Genpely General Contractors Limited v Kenya Revenue Authority [2023] KETAT 880 (KLR)

Genpely General Contractors Limited v Kenya Revenue Authority (Tax Appeal 886 of 2022) [2023] KETAT 880 (KLR) (Commercial and Tax) (10 November 2023) (Judgment)

Neutral citation: [2023] KETAT 880 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal 886 of 2022

Grace Mukuha, Chair, E Komolo, Jephthah Njagi, T Vikiru & G Ogaga, Members

November 10, 2023

Between

Genpely General Contractors Limited

Appellant

and

Kenya Revenue Authority

Respondent

Judgment

Background. 1. The Appellant is a limited liability company incorporated in Kenya under the Companies Act. The Appellant's business is that of construction.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 460 Laws of Kenya (KRA Act). Under Section 5 (1) of the Act, KRA is an agency of the Government for the collection and receipt of all revenue. Under Section 5(2) of the Act with respect to the performance of its function under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Parts I and II of the First Schedule to the KRA Act for the purposes of assessing, collecting, and accounting for all revenues in accordance with those laws.

3. In July 2021, the Respondent carried out an analysis of Integrated Financial Management Information System (IFMIS) data on suppliers of County Governments of Embu and Tharaka-Nithi.

4. Amongst those who traded with County Governments of Embu and Tharaka - Nithi as per the data was the Appellant.

5. The Respondent therefore carried out an inquiry into the Appellant's tax affairs to establish whether the Appellant has been declaring the correct income and subsequently making the tax payments.

6. During the review, the Respondent examined the Appellant's Value Added Tax (VAT) and the Income Tax Company returns for the period between January 2020 and July 2021.

7. From the IFMIS data, the Respondent established that the Appellant received income from the County Governments of Embu and Tharaka Nithi for the supplies made in the period between January 2020 and July 2021.

8. Upon review of the Appellant's VAT and Income Tax Company Returns for the period under review vis-à-vis the IFMIS data, the Respondent established that the Appellant did not declare all its income received from the two County Governments.

9. The Respondent, having established that the Appellant did not declare all its income, wrote a letter on 2nd August 2021 requesting the Appellant to amend its VAT and Income Tax Company Returns within seven(7) days and declare the undeclared income for the period January 2020 to July 2021.

10. After the expiry of the seven days, the Respondent amended the Appellant's returns under Section 31 of the Tax Procedures Act, 2015 and issued the Appellant with additional assessment (on iTax) on 23rd August 2021.

11. The VAT additional assessment amounted to Kshs. 2,881,884. 00 for the tax periods of June 2020, November 2020, March 2021, April 2021, June 2021 and July 2021. On the other hand, the Corporation taxes amounted to Kshs. 4,051,148. 75 for the tax period of January 2020 to December 2020.

12. The Respondent subsequently sent a letter to the Appellant on 24th August 2021 communicating the additional assessment.

13. On 5th January 2022, the Appellant lodged a late notice of objection and objected to the Respondent's VAT additional assessment of 23rd August 2021. The Appellant objected to assessments for VAT covering tax periods November 2020, March 2021, June 2021 and July 2021 and Corporation tax for January 2020 to December 2020 only.

14. The Appellant did not raise any objection for the VAT additional assessments for the tax periods covering June 2020 and April 2021 and thus the Respondent considered them as taxes not in dispute.

15. On 21st January 2022, the Respondent communicated to the Appellant that it did not lodge a valid objection, as the Appellant did not do so within the required period of thirty (30) days from the day the assessment was issued.

16. The Respondent invalidated the Appellant's notice of objection for lack of supporting documents and grounds.

17. On 16th February 2022, the Respondent issued its objection decision.

18. Aggrieved by the objection decision, the Appellant lodged a Notice of Appeal dated 24th August 2022 and filed on the same date.

