Judgment summary
The Tax Appeals Tribunal considered a single issue, namely whether there was a valid appeal on record [11].
The Tribunal noted that the appellant had been granted leave to file the appeal out of time by consent on 19 June 2025, but that the appellant did not file a memorandum of appeal or a statement of facts [8, 9, 14].
The Tribunal found that the memorandum of appeal and statement of facts are mandatory foundational documents required under Section 13(2) of the Tax Appeals Tribunal Act, and that their absence rendered the appeal incompetent and deprived the Tribunal of jurisdiction [16, 21, 26].
The Tribunal struck out the appeal and ordered each party to bear its own costs [27].
Background
The appellant is a resident limited liability company [1]. The respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 460 Laws of Kenya [2].
The dispute arose from additional Income Tax, Value Added Tax (VAT) and Pay As You Earn (PAYE) assessments issued on the appellant for the periods 2019 to 2023 [3].
The respondent issued a notice to issue additional assessments dated 4th October 2024 and subsequently issued additional assessments dated 20th November 2024 [4]. The appellant filed a request dated 17th January 2025 to lodge a notice of objection out of time, which was accepted [5]. The respondent issued its objection decision on 14th March 2025 [6].
Aggrieved by the objection decision, the appellant filed a Notice of Appeal dated and filed on 7th May 2025 [7]. The appellant filed a Notice of Motion dated and filed on 21st May 2025 seeking to file the appeal out of time, and the motion was allowed by consent by both parties on 19th June 2025. However, the appellant did not file a Memorandum of Appeal [8].
Core dispute
The Tribunal identified the issue for determination as whether there is a valid appeal on record [11].
Court findings
The Tribunal noted that the grant of leave to appeal out of time does not, by itself, cure all procedural deficiencies in the constitution of an appeal [13]. On scrutiny of the record, the Tribunal noted that the appellant did not file a memorandum of appeal and statement of facts [14].
The Tribunal noted that the respondent filed its statement of facts on 28th April 2026, after the hearing date of 31st March 2026, and therefore the Tribunal did not consider it [10, 15].
The Tribunal observed that Section 13 of the TAT Act governs the procedure for appeals. Section 13(1)(b) requires filing a notice of appeal within thirty days of receipt of the Commissioner's decision, and Section 13(3) permits the Tribunal to extend time [17, 18]. Leave to file out of time had been granted by consent on 19th June 2025 [19].
The Tribunal held that Section 13(2) requires an appellant, within fourteen days from the date of filing the notice of appeal, to submit a memorandum of appeal, statements of facts, the appealable decision, and other necessary documents [20]. It found these requirements are substantive requirements of a valid appeal, and that the contents of the memorandum of appeal are prescribed by Rule 4 of the Tax Appeals Tribunal (Procedure) Rules, 2015 [21].
The Tribunal stated that the memorandum of appeal defines the scope of the appeal and anchors all other pleadings, and that the statement of facts provides the foundational narrative of the dispute [22, 23]. Relying on Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR, the Tribunal held that the consequence of the deficiency is jurisdictional [24].
The Tribunal found that in the absence of a memorandum of appeal and statement of facts there was no valid appeal, and it lacked jurisdiction to determine the matter on its merits [25, 26].
Outcome
The Tribunal found that the appeal is incompetent. It struck out the appeal and ordered that each party bear its own costs [27].
Major issues / areas of contention
- Whether there was a valid appeal on record before the Tribunal [11].
- Whether the grant of leave to file an appeal out of time cured other procedural deficiencies in the constitution of the appeal [13].
- Whether the failure to file a memorandum of appeal and statement of facts under Section 13(2) of the TAT Act rendered the appeal incompetent [16, 21, 26].
- Whether the absence of a memorandum of appeal deprived the Tribunal of jurisdiction to determine the matter on its merits [24, 25, 26].