Judgment summary
This is a ruling on a Notice of Motion dated 25th June, 2026 brought by the Applicant, Msallam Said Ali, seeking an extension of time to file a Notice of Appeal, Memorandum of Appeal, Statement of Facts and other supporting documents against the Respondent's Objection Decision (paras 1-2).
The Applicant argued that he had been unwell and unable to file the appeal in time, and urged the Tribunal to invoke Article 159 of the Constitution and its powers under Section 13(3) and (4) of the Tax Appeals Tribunal Act 2013 and Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015 to admit the appeal out of time (para 2).
The Respondent did not file a response to the application (para 3).
The Tribunal considered the delay, the reasons given, and the requirements of Section 13(4) of the Tax Appeals Tribunal Act, and concluded that the Applicant had not discharged the burden of proving sickness as a reasonable cause for the delay, in the absence of supporting medical documents (paras 8-10). The application was dismissed, with each party bearing its own costs (para 11).
Background
The Applicant's intended Appeal was directed against the Respondent's Objection Decision (para 4). The judgment records the Objection Decision date as 31st July 2025 at paragraph 4, and as 12th July 2024 at paragraph 7.
The Applicant filed the application for extension of time on 5th July 2025, according to paragraph 7, resulting in a delay of about 11 months. The Notice of Motion itself is dated 25th June, 2026, and the Notice of Appeal, Memorandum of Appeal and Statement of Facts sought to be deemed properly filed are dated 17th June, 2026 (paras 1, 7).
Core dispute
The dispute was whether the Tribunal should exercise its discretion under Section 13(3) and (4) of the Tax Appeals Tribunal Act to extend time for the Applicant to file his Notice of Appeal, Memorandum of Appeal and Statement of Facts, and to deem those documents as properly filed and served, on the ground that the Applicant had been unwell (paras 1-2, 4).
Court findings
The Tribunal noted that its power to extend time under Section 13(3) and (4) of the Tax Appeals Tribunal Act is discretionary and must be exercised with abundant caution, applying the factors set out in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997, namely the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent (para 6).
The Tribunal found that the Applicant was late by about 11 months (para 7). It held that Section 13(4) permits an extension only for absence from Kenya, sickness, or other reasonable cause, and that the Applicant had grounded the application on sickness but attached no evidence to support this allegation (para 8).
The Tribunal held that it was incumbent on the Applicant to discharge the burden of proof by providing relevant documents supporting the claim of sickness, and that the 11-month delay needed to be justified with medical documentation, which was not provided (paras 8-9). The Tribunal concluded that the Applicant had not met the threshold for an extension of time under Section 13(4) of the Tax Appeals Tribunal Act (Cap 469A) (para 10).
Outcome
The Tribunal dismissed the Application for lack of merit and ordered that each party bear its own costs (para 11).
Major issues / areas of contention
- Whether the Tribunal should extend time for the Applicant to file a Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time
- Whether sickness constituted a reasonable cause under Section 13(4) of the Tax Appeals Tribunal Act to justify the delay
- Whether the Applicant discharged the burden of proof by producing evidence, such as medical documents, to support the claim of sickness
- Whether the length of the delay, about 11 months, was sufficiently explained and justified