THE APPEAL 19. The Appeal is premised on the Memorandum of Appeal dated 24th August 2022 and filed on the same date raising the following grounds: -a.The Respondent erred in law and in fact by arriving at an additional assessment for reason of errors or mistake in the apportioning of liability.b.The Respondent erred in law and fact by raising additional assessments twice on the same transactions for the tax periods 1st July, 2021 to 30th July, 2021 and 1st March, 2021 to 30th March, 2021 additional assessments numbers KRA202117988622 and KRA202117987921, respectively.c.The Respondent erred in law and fact by overlooking the fact that the invoices submitted by the Appellant in filing of VAT returns were similar in substance and content of the transactions reflected therein to those submitted by the Appellant's suppliers, despite the discrepancies in the invoice numbering and dates of issuance.d.The Respondent erred in law and fact by mounting an additional tax assessment on the Appellant without regard that it was its automated system that did not reconcile and match the invoices produced by the Appellant and the Appellant's suppliers, emanating from the same purchases.e.The Respondent erred in law and fact through its omission to confirm that the causative factor of the mismatch between the Appellant's invoices and the Appellant's suppliers' VAT returns is the discrepancies in the details and particulars of the said Appellant's suppliers' invoices and not the Appellant's default in tax liability.f.That the additional assessment was raised after the Commissioner calculated profit for the income tax period 1st January, 2020 to 31st December, 2020 based on VAT sales only.g.That in the tax period 1st January, 2020 to 31st December, 2020 the Company did construction and general supplies.h.That the Company's Deductible inputs/Purchases and Work in Progress in construction were not considered when raising the additional assessment for the tax period 1st January, 2020 to 31st December, 2020. i.That the Company made general supplies which were also purchased and not considered when raising the assessment for the tax period 1st January, 2020 to 31st December, 2020. j.The Company also incurred operational expenses, administrative expenses, financial expenses and statutory expenses in the course of its day to day running.k.That the Company has got a record of all its inputs/purchases, Work in Progress and running expenses in its custody and shall provide the Commissioner with the same for examination.l.That the Company has got audited books of accounts for the tax period 1st January, 2020 to 31st December, 2020 and shall provide the Commissioner with the same.m.That the Respondent erred in law and fact in concluding that the Appellant has not partially paid VAT due to the discrepancies in the invoice numbering of the invoices submitted by the Appellant and those submitted by the Appellant's suppliers.

Appellant’s Case 20. The Appellant’s case was only premised on the Memorandum of Appeal dated and filed on 24th August 2022.

Appellant’s prayers. 21. The Appellant made the following prayers: -a.This Appeal be allowed.b.That this dispute be handled through the Alternative Dispute Resolution Mechanism.c.That the decision of the Respondent to levy additional VAT assessment of Kshs. 4,282,265. 00 and Income tax of Kshs. 3,687,782. 00 against the Appellant be set asided.Such other further orders or reliefs as the Tribunal may deem just and expedient.

Respondent’s Case 22. The Respondent’s case was premised on the following documents:-a.The Respondents Statement of Facts dated 5th December 2022 and filed on 6th December 2022 and the documents attached thereto.b.The Respondent’s Preliminary Objection dated 6th March 2023 and filed on the same date.c.The Respondent’s Written Submissions dated 31st March 2023 and filed on the same date together with the list of authorities.

23. The Respondent opposed all the grounds of appeal set out in the Appellant's Memorandum of Appeal and asserted that the Appellant was introducing new grounds and thus a new case at the Appeal stage that were not considered during the objection review.

24. That in response to ground No. 1 of the Memorandum of Appeal, the Respondent stated that the Appellant's case was that of an under declaration of income and not that of errors or mistake in the apportioning of liability. That the Appellant did not declare all the income earned from the County Governments of Embu and Tharaka Nithi thereby reducing the taxable income and the taxes payable therefrom.

25. The Respondent in respect of grounds No. 2, 3, 4, 5 and 13 of the Memorandum of Appeal, the Respondent averred that:a.The Appellant, despite alleging that the same transaction has been charged to tax twice, did not provide the particulars of the transaction and the amounts involved to enable the Respondent or the Tribunal make a determination on the same. The ground was therefore vague and unsubstantiated;b.The Appellant did not provide the details/particulars of the invoices in question, the amounts involved, the similarities noted and the nature of discrepancies complained of to enable the Respondent or the Tribunal to make a determination on the same;c.The allegation that the automated system did not reconcile and match the invoices produced by the Appellant and its suppliers is not true and there is no evidence to substantiate the same;d.There was neither a notable mismatch nor any discrepancy between the Appellant's invoice and the Appellant's suppliers VAT returns; ande.The impugned invoices or the assessments were neither produced before the Tribunal nor the Respondent to make a determination and the Respondent urges that the grounds herein are just mere statements.

