he is to be taxed; if not, no tax is to be levied.” 43.The Appellant concluded its pleadings by submitting that on the facts and the law, the Respondent’s approach overshoots both the charge and the measure of tax by converting deposits into sales; fails the TPA notice/reasons obligations; and taxes gross variances instead of net chargeable income after s.15/s.16 analysis. That the assessments are therefore unlawful and should be set aside in their entirety; in the alternative, the matter should be remitted for a lawful, reasoned re-computation aligned to the Income Tax Act, the VAT Act and the TPA. Appellant’s Prayers 44.The Appellant prayed that the Tribunal:a.Allows the Appeal in its entirety and sets aside the Objection decision dated 14th March 2025.b.Declares that the assessments for Income Tax and VAT for the years 2020, 2021, 2022, and 2023 as confirmed by the Respondent are invalid and unlawful.c.Orders the Respondent to amend or vacate the assessments accordingly.d.Grants any other or further relief that the Tribunal may deem fit to grant in the interests of justice. Respondent’s Case 45.The Respondent’s case is premised on the following documents filed before the Tribunal:a.The Respondent’s Statement of Facts dated 14th October 2025 and filed on the same date; andb.Its Written Submissions dated 11th March 2026 and filed on 12th March 2026. 46.The Respondent issued a notice of intention to audit the affairs of the Appellant, pursuant to the Provisions of Section 59 of the Tax Procedures Act, 2015 vide an email dated 23rd October 2023, requesting that the Appellant furnishes its signed audited financial accounts, general ledgers and trial balances, bank statements for the period. 47.The Respondent commenced a return review exercise covering the years of income 2020 to 2023. That the purpose of the review was to reconcile sales, purchases, and expenses declared in the Appellant's tax returns against the figures reflected in its financial and banking records. 48.The Respondent stated that it analysed the Appellant’s bank statements from Equity Bank PLC and noted the gross bankings, and further compared the established sales as per the gross bankings, with the sales declared by the Appellant and noted variances in the sales. 49.That the Respondent therefore proceeded to charge to tax the gross established variances for both VAT and Corporation tax raising additional assessments amounting to Kshs. 89,325,844.09, and on 18th September 2024, the Respondent raised additional assessment orders through the iTax Portal for Corporation tax and VAT for the years 2020 to 2023 totalling Kshs. 86,702,544 in principal tax plus penalties and interest. 50.That the Appellant wrote to the Respondent vide a Notice of Objection 18th January 2025 objecting to the additional assessments, and that the Respondent wrote to the Appellant vide an email dated 24th January 2025 noting that the late objection had been granted and requiring the Appellant to file documents to validate their notice of objection. 51.The Respondent issued its Objection decision dated 14th March 2025, confirming the additional assessments in their entirety, which decision the Appellant appealed. 52.The Respondent stated that the Appellant was audited by Regional Audit Centre - Northern Region, and asserted that no records were provided to the audit team. 53.The Respondent stated that that it did not err in law and in fact in holding that the Appellant’s reason for late filing of the notice of objection, namely, the unavailability of the Tax system, was not a valid reason under Section 51(3) of the Tax Procedures Act, 2015 (TPA). That furthermore, the Objection had not been validly lodged. 54.The Respondent maintained that it did not act in breach of Section 51(4) and (11) of the TPA by invalidating the Objection as no records were availed in the requisite time. That it abided by Section 51(4) by stating the reasons why the Objection had been invalidated. 55.The Respondent asserted that did not err in fact and law by relying solely on banking analysis to impute undeclared turnover without considering the nature of deposits, including non-income items, inter-account transfers, customer advances, and capital injections, contrary to established jurisprudence. That the law allows the Commissioner to assess a taxpayer’s tax liability using any information available to the Commissioner as per Section 24(2) of the TPA. 56.The Respondent submitted that it did not fail to discharge its duty under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act by failing to consider the documentary evidence provided by the Appellant in support of their Objection. That the records provided did not materially alter the assessments raised. 57.The Respondent further affirmed that it did not err in fact by ignoring the Appellant’s audited financial statements for 2021 and 2022. That these partial records were just part of the records requested and did not materially alter the original assessments. 58.The Respondent submitted that there are three main issues for determination by this Honourable Tribunal, which issues have been identified as follows:i.Whether the Respondent lawfully raised the assessment and confirmed the same as against the Appellant.ii.Whether the Appellant’s Appeal is properly before the Tribunaliii.Whether the Appellant has discharged its burden of proof. Whether the Respondent Lawfully Raised the Assessment and Confirmed the Same as against the Appellant. 59.The Respondent submitted that it is mandated under Section 31 of the Tax Procedures Act to issue additional assessments to a tax payer where the Commissioner deems that the taxpayer’s original returns displays a discrepancy or under-declaration. 60.That in the instant case, the Appellant’s returns were audited by the Respondent and found to have been under-declared based on the Appellant’s bank records which showed significant variance between what was deposited in the bank and what was declared as sales and income. 