1. The Respondent conducted tax investigations into the business affairs of the Appellant and issued additional VAT and corporation tax assessments. The Appellant objected to the additional assessments, and eventually, the Respondent issued its objection decision on 23/2/2023.
2. The Appellant filed an application before the Tax Appeals Tribunal (the Tribunal) seeking leave to file an appeal out of time against the Respondent’s objection decision.
3. Upon considering the appeal, the Tribunal dismissed the application.
4. The Appellant, being dissatisfied with the ruling delivered by the Tribunal, appealed against the said ruling in its entirety to this court and put forth the following grounds of appeal: -
i. That the Tribunal erred in law by visiting the inadvertent mistakes of the Appellant’s counsel on record of failing to appeal within the statutory timelines.
ii. That the Tribunal erred in law in not finding that granting the Appellant leave to appeal out of time was not prejudicial to the Respondent.
iii. That the Tribunal erred in law in not exercising its discretion in a manner that would not inhibit the constitutional right of access to justice.
iv. That the Tribunal focused on procedural technicalities as opposed to the substance, occasioning a miscarriage of justice.”
5. Based on the foregoing grounds, the Appellant prayed that the instant appeal be allowed with costs and the Tribunal’s ruling be vacated by this Court, thereby granting the Appellant leave to appeal to the Tribunal against the Respondent’s Objection Decision and the underlying tax assessment.
6. The Respondent opposed the appeal through a statement of facts dated 17/4/2024.
7. The Respondent maintained that the Tribunal’s ruling was sound and lawful. It argued that the Appellant did not provide a reasonable explanation for the prolonged delay, failed to meet the statutory threshold under section 13(4) of the Tax Appeals Tribunal Act and relevant procedural rules, and that the objection decision had been properly communicated. The Respondent argued that the delay of over one year was inordinate and unexplained.
8. The Respondent therefore prayed for an order to dismiss this appeal, affirm the ruling of the Tribunal, and award costs to it.
9. The appeal proceeded by way of written submissions, the Appellant filed its submissions dated 19/3/2025, whilst the Respondent’s submissions are dated 17/04/2025.
Analysis and determination.
10. I have considered the record of appeal filed herein, the Respondent’s Statement of Facts, and the parties’ submissions in support of their respective arguments. From the submissions, I note that the only issue for determination in this appeal is whether the following issues arise for determination is the question of whether the Tribunal exercised its discretion judiciously in declining to extend time.
11. Section 13(3) and (4) of the Tax Appeals Tribunal Act empowers the Tribunal to extend time for filing appeals on grounds of absence from Kenya, sickness, or other reasonable cause. The Appellant did not allege sickness or absence but stated that they failed to see the email that communicated the objection decision.
12. The Respondent has provided evidence that it issued the objection decision on 23/2/2023 and sent the same via email to both the Appellant and its Advocates on record. The Appellant does not dispute that the email addresses used were valid. Rather, it contends that the emails were missed or overlooked.
13. The Appellant did not file its appeal against the objection decision within the statutory timeline of 30 days from the date of the objection decision. Instead, the Appellant filed an application to lodge the appeal out of time 1 year 2 months later, vide a notice of motion dated 13/5/2024.
14. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is not a right of a party, but an equitable remedy that is only available to a deserving party at the discretion of the Court. The applicant must show, inter alia, a satisfactory explanation for the delay and that the delay was not inordinate.
15. The Court of Appeal elaborated on the criteria to be considered when allowing an extension of time to file an appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR), whereby it was stated:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others…”
16. In the present case, it took the Appellant a period of 1 year and 2 months from the date that the objection decision was communicated to file an application seeking leave to file the appeal out of time. In my view, this was an inordinate delay considering the fact that appeals against objection decisions are required to be made within 30 days of their issuance. The delay in this case is so inordinate that the same cannot be rescued by reliance on Article 159 of the Constitution.
17. In the present case, it is not disputed that the Appellant took a period of one year and two months from the date of communication of the Objection Decision to file an application seeking leave to appeal out of time. In my considered view, this constitutes an inordinate and unexplained delay.
18. The law is clear that an appeal to the Tribunal against an objection decision must be lodged within thirty (30) days from the date of its issuance, as prescribed under Section 52(1) of the Tax Procedures Act. The Appellant’s failure to act within this statutory timeline, and the further delay of over a year before seeking leave, demonstrates a lack of diligence that cannot be cured by invocation of Article 159(2)(d) of the Constitution.
19. The explanation offered by the Appellant that it did not notice the email for over a year is, with respect, neither plausible nor reasonable. A taxpayer who files an objection has a duty to follow up on the outcome within a reasonable timeframe. It cannot be reasonably expected that both the Appellant and its legal representatives failed to open relevant communication from the tax authority for over a year.
20. It is trite law that an appellate court will only interfere with the exercise of discretion where the lower court misdirected itself in law, took into account an irrelevant factor, failed to take into account a relevant one, or the decision is plainly wrong (Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR).
21. The Respondent did not substantiate this assertion in any way before the Tribunal. The Appellant failed to give a valid explanation for the delay in lodging the appeal before the Tribunal. I therefore agree with the Tribunal’s finding that the Respondent failed to establish a reasonable cause of the delay.
22. The upshot of the foregoing is that the impugned ruling of the Tribunal was proper in law, and I affirm the same. Consequently, the instant appeal is dismissed with costs to the Respondent.
23. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for the Appellant
……………….…..... for the Respondent
2. The Appellant filed an application before the Tax Appeals Tribunal (the Tribunal) seeking leave to file an appeal out of time against the Respondent’s objection decision.
3. Upon considering the appeal, the Tribunal dismissed the application.
4. The Appellant, being dissatisfied with the ruling delivered by the Tribunal, appealed against the said ruling in its entirety to this court and put forth the following grounds of appeal: -
i. That the Tribunal erred in law by visiting the inadvertent mistakes of the Appellant’s counsel on record of failing to appeal within the statutory timelines.
ii. That the Tribunal erred in law in not finding that granting the Appellant leave to appeal out of time was not prejudicial to the Respondent.
iii. That the Tribunal erred in law in not exercising its discretion in a manner that would not inhibit the constitutional right of access to justice.
iv. That the Tribunal focused on procedural technicalities as opposed to the substance, occasioning a miscarriage of justice.”
5. Based on the foregoing grounds, the Appellant prayed that the instant appeal be allowed with costs and the Tribunal’s ruling be vacated by this Court, thereby granting the Appellant leave to appeal to the Tribunal against the Respondent’s Objection Decision and the underlying tax assessment.
6. The Respondent opposed the appeal through a statement of facts dated 17/4/2024.
7. The Respondent maintained that the Tribunal’s ruling was sound and lawful. It argued that the Appellant did not provide a reasonable explanation for the prolonged delay, failed to meet the statutory threshold under section 13(4) of the Tax Appeals Tribunal Act and relevant procedural rules, and that the objection decision had been properly communicated. The Respondent argued that the delay of over one year was inordinate and unexplained.
8. The Respondent therefore prayed for an order to dismiss this appeal, affirm the ruling of the Tribunal, and award costs to it.
9. The appeal proceeded by way of written submissions, the Appellant filed its submissions dated 19/3/2025, whilst the Respondent’s submissions are dated 17/04/2025.
Analysis and determination.
10. I have considered the record of appeal filed herein, the Respondent’s Statement of Facts, and the parties’ submissions in support of their respective arguments. From the submissions, I note that the only issue for determination in this appeal is whether the following issues arise for determination is the question of whether the Tribunal exercised its discretion judiciously in declining to extend time.
11. Section 13(3) and (4) of the Tax Appeals Tribunal Act empowers the Tribunal to extend time for filing appeals on grounds of absence from Kenya, sickness, or other reasonable cause. The Appellant did not allege sickness or absence but stated that they failed to see the email that communicated the objection decision.
12. The Respondent has provided evidence that it issued the objection decision on 23/2/2023 and sent the same via email to both the Appellant and its Advocates on record. The Appellant does not dispute that the email addresses used were valid. Rather, it contends that the emails were missed or overlooked.
13. The Appellant did not file its appeal against the objection decision within the statutory timeline of 30 days from the date of the objection decision. Instead, the Appellant filed an application to lodge the appeal out of time 1 year 2 months later, vide a notice of motion dated 13/5/2024.
14. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is not a right of a party, but an equitable remedy that is only available to a deserving party at the discretion of the Court. The applicant must show, inter alia, a satisfactory explanation for the delay and that the delay was not inordinate.
15. The Court of Appeal elaborated on the criteria to be considered when allowing an extension of time to file an appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR), whereby it was stated:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others…”
16. In the present case, it took the Appellant a period of 1 year and 2 months from the date that the objection decision was communicated to file an application seeking leave to file the appeal out of time. In my view, this was an inordinate delay considering the fact that appeals against objection decisions are required to be made within 30 days of their issuance. The delay in this case is so inordinate that the same cannot be rescued by reliance on Article 159 of the Constitution.
17. In the present case, it is not disputed that the Appellant took a period of one year and two months from the date of communication of the Objection Decision to file an application seeking leave to appeal out of time. In my considered view, this constitutes an inordinate and unexplained delay.
18. The law is clear that an appeal to the Tribunal against an objection decision must be lodged within thirty (30) days from the date of its issuance, as prescribed under Section 52(1) of the Tax Procedures Act. The Appellant’s failure to act within this statutory timeline, and the further delay of over a year before seeking leave, demonstrates a lack of diligence that cannot be cured by invocation of Article 159(2)(d) of the Constitution.
19. The explanation offered by the Appellant that it did not notice the email for over a year is, with respect, neither plausible nor reasonable. A taxpayer who files an objection has a duty to follow up on the outcome within a reasonable timeframe. It cannot be reasonably expected that both the Appellant and its legal representatives failed to open relevant communication from the tax authority for over a year.
20. It is trite law that an appellate court will only interfere with the exercise of discretion where the lower court misdirected itself in law, took into account an irrelevant factor, failed to take into account a relevant one, or the decision is plainly wrong (Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR).
21. The Respondent did not substantiate this assertion in any way before the Tribunal. The Appellant failed to give a valid explanation for the delay in lodging the appeal before the Tribunal. I therefore agree with the Tribunal’s finding that the Respondent failed to establish a reasonable cause of the delay.
22. The upshot of the foregoing is that the impugned ruling of the Tribunal was proper in law, and I affirm the same. Consequently, the instant appeal is dismissed with costs to the Respondent.
23. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for the Appellant
……………….…..... for the Respondent