'(Being an Appeal from the Judgment of the Tax Appeals Tribunal at Nairobi delivered on 17 December 2024 in Tax Appeals Tribunal Appeal No. E826 of 2023)
Background
1. The Commissioner of Domestic Taxes, the appellant herein was dissatisfied with the decision of the Tax Appeals Tribunal delivered on 17th December 2024 in Tax Appeal Tribunal Appeal No. E826 of 2023. The appellant initiated an appeal to this court through a Notice of Appeal dated 4th February 2025. The memorandum of appeal dated 20th February 2025 was filed on the same date. The record of appeal dated 30th May 2025 was filed on 4th June 2025.
2. On 5th March 2025, the respondent filed a notice of preliminary objection dated 5th March 2025. The same is based on two grounds. First, that the Notice of Appeal was improperly on record as it was filed out of time and without leave of the court as required under section 32(1) of the Tax Appeals Tribunal’s Act (Cap. 469A) Laws of Kenya and section 53 of the Tax Procedures Act (Cap. 469B) Laws of Kenya. Second, the memorandum of appeal is defective for failing to abide by the provisions of Rule 5 of the Tax Appeals Tribunal (Appeals to the High Court) Rules in that it did not include an index of all the documents supporting the appeal, a copy of the decision of the Tribunal, and the Notice of Appeal.
3. The respondent therefore contends that the court lacks jurisdiction to entertain the intended appeal and prays that the same be dismissed with costs to the respondent.
4. The preliminary objection was disposed of by way of written submissions filed by the parties.
Submissions
5. Both parties filed written submissions to dispose of the preliminary objection.
6. On 22nd May 2025, this court, differently constituted, directed that the preliminary objection and the substantive appeal be disposed of together, and parties were required to file submissions on both. However, parties only filed submissions on the preliminary objection. Therefore, this ruling only pertains to the preliminary objection.
7. The submissions by both parties are considered more extensively in the analysis that follows.
8. Each of the parties has framed two issues for the court’s determination differently worded but which this court finds to be as follows:
a. whether the notice of appeal dated 4th February 2025 filed by the appellant was out of time as prescribed under section 32(1) of the Tax Appeals Tribunal Act and section 53 of the Tax Procedures Act as read together with section 77(2) of the Tax Procedures (Amendment Act), 2024.
b. whether the memorandum of appeal is incompetent and fatally defective for failure to comply with Rule 5 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015.
Analysis
9. I have considered the grounds of the preliminary objection filed herein and the submissions by the parties thereon.
10. It is not disputed that the preliminary objection is on a pure point of law and therefore satisfies the requirements stipulated in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on what constitutes a preliminary objection where the Court stated that:
“... a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
11. In that case, Sir Charles Newbold P. stated: -
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
12. A preliminary objection if well taken and sustained by the court can finally dispose of the matter. In the case of Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) Kiage JA stated thus:
“The Preliminary Objection that had been raised before the court below was a jurisdictional one. It raised a statutory bar to the bringing of the claim by the respondents herein outside of the three year cut-off imposed by Section 90 of the Employment Act. Such a plea, if upheld, would have been dispositive of the claim and therefore constituted “a pure point of law” in the language employed by Sir Charles Newbold P, in the oft-cited case of MUKISA BISCUIT MANUFACTURING CO. LTD –VS- WEST END DISTRIBUTORS LTD [1969] EA 696. It was therefore properly taken.”
13. It is also not disputed that the appellant filed the Notice of Appeal on 4th February 2025.
14. The law that guides the timelines within which an appeal should be filed from the Tax appeals Tribunal to the High Court is as submitted by both parties, under section 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act. The said provisions of the law are set out below:
S. 32(1) of the Tax Appeals Tribunal Act
A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.
Section 53 of the Tax Procedures Act
A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the High Court may allow, appeal the decision to the High Court in accordance with the provisions of the Tax Appeals Tribunal Act (Cap. 469A).
Section 77(2) of the Tax Procedures Act
(2) In computing the period for the lodgement of an objection to the Commissioner under section 51, an appeal to Tax Appeals Tribunal under section 52, an appeal to the High Court under section 53 or an appeal to the Court of Appeal under section 54, the computation shall not include Saturdays, Sundays or public holidays.
