Eliora Energy Limited v Commissioner of Domestic Taxes [2021] KEHC 12751 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D.S. MAJANJA J.

TAX APPEAL NO. E148 OF 2020

BETWEEN

ELIORA ENERGY LIMITED......................................................APPELLANT

AND

COMMISSIONER OF DOMESTIC TAXES.......................... RESPONDENT

(Being an appeal from the Judgment and Decree of the Tax Appeal Tribunal at Nairobi delivered on 31st March 2020 in Tax Appeal No. 110 of 2018)

RULING

1. This matter concerns an appeal from the decision of the Tax Appeals Tribunal (“the Tribunal”) delivered on 31st March 2020. The Respondent (“the Commissioner”) has filed a Notice of Motion dated 8th February 2021 seeking to strike out the Appeal filed on 21st December 2020. The application is supported by the Commissioner’s Advocate, Lydia Ng’ang’a, sworn on 8th February 2021.

2. The application is grounded on the following uncontested facts. The Tribunal delivered its judgment on 31st March 2020 after which the Appellant filed its Notice of Appeal on 17th December 2020 together with an application seeking stay of enforcement of the Tribunal’s orders. The Appellant served the Record of Appeal on 4th February 2021. It is clear therefore that the appeal was filed out of time as the Notice of Appeal ought to have been served within 30 days from the date of the judgment hence the last day of filing the appeal was 30th April 2020.

3. Counsel for the Appellant concedes that the appeal has been filed out time but draws the court’s attention to the Notice of Motion dated 11th December 2020 in which the Appellant sought an order that, “the Applicant be granted leave to file the Notice of Appeal out of time against the whole judgment dated 31st March 2020 issued by the Tax Appeal Tribunal in Tax Appeals No. 110 of 2017. ”

4. When the application came up for mention for directions on 15th January 2021, it was determined by the following orders:

1. Application dated 11th December 2020 is allowed and a stay pending appeal is granted by consent on condition that the Appellant shall pay to the Respondent Kshs. 2,351,390. 00 within 60 days from the date hereof.

2. The Appellant shall file the Record of Appeal to be filed and served within 14 days.

3. The Respondent shall file and serve the Statement of Facts within 14 days thereafter.

4. Mention on 3rd March 2021 for directions.

5. To my mind therefore, the application was in fact allowed and the appeal otherwise validated. The parties have now complied by filing the respective Record of Appeal and Statement of Facts. Further and according to the order, the Appellant has been directed to pay some money as a condition for stay pending appeal.

6. In the circumstances, there I find this appeal is deemed as duly and properly filed. The Notice of Motion dated 8th February 2021 is dismissed. I however make no order as to costs.

7. The parties shall now exchange written submissions on the main appeal.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MARCH 2021.

D. S. MAJANJA

JUDGE

Ms L. Ng’ang’a, Advocate instructed by the Commissioner of Domestic Taxes, Kenya Revenue Authority.

Ms  Thindigua instructed by Waceke Thindigua and Company Advocates for the Respondent.