APPEALS TO THE TRIBUNAL
(12)Appeals to the Tribunal
A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal,
- Provided that such person shall before appealing, pay a non-refundable fee of twenty thousand shillings.
(13)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.the appealable decision; and (Finance Act 2023 wef 1st-July-2023 s39) - (d) such other documents as may be necessary to enable the Tribunal to make a decision on the appeal.(Finance Act 2023 wef 1st-July-2023 s39)
(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).
(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.
(5) An appellant shall serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal.
(6) The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal documents to which the decision relates. (Finance Act 2020- wef-30June2020)
(7) The Tribunal shall hear and determine an appeal within ninety days from the date the appeal is filed with the Tribunal.
(8) The parties to an appeal may apply, in writing, to the Tribunal to settle the dispute out of the Tribunal and in such a case, the time taken to resolve or conclude the settlement out of the Tribunal shall be excluded when calculating the period contemplated in subsection (7).
[Act No. 14 of 2015, s. 61, Act No. 38 of 2016, s. 62, Act No. 15 of 2017, s. 50, Act No. 10 of 2018, s. 22.]
(9) For the purposes of this section, “appealable decision” has the meaning assigned to it in section 3(1) of the Tax Procedures Act, 2015. (Finance Act 2023 wef 1st-July-2023 s39)
(14)Exemption from the provisions of Cap. 21
The provisions of the Civil Procedure Act (Cap. 21) shall not apply to the proceedings of the Tribunal.
(15)Submission of material documents to the Tribunal by the Commissioner
(1) The Commissioner shall, within thirty days after being served with a copy of an appeal to the Tribunal, submit to the Tribunal enough copies as may be advised by the Tribunal, of—
- (a) a statement of facts including the reasons for the tax decision; and
- (b) any other document which may be necessary for review of the decision by the Tribunal.
(2) The Tribunal may require the Commissioner to submit to the Tribunal additional documents that, in the opinion of the Tribunal, may be in the Commissioner’s possession or control.
(3) The Commissioner shall serve the appellant with a copy of the statement of facts and other documents required under this section within two working days from the date of submission to the Tribunal.
(4) The Tribunal may, upon application in writing by the Commissioner, extend the time for submitting and serving the statement of facts and the documents referred to in this section, where it is proved to the satisfaction of the Tribunal, that the delay is not inordinate or other reasonable cause that may have prevented the Commissioner from submitting and serving the statement of facts and the documents within the specified period.
[Act No. 38 of 2016, s. 63.]
(16)Hearing
(1) The Secretary to the Tribunal shall advise all parties in writing of the time and place of the hearing at least fourteen days before the commencement of hearing.
(2) Evidence before the Tribunal may be given orally or through affidavits or in such manner as the Tribunal may direct.
(3) If it is proved to the satisfaction of the Tribunal that owing to absence of the appellant from Kenya or due to sickness or any other reasonable cause, the appellant is prevented from attending or the hearing of the appeal on the date and the time fixed for hearing, the Tribunal may adjourn the hearing of the appeal for such reasonable time as it may think appropriate.
(17)Witnesses
The Tribunal may call any person to attend at a hearing and give evidence including production of any document if the Tribunal believes such evidence shall assist in its deliberations.
(18)Order to stay or affect the implementation of the decision under review
Where an appeal against a tax decision has been filed under this Act, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision under review as it considers appropriate for the purposes of securing the effectiveness of the proceeding and determination of the appeal.
(19)Conflict of interest
(1) A member of the Tribunal shall disclose any interest on the matter which is the subject of proceedings that could conflict with the proper performance of the member’s functions.
(2) Except with the consent of all the parties, any member who has declared interest under this section shall not take part in the proceedings.
(3) A member who takes part in the proceeding of the Tribunal in contravention of this section commits an offence.
(20)Powers of the Tribunal during a proceeding
(1) For the purpose of proceedings before the Tribunal, the Tribunal may—
- (a) take evidence on oath;
- (b) proceed in the absence of a party who has reasonable notice of the proceedings; and
- (c) adjourn the hearing of the proceedings.
(2) For the purpose of hearing proceedings before the Tribunal, the Tribunal shall have powers of a subordinate Court to summon a person to appear before it— (a) to give evidence; or (b) to produce books, documents or things mentioned in the summons.
(3) Where the Tribunal considers it desirable for the purposes of avoiding expenses or delay, or for any other special reason, it may receive evidence by affidavit and administer interrogations and require the persons to whom interrogations are administered to make a full and true reply to the interrogations.
(4) The Tribunal shall have power to request for examination of witnesses abroad.
(21)Contempt of Tribunal
Any person who—
- (a) insults a member or an employee of the Tribunal in relation to the exercise of powers and functions under this Act; or
- (b) interrupts the proceedings of the Tribunal; or
- (c) creates a disturbance, or takes part in creating a disturbance in or near a place where the Tribunal is sitting; or
- (d) does any other act or thing that would, if the Tribunal were a court of law, constitute a contempt of that court,
commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both.
(22)Disobedience of summons to give evidence, etc
Any person summoned by the Tribunal to attend and give evidence or to produce any records, books of account, statements, or other documents, whether in electronic form or otherwise, or who is required to answer interrogatories, and who without sufficient cause—
- (a) refuses or fails to attend at the time and place mentioned in the summons served on him; or
- (b) refuses or fails to answer, or to answer fully and satisfactorily, to the best of his knowledge and belief, all questions lawfully put to him by or with the concurrence of the Tribunal;
- (c) refuses or fails to produce any records, books of account, statements or other documents, whether in electronic form or otherwise, which are in his possession or under his control, mentioned or referred to in any summons served on him,
commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.
