1. The Respondent has raised a Preliminary Objection dated 27th April 2026 seeking to strike out the appeal on the ground that no proper Notice of Appeal was lodged in accordance with sections 32(1) and (1A) of the Tax Appeals Tribunal Act, Cap. 469A and section 53 of the Tax Procedures Act, Cap. 469B. The Respondent contends that the Notice of Appeal dated 27th February 2026 was lodged twelve days out of time and that, consequently, the appeal is incompetent.
2. The Appellant opposed the objection vide the Replying Affidavit of Lilian Wanjiru Kamau, sworn on 22nd May 2026. The Appellant contends that the Notice of Appeal was filed on 27th February 2026 and served on the Respondent’s tax agent on the same day. It further submits that, following the amendment to section 77(2) of the Tax Procedures Act, Saturdays, Sundays and public holidays are excluded when computing the period for lodging an appeal to the High Court.
3. It is therefore the Appellant’s case that the Notice was lodged within time. The Notice of Appeal and email evidencing service are exhibited (KRA1) to the Replying Affidavit.
4. The issue for determination is therefore whether the Notice of Appeal was lodged within the statutory period.
5. A preliminary objection is a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct. It cannot properly be raised where the Court is required to ascertain facts or exercise a discretion. This is the principle set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
6. There is no dispute as to the material dates. The Tribunal delivered its judgment on 16th January 2026. The Appellant lodged its Notice of Appeal on 27th February 2026 and served it upon the Respondent’s tax agent by email on the same day. The email exhibited by the Appellant expressly states that the Notice of Appeal dated 27th February 2026 was attached and served upon the Respondent’s tax agent.
7. Section 32(1) of the Tax Appeals Tribunal Act provides that a party may, within thirty days after being notified of the decision of the Tribunal, appeal to the High Court, subject to the Court’s power to extend time. Section 32(1A) further requires the party appealing to serve a copy of the Notice of Appeal within two days of lodging it. The statutory procedure is supplemented by Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, which requires the Memorandum of Appeal to be filed within thirty days after service of the Notice of Appeal.
8. The Respondent's submission is that the thirty days expired on 15th February 2026. That computation, however, treats the thirty-day period as thirty calendar days. The question is whether that is the computation prescribed by the law applicable at the material time.
9. Section 77(2) of the Tax Procedures Act provides that, in computing the period for lodging, among other things, an appeal to the High Court under section 53, Saturdays, Sundays and public holidays shall not be included.
10. Here, the Tribunal's judgment was delivered on Friday, 16th January 2026. Applying section 57(a) of the Interpretation and General Provisions Act, the day on which the event occurred is excluded. The first day for computation was therefore Monday, 19th January 2026. Section 77(2) of the Tax Procedures Act then requires Saturdays, Sundays and public holidays to be excluded from the computation. The thirtieth working day therefore fell on Friday, 27th February 2026.
11. In view of the foregoing, I therefore find and hold that the Notice of Appeal dated and lodged on 27th February 2026 was filed within the thirty-day period prescribed by section 32(1) of the Tax Appeals Tribunal Act as read with section 53 of the Tax Procedures Act.
12. I have considered the authorities cited by the Respondent, particularly Commissioner of Domestic Taxes v Lifecare International Brokers Limited [2020] eKLR. and that of Commissioner of Domestic Taxes v Africa Oil BV [2020] KEHC 10036 (KLR), I do not find them useful to the Respondent’s case.
13. Accordingly, the Preliminary Objection dated 27th April 2026 is consequently without merit and is dismissed.
14. The costs of the Preliminary Objection shall abide the outcome of the appeal.
15. 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 Appellant
……………for the Respondent
2. The Appellant opposed the objection vide the Replying Affidavit of Lilian Wanjiru Kamau, sworn on 22nd May 2026. The Appellant contends that the Notice of Appeal was filed on 27th February 2026 and served on the Respondent’s tax agent on the same day. It further submits that, following the amendment to section 77(2) of the Tax Procedures Act, Saturdays, Sundays and public holidays are excluded when computing the period for lodging an appeal to the High Court.
3. It is therefore the Appellant’s case that the Notice was lodged within time. The Notice of Appeal and email evidencing service are exhibited (KRA1) to the Replying Affidavit.
4. The issue for determination is therefore whether the Notice of Appeal was lodged within the statutory period.
5. A preliminary objection is a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct. It cannot properly be raised where the Court is required to ascertain facts or exercise a discretion. This is the principle set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
6. There is no dispute as to the material dates. The Tribunal delivered its judgment on 16th January 2026. The Appellant lodged its Notice of Appeal on 27th February 2026 and served it upon the Respondent’s tax agent by email on the same day. The email exhibited by the Appellant expressly states that the Notice of Appeal dated 27th February 2026 was attached and served upon the Respondent’s tax agent.
7. Section 32(1) of the Tax Appeals Tribunal Act provides that a party may, within thirty days after being notified of the decision of the Tribunal, appeal to the High Court, subject to the Court’s power to extend time. Section 32(1A) further requires the party appealing to serve a copy of the Notice of Appeal within two days of lodging it. The statutory procedure is supplemented by Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, which requires the Memorandum of Appeal to be filed within thirty days after service of the Notice of Appeal.
8. The Respondent's submission is that the thirty days expired on 15th February 2026. That computation, however, treats the thirty-day period as thirty calendar days. The question is whether that is the computation prescribed by the law applicable at the material time.
9. Section 77(2) of the Tax Procedures Act provides that, in computing the period for lodging, among other things, an appeal to the High Court under section 53, Saturdays, Sundays and public holidays shall not be included.
10. Here, the Tribunal's judgment was delivered on Friday, 16th January 2026. Applying section 57(a) of the Interpretation and General Provisions Act, the day on which the event occurred is excluded. The first day for computation was therefore Monday, 19th January 2026. Section 77(2) of the Tax Procedures Act then requires Saturdays, Sundays and public holidays to be excluded from the computation. The thirtieth working day therefore fell on Friday, 27th February 2026.
11. In view of the foregoing, I therefore find and hold that the Notice of Appeal dated and lodged on 27th February 2026 was filed within the thirty-day period prescribed by section 32(1) of the Tax Appeals Tribunal Act as read with section 53 of the Tax Procedures Act.
12. I have considered the authorities cited by the Respondent, particularly Commissioner of Domestic Taxes v Lifecare International Brokers Limited [2020] eKLR. and that of Commissioner of Domestic Taxes v Africa Oil BV [2020] KEHC 10036 (KLR), I do not find them useful to the Respondent’s case.
13. Accordingly, the Preliminary Objection dated 27th April 2026 is consequently without merit and is dismissed.
14. The costs of the Preliminary Objection shall abide the outcome of the appeal.
15. 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 Appellant
……………for the Respondent