Introduction
1. Before the Court is the Notice of Motion dated 8th September 2025 by which the Applicant seeks enlargement of time to file an appeal against the judgment of the Tax Appeals Tribunal delivered on 21st May 2025 in Tax Appeal No. E1052 of 2024. The Applicant further seeks that the Memorandum and Record of Appeal filed out of time be deemed duly filed and served.
2. The application is opposed by the Respondent who has, in addition, filed a Notice of Motion dated 3rd October 2025 seeking, principally, the striking out of the appeal on the ground that it was filed outside the prescribed period and without leave of the Court.
3. The Respondent has also raised a Preliminary Objection dated 3rd October 2025 contending that the appeal is incompetent for having been filed outside the prescribed statutory period.
4. The applications are supported and opposed by the respective affidavits and written submissions filed by the parties.
5. The dispute before the Tribunal concerned additional assessments of corporation tax and VAT for the years 2020 and 2021 amounting to Kshs. 27,906,937. The Tribunal allowed the taxpayer's appeal, set aside the Commissioner's objection decision dated 13th August 2024 and ordered each party to bear its own costs.
6. The Tribunal delivered its judgment on 21st May 2025. The Applicant thereafter lodged and served a Notice of Appeal on 19th June 2025. It states that it also requested certified proceedings, judgment and orders from the Tribunal.
7. The Applicant did not file its Memorandum of Appeal within the prescribed period. It subsequently moved this Court on 8th September 2025 seeking enlargement of time. The delay is attributed to, among other matters, the alleged delay in obtaining certified proceedings, internal administrative processes, illness of counsel and ongoing Alternative Dispute Resolution discussions.
8. The Respondent disputes those explanations and contends that the Applicant has failed to satisfactorily account for the delay.
Analysis and Determination
9. I have carefully considered the applications, the responses thereto, and the rival submissions by the parties. I find that the dispute turns on two issues:
i. Whether the Preliminary Objection is merited
ii. Whether the Applicant has established sufficient cause for enlargement of time to file its appeal
Whether the Preliminary Objection is merited
10. The Respondent's Preliminary Objection is founded on the contention that the Applicant's failure to comply with the statutory timelines rendered the appeal incompetent and, consequently, that this Court has no jurisdiction to entertain the matter.
11. The principles governing a preliminary objection are settled. In Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] KESC 23 (KLR), the Supreme Court affirmed that a preliminary objection must raise a pure question of law and that the Court must be satisfied that there is no proper contest as to the facts upon which the objection is founded.
12. In the present case, there is no dispute that the Applicant filed its Notice of Appeal on 19th June 2025 and that the Memorandum of Appeal was not filed within the period prescribed by Rule 3. The legal consequence of that default is, in the first instance, that an appeal cannot properly be sustained unless time is enlarged.
13. The question before the Court, however, does not end there. Section 32(1) of the Tax Appeals Tribunal Act permits an appeal to the High Court within thirty days after notification of the Tribunal's decision or within such further period as the High Court may allow. Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 prescribes the period for filing the Memorandum of Appeal, while Rule 4 expressly empowers the Court to extend that period where the conditions prescribed therein are satisfied.
14. The statutory scheme therefore draws a distinction between the competence of an appeal filed outside time without extension and the jurisdiction of the Court to consider an application seeking enlargement of time. The former may render the appeal incompetent; the latter is expressly vested in the High Court by the statute and Rules.
15. The Respondent's objection therefore cannot, by the mere fact of lateness, dispose of the Applicant's application for enlargement. Whether the Applicant has demonstrated sufficient cause to warrant extension is a matter to be determined under Rule 4 upon consideration of the circumstances and evidence placed before the Court.
16. Consequently, I find that the Preliminary Objection is devoid of merit in the circumstances.
Whether the Applicant has established sufficient cause for enlargement of time to file its appeal
17. Rule 4 permits the Court to extend the period prescribed under Rule 3 where the appellant was unable to file the Memorandum of Appeal within time owing to absence from Kenya, sickness or other reasonable cause and there has been no unreasonable delay
18. The applicable principles were authoritatively settled by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR). Extension of time is not a right but an equitable remedy available at the discretion of the Court. The applicant bears the burden of laying a satisfactory basis for the exercise of that discretion. The Court considers, among other factors, the length of the delay, the reason for the delay, whether the delay has been satisfactorily explained, whether the application was made without undue delay and the prejudice likely to be occasioned to the respondent.
