Siganga v Commissioner of Domestic Taxes [2024] KETAT 484 (KLR) | Review Of Orders | Esheria

Siganga v Commissioner of Domestic Taxes [2024] KETAT 484 (KLR)

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Siganga v Commissioner of Domestic Taxes (Miscellaneous Application E039 of 2023) [2024] KETAT 484 (KLR) (22 March 2024) (Ruling)

Neutral citation: [2024] KETAT 484 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Miscellaneous Application E039 of 2023

E.N Wafula, Chair, M Makau, AK Kiprotich, EN Njeru & E Ng'ang'a, Members

March 22, 2024

Between

Dave Lung’aho Siganga

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Respondent vide a Notice of Motion dated the 9th day of June, 2023 filed under a Certificate of urgency on the even date and which is supported by an Affidavit sworn by Lilian Wanjiru Kamau, an Advocate for the Respondent, on the even date, sought for the following Orders:-a.Spentb.Spentc.Spentd.That the Respondent’s Replying affidavit filed on 5th June, 2023 be deemed to be properly on record.e.That this Honourable Court be pleased to review its Orders issued on 9th June, 2023 and have the same set aside.f.That the costs of this application be provided for.

2. The application is premised on the following grounds that:-a.That when this matter came up for hearing on the 18th May, 2023 the Honourable Tribunal directed the Respondent to file its Replying Affidavit by 5th June, 2023. b.That the Respondent filed its Replying Affidavit at the Tribunal’s Registry on the 5th June, 2023. c.That on the 6th June, 2023 the Respondent effected service of its Replying Affidavit upon the Applicant.d.That when the matter came up for hearing on the 9th June, 2023 the Tribunal issued orders for lifting of agency notices on the Applicant’s bank account on the basis the Applicant’s application was undefended, with the Tribunal stating that the Respondent had not filed a Replying Affidavit.e.That the failure to place the filed Replying Affidavit on the record for the Tribunal was a mistake of the Registry and that such a mistake ought not be visited upon the Respondent.f.That the application has been brought without undue delay.g.That the Respondent stands to suffer great prejudice if he is condemned unheard.

3. The application was unopposed and neither of the parties filed any written submissions in respect of the Respondent’s application.

Analysis and Findings 4. The power of the Tribunal to review and/or even set aside its orders is immortalised under Section 29A of the Tax Appeals Tribunal Act.

5. It is manifestly clear that the Respondent complied substantively with the directions of the Tribunal issued on the 2nd June, 2023 directing the Respondent to file and serve its response to the Applicant’s Notice of Motion dated 18th May, 2023 by the 5th June, 2023. The Respondent indeed filed the Replying Affidavit sworn by Arnold Lumanyi on the 5th day of June, 2023 on the even date and the Tribunal embossed the stamp acknowledging receipt at 4:50pm. The Respondent however admittedly effected service of the Replying Affidavit upon the Applicant by email on the 6th June, 2023.

6. When the matter came up before the Tribunal for hearing on the 9th June, 2023 the staff at the Tribunal’s Registry had inadvertently not placed the Replying Affidavit on record thereby prompting the Tribunal to deem the Applicant’s application dated 18th May, 2023 unopposed. The orderssought in the application were as a consequence of the lapse allowed as against the Respondent.

7. The Respondent ought not to have suffered prejudice as a consequence of the default on the part of the staff for the Tribunal.

8. The Tribunal in the circumstances finds the application to be merited and the ends of justice shall accordingly be appropriately served by having the Orders issued on the 9th June, 2023 as against the Respondent be set aside.

Disposition 9. On the basis of the foregoing analysis the Orders that commend themselves to the Tribunal are as follows:-a.The application be and is hereby allowed.b.The Orders issued on the 9th June, 2023 as relates to the Notice of Motion dated 18th May, 2023 be and are hereby set aside.c.The Notice of Motion dated the 18th of May, 2023 to be heard afresh and the same is hereby set down for hearing on the 28th day of March, 2024. d.No orders as to costs.

10. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MARCH, 2024ERIC NYONGESA WAFULACHAIRMANMUTISO MAKAUMEMBERABRAHAM K. KIPROTICHMEMBERELISHAH N. NJERUMEMBEREUNICE N. NG’ANG’AMEMBER