Judgment summary
The Tax Appeals Tribunal considered a Preliminary Objection raised by the Commissioner of Domestic Taxes against an appeal filed by Nichros (K) Limited concerning a VAT assessment. The Tribunal found the Preliminary Objection properly raised as a pure point of law, and further found that the appeal itself was both time-barred and unaccompanied by the mandatory pleadings required under the Tax Appeals Tribunal Act, 2013. The appeal was struck out.
The Tribunal held that it lacked jurisdiction to determine the dispute on its merits because the Notice of Appeal was lodged well outside the 30-day statutory window and no extension of time had been sought or granted, and because no memorandum of appeal or statement of facts was ever filed.
Background
The Appellant, Nichros (K) Limited, is a limited liability company incorporated in Kenya and registered for VAT (paragraph 1). The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 469, mandated under Sections 5(1) and 5(2) of that Act to collect and administer revenue (paragraph 2).
On 15th May 2018, the Respondent issued Additional Assessment No. KRA201806814050 for VAT for the period 1st November 2017 to 30th November 2017, comprising principal tax of Kshs. 5,376,975.95 and interest of Kshs. 322,618.56, a total incremental liability of Kshs. 5,699,594.50 (paragraph 3).
The Appellant lodged a notice of objection, acknowledged by the Respondent on 31st July 2018 under Acknowledgement No. KRA201812288946, recorded as a late objection because there were no invoices to support the declared amount (paragraph 4).
On 14th November 2018, the Respondent issued Confirmation Assessment Notice No. KRA201815346765, fully rejecting the objection and confirming the assessed amount of Kshs. 5,376,975.95 (paragraph 5).
The Appellant lodged its Notice of Appeal dated 22nd December 2025 on the same date (paragraph 6). The Respondent then filed a Notice of Preliminary Objection dated 12th August 2026 impugning the competence of the Appeal (paragraph 7). The Appellant did not file a Memorandum of Appeal, Statement of Facts, or Written Submissions (paragraphs 8 to 11).
Core dispute
The Respondent raised a Preliminary Objection contending that the Appellant had not filed, annexed or otherwise placed before the Tribunal a memorandum of appeal, rendering the Appeal incurably defective (paragraphs 13 to 14). The Respondent prayed that the Appeal be struck out with costs (paragraph 15).
The Tribunal distilled two issues for determination: whether the Respondent's Preliminary Objection met the threshold of a preliminary objection, and whether there was a valid Appeal on record (paragraph 16).
Court findings
The Tribunal applied the test from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and found that the Respondent's objection, turning on whether a memorandum of appeal existed on the Tribunal's file, was a pure point of law requiring no evidence or exercise of discretion, and therefore met the threshold of a valid preliminary objection (paragraphs 18 to 21).
On the validity of the Appeal, the Tribunal raised suo motu the question of timeliness. It found that the Confirmation Assessment Notice of 14th November 2018 was an appealable decision under Section 3 of the Tax Procedures Act, 2015, and that Section 13(1) of the TAT Act required a notice of appeal within thirty days of receipt of the decision (paragraphs 23 to 26). The thirty-day window closed in mid-December 2018, yet the Notice of Appeal was dated and lodged on 22nd December 2025, more than seven years later (paragraph 27).
The Tribunal noted that Section 13(3) and (4) of the TAT Act allow for extension of time on written application, but no such application appeared on record and no explanation for the delay was tendered (paragraphs 28 to 29). Citing Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Tribunal held that extension of time is an equitable remedy requiring the delay to be explained, which the Appellant had not done (paragraph 30). Citing Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Tribunal held it could not arrogate jurisdiction to itself and found the Appeal time-barred (paragraphs 31 to 32).
As a second and independent ground, the Tribunal found that the Appellant had filed neither a memorandum of appeal nor a statement of facts, contrary to Section 13(2) of the TAT Act and Rule 4 of the Tax Appeals Tribunal (Procedure) Rules, 2015 (paragraphs 33 to 35). The Tribunal held these omissions left no ground, fact or relief before it, and were not curable by amendment (paragraphs 36 to 38). It held that Article 159(2)(d) of the Constitution does not excuse non-compliance with mandatory statutory requirements, again citing Salat (paragraph 39).
The Tribunal concluded, citing Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, that jurisdiction is everything and that it must down its tools where it lacks jurisdiction (paragraph 40). It further observed that, had the Appeal been competent, the Appellant would still have borne the burden under Section 56(1) of the TPA to prove the tax decision incorrect, but no supporting documentation was on record (paragraph 41). The Tribunal found the Appeal lodged out of time without leave and unaccompanied by mandatory pleadings, and held it lacked jurisdiction to determine the dispute on its merits (paragraph 42).
Outcome
The Tribunal found the Appeal to be incompetent and ordered that the Appeal be struck out, with each party to bear its own costs (paragraph 43).
Major issues / areas of contention
- Whether the Respondent's Preliminary Objection met the threshold of a preliminary objection on a point of law.
- Whether the Appeal was lodged within the thirty-day time limit prescribed by Section 13(1) of the TAT Act.
- Whether the Appellant sought or obtained an extension of time under Section 13(3) and (4) of the TAT Act.
- Whether the Appeal was accompanied by a memorandum of appeal and statement of facts as required by Section 13(2) of the TAT Act and Rule 4 of the Tax Appeals Tribunal (Procedure) Rules, 2015.
- Whether the Tribunal had jurisdiction to entertain and determine the Appeal on its merits.