Judgment summary
The Tribunal considered an appeal by Thermo Expert Construction Ltd against the Respondent's Objection Decision confirming additional VAT assessments. The appellant did not attend hearings, did not respond to Tribunal correspondence, and did not file submissions. The Tribunal found that the appellant failed to provide documents requested by the Respondent to support its objection and therefore did not discharge its statutory burden of proof. The appeal was dismissed and the Objection Decision upheld, with each party bearing its own costs.
Background
The Appellant is a limited liability company incorporated in Kenya. The Respondent is the principal officer appointed under Section 13 of the Kenya Revenue Authority Act, responsible for collection, assessment and enforcement of tax laws (paras 1-2).
On 30th November 2023, the Respondent issued the Appellant with additional VAT assessments for November 2021, December 2021, January 2022 and August 2024 (para 3). On 22nd May 2025, the Appellant objected to these assessments (para 4). On 30th June 2025, the Respondent issued its Objection Decision confirming the additional VAT assessments (para 5). Aggrieved, the Appellant lodged this appeal (para 6), filing the Objection Decision on 31st July 2025 as the basis of the appeal (para 7).
The matter was mentioned seven times before the Tribunal, with the Appellant's representative, CPA Jeremiah, appearing only once on 28th January 2026 to state that consent was imminent (para 8). Notices of mention dates were served on the Appellant's provided email (para 9). A Tribunal email dated 2nd June 2026 requesting further documents did not elicit a response (para 10). The Appellant failed to attend the hearing on 5th May 2026 and did not file submissions, contrary to Tribunal directions served on 18th March 2026 (para 11).
Core dispute
The issue for determination was whether the Respondent's Objection Decision was justified (para 16).
The Respondent's position was that it had verified the Appellant's tax records and established undeclared income for the period under review, issuing assessments accordingly. It requested the Appellant to provide copies of invoices, proof of payment and Local Purchase Orders (LPOs) to support its objection. When these documents were not provided, the Respondent upheld its assessment, asserting that the Appellant had failed to discharge its burden under Section 56(1) of the TPA, 2015 (para 13).
The Respondent relied on several precedents in support of confirming its assessment, including Boycott General Contractors Limited v Kenya Revenue Authority, Commissioner of Domestic Taxes v Trical and Hard Limited, Acrowood Imports & Exports Limited v Commissioner of Domestic Taxes, Commissioner of Investigations & Enforcements v Dr. Evans Kidero, and Osho Drapers Limited v Commissioner of Domestic Taxes (para 14). The Respondent prayed that the Tribunal uphold the Objection Decision confirming the demand of Kshs. 4,826,814.49 VAT (inclusive of interest and penalty), and dismiss the appeal with costs (para 15).
Court findings
The Tribunal noted that the Objection Decision confirmed additional VAT assessments of Kshs. 4,826,814.49, justified on the ground that the Appellant had not supported its objection with the requested documents (para 17).
The Tribunal referred to Section 59 of the Tax Procedures Act (cap 469B), which empowers the Commissioner or an authorised officer to require production of documents, information or attendance for the purposes of obtaining full information on a person's tax liability (para 18).
The Tribunal also referred to Section 30 of the Tax Appeals Tribunal Act (cap 469A), which places the burden of proof on the appellant to show that an assessment is excessive or that a tax decision should not have been made or should have been made differently (para 19).
The Tribunal cited its precedent in Mugo v Commissioner of Domestic Taxes (TAT E918 of 2024) KETAT 374 (KLR), where it held that failure to adduce positive documents demonstrating that the Respondent's decision was incorrect meant the Respondent's decision was justified and the Appellant failed to discharge its burden of proof under Section 30 of the TATA and Section 56(1) of the TPA (para 20).
Applying this reasoning, the Tribunal found that the Appellant did not provide the relevant documents requested by the Respondent to support its objection and had not discharged its burden of proof, so the Respondent was justified in disallowing the objection (para 21).
Outcome
The Tribunal held that the Appeal lacked merit and issued the following orders: the Appeal was dismissed, the Respondent's Objection Decision dated 30th June 2025 was upheld, and each party was to bear its own costs (para 22-23).
Major issues / areas of contention
- Whether the Respondent's Objection Decision confirming additional VAT assessments was justified.
- Whether the Appellant discharged its burden of proof under Section 30 of the Tax Appeals Tribunal Act.
- Whether the Appellant complied with document production requirements under Section 59 of the Tax Procedures Act and Section 56(1) of the TPA.
- The consequence of the Appellant's repeated non-attendance and failure to file submissions or supporting documents before the Tribunal.