15. It is common ground that judgment appealed herein from was delivered on 17th December 2024 and the notice of appeal was filed on 4th February 2025. It is also not disputed that sections 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act are applicable are applicable in computing the time within which the appeal should have been filed. Going by these provisions of the law, it would be the case that the 30 days prescribed by the law expired on 31st January 2025.
16. However, the appellant calls to its aid Order 50 Rule 4 of the Civil Procedure Rules and submits that since it excludes the Christmas recess of the high Court which is the period between 21st December 2024 and 13th January 2025, in computation of time, the same had the effect of extending the time for filing the appeal to 20th February 2025.
17. Order 50 Rule 4 of the Civil Procedure Rules provides as follows:
Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.
18. The issue is whether the appellant was right in applying Order 50 Rule 4 CPR to the computation of time within which to file the appeal in this case.
19. The respondent submits otherwise and contends that Order 50 Rule 4 is not applicable to the computation of the time within which to file an appeal in this case. The respondent’s position is that going by the provisions of the law set out above the last day on which the appeal ought to have been filed was 31st January 2025. That time having passed, the appellant ought to have sought extension of time before filing the appeal. That was not done and, in the circumstances, the appeal filed is incompetent and should not be considered by the court. The respondent has cited the cases of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) and KMK Law LLP v Global Trucks Limited [2024] KEHC 16714 (KLR).
20. Other cases cited by the respondent and directly touching on the timelines provided for under these statutes are Commissioner of Domestic Taxes v Crescent-Tech Limited [2024] KEHC 4818 (KLR) and Commissioner of Domestic Taxes v Lifecare International Brokers Limited [2020] KEHC 3188 (KLR)
21. The appellant submits further that the cases of Nicholas Kiptoo arap Korir; Kyule v Gitaari; and Commissioner of Domestic Taxes v Lifecare International Brokers Limited cited by the respondent are not applicable in the circumstances of this case because in each case, the appellant had failed to file the appeal within the actual timeline prescribed by statute without invoking any statutory exclusion of days or court vacation and none of the involved the interpretation or application of section 77(2) of the Tax Procedures Act or order 50 Rule 4 of the Civil Procedure Rules.
22. The long title to the Tax Procedures Act provides that it is, “an Act of Parliament to harmonise and consolidate the procedural rules for the administration of tax laws in Kenya, and for connected purposes.”
23. On its part, the Tax Appeals Tribunal Act has rules made under section 32, The Tax Appeals Tribunal (Appeals to The High Court) Rules which provide under Rule 20 that, “the rules determining procedure in civil suits before the Court, to the extent to which those rules are not inconsistent with the Act or these Rules, shall apply to the tax appeal as if it were a civil suit.”
Considering these provisions of the law with regard to the procedure in tax cases, it is my understanding that appeals from the Tax Appeals Tribunal are only governed by sections 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act and therefore I would agree with the respondent’s submission that Order 50 Rule 4 of the Civil Procedure Rules is not applicable. Even though Rule 20 of the Tax Appeals Tribunal (Appeals to The High Court) Rules permits for the application of the Civil Procedure rules in tax cases under the Tax Laws, the application is limited to circumstances where those rules are not inconsistent with the Tax Appeals Tribunal Act or the Rules made thereunder. To me, the issue of the time within which to lodge an appeal to the High Court from the Tax Appeals Tribunal seems to be comprehensively provided for under the Tax Appeals Tribunal Act and the Rules made thereunder and the Tax Procedures Act and there is no necessity to look elsewhere on that issue.
24. Indeed, again as submitted by the respondent, if the Legislature had intended that the said period of recess applies to such appeals, it would have provided for the same expressly especially in the Tax Procedures (Amendment) Act, 2024) which was recently amended. In failing to do so, it means that it never intended that the Christmas recess period of the High Court be excluded from the computation of time to file an appeal to the High Court. Therefore, the case of Kimolo & another v Karanja & another cited by the appellant is not applicable in this case.
