Exome Life Sciences Kenya Limited v Commissioner of Customs & Border Control [2025] KETAT 126 (KLR)

Exome Life Sciences Kenya Limited v Commissioner of Customs & Border Control (Tax Appeal E707 of 2024) [2025] KETAT 126 (KLR) (Commercial and Tax) (7 February 2025) (Ruling)

Neutral citation: [2025] KETAT 126 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal E707 of 2024

RM Mutuma, Chair, M Makau, T Vikiru, D.K Ngala & Jephthah Njagi, Members

February 7, 2025

Between

Exome Life Sciences Kenya Limited

Appellant

and

Commissioner of Customs & Border Control

Respondent

Ruling

1. The Appellant vide a Notice of Motion dated 3rd December 2024 and filed on 4th December 2024 under a Certificate of urgency and which is supported by an Affidavit sworn by Venkata Sai Varenya Pasumarthi the Director for the Appellant/Applicant, on September 3, 2024 sought for the following Orders:a.The Tribunal be pleased to extend the time allow for the Appellant to file its Notice of Appeal in response to the Respondent’s decision of February 20, 2024; and,b.The costs of and occasioned by this Application be borne and paid by the Respondent.

2. The application is premised on the following grounds:a.That the Respondent is seeking for short levied duties of Kshs. 4,347,675. 00 vide the letter of 20th February 2024 on goods that were subject to appeal before the Tribunal in TAT E608 of 2023. b.That the Appellant was unable to lodge the Appeal as the Director authorized to handle and make decisions on the affairs of the Appellant was out of office and out of the country and had not access to its corporate email or any electronic communication system of the company.c.That the Appellant’s Director is the only individual with the mandate and authority to address and resolve the matters in question, on account of the absence there had been a delay in addressing the matters.d.By the time the Director was made aware, sometimes in the second week of April, of the Respondent’s letter, time to review the same had elapsed.e.The Appellant respondent to the Respondent’s decision vide the letter dated 17th April 2024, to which the Respondent replied on 17th May 2024. f.The Appellant’s Appeal has merit and is arguable with high probability of success.g.The Appellant’s reason for delay in filing of the Appeal is not as a result of indolence on its part.h.The Appellant would suffer prejudice if its not granted leave to file its Appeal.i.It is in the interest of justice that the orders sought in the present application to be granted.

3. Upon being served with the application, the Respondent did not file any response to the Appellant’s application, thus the application is deemed as unopposed.

Parties. Submissions 4. The parties in compliance with the directions by the Tribunal to the effect that the application was to be canvassed by way of written submissions, whereas the Appellant duly filed its written submissions, the Respondent did not.

5. In support of its application, the Appellant submitted that Section 13 (3) of the Tax Appeals Tribunal Act donates power to the Tribunal to entertain applications of this nature.

6. The Applicant similarly, placed reliance on the provisions of Section 13 (4) of the Tax Appeals Tribunal Act and Rule 10 (3) of the Tax Appeals Tribunals (Procedure) Rules, 2015.

7. The Appellant/Applicant in support of its submissions and to buttress its case, it relied on the following case law;a.Karatina Emporium Limited vs.Commissioner of Domestic Taxes (Miscellaneous Application E24 of 2023) [2023] KETATA 358 (KLR);b.Samuel Mwaura Muthumbi vs. Josephine Wanjiru Ngungi & Another [2018] eKLR;c.Kenya Commercial Bank Limited vs. Nicholas Ombija [2009] eKLR;d.Stanley Kangethe Kinyanjui vs. Tony Keter & Others [2013] eKLR; and,e.Patrick Maina Mwangi vs. Waweru Peter [2015] eKLR;

Analysis and Findings 8. The Tribunal is enjoined to determine the Applicant’s/Appellant’s application for leave to extend time for the filing of the Appeal out of time.

9. Whereas it is noted that the Respondent did file any responses to the instant application, the same was thus deemed as unopposed, the Tribunal is obligated to test whether the Appellant’s/Applicants’ application meets the legal threshold, and shall proceed as herein under.

10. The Tribunal’s jurisdiction is drawn from the provisions of Section 13 (3) of the Tax Appeals Tribunal Act. Further, the grounds upon which the Tribunal can entertain an application of this nature are provided for under the provisions of Section 13 (4) of the Tax Appeals Tribunal Act, Section 13 (4) of the TATA provides as follows;“(4)An extension under subsection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.”

11. Additionally, Rule 10 (3) of the Tax Appeals Tribunal (Procedure) Rules, 2015, provides;“(3)The Tribunal may grant the extension of time if it is satisfied that the applicant was unable to submit the documents in time for the following reasons-(a)absence from Kenya;(b)sickness; or(c)any other reasonable cause.”

12. Following from the above the Applicant’s is behooved to demonstrated the ground which hindered it from lodging its Appeal within the statutory timelines as envisaged under Section 12 of the Tax Appeals Act.

13. It was the Applicant’s narrative that the challenge it faced, resulting to the failure in bringing its Appeal within the timelines prescribed in law, was that its Director whom is authorized to handle and make decisions on the affairs of the Appellant was out of office and out of the country and had not access to its corporate email or any electronic communication system of the company.

14. In support of the assertions, the Tribunal observed that the Applicant provided supporting documents thereto, the Tribunal has observed that the Applicant provided the reason for failure to lodge the Appeal within the statutory timelines.

15. To the view of the Tribunal, the ground advanced by the Applicant is provided for under the provisions of Section 13 (4) as read together with Rule 10 (3) (c) of the Tax Appeals Tribunal (Procedure) Rules, 2015, being “absence from Kenya.”

16. It is noteworthy that the powers of the Tribunal are discretional in dealing with matter of this nature and it draws guidance from the High Court case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai 251 of 1997 where the judge held that:“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this court takes into account in deciding whether to grant an extension of time are, first the length of the delay, secondly the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted.”

17. The Tribunal therefore finds that the ground advanced by the Applicant/Appellant for delay are reasonable, is supported and the delay was not inordinate, the delay having been explained to the satisfaction of the Tribunal, which is minded to exercise its discretion in favour of the Applicant/Appellant.

18. From the record, we note that the Respondent had moved us in a similar application, which was granted on 22nd November 2024, thus the Respondent’s Statement of Facts dated 9th August 2024 was deemed as properly filed and served. The Respondent’s Statement of Fact was responding to the Appellant’s Memorandum of Appeal and Statement of Facts lodged on the 27th June 2024, thus there are no new issues to respond to.

19. Consequently, the Applicant’s application is merited and therefore succeeds.

Disposition 20. Based on the foregoing analysis, the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders. that: -a.Leave to appeal out of time be and is hereby granted.b.The Notice of Appeal dated June 14, 2024, Memorandum of Appeal, statement of Facts together with the Appeal documents attached thereto, all dated June 27, 2024 be and are hereby deemed as properly filed and served.c.No orders as to costs.

21. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 7THDAY OF FEBRUARY 2025ROBERT M. MUTUMA - CHAIRPERSONMUTISO MAKAU - MEMBERDR. TIMOTHY B. VIKIRUDELILAH K. NGALA - MEMBERJEPHTHAH NJAGI - MEMBER