Judgment summary
This is a ruling on a Notice of Motion application filed by Sondu Steel and Cement Limited on 4th June 2026 under Section 16 of the Tax Appeals Tribunal Act and the Tax Tribunal (Procedure) Rules. The application sought a stay of execution of the Tribunal's judgment dated 02/06/2026 in Tribunal Cause No. E1027 of 2025, restraint of the Respondent from attaching or collecting the disputed tax of Kshs. 23,255,504, and setting aside of execution proceedings, pending an application for review.
The Tribunal considered whether the applicant had satisfied the requirements for review under Section 29A of the Tax Appeals Tribunal Act. It found that the applicant had not demonstrated new evidence unavailable at the time of the original judgment, nor an apparent error on the face of the record, and dismissed the application.
Background
On 2nd June 2026, the Tribunal delivered a judgment in TAT Appeal No. E1027 of 2025 dismissing the Appellant's appeal, upholding the Objection decision dated 21st August 2025, and ordering each party to bear its own costs [19].
Aggrieved by that judgment, the Applicant filed a Notice of Motion on 4th June 2026, supported by an affidavit sworn by Dipen Kumar, seeking review of the whole judgment, a stay of execution, and restraint on collection of the disputed tax of Kshs. 23,255,504 [1]-[2].
The Applicant contended that the information relied upon by the Respondent for the assessment was defective, unverifiable, unrealistic and unreliable, citing issues including reliance on the wrong ETR machine, discrepancies between QR-code verification and figures on the face of receipts, duplicate and corrupted transactions, and invoice numbering anomalies [3]-[6].
The Applicant admitted that the judgment was reached due to unavailability of substantial evidence, which it attributed to the inadvertence of its representative, and apologised for this, asking the Tribunal to scrutinise the newly provided evidence and review the judgment [8]-[9].
The Respondent opposed the application by filing Grounds of Opposition on 11th June 2026, arguing that the application was incompetent, that no credible reason under Section 29A of the Tax Appeals Tribunal Act had been advanced, that the Tribunal was functus officio, and that the application was an afterthought and delay tactic [12].
Core dispute
The dispute was whether the Applicant had satisfied the statutory grounds under Section 29A of the Tax Appeals Tribunal Act for the Tribunal to review its own judgment of 2nd June 2026, namely discovery of new or important evidence not previously available, a mistake or error apparent on the face of the record, or any other sufficient reason [18], [23].
A related question was whether the Tribunal, having delivered its reasoned judgment, was functus officio and therefore precluded from reopening the matter [25].
Court findings
The Tribunal held that the application for review was filed within the seven-day statutory limit under Section 29A(1) of the Tax Appeals Tribunal Act, and that it therefore had jurisdiction to consider the application [20].
Relying on Bethuel Omondi Okal vs. Managing Director KPLC & Co. [2017] eKLR, which upheld National Bank of Kenya Ltd vs. Ndungu Njau (1996) KLR 469, the Tribunal noted that a review may be granted to correct a self-evident apparent error or omission, not requiring elaborate argument [21].
The Tribunal found that the Applicant had not pointed out any apparent error or omission by the Tribunal, but instead attributed the adverse decision to a lack of sufficient evidence at the appeal stage [22].
The Tribunal found that the Applicant had admitted that the evidence now relied upon was in its possession at the material time but was left out due to the inadvertence of its representative, and had made no effort to show that production of the documents was beyond its means at the time of the decision [24].
The Tribunal held that this amounted to an attempt to reopen the case to patch up evidence, which is not the intention of Section 29A(2) of the Tax Appeals Tribunal Act, and that the Tribunal became functus officio once it delivered its reasoned judgment, citing Telkom Kenya Limited v John Ochanda [25].
The Tribunal concluded that the Applicant had not satisfied the threshold to warrant a review of its own decision [26].
Outcome
The Tribunal dismissed the Notice of Motion application dated 4th June 2026 [27(a)].
The Tribunal upheld its Judgment delivered in TAT No. 1027 of 2025 on 2nd June 2026 [27(b)].
The Tribunal made no orders as to costs [27(c)].
Major issues / areas of contention
- Whether the Applicant's Notice of Motion for review of the Tribunal's judgment met the threshold under Section 29A of the Tax Appeals Tribunal Act.
- Whether the evidence concerning ETR machine discrepancies, QR-code verification variances, duplicate transactions, and invoice numbering anomalies constituted new evidence not previously available to the Applicant.
- Whether the Tribunal's judgment of 2nd June 2026, once delivered, rendered the Tribunal functus officio in respect of the substance of the Appeal.
- Whether a stay of execution should be granted pending determination of the review application, given the disputed tax of Kshs. 23,255,504.