19. Similarly, in First American Bank of Kenya Ltd v Gulab P Shah & 2 Others [2002] 1 EA 65, the court emphasized that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
20. In the present case, the Applicant lodged its Notice of Appeal on 19th June 2025 but did not file its Memorandum of Appeal within the prescribed period. It subsequently moved the Court on 8th September 2025. There was therefore a material period of default which required a satisfactory explanation.
21. The Applicant advances several reasons for the delay. I have considered them both individually and cumulatively.
22. The first is the alleged delay in obtaining certified proceedings, judgment and orders from the Tribunal. I am unable to accept this as a sufficient explanation for the entire period of default. The Applicant already had the Tribunal's judgment and had lodged its Notice of Appeal. Further, Rule 5 requires the Memorandum of Appeal to be accompanied by the Tribunal's decision and Notice of Appeal; it does not make certified proceedings a condition precedent to filing the Memorandum.
23. The Applicant has therefore not demonstrated why the absence of certified proceedings prevented it from filing the Memorandum of Appeal within time.
24. The Applicant also relies on internal administrative processes and the obtaining of instructions. While such processes may, in an appropriate case, constitute reasonable cause, the Applicant has not demonstrated the particular impediment encountered, the period for which it operated or why reasonable steps could not have been taken to preserve its right of appeal.
25. The Applicant further relies on illness of counsel. I have considered the medical material placed before Court and accept that counsel was indisposed for a period. That circumstance weighs in the Applicant's favour. It does not, however, satisfactorily account for the entire period of default or explain why the matter could not thereafter be attended to with reasonable promptness.
26. The Applicant finally relies on ongoing ADR discussions. That explanation is not satisfactorily established by the evidence. The Respondent has placed before Court correspondence from the Applicant's own Tax Dispute Resolution Division dated 12th January 2025 stating that the ADR discussions had been closed.
27. The Applicant has not placed sufficient evidence before Court demonstrating that the ADR process was subsequently reopened after delivery of the Tribunal's judgment on 21st May 2025. In any event, settlement negotiations do not, without more, suspend a statutory appellate period. A party wishing to preserve its right of appeal must comply with the prescribed period or seek enlargement of time.
28. I have also considered the intended appeal. The draft Memorandum raises issues concerning the Tribunal's treatment of sales attributed to Oil Marketing Companies, the application of the 1% margin and the setting aside of the Commissioner's objection decision. The intended appeal cannot therefore be described as frivolous.
29. That factor, however, is not determinative. An arguable appeal does not, without a satisfactory explanation for delay, entitle an applicant to enlargement of time.
30. I have further considered prejudice. The dispute concerns assessments amounting to Kshs. 27,906,937 and the Applicant contends that public revenue is involved. That is a relevant consideration. The Respondent, on the other hand, obtained judgment in his favour before the Tribunal and has a legitimate interest in the finality of the dispute.
31. Balancing those considerations against the length of the delay and the inadequacy of the explanation, I am not persuaded that the circumstances of this case warrant the exercise of the Court's discretion in favour of the Applicant.
32. I therefore find that the Applicant has failed to satisfy the requirements of Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules.
Disposition
33. Accordingly, I make the following orders:
i. The Preliminary Objection dated 3rd October 2025 is dismissed.
ii. The Applicant's Notice of Motion dated 8th September 2025 is dismissed.
iii. The Respondent's Notice of Motion dated 3rd October 2025 is allowed to the extent that the Memorandum and Record of Appeal filed outside the prescribed period are hereby struck out.
iv. Consequently, Income Tax Appeal No. E215 of 2025 is struck out.
v. The judgment of the Tax Appeals Tribunal delivered on 21st May 2025 in Tax Appeal No. E1052 of 2024 remains undisturbed.
vi. The Applicant shall bear the costs of the applications and the appeal
34. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Notice of Motion dated 8th September 2025 by which the Applicant seeks enlargement of time to file an appeal against the judgment of the Tax Appeals Tribunal delivered on 21st May 2025 in Tax Appeal No. E1052 of 2024. The Applicant further seeks that the Memorandum and Record of Appeal filed out of time be deemed duly filed and served.