25. In the case of the Republic vs. Public Procurement Administrative Review Board & another exparte Teachers Service Commission [2015] eKLR the High court cited the case of Mokombo Ole Simel & Others vs. County Council of Narok & Others Nairobi HCMA No. 361 of 1994 where the High Court considered whether Order 49 Rule 5 of the repealed Civil Procedure Rules was capable of enlarging time specified by section 9(2) and (3) of the Law Reform Act, and expressed itself as follows;
“If the limited time is prescribed under the Civil Procedure Rules or by an order of the court or by summary notice, the court could enlarge the period. But here the absolute period of six months has been laid down by a different statute namely the Law Reform Act. Order 49 rule 5 of the Civil Procedure Rules cannot be invoked to supersede the express provisions of the Act...Order 49 rule 3A is similarly a piece of delegated legislation and cannot have the effect of amending the express provisions of section 9(2) and (3) of the Act. The said provisions can only be altered or amended by an Act of the Parliament...”
26. I am persuaded to follow this decision which was adopted by the Court of Appeal in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR) on a similar issue.
27. The appellant herein has not sought an order for extension of time to file the appeal out of time. It is therefore, correct as submitted by the respondent and I do find that that the notice of appeal herein was filed out of time by four days.
28. On the issue of the memorandum of appeal not complying with Rule 5(d) and (e) of the Tax Appeals Tribunal (Appeals to the High Court Rules) not including the index of documents, the Tax appeal’s Tribunal’s judgment and Notice of Appeal at the time of filing, the appellant does not dispute this. It offers an explanation that at the time of filing the memorandum of appeal it had not obtained certified copies of the same from the Tribunal despite requesting for them in writing.
29. In response, the respondent submits that the rule is couched in mandatory terms and non-compliance thereof calls for the memorandum of appeal to be struck out.
30. I do not think that issue needs determination at this point considering that the preliminary objection has been determined on a different point above.
31. Consequently, as regards the filing of the appeal out of time, I find that the preliminary objection has merit and it is hereby allowed. This appeal is accordingly struck out for being improperly before the court.
32. The respondent shall get the costs of the appeal and of the preliminary objection.
33. It is hereby so ordered.
Dated, Signed and Delivered on the virtual platform Teams this 21st day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Wainaina holding brief for Njoroge for the appellant.
Nelly Chepkoech (Ms) for the Respondent.
Carlos: Court Assistant.
'
Background
1. The Commissioner of Domestic Taxes, the appellant herein was dissatisfied with the decision of the Tax Appeals Tribunal delivered on 17th December 2024 in Tax Appeal Tribunal Appeal No. E826 of 2023. The appellant initiated an appeal to this court through a Notice of Appeal dated 4th February 2025. The memorandum of appeal dated 20th February 2025 was filed on the same date. The record of appeal dated 30th May 2025 was filed on 4th June 2025.
2. On 5th March 2025, the respondent filed a notice of preliminary objection dated 5th March 2025. The same is based on two grounds. First, that the Notice of Appeal was improperly on record as it was filed out of time and without leave of the court as required under section 32(1) of the Tax Appeals Tribunal’s Act (Cap. 469A) Laws of Kenya and section 53 of the Tax Procedures Act (Cap. 469B) Laws of Kenya. Second, the memorandum of appeal is defective for failing to abide by the provisions of Rule 5 of the Tax Appeals Tribunal (Appeals to the High Court) Rules in that it did not include an index of all the documents supporting the appeal, a copy of the decision of the Tribunal, and the Notice of Appeal.
3. The respondent therefore contends that the court lacks jurisdiction to entertain the intended appeal and prays that the same be dismissed with costs to the respondent.
4. The preliminary objection was disposed of by way of written submissions filed by the parties.
Submissions
5. Both parties filed written submissions to dispose of the preliminary objection.
6. On 22nd May 2025, this court, differently constituted, directed that the preliminary objection and the substantive appeal be disposed of together, and parties were required to file submissions on both. However, parties only filed submissions on the preliminary objection. Therefore, this ruling only pertains to the preliminary objection.
7. The submissions by both parties are considered more extensively in the analysis that follows.
8. Each of the parties has framed two issues for the court’s determination differently worded but which this court finds to be as follows:
a. whether the notice of appeal dated 4th February 2025 filed by the appellant was out of time as prescribed under section 32(1) of the Tax Appeals Tribunal Act and section 53 of the Tax Procedures Act as read together with section 77(2) of the Tax Procedures (Amendment Act), 2024.
b. whether the memorandum of appeal is incompetent and fatally defective for failure to comply with Rule 5 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015.