61.The Respondent averred that it can use banking records to determine the tax liability of a taxpayer and where a taxpayer does not give any evidence that the deposits in the bank do not constitute income, the Commissioner can declare the same as income and charge to tax accordingly. 62.The Respondent submitted that the Tribunal has affirmed the Respondent’s position that bank deposits, unless explained with documents, constitute income to a taxpayer and the Commissioner is right to charge to tax any unexplained income reflected in a bank. That this position was stated in Kirin Pipes Limited v Commissioner Intelligence Strategic Operations Investigations and Enforcement (Tribunal Appeal E1116 of 2024) [2025] KETAT 259 (KLR). 63.That the High Court has also stated the same position in Avery Lounge Limited v Commissioner of Domestic Taxes (Income Tax Appeal E213 of 2024) [2026] KEHC 769 (KLR) while agreeing with the Commissioner to use banking analysis as a tool to determine a taxpayer's tax liability, stated as follows: -“The integrity of the tax system relies on a compact: the state allows taxpayers to self-assess, and in return, taxpayers must be honest and transparent. When a taxpayer files nil returns while conducting substantial business, they breach that compact.The Respondent, faced with a non-compliant taxpayer, utilized the tools provided by Parliament-third-party information and best of judgment assessment-to protect the revenue. The Appellant had ample opportunity to displace this assessment by simply producing the standard books of account: ledgers, invoices, and receipts. They failed to do so.A Court cannot aid a taxpayer who, having failed to keep statutory records, seeks to rely on generalities and summaries to defeat a specific, evidence-based assessment. The Bank Deposit Analysis remains a robust and lawful tool for the Commissioner in such instances.” 64.The Respondent maintained that it therefore had the legal mandate to raise the assessment based on the bank analysis and without a rebuttal, the Appellant’s assessment stands. Whether the Appellant’s Appeal is Properly Before the Tribunal 65.The Respondent submitted that the Appeal before this Honourable Tribunal is fatally defective for being filed out of time and in violation of the Tax Appeals Tribunal Act where the timelines for filing of an Appeal are spelt out under Section 12 and 13 of the Act. 66.That the Appellant filed a Misc. Application dated 24th June 2025 and sought leave to file an appeal out of time. That the Appellant’s Application was allowed by consent in July 2025 and the Appellant granted leave to file the Appeal out of time. 67.The Respondent stated that the Appellant however sat on its extension to the point of lapse and filed the Memorandum of Appeal on 15th September 2025 way out of the time granted to file the Appeal. 68.The Respondent cited the Supreme Court of Kenya in SC Appl No 38 of 2014 between TSC vs Simon Kamau and 19 Others, where the Court adopted its earlier decision in Nicholas Kiptoo Arap Korir Sa/at vs the IEBC & 7 Others SC Appl No 16 of 2014 and stated: -“No appeal can be filed out of time without leave of Court. Such filing renders the "document" so filed a nullity and of no legal consequences. Consequently, this court will not accept a document filed out of time without leave of the court.” 69.The Respondent stated that the Appellant had been given a chance to file Appeal documents despite being late. That to do so by more than three months, the Respondent submitted, the Appeal is not properly on record and the same should not be considered as the same is a nullity and of no legal consequence. Whether the Appellant has Discharged its Burden of Proof. 70.The Respondent contended that although the Appellant has asserted that the Respondent did not consider the financial statements of the Appellant in reaching its conclusion, it is to be noted that the Commissioner is not bound by the financial statements of a taxpayer but rather on primary evidence such as invoices, receipts, supplier information and other verifiable documents and not financial documents that have no support. 71.That despite the request by the Respondent, the Appellant did not provide any documents in support of the proper figures to assist the Commissioner in reaching the conclusion the Appellant so desired. That further, without primary evidence, the Appellant's assertions remain hearsay and cannot be believed by the Commissioner. 72.The Respondent relied on the provisions of the Evidence Act, Section 107 which states as follows: -“107(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 73.The Respondent submitted that in any Tax Court, the taxpayer must show the Commissioner’s determination to be incorrect. That if he succeeds, then the Commissioner must go forward and prove the correct tax liability by a preponderance of the evidence. 74.The Respondent asserted that the Appellant did not provide proof to defray the tax liability nor has it provided any proof before this Honourable Tribunal that the assessment is wrong. The Respondent relied on the judgment of this Honourable Tribunal in TAT 55 of 2018 Boleyn International Ltd vs Commissioner of Domestic Taxes where it was stated that: -“34...we find that the Appellant at all times bore the burden of proving that the Respondent's decision and investigations were wrong. The Tribunal is guided by the provisions of Section 56 (1) of the Tax Procedures Act which states "In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.” 75.The Respondent further submitted that when the Appellant objected to the assessments, the Appellant was under a duty to disprove the workings of the Respondent and to show how its Objection is anchored vis-a-vis how it intertwines with its documentation supplied or relied on. 76.That in this case, it is incorrect to say that the Respondent erred in fact and law by disregarding the documentation, explanations and information provided since the documentation and or information provided was not sufficient to warrant all the adjustments sought by the Appellant. 