Judgment summary
The Tribunal considered a preliminary objection raised by the Commissioner of Domestic Taxes against an appeal filed by Utumishi Ventures Limited relating to additional tax assessments.
The Tribunal found that although the Appellant had filed its statement of facts, it had not attached the impugned tax decision as required by law, and had failed to regularise the appeal despite being granted leave to do so.
On this basis, the Tribunal upheld the preliminary objection, held the appeal incompetent, and struck it out, without considering the substantive issue of whether the additional assessment was justified.
Background
The Appellant is a limited liability company incorporated in Kenya and a registered taxpayer (para 1). The Respondent is the principal officer appointed under section 13 of the Kenya Revenue Authority Act, responsible for tax administration and enforcement (para 2).
The dispute arose when the Respondent reviewed the Appellant's returns, noted variances, and issued additional assessments on 20th November 2024 for additional taxes amounting to Kshs 1,548,216.97 (para 3).
The Appellant objected to the assessment on 22nd January 2025 (para 4), and the Respondent confirmed the assessment by a letter dated 27th February 2025 (para 5). The Appellant lodged its appeal via a Notice of Appeal dated 3rd January 2026 (para 6).
Core dispute
The Appellant's grounds of appeal were that the Commissioner had erred by subjecting Value Added Tax to exempt supplies for the period of 2022, and that the income subjected to VAT related to exempt supplies from its general supplies business (para 7).
The Respondent opposed the appeal by way of a preliminary objection dated 27th March 2026, arguing that the appeal was incompetent and fatally defective for failing to comply with Section 13(2) of the Tax Appeals Tribunal Act, in particular for failing to file a statement of facts and to attach a copy of the objection decision (paras 14-15).
The issues for determination were whether the Respondent's Preliminary Objection dated 27th March 2026 was merited, and whether the Respondent's Additional Assessment was justified (para 30).
Court findings
The Tribunal reviewed the documents filed by the Appellant and found that the Appellant had, in fact, filed its statement of facts, rendering that limb of the preliminary objection unfounded (para 34).
However, the Tribunal found that the Appellant had not attached the impugned tax decision to its appeal. The Tribunal noted that the Appellant had been granted leave on 5th March 2026 to regularise its appeal by filing the objection decision within 14 days of that order, but had failed to do so and did not canvass the issue further (para 34).
The Tribunal referred to Section 13(2) of the TAT Act and Rule 3(2) of the TAT Procedure Rules, which require a memorandum of appeal, statement of facts and the appealable/tax decision to be filed together (paras 35-36). It held that a tax decision must accompany the other appeal documents, relying on Kibunyi v. Commissioner of Legal Services (Tax Appeal 1253 of 2022) [2023] KETAT 872 (KLR) and Aspire Kenya Limited v Commissioner of Domestic Taxes [2025] KETAT 245 (KLR), both of which held that failure to present an appealable decision renders an appeal untenable (paras 38-39).
Following these precedents, the Tribunal found that the Appellant's appeal was incompetent for contravening the mandatory provisions of Section 13(2) of the TAT Act and Rule 3(2) of the TAT Procedure Rules (para 40). It therefore held that the Respondent's Preliminary Objection dated 27th March 2026 was merited (para 41). Having found the appeal incompetent, the Tribunal did not consider whether the Respondent's Additional Assessment was justified, treating that issue as moot (para 42).
Outcome
The Tribunal held that the Appellant's appeal was incompetent. It ordered that the Appellant's appeal be struck out, and that each party bear its own costs (para 43).
Major issues / areas of contention
- Whether the Respondent's Preliminary Objection dated 27th March 2026 was merited.
- Whether the Respondent's Additional Assessment was justified (not determined, as rendered moot).