[2023] KETAT 241 (KLR)

Valli v Commissioner of Domestic Taxes (Tribunal Appeal 852 of 2022) [2023] KETAT 241 (KLR) (Civ) (31 March 2023) (Ruling)

Neutral citation: [2023] KETAT 241 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Civil

Tribunal Appeal 852 of 2022

E.N Wafula, Chair, Cynthia B. Mayaka & A.K Kiprotich, Members

March 31, 2023

Between

Safdar Hussein Ramzanali Valli

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Ruling

1. Theappellant vide a notice of motion application dated the 22nd day of November, 2022 and filed under a Certificate of urgency on the November 25, 2022 seeks for the following Orders-a.Spentb.That this Honourable Tribunal be pleased to review its Ruling issued electronically on October 7, 2022 by issuing orders that provide an appropriate remedy that is in tandem with the appellant’s filed Memorandum of Appeal;c.That pending hearing and determination of this Appeal this honourable tribunal be pleased to issue an order of restraining therespondent from issuing any further enforcement actiond.That a stay of enforcement of the Ruling ofOctober 7, 2022be granted pending the hearing and determination of this applicatione.That this honourable tribunal be pleased to grant any such other orders as it may deem just and expedient.f.That the cost of this application be borne by the respondent.

2. The application which is supported by an affidavit sworn by the appellant onthe 22nd day of November, 2022 is premised on the following grounds:-a.That theappellant filed an Appeal on the November 22, 2022b.That the appellant subsequently filed an application on November 22, 2022seeking for leave to appeal out of time and the Appeal already filed be deemed to be properly on record.c.That theappellant had other facts that were not before the court during the hearing of the early application.d.That the Tribunal delivered its Ruling via email on October 7, 2022 where it held that the appellant had filed an appeal out of time without leave and dismissed the same thereby allowing the respondent’s objection decision without considering the appeal on merit.e.That the Tribunal’s ruling therefore discloses an error apparent on record since the application for leave to file an appeal out of time had been filed and allowed by the Tribunal on July 20, 2022. f.That the Tribunal should therefore proceed and determine the dispute on its own.g.That the appellant is apprehensive if stay of enforcement of the Ruling ofOctober 7, 2022is not grated pending the hearing and determination of this application, the Respondent will enforce the Ruling by placing agency notices on the appellant’s bank accounts thereby grounding the operations of the appellant.h.That no prejudice will be occasioned to the respondent.i.That it will serve the interests of justice to grant the order sought.

3. The respondent in reply to the application filed Grounds of Opposition dated 28th day of November, 2022 on the November 29, 2022 stating as follows:-a.That the application for review is time barred and in contravention of section 29A of the Tax Appeals Tribunal Act.b.That the instant application is fatally defective and ought to be struck out.c.That the instant application does not meet the criteria envisaged under section 29A(2) of the Tax Appeals Tribunal Act.d.That the appellant erred by filing the substantive appeal during the pendency of an application to file an appeal out of time.e.That the Appeal filed was filed without leave of thehonourable tribunal is therefore null and void ab initio.f.That this is an attempt by the Applicant to have the honourable tribunal sit in appeal over its own Ruling noting that the issues raised have already been heard and determined.g.That based on the foregoing, the Honourable Tribunal to uphold the ruling delivered on October 7, 2022 and dismiss the undated application with costs to therespondent.

Analysis and findings 4. The parties inspite of having been directed and granted an opportunity to file written submissions in respect of the application failed to do so.

5. The jurisdiction of the Tribunal to review its decrees and orders has now been immortalized under section 29A of the Tax Appeals Tribunal Act which provides as follows:-“(1)A person who is aggrieved by a decree or an order from which no appeal has been preferred from the Tribunal to the High Court, may apply for review of the decree or the order within seven days from the date the decree or order was made by the Tribunal.(2)Application for review of decree or orders under subsection (1) may be made –(a)upon discovery of new or important matter or evidence which, after the exercise of due diligence, was not within the Knowledge of the applicant or could not be produced by the applicant at the time when the decree was passed or the order was made;(b)on account of some mistake or error apparent on the face of the record; or(c)for any other sufficient reason” (Emphasis Added)

6. The Appellant seeks to review the orders made by the Tribunal in the Ruling delivered on 7th day of October, 2022. There is an obvious lapse of 48 days from the date of the delivery of the Ruling to the date of the filing of the present application. There has been no obvious attempt at explaining the possible cause for the delay in the filing of the application on the part of the Respondent. The delay is inexcusably inordinate and offends the word and spirit of the provisions of section 29A(1) of the Tax Appeals Tribunal Act.

7. The Tribunal vide the orders in the Ruling delivered on the 7th day of October, 2022 dismissed the appellant’s application seeking for the orders for the enlargement of time to file an appeal out of time. The application was dismissed on the basis that the Appellant was found to have been indolent and that there was an inordinate delay in seeking for the enlargement of time for filing of the appeal.

8. The disclosed basis for the present application is that the appellant during the period when the application for the enlargement of time was pending for determination proceeded to file an Appeal that it seeks to be determined on its proper merit. The Appeal was filed without leave of the Tribunal and the fact of filing of the Appeal in itself does not sanitize the otherwise incompetent appeal.

9. The Tribunal notes that its discretion in determining an application for review of its orders or decrees is exercisable under clear parameters as set out under the aforecited section 29A(2) of the Tax Appeals Tribunal Act. The appellant is merely seeking to have a second bite at the cherry using the present application. The appellant has not disclosed any new evidence for the cause of delay in the timeous filing of the appeal and no mistake or error has been indicated to be apparent on the text of the Ruling delivered by the Tribunal on the 7th day of October, 2022.

10. In the circumstances, the Tribunal finds that the application was not only inordinately filed but it does not meet the basic statutory threshold for the review of the orders made by the Tribunal as encapsulated under section 29A of the Tax Appeals Tribunal Act.

Disposition 11. The upshot of the foregoing is that the application is not only incompetent but is equally lacking in merit and the Orders that recommend themselves to the Tribunal are as follows:-a.The application be and is hereby dismissed.b.No orders as to costs.

12. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF MARCH, 2023. ...........……………….ERIC N. WAFULACHAIRMAN………………………CYNTHIA MAYAKAMEMBER.............................................ABRAHAM K. KIPROTICHMEMBER