Analysis
9. I have considered the grounds of the preliminary objection filed herein and the submissions by the parties thereon.
10. It is not disputed that the preliminary objection is on a pure point of law and therefore satisfies the requirements stipulated in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on what constitutes a preliminary objection where the Court stated that:
“... a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
11. In that case, Sir Charles Newbold P. stated: -
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
12. A preliminary objection if well taken and sustained by the court can finally dispose of the matter. In the case of Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) Kiage JA stated thus:
“The Preliminary Objection that had been raised before the court below was a jurisdictional one. It raised a statutory bar to the bringing of the claim by the respondents herein outside of the three year cut-off imposed by Section 90 of the Employment Act. Such a plea, if upheld, would have been dispositive of the claim and therefore constituted “a pure point of law” in the language employed by Sir Charles Newbold P, in the oft-cited case of MUKISA BISCUIT MANUFACTURING CO. LTD –VS- WEST END DISTRIBUTORS LTD [1969] EA 696. It was therefore properly taken.”
13. It is also not disputed that the appellant filed the Notice of Appeal on 4th February 2025.
14. The law that guides the timelines within which an appeal should be filed from the Tax appeals Tribunal to the High Court is as submitted by both parties, under section 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act. The said provisions of the law are set out below:
S. 32(1) of the Tax Appeals Tribunal Act
A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.
Section 53 of the Tax Procedures Act
A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the High Court may allow, appeal the decision to the High Court in accordance with the provisions of the Tax Appeals Tribunal Act (Cap. 469A).
Section 77(2) of the Tax Procedures Act
(2) In computing the period for the lodgement of an objection to the Commissioner under section 51, an appeal to Tax Appeals Tribunal under section 52, an appeal to the High Court under section 53 or an appeal to the Court of Appeal under section 54, the computation shall not include Saturdays, Sundays or public holidays.
15. It is common ground that judgment appealed herein from was delivered on 17th December 2024 and the notice of appeal was filed on 4th February 2025. It is also not disputed that sections 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act are applicable are applicable in computing the time within which the appeal should have been filed. Going by these provisions of the law, it would be the case that the 30 days prescribed by the law expired on 31st January 2025.
16. However, the appellant calls to its aid Order 50 Rule 4 of the Civil Procedure Rules and submits that since it excludes the Christmas recess of the high Court which is the period between 21st December 2024 and 13th January 2025, in computation of time, the same had the effect of extending the time for filing the appeal to 20th February 2025.
17. Order 50 Rule 4 of the Civil Procedure Rules provides as follows:
Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.
18. The issue is whether the appellant was right in applying Order 50 Rule 4 CPR to the computation of time within which to file the appeal in this case.
19. The respondent submits otherwise and contends that Order 50 Rule 4 is not applicable to the computation of the time within which to file an appeal in this case. The respondent’s position is that going by the provisions of the law set out above the last day on which the appeal ought to have been filed was 31st January 2025. That time having passed, the appellant ought to have sought extension of time before filing the appeal. That was not done and, in the circumstances, the appeal filed is incompetent and should not be considered by the court. The respondent has cited the cases of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) and KMK Law LLP v Global Trucks Limited [2024] KEHC 16714 (KLR).
20. Other cases cited by the respondent and directly touching on the timelines provided for under these statutes are Commissioner of Domestic Taxes v Crescent-Tech Limited [2024] KEHC 4818 (KLR) and Commissioner of Domestic Taxes v Lifecare International Brokers Limited [2020] KEHC 3188 (KLR)
21. The appellant submits further that the cases of Nicholas Kiptoo arap Korir; Kyule v Gitaari; and Commissioner of Domestic Taxes v Lifecare International Brokers Limited cited by the respondent are not applicable in the circumstances of this case because in each case, the appellant had failed to file the appeal within the actual timeline prescribed by statute without invoking any statutory exclusion of days or court vacation and none of the involved the interpretation or application of section 77(2) of the Tax Procedures Act or order 50 Rule 4 of the Civil Procedure Rules.