26. That in response to Grounds No. 6 and 7 of the Memorandum of Appeal, the Respondent asserted that the Appellant declared no income for the purposes of Corporation tax obligation and yet in the same vein the Appellant had declared income for the purposes of VAT. It was therefore inconceivable for the Appellant to have income for the purposes of VAT only and not Corporation tax.

27. That on Grounds No. 8, 9, 10, 11 and 12 of the Appellant's Memorandum of Appeal, the Respondent averred that its response that the Appellant was unprocedurally introducing new grounds and thus a new case at the Appeal stage. Further, the Respondent stated that:a.The Appellant was given several opportunities to avail the documents and information that would enable the Respondent carry out the inquiry and review of the Appellant's tax affairs but the Appellant failed to honour the request. That it is now strange and suspicious that the Appellant seeks to provide the documents it could not provide a year ago when requested;b.This this is not the proper forum to review new evidence and if the Tribunal was to do so, it would be usurping the Respondent's mandate of reviewing objections;c.The Appellant is seeking to patch up its weak case in the Appeal by introducing new evidence and documents which were not considered in making the objection decision;d.The Appellant squandered the opportunity which the Respondent had provided and thus should not be allowed to hold the Tribunal at ransom as it amounts to an abuse of judicial process.

28. The Respondent averred that the Appeal herein is invalid, incompetent and not properly before the Tribunal for the following reasons:a.The Appeal herein is based on an invalid notice of objection which was not lodged within thirty days as required by Section 51(1)-(2) of the Tax Procedures Act, 2015 and the Appellant provided no plausible reasons to allow the Respondent consider allowing a late objection application;b.The Appeal herein is based on an invalid notice of objection as the said notice did not conform to the requirements of Section 51(3) of the Tax Procedures Act, 2015 to the extent that it failed to precisely state the grounds of objection and the Appellant did not provide sufficient documents in support of the objection;c.The Appellant did not dispute the VAT additional assessment for the tax periods covering June 2020 and April 2021 and thus the taxes are due. The Appellant has neither paid the entire amount of tax due under the assessment that is not in dispute nor has applied for an extension of time to pay the tax not in dispute under Section 33 of the Tax Procedures Act, 2015. That therefore, the notice of objection and the Notice of Appeal herein is not valid as it does not conform to Sections 51(3)(b) and 52(2) of the Tax Procedures Act, 2015. d.The Appellant has not lodged the Notice of Appeal as required under Sections 12 and 13 of the Tax Appeals Tribunal Act, 2013 and if the Appellant lodged, it is not properly before the Tribunal by virtue of being statutory time barred and not served on the Respondent;e.The Appeal herein does not conform to the requirements of Section 13(2) of the Tax Appeals Tribunal Act, 2013 to the extent that it is not accompanied by a Statements of Facts and the impugned tax decision (objection decision) Therefore, the grounds enumerated therein are unsupported;f.The Appellant did not serve a copy of the Appeal on the Respondent within two days after giving Notice of Appeal to the Tribunal as dictated by Section 13(5) of the Tax Appeals Tribunal Act, 2013. The Appellant learned of the Appeal herein during the mention of other matters before the Tribunal and had to obtain a copy of the Appeal herein from the Tribunal's registry on 21st November 2022;g.The failure by the Appellant to comply with the express statutory provisions as stated above is not a procedural technicality curable by application of the overriding objective of the law or the principle espoused in Article 159(2) of the Constitution of Kenya, 2010; andh.This Tribunal must never provide comfort and cover to the Appellant herein who exhibits scant respect for rules and timelines hence neither the Appellant nor this Tribunal should invoke Article 159(2) (d) of the Constitution to oust mandatory rules of procedure.

