Judgment summary
This is a Ruling of the Tax Appeals Tribunal on a Notice of Motion filed by the Applicant, Murang'a County Government, seeking leave to file and rely on a supplementary bundle of documents out of time in an appeal challenging the Respondent's Objection Decision (1).
The Respondent, the Commissioner of Domestic Taxes, opposed the Application by way of a Notice of Preliminary Objection, arguing that the documents were always within the Applicant's possession, had not been furnished during the audit or objection stages despite requests, and that their admission would prejudice the Respondent and improperly expand the appeal (3).
The Tribunal considered the statutory framework under the Tax Procedures Act and the Tax Appeals Tribunal Act, together with Supreme Court principles on the admission of additional evidence, and partially allowed the Application (20, 26, 29, 38).
Background
The Applicant lodged an appeal challenging the Respondent's Objection Decision (2a). During preparation for the hearing, and upon further review of its audit, objection and reconciliation records, the Applicant identified additional documents said to be material and necessary for a fair and effective determination of the Appeal (2b, 28).
The Applicant filed a Notice of Motion dated 11th June 2026 and filed on 12th June 2026, supported by an Affidavit sworn by Edwin Kimuyu, the Applicant's Director of Finance, seeking leave to file and serve a supplementary bundle of documents out of time and to have it deemed duly filed and served (1, 2).
The Respondent filed a Notice of Preliminary Objection dated and filed on 22nd June 2026, by Frankline Gichora, an officer within the Respondent's Independent Review of Objections division, opposing the Application (3).
Core dispute
The central issue was whether the Applicant had established sufficient cause to warrant leave to file and rely on a supplementary bundle of documents out of time in support of its Appeal (21).
The Applicant argued the documents were relevant, material and directly connected to the subject matter of the Appeal, did not introduce a new cause of action, and that no irremediable prejudice would be occasioned to the Respondent since it would have an opportunity to respond (5, 6, 10).
The Respondent contended that the documents had always been within the Applicant's possession, had not been produced despite requests during the audit and objection process, and that their admission would undermine the statutory objection process under the Tax Procedures Act, cause prejudice, and effectively require the Tribunal to conduct a fresh review of the objection contrary to law (23, 3).
Court findings
The Tribunal noted that under Sections 23 and 59 of the Tax Procedures Act, a taxpayer is under a statutory obligation to maintain, avail and furnish records to the Commissioner, and that Section 51 of the Tax Procedures Act contemplates that a taxpayer will place all relevant documents before the Commissioner in support of an objection (24). It also noted that its jurisdiction under Section 3 of the Tax Appeals Tribunal Act is appellate and confined to review of the objection decision, but that Section 13(6) and Section 13(2)(d) of the TATA empower the Tribunal to admit additional documents (25, 26, 27).
Applying the principles set out by the Supreme Court in Mohamed Abdi Mahmud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR on the admission of additional evidence in appellate proceedings, the Tribunal found that the Applicant had not satisfactorily explained the delay in producing the documents, which ought reasonably to have been within its possession at the material time (29, 30, 31).
Nevertheless, guided by Article 159(2)(d) of the Constitution, the Tribunal found that the documents in the bundle, comprising employment records, payroll schedules, tax exemption certificates, gratuity records, utilisation schedules, imprest surrender records and evidence of tax payments, were directly relevant to the issues already in the appeal and did not introduce a new cause of action or new assessment (32, 33, 36).
The Tribunal further found that documents relating to withholding tax and withholding VAT contained in the supplementary bundle were irrelevant to the proceedings, since the Appellant had not objected to, or raised any grounds of appeal concerning, withholding tax or withholding VAT, and admitting them would expand the dispute beyond the objection decision and grounds of appeal (34). The Tribunal also found that any prejudice to the Respondent could be remedied by allowing it an opportunity to respond (35).
Outcome
The Tribunal held that the Application was partially meritorious and partially allowed the Notice of Motion dated 11th June 2026 and filed on 12th June 2026 (39a).
The Applicant was allowed to file the additional documents contained in Annextures MCG-SD-1, MCG-SD-2, MCG-SD-3, MCG-SD-4, MCG-SD-5, MCG-SD-6, MCG-SD-7, MCG-SD-8, MCG-SD-9 and MCG-SD-11 of the supplementary bundle, which were deemed duly filed (39b, 39c).
The Applicant's prayer to file and rely upon the documents contained in Annexure MCG-SD-10 was declined (39d). The Respondent was given liberty to file an amended statement of facts and any additional documents in response to the admitted annextures on or before 21st July 2026 (39e).
Major issues / areas of contention
- Whether the Applicant had established sufficient cause to be granted leave to file a supplementary bundle of documents out of time.
- Whether the documents sought to be introduced were already within the Applicant's possession and ought to have been furnished during the audit or objection stage under Sections 23, 59 and 51 of the Tax Procedures Act.
- The scope of the Tribunal's appellate jurisdiction under Section 3 of the Tax Appeals Tribunal Act and the Tribunal's discretion under Section 13(6) and Section 13(2)(d) of the Tax Appeals Tribunal Act to admit additional documents.
- Whether documents relating to withholding tax and withholding VAT could be admitted despite not having been objected to or pleaded as grounds of appeal.
- Whether any prejudice to the Respondent from admission of the documents could be remedied by allowing an opportunity to respond.
- Application of the Supreme Court's governing principles on admission of additional evidence in appellate proceedings, and of Article 159(2)(d) of the Constitution regarding procedural technicalities.