Jethabhai v Commissioner of Customs and Border Control [2025] KETAT 250 (KLR)

Jethabhai v Commissioner of Customs and Border Control (Tax Appeal E517 of 2025) [2025] KETAT 250 (KLR) (Civ) (27 June 2025) (Ruling)

Neutral citation: [2025] KETAT 250 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Civil

Tax Appeal E517 of 2025

CA Muga, Chair, AK Kiprotich & T Vikiru, Members

June 27, 2025

Between

Patel Mukeshbai Jethabhai

Applicant

and

Commissioner of Customs and Border Control

Respondent

Ruling

1. The Applicant vide a Notice of Motion dated 23rd May, 2025 and filed under a Certificate of urgency on even date, supported by an affidavit sworn by Patel Mukeshbhai Jethabhai sought the following Orders:a.Spent.b.That the Applicant be granted an extension of time with regard to filing Notice of Appeal, Memorandum of Appeal and Statement of Facts to this Tribunal out of time.c.That the Notice of Appeal, Memorandum of Appeal and Statement of Facts filed herein be deemed as duly filed.d.That the cost of this Application be in the cause.e.That this Tribunal be pleased to issue any such orders as it deems just and expedient.

2. The Application was premised on the following grounds:a.That the Applicant received VAT assessments issued on 30th January 2025 for the tax periods between June 2020 to June 2024 and lodged an objection to the said assessment on 3rd February 2025. b.The Respondent however rejected the Applicant's objection and issued an objection decision on 2nd April 2025. c.The Applicant prepared its Notice of Appeal dated 2nd May /2025 and sent it to the Respondent's electronic mail addresses legalservices@kra.go.ke / lsbclitigation@kra.go.ke, and inadvertently failed to put this Court's electronic mail address for filing purposes.d.The intended Applicant averred that it approached the Tribunal at the earliest juncture and the failure to file the notice of appeal within time was as the result of justifiable factors beyond the control of the Applicant.e.There was no inordinate delay in seeking leave of the Tribunal to appeal out of time.f.That the Applicant has an arguable Appeal with a high probability of success which Appeal would be rendered nugatory unless the orders sought herein are granted.g.If this Application is allowed the Respondent will not suffer any prejudice from the grant of the orders sought herein.h.It is in the interest of justice and fair trial that the orders sought be granted

3. On 30th May 2025, the Tribunal directed the Respondent to file its response on or before 3rd June 2025 and since it has failed to do so, the Tribunal can infer that the Respondent is not opposed to this Application.

Parties Submissions 4. The Tribunal directed that the Application was to be canvassed by way of written submissions, however none of the parties filed written submissions.

Analysis And Findings 5. The Applicant delayed in lodging its Appeal and the reason for the delay according to it was the inadvertent omission of the Tribunal’s electronic mail address by the tax agent when filing the Notice of Appeal on 2nd May, 2025. The Appellant attached a copy of the said electronic mail.

6. The Applicant/Appellant averred that upon realization of the omission, it approached the Tribunal at the earliest juncture without undue delay.

7. The Tribunal’s jurisdiction to entertain applications of this nature is anchored on the provisions of Section 13(3) and (4) of the TATA. Section 13(3) of the TATA provides as follows:“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).”

8. The reasons and/or ground upon which a party seeking for extension of time to file an appeal out of time can rely upon are contained within the provisions of Section 13 (4) of the TATA which 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.”

9. Rule 10 (3) of the Tax Appeals Tribunal (Procedure) Rules, 2015, which makes provisions for the grounds upon which a party can rely on in making of an application for extension of time, provides as follows:“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.”

10. The view of the Tribunal is therefore that it follows that the Applicant is obligated to demonstrate the grounds upon which its Application is anchored pursuant to the provisions of Section 13 (4) of the TATA as read together with Rule 10 of the Tax Appeals Tribunal (Procedure) Rules, 2015.

11. The Tribunal has perused the Applicant’s grounds as outlined in the application and Affidavit in support of the application thereof and observed that the Applicant’s reason for delay was the inadvertent omission of the Tribunal’s email at the time of filing.

12. The Tribunal observed that the impugned objection decision was issued on 2nd April 2025, the Applicant was therefore expected to file its Notice of Appeal on or before 2nd May 2025.

13. In deeming whether a delay as inordinate or reasonable, the Court does not only consider the length of the period, but in exercise of its discretion considers the reasons occasioning such delay. The Tribunal is guided by the High Court case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application Nai 251 of 1997 in which the learned trial Judge held as follows:“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.”

14. The Applicant averred that its tax agent while sending the Notice of Appeal by electronic mail inadvertently omitted the Tribunal’s electronic mail address. That upon realization of the omission, the Applicant promptly filed this Application for leave to file out of time on 23rd May 2025, 22 days after the lapse of statutory timeline. On this account, the Tribunal is persuaded that the delay was not inordinate.

15. Further, the Tribunal having perused the draft Memorandum of Appeal filed herewith which outlines the grounds of Appeal as against the Respondent’s decision dated 2nd April 2025, finds that the said Appeal is arguable.

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

Disposition 17. Based on the foregoing analysis, the Tribunal finds that the Application is merited and accordingly proceeds to make the following Orders:a.The Application be and is hereby allowed.b.The Applicant is hereby granted leave to file its Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time.c.The Notice of Appeal, Memorandum of Appeal, statement of Facts together with the Appeal documents attached thereto, all dated 23rd May, 2025 and filed on the same date be and are hereby deemed as properly filed and served.d.The Respondent is at liberty to respond to the Appeal by filing its Statement of Facts within thirty (30) days of the date hereof.e.No orders as to costs.

18. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF JUNE, 2025. CHRISTINE A. MUGA - CHAIRPERSONABRAHAM K. KIPROTICH - MEMBERDR. TIMOTHY B. VIKIRU - MEMBER