Judgment summary
This is a ruling of the Tax Appeals Tribunal at Nairobi on a Notice of Motion dated 12th August 2026 filed by Equator Bottlers Limited (the Applicant) seeking leave to file supplementary submissions in Tax Appeal No. E158 of 2026 against the Commissioner of Domestic Taxes (the Respondent) [1].
The Applicant complained that the Respondent, in its Written Submissions, had for the first time raised a contention that the Notice of Appeal was lodged out of time and that the Tribunal lacked jurisdiction to hear the Appeal, a matter not raised in the Respondent's Statement of Facts dated 9th March 2026 [7], [8].
The Tribunal considered two issues: whether the jurisdictional objection raised for the first time in submissions was properly before it, and whether the Applicant had established a basis for leave to file supplementary submissions [12]. It found the objection properly before it because jurisdiction cannot be extinguished by a failure to plead, but granted the Applicant limited leave to respond, confined to paragraphs 5 to 15 of the Respondent's Written Submissions [23], [30], [31].
Background
The Tribunal had directed both parties on 9th June 2026 to file and serve their submissions by 21st July 2026 [2(a)]. The Applicant filed and served its submissions dated 17th July 2026 on that date [2(b)], [4].
The Respondent did not file within the stipulated timeline and sought, and was granted, an extension until 4th August 2026 [2(b)], [5]. Upon filing, the Respondent, at paragraphs 5 to 15 of its Written Submissions, contended for the first time that the Notice of Appeal was lodged out of time and that the Tribunal consequently lacked jurisdiction to hear and determine the Appeal [7].
This contention had not featured in the Respondent's Statement of Facts dated 9th March 2026 [6], [8]. The Applicant, through the Affidavit of its Finance Director Joe Mutisya sworn on 12th August 2026, contended it had been given no opportunity to respond to this new jurisdictional argument [9].
Core dispute
The dispute centred on whether the Applicant should be granted leave to file supplementary submissions to respond to a jurisdictional time-bar objection raised for the first time in the Respondent's Written Submissions, and, connected to that, whether such an objection, not having been pleaded in the Statement of Facts, was properly before the Tribunal at all [12], [14], [18].
Court findings
The Tribunal first disposed of the Applicant's complaint about the Respondent's late filing, noting that the extension to 4th August 2026 had been granted by the Tribunal itself, so the Respondent's filing within that period was regular and no grievance arose from it [13].
On the jurisdictional objection, the Tribunal held that pleadings, including the Commissioner's Statement of Facts required under section 15 of the Tax Appeals Tribunal Act, mark out the boundaries of a dispute and that parties are generally bound by them, citing Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR and Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR [14]-[17].
However, relying on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, Jamal Salim v Yusuf Abdulahi Abdi & another [2018] eKLR, and Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR, the Tribunal held that jurisdiction can be raised at any stage, cannot be created by pleading, and equally cannot be extinguished by a failure to plead it [19]-[22]. It therefore found the objection properly before it, reserving the question of whether it was well founded for the Judgment in the Appeal [23].
On the request for supplementary submissions, the Tribunal noted that Rule 27 of the Tax Appeals Tribunal (Procedure) Rules, 2015 allows it to determine an appropriate procedure where none is provided, and that section 24(1) of the Act renders its proceedings judicial in nature, engaging the fair hearing guarantee in Article 50(1) of the Constitution, including the audi alteram partem rule [24]-[25].
The Tribunal found that the Applicant had filed first and had no opportunity to respond to the new jurisdictional contention, that this contention could terminate the Appeal in limine, and that real (not merely tactical) prejudice would result if the Applicant were denied a chance to address it, while the Respondent would suffer no prejudice from a grant of leave [26]-[29]. Leave was therefore to be confined strictly to the matters at paragraphs 5 to 15 of the Respondent's Written Submissions, and not extended into a general reopening of the Appeal [30].
Outcome
The Tribunal allowed the Notice of Motion dated 12th August 2026 [32(a)]. It granted the Applicant leave to file and serve supplementary submissions confined to the matters raised at paragraphs 5 to 15 of the Respondent's Written Submissions, within five days of the date of the Ruling [32(b)].
The Appeal was ordered to proceed to judgment on 21st September 2026 [32(c)]. No order was made as to costs [32(d)].
Major issues / areas of contention
- Whether a jurisdictional objection raised for the first time in written submissions, rather than in the Statement of Facts, is properly before the Tribunal.
- Whether the Applicant established a basis for leave to file supplementary submissions in response to that objection.
- Whether the Respondent's compliance with an extended filing deadline previously granted by the Tribunal could ground a separate grievance.