Judgment summary
The Applicant filed a Notice of Motion seeking an extension of time to submit documents supporting his objection to an additional assessment, and asking that documents filed out of time be deemed properly filed (paragraph 1).
The Respondent did not respond despite Tribunal directions, and neither party filed the written submissions the Tribunal had directed, so the matter proceeded on the pleadings on record (paragraphs 3-4).
The Tribunal found that the application concerned documents required at the objection stage before the Respondent, not documents required to support an appeal before the Tribunal, and held that it lacked jurisdiction to determine the application (paragraphs 7-10). The Application was struck out with no order as to costs (paragraph 12).
Background
The Applicant, David Mwaura, moved the Tribunal by Notice of Motion dated 1st April 2026 and filed on 16th April 2026, seeking an extension of time to submit documents in support of his objection to an additional assessment issued by the Respondent, and an order that documents filed out of time be deemed properly filed (paragraph 1).
The Application was supported by a sworn affidavit of David Mwaura dated 1st April 2026 and filed on 16th April 2026. The Applicant stated that he had lodged an objection within the specified timelines but was unable to submit the required supporting documents in time because he could not access the email address used for communication with the Respondent, that this was unforeseen and beyond his control, that the delay was not deliberate, that he had since resolved the issue and was ready to submit the documents, that the Respondent would suffer no prejudice, and that it was in the interest of justice to allow him to present his case (paragraph 2).
The Respondent did not file a response despite being directed by the Tribunal to do so (paragraph 3). On 5th May 2026 the Tribunal directed that the Notice of Motion be canvassed by written submissions, but neither party filed submissions, so the case proceeded on the pleadings on record (paragraph 4).
Core dispute
The Applicant sought the Tribunal's indulgence to file documents in support of his objection to an additional assessment, citing email access problems as the reason for the earlier failure to submit them (paragraphs 5-6).
The Tribunal had to determine whether the documents in question were those required to support an appeal before the Tribunal under Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015, or documents required to be adduced to the Respondent at the objection stage, and consequently whether the Tribunal had jurisdiction to grant the extension sought (paragraphs 7-9).
Court findings
The Tribunal observed that the Applicant's pleadings showed the application related to documents required to be adduced to the Respondent at the objection stage, not documents required to support an appeal at the Tribunal (paragraph 7).
The Tribunal set out Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015, which allows the Tribunal to extend time for submitting documents referred to in rule 3(2), supported by an affidavit and served on the respondent, where the applicant was unable to submit documents in time due to absence from Kenya, sickness, or any other reasonable cause (paragraph 8).
The Tribunal found that Rule 10 relates to documents to be filed at the Tribunal in support of an appeal, which was not the Applicant's prayer. Since the Applicant sought to provide the Respondent with documents in support of his objection, the objection lodged had failed to satisfy Section 51(3)(c) of the TPA, which requires a validly lodged objection to be accompanied by all relevant documents. The Tribunal held that the Applicant's recourse lay in Section 51(6) and (7) of the TPA, being an application in writing to the Commissioner for an extension of time to lodge a notice of objection, considered by the Commissioner where the taxpayer was prevented by absence from Kenya, sickness or other reasonable cause and did not unreasonably delay (paragraph 9).
The Tribunal concluded that the prayer sought did not fall within its jurisdiction and, relying on the holding of Nyarangi JA in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR that a court without jurisdiction must down its tools, declined to delve into the substance of the Application (paragraphs 10-11).
Outcome
The Tribunal found the Application incompetent and struck it out, with no orders as to costs (paragraph 12).
Major issues / areas of contention
- Whether the Tribunal had jurisdiction to grant an extension of time for the Applicant to submit documents required at the objection stage before the Respondent.
- Whether Rule 10 of the Tax Appeals Tribunal (Procedure) Rules 2015 applies to documents supporting an objection, or only to documents supporting an appeal before the Tribunal.
- Whether the Applicant's proper recourse lay under Section 51(6) and (7) of the TPA, being an application to the Commissioner rather than to the Tribunal.
- Whether the objection as lodged satisfied Section 51(3)(c) of the TPA, requiring all relevant documents to accompany a validly lodged objection.