22. The long title to the Tax Procedures Act provides that it is, “an Act of Parliament to harmonise and consolidate the procedural rules for the administration of tax laws in Kenya, and for connected purposes.”
23. On its part, the Tax Appeals Tribunal Act has rules made under section 32, The Tax Appeals Tribunal (Appeals to The High Court) Rules which provide under Rule 20 that, “the rules determining procedure in civil suits before the Court, to the extent to which those rules are not inconsistent with the Act or these Rules, shall apply to the tax appeal as if it were a civil suit.”
Considering these provisions of the law with regard to the procedure in tax cases, it is my understanding that appeals from the Tax Appeals Tribunal are only governed by sections 32(1) of the Tax Appeals Tribunal Act and section 53 as read together with section 77(2) of the Tax Procedures Act and therefore I would agree with the respondent’s submission that Order 50 Rule 4 of the Civil Procedure Rules is not applicable. Even though Rule 20 of the Tax Appeals Tribunal (Appeals to The High Court) Rules permits for the application of the Civil Procedure rules in tax cases under the Tax Laws, the application is limited to circumstances where those rules are not inconsistent with the Tax Appeals Tribunal Act or the Rules made thereunder. To me, the issue of the time within which to lodge an appeal to the High Court from the Tax Appeals Tribunal seems to be comprehensively provided for under the Tax Appeals Tribunal Act and the Rules made thereunder and the Tax Procedures Act and there is no necessity to look elsewhere on that issue.
24. Indeed, again as submitted by the respondent, if the Legislature had intended that the said period of recess applies to such appeals, it would have provided for the same expressly especially in the Tax Procedures (Amendment) Act, 2024) which was recently amended. In failing to do so, it means that it never intended that the Christmas recess period of the High Court be excluded from the computation of time to file an appeal to the High Court. Therefore, the case of Kimolo & another v Karanja & another cited by the appellant is not applicable in this case.
25. In the case of the Republic vs. Public Procurement Administrative Review Board & another exparte Teachers Service Commission [2015] eKLR the High court cited the case of Mokombo Ole Simel & Others vs. County Council of Narok & Others Nairobi HCMA No. 361 of 1994 where the High Court considered whether Order 49 Rule 5 of the repealed Civil Procedure Rules was capable of enlarging time specified by section 9(2) and (3) of the Law Reform Act, and expressed itself as follows;
“If the limited time is prescribed under the Civil Procedure Rules or by an order of the court or by summary notice, the court could enlarge the period. But here the absolute period of six months has been laid down by a different statute namely the Law Reform Act. Order 49 rule 5 of the Civil Procedure Rules cannot be invoked to supersede the express provisions of the Act...Order 49 rule 3A is similarly a piece of delegated legislation and cannot have the effect of amending the express provisions of section 9(2) and (3) of the Act. The said provisions can only be altered or amended by an Act of the Parliament...”
26. I am persuaded to follow this decision which was adopted by the Court of Appeal in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR) on a similar issue.
27. The appellant herein has not sought an order for extension of time to file the appeal out of time. It is therefore, correct as submitted by the respondent and I do find that that the notice of appeal herein was filed out of time by four days.
28. On the issue of the memorandum of appeal not complying with Rule 5(d) and (e) of the Tax Appeals Tribunal (Appeals to the High Court Rules) not including the index of documents, the Tax appeal’s Tribunal’s judgment and Notice of Appeal at the time of filing, the appellant does not dispute this. It offers an explanation that at the time of filing the memorandum of appeal it had not obtained certified copies of the same from the Tribunal despite requesting for them in writing.
29. In response, the respondent submits that the rule is couched in mandatory terms and non-compliance thereof calls for the memorandum of appeal to be struck out.
30. I do not think that issue needs determination at this point considering that the preliminary objection has been determined on a different point above.
31. Consequently, as regards the filing of the appeal out of time, I find that the preliminary objection has merit and it is hereby allowed. This appeal is accordingly struck out for being improperly before the court.
32. The respondent shall get the costs of the appeal and of the preliminary objection.
33. It is hereby so ordered.
Dated, Signed and Delivered on the virtual platform Teams this 21st day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Wainaina holding brief for Njoroge for the appellant.
Nelly Chepkoech (Ms) for the Respondent.
Carlos: Court Assistant.
'