2. The application is opposed by the Respondent who has, in addition, filed a Notice of Motion dated 3rd October 2025 seeking, principally, the striking out of the appeal on the ground that it was filed outside the prescribed period and without leave of the Court.
3. The Respondent has also raised a Preliminary Objection dated 3rd October 2025 contending that the appeal is incompetent for having been filed outside the prescribed statutory period.
4. The applications are supported and opposed by the respective affidavits and written submissions filed by the parties.
5. The dispute before the Tribunal concerned additional assessments of corporation tax and VAT for the years 2020 and 2021 amounting to Kshs. 27,906,937. The Tribunal allowed the taxpayer's appeal, set aside the Commissioner's objection decision dated 13th August 2024 and ordered each party to bear its own costs.
6. The Tribunal delivered its judgment on 21st May 2025. The Applicant thereafter lodged and served a Notice of Appeal on 19th June 2025. It states that it also requested certified proceedings, judgment and orders from the Tribunal.
7. The Applicant did not file its Memorandum of Appeal within the prescribed period. It subsequently moved this Court on 8th September 2025 seeking enlargement of time. The delay is attributed to, among other matters, the alleged delay in obtaining certified proceedings, internal administrative processes, illness of counsel and ongoing Alternative Dispute Resolution discussions.
8. The Respondent disputes those explanations and contends that the Applicant has failed to satisfactorily account for the delay.
Analysis and Determination
9. I have carefully considered the applications, the responses thereto, and the rival submissions by the parties. I find that the dispute turns on two issues:
i. Whether the Preliminary Objection is merited
ii. Whether the Applicant has established sufficient cause for enlargement of time to file its appeal
Whether the Preliminary Objection is merited
10. The Respondent's Preliminary Objection is founded on the contention that the Applicant's failure to comply with the statutory timelines rendered the appeal incompetent and, consequently, that this Court has no jurisdiction to entertain the matter.
11. The principles governing a preliminary objection are settled. In Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] KESC 23 (KLR), the Supreme Court affirmed that a preliminary objection must raise a pure question of law and that the Court must be satisfied that there is no proper contest as to the facts upon which the objection is founded.
12. In the present case, there is no dispute that the Applicant filed its Notice of Appeal on 19th June 2025 and that the Memorandum of Appeal was not filed within the period prescribed by Rule 3. The legal consequence of that default is, in the first instance, that an appeal cannot properly be sustained unless time is enlarged.
13. The question before the Court, however, does not end there. Section 32(1) of the Tax Appeals Tribunal Act permits an appeal to the High Court within thirty days after notification of the Tribunal's decision or within such further period as the High Court may allow. Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 prescribes the period for filing the Memorandum of Appeal, while Rule 4 expressly empowers the Court to extend that period where the conditions prescribed therein are satisfied.
14. The statutory scheme therefore draws a distinction between the competence of an appeal filed outside time without extension and the jurisdiction of the Court to consider an application seeking enlargement of time. The former may render the appeal incompetent; the latter is expressly vested in the High Court by the statute and Rules.
15. The Respondent's objection therefore cannot, by the mere fact of lateness, dispose of the Applicant's application for enlargement. Whether the Applicant has demonstrated sufficient cause to warrant extension is a matter to be determined under Rule 4 upon consideration of the circumstances and evidence placed before the Court.
16. Consequently, I find that the Preliminary Objection is devoid of merit in the circumstances.
Whether the Applicant has established sufficient cause for enlargement of time to file its appeal
17. Rule 4 permits the Court to extend the period prescribed under Rule 3 where the appellant was unable to file the Memorandum of Appeal within time owing to absence from Kenya, sickness or other reasonable cause and there has been no unreasonable delay
18. The applicable principles were authoritatively settled by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR). Extension of time is not a right but an equitable remedy available at the discretion of the Court. The applicant bears the burden of laying a satisfactory basis for the exercise of that discretion. The Court considers, among other factors, the length of the delay, the reason for the delay, whether the delay has been satisfactorily explained, whether the application was made without undue delay and the prejudice likely to be occasioned to the respondent.