(23)Expert evidence
(1) The Tribunal shall have powers to engage the service of an independent expert in any proceedings as may be appropriate upon such terms and conditions as the Chairperson may determine.
(2) The Tribunal may use the views of the expert referred to in subsection (1) in making decision on an appeal.
(24)Procedure of the Tribunal
(1) The proceedings of the Tribunal shall be of a judicial nature.
(2) Chief Justice shall prescribe rules to guide proceedings of the Tribunal.
(3) The Tribunal shall have such assistance in carrying out its lawful writs, processes, orders, rules, decrees or commands as is available to a Court in Kenya.
(25)Representation before the Tribunal
(1) For the hearing of proceedings before the Tribunal, the appellant may appear in person or be represented by a tax agent or by an advocate.
(2) If it is proved to the satisfaction of the Tribunal that owing to absence of the appellant from Kenya or due to sickness or any other reasonable cause, the appellant is prevented from attending, at the hearing of the appeal on the date and the time fixed for hearing, the Tribunal may adjourn the hearing of the appeal for such reasonable time as it may consider appropriate.
[Act No. 38 of 2016, s. 64.]
(26)Opportunity to make submissions concerning evidence
The Tribunal shall ensure that every party to proceedings is given a reasonable opportunity to—
(a) present his case; and
(b) inspect any documents in relation to the proceedings and make submissions.
(27)Discontinuance, dismissal or reinstatement of an appeal
(1) An appellant may, by notice in writing, withdraw the appeal.
(2) If an appellant fails, without reasonable cause, to appear for the hearing of the proceedings, the Tribunal may dismiss the appeal.
(3) If an appellant fails without reasonable cause to proceed with the appeal or comply with a direction by the Tribunal, the Tribunal may dismiss the appeal.
(4) Where the respondent without reasonable cause fails to appear for the hearing of the proceedings, the Tribunal may uphold the appeal.
(5) Where the Tribunal dismisses an appeal under subsection (2) or (3), or upholds an appeal under subsection (4), the appellant or respondent may, within thirty days from the date of receipt of the notice of the decision, apply to the Tribunal for reinstatement of the appeal, and the Tribunal may, if it considers it appropriate to do so, reinstate the appeal and give such directions as may be appropriate.
(28)Power of the Tribunal where the parties reach agreement
(1) The parties may, at any stage during proceedings, apply to the Tribunal to be allowed to settle the matter out of the Tribunal, and the Tribunal shall grant the request under such conditions as it may impose.
(2) The parties to the appeal shall report to the Tribunal the outcome of settlement of the matter outside the Tribunal.
(29)Decisions of the Tribunal
(1) The decision of the Tribunal shall be by majority vote of the members present, and in the case of equality of votes, the Chairperson shall have a casting vote in addition to his deliberative vote.
(3) The Tribunal shall make a decision in writing—
- (a) affirming the decision under review;
- (b) varying the decision under review; or
- (c) setting aside the decision under review and either—
- (i) making a decision in substitution for the decision so set aside; or
- (ii) referring the matter to the Commissioner for reconsideration in accordance with any directions or recommendations of the Tribunal.
(4) The Tribunal shall give reasons in writing for its decision, including its findings on material questions of fact and reference to the evidence or other material on which those findings were based.
(5) The Tribunal shall cause a copy of its decision, including the reasons for the decision, to be served on each party to the proceeding.
(6) Subject to subsection (5), a decision of a Tribunal shall come into operation on date the notice of the decision is given or on such other date as may be specified by the Tribunal in the notice.
(7) A decision of the Tribunal shall have effect as and be enforceable as if it were a decision of a court.
(8) Subject to subsection (10), all decisions of the Tribunal and all evidence received by it, including a transcript of the report of the hearings, are public records open to inspection of the public.
(9) Subject to subsection (10), a Tribunal shall provide for the publication of its decisions, including reasons, in such form and manner as may be adapted for public information and use, and such authorized publication is evidence of the decisions of the Tribunal in all courts of Kenya without any further proof of authentication.
(10) The Tribunal shall ensure that in releasing, or allowing access to, information under subsection (8) or (9) measures are taken to prevent the disclosure of trade secrets or other confidential information.
(30)Burden of proof
In a proceeding before the Tribunal, the appellant has the burden of proving—
(a) where an appeal relates to an assessment, that the assessment is excessive; or
(b) in any other case, that the tax decision should not have been made or should have been made differently.
(31)Enforcement of orders for costs
(1) Where the Tribunal awards costs in any appeal, it shall, on application by the person to whom the costs are awarded, issue to him a certificate stating the amount of costs.
(2) Every certificate issued under subsection (1) may be filed in the High Court by the person in whose favour the costs are awarded and, upon being so filed, shall be deemed to be a decree of the High Court and may be executed as such:
- Provided that an order for the costs against the Government shall not be enforced save in the manner provided for by the Government Proceedings Act (Cap. 40).
(32)Appeals to the High Court on decisions of the Tribunal
(1) A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.
(2) The High Court shall hear appeals made under this section in accordance with rules set out by the Chief Justice.