Judgment summary
This is a Ruling of the Tax Appeals Tribunal at Nairobi on a Notice of Motion dated 30th July 2026 filed by Diesel Care Limited, seeking review and setting aside of the Tribunal's Judgment delivered on 27th July 2026.
The earlier Judgment had struck out the Applicant's Appeal against the Respondent's invalidation decision dated 23rd April 2021, on the ground that there was no appealable decision on record and the Tribunal's jurisdiction had not been engaged.
The Applicant sought review under Section 29A of the Tax Appeals Tribunal Act (TAT Act), and asked the Tribunal to allow the Appeal and set aside the invalidation decision. The Respondent opposed the Application, arguing that the review threshold had not been met.
The Tribunal dismissed the Application, affirmed its Judgment of 27th July 2026, and made no order as to costs.
Background
Diesel Care Limited is a limited liability company dealing with construction (paragraph 2a).
The Respondent raised Income Tax assessments for the years 2016 and 2017 on 26th June 2020 (paragraph 4). The Applicant lodged an objection, which, according to the Applicant's submissions, the Respondent acknowledged on 26th July 2020 (paragraph 4), though the Notice of Motion states the objection was received on 15th July 2020 (paragraph 2b).
The Respondent issued an invalidation decision on 23rd April 2021, confirming the assessments (paragraphs 2b and 4).
The Applicant appealed against the invalidation decision. By Judgment delivered on 27th July 2026, the Tribunal struck out the Appeal, having found that the letter of 23rd April 2021 was an invalidation of an objection under Section 51(4) of the Tax Procedures Act (TPA) and not an appealable decision, so that the Tribunal's jurisdiction was never engaged (paragraphs 2c, 5, 31).
On 30th July 2026, the Applicant filed a Notice of Motion seeking review of that Judgment under Section 29A of the TAT Act, supported by an affidavit sworn by Joseph K. Claudio, the Applicant's Managing Director (paragraphs 1 and 2).
Core dispute
The Applicant argued that an invalidation decision is not listed among the enumerated categories of a "tax decision" under Section 3(1) of the TPA and is therefore an appealable decision within the residual definition (paragraphs 7 and 8). It also argued that the Respondent's invalidation decision, issued on 23rd April 2021, came more than sixty days after the objection was lodged, contrary to Section 51(4A) of the TPA, relying on Rongai Tiles & Sanitary Wares Limited v Commissioner of Domestic Taxes (paragraphs 9 and 10). It further relied on Althaus Services Limited v Commissioner of Domestic Taxes and Surestep Systems & Solutions Limited v Commissioner of Domestic Taxes, in which the Tribunal had treated invalidation decisions as appealable (paragraph 11).
The Respondent contended that the Application did not meet the threshold for review under Section 29A of the TAT Act, since it disclosed neither newly discovered evidence nor an error apparent on the face of the record, but instead sought to relitigate the Tribunal's evaluation of the evidence and interpretation of the law, which is properly a matter for appeal (paragraphs 17 to 20 and 22 to 29).
Two issues fell for determination: whether the Application satisfied the threshold for review prescribed by Section 29A of the TAT Act, and whether the Tribunal was competent to grant the orders sought (paragraph 32).
Court findings
On the first issue, the Tribunal held that its review power under Section 29A of the TAT Act is confined to three disjunctive but exhaustive grounds: newly discovered evidence, an error apparent on the face of the record, or any other sufficient reason (paragraphs 33 to 35).
The Tribunal found that the two cases relied on, Althaus Services Limited and Surestep Systems & Solutions Limited, were not newly discovered matter, since decided cases are law rather than evidence, and both decisions predated the Applicant's submissions and the Judgment (paragraphs 36 to 39).
Applying the test from Chandrakhant Joshibhai Patel v R, as adopted in Amina Guyo Dalacha & 19 others v Jiangxi Zhongmei Engineering Construction Company Limited, and National Bank of Kenya Limited v Ndungu Njau, the Tribunal held that an error apparent on the face of the record must be self-evident and not require elaborate argument. The Tribunal found that its earlier construction of Sections 3, 51(1), 51(3) and 51(4) of the TPA, applying Commissioner of Investigations & Enforcement v Vyas t/a Rocon Enterprises, was a reasoned determination of a contested legal question, and that the conflict between Althaus/Surestep and Vyas itself demonstrated that two views were reasonably possible, placing the matter beyond the scope of review (paragraphs 40 to 45).
The Tribunal further held that the Section 51(4A) TPA and Rongai Tiles argument had already been considered and determined in the earlier Judgment, and that reagitating it amounted to relitigation, not review (paragraph 46). The "any other sufficient reason" ground was found inapplicable, being construed ejusdem generis with the other two grounds (paragraph 47). The Tribunal also noted that its earlier Judgment had not upheld the invalidation decision on the merits, having declined jurisdiction (paragraph 48).
On the second issue, the Tribunal held that, having delivered its Judgment on 27th July 2026, it became functus officio, and that the orders sought, in substance, invited it to sit on appeal from its own decision. Citing Telkom Kenya Limited v John Ochanda, Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd, and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others, the Tribunal held that jurisdiction cannot be self-conferred and that Section 29A does not convert it into an appellate forum over its own decisions (paragraphs 50 to 54). It noted that the Applicant's proper recourse lay in an appeal to the High Court under Section 32 of the TAT Act, or by way of judicial review (paragraph 55).
Outcome
The Tribunal found that the Application was not merited.
It dismissed the Notice of Motion dated 30th July 2026, affirmed the Judgment of the Tribunal delivered on 27th July 2026, and made no order as to costs (paragraph 57).
Major issues / areas of contention
- Whether the Applicant's Notice of Motion satisfied the threshold for review under Section 29A of the Tax Appeals Tribunal Act.
- Whether the cases Althaus Services Limited and Surestep Systems & Solutions Limited constituted newly discovered evidence justifying review.
- Whether the Tribunal's finding that the invalidation decision of 23rd April 2021 was not an appealable decision amounted to an error apparent on the face of the record.
- Whether the Section 51(4A) TPA argument, already determined in the earlier Judgment, could be reagitated as a ground for review.
- Whether the Tribunal was competent to grant orders that would in substance amount to an appeal against its own Judgment, given that it had become functus officio.