77.The Respondent asserted that the Appellant was given a fair hearing, was given time to validate its Objection and even despite that time, failed to provide sufficient documents to defray the assessments. further, the Appellant has asserted that the Commissioner violated its rights under Article 47 of the Constitution but has failed to demonstrate how the said right has been violated. 78.The Respondent asserted that its decision was not excessive, punitive, or contrary to law. Respondent’s Prayers 79.The Respondent prayed that the Tribunal finds:a.That the Objection decision be upheld; andb.That the Appeal herein be dismissed for lack of merit with cost to the Respondent. Issues for Determination 80.The Tribunal has considered the pleadings and the submissions made by the Parties, and considers the issues for determination as follows:a.Whether there is a valid Appeal on record; andb.Whether the Respondent was justified in confirming the Corporation tax and VAT additional assessments in the Objection decision dated 14th March 2025. Analysis and Findings 81.The Tribunal analysed the issues that call for its determination as hereunder, having reviewed all the pleadings, information and documents adduced by the Appellant and the Respondent concerning the impugned decision. A. Whether there is a Valid Appeal on Record 82.The Respondent submitted that the Appeal before this Honourable Tribunal is fatally defective for being filed out of time and in violation of the Tax Appeals Tribunal Act where the timelines for filing of an Appeal are spelt out under Sections 12 and 13 of the Act. The Respondent stated that after the Tribunal granted the Appellant leave to file the Appeal out of time in July 2024, the Appellant sat on its extension to the point of lapse and filed the Memorandum of Appeal on 15th September 2025 way out of the time granted to file the Appeal. 83.The Tribunal refers to the procedure for appeal provided in Section 13(2) of the TAT Act which provides that: -“(2)The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—(a)a memorandum of appeal;(b)statements of facts; and(c)the appealable decision; and(d)such other documents as may be necessary to enable the Tribunal to make a decision on the appeal.” 84.Section 13(3) of the TAT Act provides the remedy to any party which wishes to lodge an appeal out of time, being that any such intended Appellant may seek leave of the Tribunal in writing, seeking an extension of time and leave to file an Appeal out of time. The provision reads: -“(3)The Tribunal may, upon application in writing, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).” 85.The Tribunal notes that indeed the Appellant filed a Miscellaneous Application TATMISC/E050/2025 on 24th June 2025 at the Tribunal, seeking to be granted leave to file its Appeal out of time. On 4th July 2025, during the application hearing, the Respondent confirmed that it does not oppose the application. The Tribunal granted the Appellant leave to file its Appeal out of time, and gave the following orders: -“a)Leave to Appeal out of time be and is hereby granted.b)The Notice of Appeal dated 24/6/2025 be and is hereby deemed as properly filed and served.c)The Applicant to file and serve its Memorandum of Appeal, Statement of Facts and Objection decision within the next seven (7) days.d)The Respondent may file its Statement of Facts within 30 days of the date of service.e)The Agency Notice issued upon the Appellant’s bankers dated 19th February 2025 be and is hereby lifted immediately.f)The registry to issue the Appellant with an appeal number.” 86.The Appellant’s Notice of Appeal dated 24th June 2025 was deemed as properly filed and served on 4th July 2025 following the Tribunal’s grant of leave to the Appellant. 87.The Tribunal further issued the Appellant with an order to file its appeal documents within 7 days of 4th July 2025. 88.The Tribunal’s position is that the Appellant ought to have lodged its appeal documents on or before 11th July 2025. The Tribunal notes that the Appellant filed its Appeal documents on 15th September 2025, which was beyond seven (7) days of 4th July 2025, and consequently out of time. 89.The Tribunal further notes that the Appellant failed to apply for extended leave to file its appeal documents out of time after the time in the Tribunal’s orders lapsed. 90.The Tribunal is guided by the case of Boss Freight Terminal Ltd Vs Commissioner of Domestic Taxes(2017) eKLR, where the Court of Appeal reiterated the sentiments in Patrick Kiruja Kithinji Vs Victor Mugira Marete (2015) eKLR on time as a jurisdictional issue as follows: -“… in our view whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite law that this Court has jurisdiction to entertain appeals filed within requisite time and or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of appeal of this Court.” 91.The question therefore, is whether the Tribunal has jurisdiction to entertain this Appeal. The Tribunal is guided by the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR, where Nyarangi JA held, inter alia as follows: -“… Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 92.The Tribunal, consequently, finds that in the absence of the Tribunal granting further leave to the Appellant to file its Appeal out of time, the Appeal herein is incompetent and untenable in law. The Appeal is therefore not validly before the Tribunal. 93.Having determined that this Appeal is not validly before the Tribunal, the Tribunal did not delve into the second issue for determination as it has been rendered moot. Final Decision 94.The upshot of the above analysis is that the Tribunal finds that the Appeal is incompetent. The Tribunal accordingly proceeds to issue the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own costs. 95.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.……………………………..….ROBERT M. MUTUMACHAIRMAN……………………………… ……GLORIA A. OGAGAMEMBER……………………………DR. TIMOTHY B. VIKIRUMEMBER……………………………JIMMY M. MALLAMEMBER