Ecp Kenya Limited v Commissioner of Domestic Taxes [2024] KEHC 15780 (KLR)

Ecp Kenya Limited v Commissioner of Domestic Taxes (Income Tax Appeal E188 of 2023) [2024] KEHC 15780 (KLR) (Commercial and Tax) (13 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15780 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Income Tax Appeal E188 of 2023

BM Musyoki, J

December 13, 2024

Between

Ecp Kenya Limited

Appellant

and

Commissioner Of Domestic Taxes

Respondent

(Being an appeal against the Judgment of the Tax Appeals Tribunal dated 6-10-2023 in its appeal number 335 of 2022)

Ruling

1. This appeal was filed on 15-11-2023. It was first listed for directions before Honourable Justice A. Mabeya on 19-12-2023 when the Honourable Judge in presence of Dr. Nyaundi for the appellant and Miss Njuguna holding brief for Miss Otieno for the respondent fixed it for highlighting of submissions on 13-2-2024. Come that date, Dr. Nyaundi appeared for the appellant and Miss Okari for the respondent and the Judge allocated the matter for highlighting of submissions at 10. 45 am but when that time came, the counsel for the appellant asked for an adjournment as according to him he had received the tribunal’s typed proceedings late and for that reason, he had not filed submissions. The respondent had filed its submission on 12-02-2024. The court adjourned the matter to 12-03-2024.

2. On 12-03-2024 the appellant’s counsel told Justice Mabeya that the proceedings form the tribunal were not ready yet on 14-02-2024 he had told the same court that they had received the proceedings late. The matter came again before the Judge on 3-05-2024 and the counsel for the appellant yet again told the court that they had received typed proceedings the previous day though they were incorrect and the matter was fixed for mention on 11-06-2024.

3. On 11-06-2024, the appellant had not filed its submissions and did not mention anything about lack of typed proceedings. The appellant was granted more time up to 22-07-2024 on which date, it had again not filed submissions and asked for 14 days more which was granted with the counsel for the respondent protesting. The matter was fixed for 8-10-2024 with the Deputy Registrar making a specific order as follows;‘Appellant to file their submissions in fourteen days. Highlighting before the RRI Judge on 8-10-2024 with whatever will be on record.’

4. When this matter came before me on 8-10-2024 for highlighting of submissions, none of the parties appeared and believing that the parties had filed submissions, I fixed the matter for judgement on 13-12-2024.

5. As I was preparing to write the judgment, I received a request from the appellant’s advocate through the Deputy Registrar vide their letter dated 17-10-2024 requesting for a mention date as the parties were engaged in negotiations on an out of court settlement following which I directed that the matter be mentioned on 27-11-2024. On the said date, the parties appeared before me with Mr. Marube holding brief for Dr. Nyaundi for the appellant while miss Otieno appeared for the respondent. Miss Otieno informed the court that there were no negotiations going on and asked the court to proceed with writing the judgment. Interestingly Mr. Marube asked the court to give a mention date before the Deputy Registrar as they have had problems in getting part of the record of tribunal hence, they had challenges in filing record of appeal. I say interesting because the appellant had filed three volumes of record of appeal running up to 1410 pages. So, I couldn’t understand which record Mr. Marube was referring to.

6. When the parties appeared before Justice Mabeya on 14-02-2024, the appellant had informed the court that the record of appeal was complete. Seeing lack of seriousness from the appellant, I retained the date for judgement as earlier fixed and ordered that if a consent was reached before the date of the judgment, the parties shall inform the court. I did this believing that the appellant will be filing submissions in prosecution of its appeal.

7. As I write this ruling on 11-12-2024 at 1,00 pm, the appellant has not filed its submissions. Owing to the conduct of the appellant as produced above and considering that the respondent filed their submissions in February 2024, I hold that the appellant is not interested in prosecuting this appeal. I proceed to dismiss the appeal with costs to the respondent under Order 42 Rule 20 of the Civil Procedure Rules.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF DECEMBER 2024. B.M. MUSYOKIJUDGE OF THE HIGH COURT.Ruling delivered in presence of Mr. Marube holding brief for Dr. Nyaundi for the appellant and Mr. Wainaina vor the respondent.