29. The Respondent was of the view that this matter raises two issues for the Tribunal's determination:a.Whether this Tribunal has jurisdiction to hear the Appeal; andb.Whether the Respondent's decision is valid.

30. The Respondent submitted that the Tribunal lacks jurisdiction to entertain the purported Appeal herein and relied on the following grounds:-a.The Appellant has no valid Notice of Appeal; andb.The Appellant's Appeal is fatally defective and incompetent.

31. The Respondent submitted there was no evidence of a valid Notice of Appeal that has been placed before the Tribunal.

32. That the Respondent issued its decision on 16th February 2022 rejecting the Appellant's late notice of objection. That as required by law, the Appellant was supposed to lodge the Notice of Appeal with the Tribunal not later than 19th March 2022 but none was filed.

33. That the Memorandum of Appeal herein is not accompanied by any Notice of Appeal and the assumption is that there is Notice of Appeal. That Section 13(1) of the Tax Appeals Tribunal Act, 2013 provides that:“Procedure for appeal1. A notice of appeal to the Tribunal shall­(a)be in writing or through electronic means;(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner."

34. The Respondent submitted that similarly, the Appellant before lodging the Notice of Appeal is required to pay the taxes not in dispute. That the Appellant, even to date, has failed to pay the undisputed taxes for VAT additional assessments for the tax periods covering June 2020 and April 2021 amounting to Kshs. 723,337. 66. This is contrary to Section 52(2) of the Tax Procedures Act, 2015 reads:“52. Appeal of appealable decision to the Tribunal1. ...2. A notice of appeal to the Tribunal relating to an assessment shall be valid if the taxpayer has paid the tax not in dispute or entered into an arrangement with the Commissioner to pay the tax not in dispute under the assessment at the time of lodging the notice."

35. The Respondent submitted that it is trite law that it is the Notice of Appeal that invokes the jurisdiction of the court or a judicial authority to hear and determine an appeal. That in the absence of a Notice of Appeal or a valid Notice of Appeal, it follows that the Tribunal does not have jurisdiction to entertain the Appeal herein.

36. That in Nicholas Kiptoo Arap Korlr Salat v Independent Electoral and Boundaries Commission & 7 others (2014] eKLR, the Supreme Court of Kenya had the following to say on the importance of the Notice of Appeal:-“A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite. The California Supreme Court while reversing the Court of Appeal decision that had dismissed the appellant's notice of appeal as having been filed out of time in Silverbrand vs County of Los Angeles {2009) 46 Cal. 4th 106, 113 stated inter alia:As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite. "Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal." (Sic) The purpose of this requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all."

37. That similarly in Commissioner of Domestic Taxes v Local Productions (Kenya) Limited [2020] eKLR, Majanja J at Paragraph 10 of his decision stated as follows:“The time, manner and process of filing an appeal is governed by statute as it is trite law that a right of appeal is a creation of statute and its exercise is governed by statutory strictures governing the exercise of that right (see Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Interested Party) SCK Pet. No. 12 of 2016 [2019] eKLR). Whether a party has complied with statutory provisions is a jurisdictional issue. In Patrick Kiruja Kithinji v Victor Mugira Marete MRU CA Civil Appeal No. 48 of 2014 (2015] eKLR, the Court of Appeal considering the issue failure to file a Notice of Appeal, which under the applicable rules is a pre-condition for appealing against a decision of the High Court, observed as follows:It is our view, whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159. "

38. The Respondent submitted that the Tribunal should down its tools for want of jurisdiction and uphold the Respondent's decision of 16th February 2022.

39. The Respondent submitted that the Appellant's purported Appeal is incurably defective for want of compliance with the relevant statutory provisions. Specifically, the non-conformities noted in purported appeal include the following:-a.The Memorandum of Appeal is not accompanied by the Statements of Facts and the impugned tax decision as required by Section 13(2) of the Tax Appeals Tribunal Act, 2013;b.The Appellant did not seek leave of the Tribunal to file a late appeal out of time. The decision being appealed was issued on 16th February 2022 while the present Memorandum of Appeal was filed on 24th August 2022 and was never served on the Respondent contrary to Section 13(4) and (5) of the Tax Appeals Tribunal Act, 2013; andc.As submitted above, the primary document (Notice of Appeal) for institution of the Appeal is missing or was never filed at all.