19. Similarly, in First American Bank of Kenya Ltd v Gulab P Shah & 2 Others [2002] 1 EA 65, the court emphasized that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
20. In the present case, the Applicant lodged its Notice of Appeal on 19th June 2025 but did not file its Memorandum of Appeal within the prescribed period. It subsequently moved the Court on 8th September 2025. There was therefore a material period of default which required a satisfactory explanation.
21. The Applicant advances several reasons for the delay. I have considered them both individually and cumulatively.
22. The first is the alleged delay in obtaining certified proceedings, judgment and orders from the Tribunal. I am unable to accept this as a sufficient explanation for the entire period of default. The Applicant already had the Tribunal's judgment and had lodged its Notice of Appeal. Further, Rule 5 requires the Memorandum of Appeal to be accompanied by the Tribunal's decision and Notice of Appeal; it does not make certified proceedings a condition precedent to filing the Memorandum.
23. The Applicant has therefore not demonstrated why the absence of certified proceedings prevented it from filing the Memorandum of Appeal within time.
24. The Applicant also relies on internal administrative processes and the obtaining of instructions. While such processes may, in an appropriate case, constitute reasonable cause, the Applicant has not demonstrated the particular impediment encountered, the period for which it operated or why reasonable steps could not have been taken to preserve its right of appeal.
25. The Applicant further relies on illness of counsel. I have considered the medical material placed before Court and accept that counsel was indisposed for a period. That circumstance weighs in the Applicant's favour. It does not, however, satisfactorily account for the entire period of default or explain why the matter could not thereafter be attended to with reasonable promptness.
26. The Applicant finally relies on ongoing ADR discussions. That explanation is not satisfactorily established by the evidence. The Respondent has placed before Court correspondence from the Applicant's own Tax Dispute Resolution Division dated 12th January 2025 stating that the ADR discussions had been closed.
27. The Applicant has not placed sufficient evidence before Court demonstrating that the ADR process was subsequently reopened after delivery of the Tribunal's judgment on 21st May 2025. In any event, settlement negotiations do not, without more, suspend a statutory appellate period. A party wishing to preserve its right of appeal must comply with the prescribed period or seek enlargement of time.
28. I have also considered the intended appeal. The draft Memorandum raises issues concerning the Tribunal's treatment of sales attributed to Oil Marketing Companies, the application of the 1% margin and the setting aside of the Commissioner's objection decision. The intended appeal cannot therefore be described as frivolous.
29. That factor, however, is not determinative. An arguable appeal does not, without a satisfactory explanation for delay, entitle an applicant to enlargement of time.
30. I have further considered prejudice. The dispute concerns assessments amounting to Kshs. 27,906,937 and the Applicant contends that public revenue is involved. That is a relevant consideration. The Respondent, on the other hand, obtained judgment in his favour before the Tribunal and has a legitimate interest in the finality of the dispute.
31. Balancing those considerations against the length of the delay and the inadequacy of the explanation, I am not persuaded that the circumstances of this case warrant the exercise of the Court's discretion in favour of the Applicant.
32. I therefore find that the Applicant has failed to satisfy the requirements of Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules.
Disposition
33. Accordingly, I make the following orders:
i. The Preliminary Objection dated 3rd October 2025 is dismissed.
ii. The Applicant's Notice of Motion dated 8th September 2025 is dismissed.
iii. The Respondent's Notice of Motion dated 3rd October 2025 is allowed to the extent that the Memorandum and Record of Appeal filed outside the prescribed period are hereby struck out.
iv. Consequently, Income Tax Appeal No. E215 of 2025 is struck out.
v. The judgment of the Tax Appeals Tribunal delivered on 21st May 2025 in Tax Appeal No. E1052 of 2024 remains undisturbed.
vi. The Applicant shall bear the costs of the applications and the appeal
34. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent