THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCOMMITA NO E143 OF 2024
END TO END LIMITED…………………………………………………. APPELLANT VERSUS
COMMISSIONER OF DOMESTIC TAXES………………….…. RESPONDENT
RULING ON PRELIMINARY OBJECTION
1. The Respondent raises a Preliminary Objection on points of law and prays that the Appeal be struck out in limine with costs because:
a) The Appellant's Memorandum of Appeal flaunts provisions of Section 32 of the Tax Appeals Tribunal Act, Section 53 of the Tax Procedure Act, and Rule 5 of the Tax
b) Appeals Tribunal (Appeals to the High Court) Rules (the Rules) to the extent that:
c) It is filed outside the statutory timelines and without the Court's leave.
d) It does not include:
e) An index of all documents supporting the Appeal; and
f) The Notice of Appeal.
2. The Tribunal delivered the Judgment herein, subject to appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. This significant delay, coupled with the Appellant's failure to seek leave from the Court to file its Appeal late, is a clear violation of the statutory provisions reproduced above, underscoring the importance of compliance with statutory timelines.
3. The pleadings filed before this Honourable Court lack a Notice of Appeal contrary to the provisions of the law. The Respondent's position is that the timeline and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines.
4. Parties were directed to submit their views, but the Appellant has failed to comply.
5. RESPONDENT SUBMISSIONS
6. Section 32 of the Tax tribunal Act (TPA) pr0vides"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."
7. Additionaly,Section 53 of the Tax Procedure Act provides: “A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal about 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 by the provisions of the Tax Appeals Tribunal Act."
8. Rule 4 of the Tax Appeals Tribunal (Appeal to the High Court) Rules provides that:
"The Court may extend the time specified in rule 3 if the Court is satisfied that, owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant."
9. Further, Rule 5 of the Tax Appeals Tribunal (Appeal to the High) Rules provides:
"A memorandum of Appeal shall—The Appellant signed the Court. Contain the address of service of the Appellant. Set out concisely under consecutively numbered distinct heads, the grounds of appeal without any arguments or narrative. Contain an index of all documents supporting the Appeal, with the number of pages at which they appear; and accompanied by a copy of the decision of the Tribunal and the notice of Appeal."
10. The Tribunal delivered the Judgment herein, subject to appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. Your ladyship, in addition, the Appellant failed to seek leave from the Court to file its Appeal late, which is contrary to the statutory provisions reproduced above.
11. Pleadings filed before this Honourable Court lack a Notice of Appeal contrary to the provisions of the law.
12. The Respondent's submits that the timelines and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines. The Appellant's Appeal did not comply with the timelines prescribed in law, which is a clear indication of the necessity of following the correct procedures.
13. Tax laws are to be construed strictly; if they require something to be done within 30 days, it must be complied with. See the case of Cape Brandy Syndicate V Inland Revenue Commissioner (1921) 1 KB 64.
14. Further, The Court of Appeal in Kenya Revenue Authority v Republic (ex-parte Fintel Ltd) NRB CA Civil Appeal No. 311 of 2013[2019] eKLR cited with approval the sentiments of Lord Atkinson in Inland Revenue Commissioners v Duke of Westminster (1936) AC 1, where he stated that:
"It is well established that one is bound in construing Revenue Act to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of a statute must be adhered to, and that so-called equitable constructions of them are not permissible."
15. The Appellant, having not filed its Appeal within 30 days as required by Section 32 of the Tax Appeals Tribunal Act, had an option of seeking leave to have the Appeal appropriately deemed on record, which was not done. This lack of compliance with the law is a serious matter. Consequently, the Appeal, being not in compliance with the law, lacks legs to stand on and thus is defective.
16. The same ought to be struck out with costs to the Respondent.
17. ISSUES ANALYSIS AND DETERMINATION
18. After reviewing the pleadings and submissions on record, the issues are whether the preliminary objection has merit, thus justifying the strikeout of the application along with the Appeal. A preliminary objection is based on undisputed facts or law that may determine an issue (see Mukisa Biscuits Manufacturing Co., Ltd v West End Distributors [1969] EA 696).
19. The following facts relevant to this determination, gleaned from the court record, are familiar ground, The Tribunal delivered the Judgment herein, subject to Appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. In addition, the Appellant failed to seek leave from the Court to file its Appeal late, which is contrary to the statutory provisions reproduced above.
20. It is trite law that a right of appeal is a creation of statute, and its exercise is governed by statutory strictures governing the exercise of that right (see Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SCK Pet. No. 12 of 2016 [2019] eKLR). Whether a party has complied with statutory provisions governing the exercise of that right is a jurisdictional issue.
21. In the Court of Appeal, of Patrick Kiruja Kithinji v Victor Mugira Marete, MRU CA Civil Appeal No. 48 of 2014 [2015] eKLR, that:” It is our view that whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of the institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159. Failure to file an appeal within time and without complying with statutory conditions is not a mere technicality that can be overlooked; it goes to the competence of the Appeal. Counsel for the Appellant valiantly addressed the Court on why the Court should validate the Appeal”
22. The position of law thus, is that the timeline and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines.
23. . Section 32 of TATA provides for the right of appeal from decisions of the Tribunal to the High Court as follows:32(1) 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.
24. The Appellant did not comply with the foregoing provisions of law; thus, the Court ordered that.
I. This Appeal is incompetent. It is struck out with costs to the Respondent.
DATED AND DELIVERED AT NAIROBI THIS FOURTH DAY OF JULY 2025.
……………………………………………..
CHARLES KARIUKI
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCOMMITA NO E143 OF 2024
END TO END LIMITED…………………………………………………. APPELLANT VERSUS
COMMISSIONER OF DOMESTIC TAXES………………….…. RESPONDENT
RULING ON PRELIMINARY OBJECTION
1. The Respondent raises a Preliminary Objection on points of law and prays that the Appeal be struck out in limine with costs because:
a) The Appellant's Memorandum of Appeal flaunts provisions of Section 32 of the Tax Appeals Tribunal Act, Section 53 of the Tax Procedure Act, and Rule 5 of the Tax
b) Appeals Tribunal (Appeals to the High Court) Rules (the Rules) to the extent that:
c) It is filed outside the statutory timelines and without the Court's leave.
d) It does not include:
e) An index of all documents supporting the Appeal; and
f) The Notice of Appeal.
2. The Tribunal delivered the Judgment herein, subject to appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. This significant delay, coupled with the Appellant's failure to seek leave from the Court to file its Appeal late, is a clear violation of the statutory provisions reproduced above, underscoring the importance of compliance with statutory timelines.
3. The pleadings filed before this Honourable Court lack a Notice of Appeal contrary to the provisions of the law. The Respondent's position is that the timeline and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines.
4. Parties were directed to submit their views, but the Appellant has failed to comply.
5. RESPONDENT SUBMISSIONS
6. Section 32 of the Tax tribunal Act (TPA) pr0vides"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."
7. Additionaly,Section 53 of the Tax Procedure Act provides: “A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal about 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 by the provisions of the Tax Appeals Tribunal Act."
8. Rule 4 of the Tax Appeals Tribunal (Appeal to the High Court) Rules provides that:
"The Court may extend the time specified in rule 3 if the Court is satisfied that, owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant."
9. Further, Rule 5 of the Tax Appeals Tribunal (Appeal to the High) Rules provides:
"A memorandum of Appeal shall—The Appellant signed the Court. Contain the address of service of the Appellant. Set out concisely under consecutively numbered distinct heads, the grounds of appeal without any arguments or narrative. Contain an index of all documents supporting the Appeal, with the number of pages at which they appear; and accompanied by a copy of the decision of the Tribunal and the notice of Appeal."
10. The Tribunal delivered the Judgment herein, subject to appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. Your ladyship, in addition, the Appellant failed to seek leave from the Court to file its Appeal late, which is contrary to the statutory provisions reproduced above.
11. Pleadings filed before this Honourable Court lack a Notice of Appeal contrary to the provisions of the law.
12. The Respondent's submits that the timelines and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines. The Appellant's Appeal did not comply with the timelines prescribed in law, which is a clear indication of the necessity of following the correct procedures.
13. Tax laws are to be construed strictly; if they require something to be done within 30 days, it must be complied with. See the case of Cape Brandy Syndicate V Inland Revenue Commissioner (1921) 1 KB 64.
14. Further, The Court of Appeal in Kenya Revenue Authority v Republic (ex-parte Fintel Ltd) NRB CA Civil Appeal No. 311 of 2013[2019] eKLR cited with approval the sentiments of Lord Atkinson in Inland Revenue Commissioners v Duke of Westminster (1936) AC 1, where he stated that:
"It is well established that one is bound in construing Revenue Act to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of a statute must be adhered to, and that so-called equitable constructions of them are not permissible."
15. The Appellant, having not filed its Appeal within 30 days as required by Section 32 of the Tax Appeals Tribunal Act, had an option of seeking leave to have the Appeal appropriately deemed on record, which was not done. This lack of compliance with the law is a serious matter. Consequently, the Appeal, being not in compliance with the law, lacks legs to stand on and thus is defective.
16. The same ought to be struck out with costs to the Respondent.
17. ISSUES ANALYSIS AND DETERMINATION
18. After reviewing the pleadings and submissions on record, the issues are whether the preliminary objection has merit, thus justifying the strikeout of the application along with the Appeal. A preliminary objection is based on undisputed facts or law that may determine an issue (see Mukisa Biscuits Manufacturing Co., Ltd v West End Distributors [1969] EA 696).
19. The following facts relevant to this determination, gleaned from the court record, are familiar ground, The Tribunal delivered the Judgment herein, subject to Appeal, on May 9, 2024. By statutory timelines, the Appellant had until June 8, 2024, to file its Appeal. The Appeal was filed on September 26, 2024, which is 4 months and 2 weeks late from the date of judgment delivery. In addition, the Appellant failed to seek leave from the Court to file its Appeal late, which is contrary to the statutory provisions reproduced above.
20. It is trite law that a right of appeal is a creation of statute, and its exercise is governed by statutory strictures governing the exercise of that right (see Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SCK Pet. No. 12 of 2016 [2019] eKLR). Whether a party has complied with statutory provisions governing the exercise of that right is a jurisdictional issue.
21. In the Court of Appeal, of Patrick Kiruja Kithinji v Victor Mugira Marete, MRU CA Civil Appeal No. 48 of 2014 [2015] eKLR, that:” It is our view that whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of the institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159. Failure to file an appeal within time and without complying with statutory conditions is not a mere technicality that can be overlooked; it goes to the competence of the Appeal. Counsel for the Appellant valiantly addressed the Court on why the Court should validate the Appeal”
22. The position of law thus, is that the timeline and compliance with the stipulations of the law dictate the validity of the Appeal. Therefore, for a valid appeal to be considered, both the Notice of Appeal and the Memorandum of Appeal must comply with the stated timelines.
23. . Section 32 of TATA provides for the right of appeal from decisions of the Tribunal to the High Court as follows:32(1) 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.
24. The Appellant did not comply with the foregoing provisions of law; thus, the Court ordered that.
I. This Appeal is incompetent. It is struck out with costs to the Respondent.
DATED AND DELIVERED AT NAIROBI THIS FOURTH DAY OF JULY 2025.
……………………………………………..
CHARLES KARIUKI
JUDGE