Judgment summary
The Applicant, East Africa Development Engineering Limited, filed a Notice of Motion dated 10 July 2025 asking the Tribunal to strike out the Respondent's Statement of Facts, Response and annexed documents on the ground that they were filed and served out of time contrary to Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015 (paragraph 1).
The Applicant alleged that the Respondent served its Response fifty-four (54) days after service of the appeal, beyond the thirty (30) day limit, and that the Response bore a backdated date to create a false impression of compliance (paragraph 2).
At a mention on 18 July 2025, the Tribunal directed the Respondent to file and serve its response by close of business that day. The Respondent's response was not on record by the time of the ruling, and the matter proceeded ex-parte the Respondent (paragraph 3).
The Tribunal examined whether the application was meritorious despite the Respondent's absence, and found that the Applicant had not demonstrated when it served its own appeal documents on the Respondent, as required by section 13(5) of the Tax Appeals Tribunal Act. The Notice of Motion and supporting affidavit contained unfilled placeholders ('[insert date]') instead of actual dates of service, and no affidavit of service was on record (paragraphs 8 to 10).
The Tribunal held that, in the absence of evidence showing the lateness of the Respondent's filing, it declined to exercise its power to strike out the Respondent's pleadings (paragraph 13). The application was dismissed with no orders as to costs (paragraph 14).
Background
The Applicant filed a Notice of Motion dated 10 July 2025, supported by an affidavit sworn by Isaac Juma Kakai, the Applicant's tax agent, seeking to strike out the Respondent's Statement of Facts, Response and annexed documents from the Tribunal's record (paragraph 1).
The grounds included that the Respondent had served its Response fifty-four (54) days after service of the appeal documents, beyond the thirty (30) day period under Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015, without seeking leave or extension, and that the Response bore a backdated date said to constitute abuse of process (paragraph 2).
The Applicant also invoked Articles 10, 47 and 50(1) of the Constitution, arguing that admitting the Respondent's late documents would prejudice its right to a fair hearing and fair administrative action (paragraph 2).
At a mention on 18 July 2025, the Tribunal directed the Respondent to file and serve its response by close of business that day. The Respondent's response remained absent from the record at the time of the ruling, and the Tribunal proceeded to determine the application ex-parte the Respondent (paragraph 3).
Core dispute
The dispute was whether the Respondent's Statement of Facts, Response and annexed documents should be struck out for having been filed and served out of time contrary to Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015, and whether the appeal should proceed to hearing without reference to those documents.
A related question was whether the Applicant itself had complied with section 13(5) of the Tax Appeals Tribunal Act, which requires an appellant to serve a copy of the appeal on the Commissioner within two days after giving notice of appeal, since this bore on whether the Respondent's timeline for response had in fact been breached.
Court findings
The Tribunal held that the absence of the Respondent's response from the record did not mean the application should be allowed automatically; it still had to assess the merits of the application (paragraph 4).
The Tribunal agreed with the general proposition that documents filed out of time without leave ought to be struck out, but noted that the Applicant had to demonstrate that the Respondent's pleadings were in fact filed out of time (paragraphs 5 and 6).
Section 13(5) of the Tax Appeals Tribunal Act Cap. 469A requires an appellant to serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal (paragraph 7). The Tribunal found that the Applicant had to demonstrate compliance with this provision by filing an affidavit of service showing when it effected service, but no such affidavit was on record (paragraph 8).
The Tribunal observed that the Applicant did not state the date it served the appeal documents on the Respondent; both the Notice of Motion and supporting affidavit contained unfilled placeholders reading '[insert date]' instead of an actual date (paragraph 9). Although the supporting affidavit referred to an affidavit of service, no such affidavit was in fact on record, and it was noted that an affidavit of service must be accompanied by evidence of service, which was missing (paragraph 10).
The Tribunal referred to the Court of Appeal decision in Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR), describing the power to strike out pleadings as draconian, drastic and an order of last resort, to be exercised only where a pleading is an abuse of process, scandalous, frivolous or vexatious (paragraph 11). It also cited Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa Civil Appeal No. 54 of 1999, holding that striking out is only appropriate in plain cases where pleadings disclose no semblance of a cause of action or defence and are incurable by amendment (paragraph 12).
In the absence of evidence showing the lateness of the Respondent's filing, the Tribunal declined to exercise its power to strike out the Respondent's pleadings (paragraph 13).
Outcome
The Tribunal dismissed the Application in its entirety (paragraph 14(i)).
No orders were made as to costs (paragraph 14(ii)).
Major issues / areas of contention
- Whether the Respondent's Statement of Facts, Response and annexed documents were filed and served out of time contrary to Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015.
- Whether the Applicant had demonstrated compliance with section 13(5) of the Tax Appeals Tribunal Act, which requires service of the appeal on the Commissioner within two days of giving notice of appeal.
- Whether the absence of an affidavit of service, and the presence of unfilled date placeholders in the Applicant's pleadings, undermined the Applicant's claim of timely service.
- Whether alleged backdating of the Respondent's Response constituted an abuse of process warranting the pleadings being struck out.
- Whether the Tribunal should exercise its discretionary power to strike out pleadings, given its draconian nature as described in prior case law.