Judgment summary
This is a ruling of the Tax Appeals Tribunal on a Notice of Motion filed by the Applicant seeking extension of time to appeal against the Respondent's decision of 30th December 2024, which had declined the Applicant's late objection to a Capital Gains Tax assessment.
The Tribunal considered the Respondent's preliminary objection that no appealable decision existed because the Applicant had never lodged a valid notice of objection. Having found no valid objection, the Tribunal held that the tax assessment had crystallized and that there was no appealable decision for it to consider.
The Tribunal accordingly dismissed the application for extension of time and struck out the Appeal, with no order as to costs.
Background
The Respondent issued a pre-assessment notice dated 18th December 2023 concerning alleged Capital Gains Tax liabilities arising from the transfer of Land Reference Number Nyahururu Municipality Block 4/60 (para 2(a)).
The Applicant claimed that upon receipt of the pre-assessment demand she noticed incidental costs had not been factored in and sought amendment of the default assessment, but the Respondent did not amend it despite follow-ups (paras 2(b)-(d)).
The Respondent proceeded to issue a Demand Notice based on the assessment without the claimed adjustments. The Applicant then lodged an application for late objection, which the Respondent declined on 30th December 2024 (paras 2(e)-(f)).
On 29th April 2026, under certificate of urgency, the Applicant filed a Notice of Motion seeking extension of time to file an appeal out of time, leave to file a Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time, and an order that the Memorandum of Appeal and Statement of Facts be deemed duly filed upon payment of fees (para 1).
Core dispute
The dispute centred on whether the Tribunal had jurisdiction to entertain the intended appeal at all, given the Respondent's contention that no appealable decision existed because the Applicant had failed to lodge a valid notice of objection under section 51(2) of the Tax Procedures Act, Cap. 469B (paras 3(a)-(d)).
A further dispute was whether the Applicant had shown sufficient reason for the delay in lodging her objection under section 51(6) and (7) of the Tax Procedures Act, and separately, sufficient reason for the delay in filing the appeal itself (paras 3(h)-(m)).
The Respondent argued the Applicant had not provided documentary evidence to support her reasons for late objection or late appeal, and that the claim of incidental costs was only raised after the Respondent's decision of 30th December 2024 (paras 3(i)-(k)).
Court findings
The Tribunal held that it must first determine whether there was an appealable decision before considering the merits of the extension of time application (para 6).
Citing section 51(6) and (7) of the Tax Procedures Act, the Tribunal found that the Applicant had failed to provide proper and substantiated reasons for her late objection, despite the Respondent's request for clarification and documentary evidence (paras 8-9).
The Tribunal further found that the Applicant had not provided any documents in support of her application for extension of time to file the appeal, and had not substantiated her claim of having made several follow-ups with the Respondent (para 10).
Having found no valid objection was lodged, the Tribunal held that the tax assessment had crystallized and the demand notice was justified. It concluded there was no appealable decision for it to consider (para 11).
The Tribunal noted that the Applicant had filed the application simultaneously with the appeal documents on 29th April 2026, and found the appeal filed therewith to be incompetent and unsustainable in law (para 12).
Outcome
The Tribunal found the application to be unmeritorious and the appeal to be incompetent (para 13).
It ordered that the application be dismissed, the appeal be struck out, and made no order as to costs (para 13).
Major issues / areas of contention
- Whether the Tribunal has jurisdiction to entertain the application in the absence of an appealable decision (paras 6, 11-12).
- Whether the Applicant provided sufficient and substantiated reasons for the late objection under section 51(6) and (7) of the Tax Procedures Act, Cap. 469B (paras 8-9).
- Whether the Applicant provided sufficient reasons and documentary evidence for the delay in filing the appeal out of time (para 10).
- Whether, in the absence of a valid notice of objection, the tax assessment had crystallized and the demand notice was justified (para 11).