40. The Respondent submitted that considering all the above issues, the only one determination that can be made is that there is no conceivable valid appeal before the Tribunal and thus the Tribunal should proceed and dismiss the same with costs to the Respondent.

41. The Respondent relied on the Judgment in Mayfair Investments Company Limited vs Commissioner of Investigations & Enforcement Nairobi TAT Appeal No. 212 of 2020 where the Tribunal rightfully held that:“38. The Tribunal recognizes that the question of the validity of the Appeal determines whether or not it has the jurisdiction to make a determination on the substantive matters canvassed in this Appeal.39. The Tribunal therefore, having carefully considered the Respondent's submissions and arguments, is of the view that the instant Appeal was not validly lodged due to the Appellant's failure to seek and obtain prior leave from the Tribunal to file the Appeal out of time."

42. The Respondent submitted that as per Section 24(2) of the Tax Procedures Act, 2015, the Respondent is not bound by the Appellant's self-assessment returns.

43. That consequently, the Respondent upon noticing the glaring inconsistencies in the Appellant's tax returns amended the same as per section 31 of the Tax Procedures Act, 2015. That the amendments were in the form of additional assessment as confirmed through the decision letter of 16th February 2022.

44. That Section 31 of the Tax Procedures Act, 2015 provides as follows:“31. Amendment of assessments(1)Subject to this section, the Commissioner may amend an assessment (referred to in this section as the "original assessment") by making alterations or additions, from the available information and to the best of the Commissioner's judgement, to the original assessment of a taxpayer for a reporting period to ensure that-a.in the case of an excess amount of input tax under the Value Added Tax Act, 2013 (No. 35 of 2013), the taxpayer is assessed in respect of the correct amount of the excess input tax carried forward for the reporting period;b.------------------c.in any other case, the taxpayer is liable for the correct amount of tax payable in respect of the reporting period to which the original assessment relates."

45. The Respondent also relied on the case of Kenya Revenue Authority v Man Diesel & Turbo Se, Kenya [2021] eKLR Nairobi High Court Income Tax Appeal No. E125 of 2020, while upholding the above position, the High Court held as follows at Paragraph 32 of the Judgment:-“The shifting of the burden of proof in tax disputes flows from the presumption of correctness which attaches to the Commissioner's assessments or determinations of deficiency. The commissioner's determinations of tax deficiencies are presumptively correct. Although the presumption created by the above provisions is not evidence in itself, the presumption remains until the taxpayer produces competent and relevant evidence to support his position. If the taxpayer comes forward with such evidence, the presumption vanishes and the case must be decided upon the evidence presented, with the burden of proof on the taxpayer."

Respondent’s prayers. 46. The Respondent prayed that the Tribunal:-a.Upholds the Respondent’s objection decision of 16th February 2022 as valid and in conformity with the provisions of the law.b.Finds that the Appeal herein is invalid, incompetent, without merit and dismiss it with costs to the Respondent.

Issue For Determination 47. The Tribunal has considered the pleadings made by the parties, and considers the only issue for determination to be as follows:-

Whether there is a valid appeal before the Tribunal.

Analysis and Findings 48. The genesis of this dispute is the objection decision made by the Respondent on 16th February 2022 where the Respondent confirmed the additional assessments on VAT and Income tax on the Appellant.

49. Aggrieved by the Respondent’s objection decision, the Appellant filed a Notice of Appeal on 24th August 2022.

50. The Respondent filed a preliminary objection on points of law stating that:-a.The Tax Appeals Tribunal lacks jurisdiction to entertain the Appeal herein since the Appellant has not invoked its jurisdiction through filing of a valid Notice of Appeal pursuant to Sections 12 and 13 of the Tax Appeals Tribunal Act, 2013;b.The Appeal herein does not conform to the requirements of Section 13(2) of the Tax Appeals Tribunal Act, 2013 to the extent that it is not accompanied by a Statements of Facts and the impugned tax decision (objection decision);c.The notice of objection and the Notice of Appeal herein are not valid as they do not conform to Sections 51(3)(b) and 52(2) of the Tax Procedures Act, 2015. The Appellant has neither paid the undisputed taxes arising from the assessment for June 2020 and April 2021 nor has it applied for an extension of time to pay the tax not in dispute under section 33 of the Tax Procedures Act, 2015. d.These are statutory violations and not procedural technicalities/issues that can be cured under Article 159(2)(d) of the Constitution of Kenya, 2010.

51. The Respondent submitted that the Appeal is incurably defective for want of compliance with the relevant statutory provisions. Specifically, that the non-conformities noted in Appeal include the following:-a.The Memorandum of Appeal was not accompanied by a Statements of Facts and the tax decision as required by Section 13(2) of the Tax Appeals Tribunal Act, 2013;b.The Appellant did not seek leave of the Tribunal to file an appeal out of time. The decision being appealed was issued on 16th February 2022 while the present Memorandum of Appeal was filed on 24th August 2022 and was never served on the Respondent contrary to Section 13(4) and (5) of the Tax Appeals Tribunal Act, 2013; andc.As submitted above, the primary document (Notice of Appeal) for institution of the Appeal is missing or was never filed at all.

52. The Tribunal notes that although the Respondent has indicated that a Notice of Appeal was never filed, it was attached to the Appellant’s Memorandum of Appeal and filed with the Tribunal on 24th August 2022.

53. The Tribunal notes that the procedure for appeal as set out in Section 13 (1) (b) of the Tax Appeals Tribunal Act (TAT Act) which requires that a notice of appeal shall be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.

54. The Tribunal observes that the Appellant received the Respondent’s objection decision on 16th February 2022 but filed its notice of appeal on 24th August 2022 more than six months after receiving the objection decision.

55. The Tribunal further notes that the Appellant failed to apply for leave to file its Notice of Appeal out of time as required in Section 13 (3) of the TAT Act which provides as thus: -“The Tribunal may, upon application in writing or through electronic means, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).”

56. The Tribunal is of the considered view that the timelines for appealing the Commissioner’s decisions are clearly set in the law, and all taxpayers are liable to comply with the timelines, save for when unavoidable circumstances prevent a taxpayer from fulfilling its obligations as envisioned in Section 13 (4) of the TAT Act which states that: -“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.”

57. The Tribunal is guided by its holding in the case of W.E.C. Lines Ltd vs. The Commissioner of Domestic Taxes [TAT Case No.247 of 2020] where at paragraph 70 while reiterating the holding in Krystalline Salt Ltd vs KRA [2019] eKLR stated that: -“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. The relevant procedure here is the process of opposing an assessment by the Commissioner.”

58. Further, the Tribunal notes that the Appellant’s case was premised only on its Memorandum of Appeal as the Appellant did not file its Statement of Facts.

59. Section 13(1), (2) and (3) of the Tax Appeals Tribunal Act provides the following on the procedure for Appeal.“(1)A notice of appeal to the Tribunal shall—a.be in writing;b.be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.(2)The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—(a)a memorandum of appeal;(b)statements of facts; and(c)the tax decision.(3)The Tribunal may, upon application in writing, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).”

60. The Tribunal notes that the Appellant failed to comply with the statutory requirements in Section 13 (1) (b) of the TAT Act by failing to file its Notice of Appeal within 30 days or seeking leave from the Tribunal to file the Notice of Appeal out of time.

61. Further, the Tribunal also notes that the Appellant failed to comply with the mandatory requirements of Section of 13 (2) (b) of the TAT Act by failing to submit a copy of its Statement of Facts.

62. Based on the foregoing, the Tribunal finds that there is no valid Appeal before it and therefore, the Tribunal does not have the jurisdiction to determine the matters in the Appeal.

Final Decision 63. .The upshot of the foregoing is that the Appeal fails, and the Tribunal accordingly proceeds to make the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own costs.

64. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 10THDAY OF NOVEMBER, 2023. GRACE MUKUHA..........CHAIRPERSONDR ERICK KOMOLO.......MEMBERJEPHTHAH NJAGI...........MEMBERTIMOTHY VIKIRU..........MEMBERGLORIA A. OGAGA.......MEMBER