Weihai International Economic & Technical Co-operative Company Limited v Commissioner of Domestic Taxes (Tax Appeal E789 of 2023) [2024] KETAT 1765 (KLR) (11 November 2024) (Ruling)
Neutral citation:
[2024] KETAT 1765 (KLR)
Republic of Kenya
Tax Appeal E789 of 2023
RM Mutuma, Chair, M Makau, D.K Ngala, T Vikiru & Jephthah Njagi, Members
November 11, 2024
Between
Weihai International Economic & Technical Co-operative Company Limited
Appellant
and
Commissioner of Domestic Taxes
Respondent
Ruling
1.The Applicant/Respondent moved the Tribunal vide a Notice of Motion application dated and filed on 30th October 2024 under certificate of urgency that is supported by an Affidavit sworn on 28th October 2024 by Linet Anne Ojiambo, an officer of the Applicant/Respondent, seeking for the following Orders, that:a.Spent;b.This Honourable Tribunal do grant leave to the Respondent to file an additional witness statement;c.The Respondent witness statement dated 28th October 2024 and filed on an even date be admitted to the Honourable Tribunal’s Record and be considered as properly filed; and,d.There be no orders as to costs.
2.The application is premised on the grounds, that:a.The Appellant moved the Honourable Tribunal vide an Application dated 3rd July 2024 seeking a declaratory order that the Respondent’s Objection Decision dated 27th July 2023 is invalid as the same was issued outside the stipulated timelines.b.On 20th September 2024, the Honourable Tribunal delivered its ruling dismissing the Appellant’s Application dated 3rd July 2024 and held that allowing the same at the interim stage would be akin to determining and granting final orders. The Ruling therefore did not resolve the issue of whether the Respondent’s decision was issued out of time.c.The Respondent’s counsel on record informed her instructing client on the ruling of the Honourable Tribunal delivered on 20th September 2024 and was further instructed to file an additional witness statement so as to shed light on the events touching on the issuance of the Objection Decision.d.The Respondent had earlier on filed a witness statement dated 7th June 2024 which was demonstrating how the assessments issued had been brought to charge.e.The matter has been fixed for Hearing of the parties witnesses on 12th November 2024.f.When the matter came up for a mention on 9th October 2024 for purposes of fixing a hearing date, the Applicant/Respondent had not been further instructed by the client to file an additional witness statement.g.The Respondent is highly apprehensive if leave is not granted to file the additional witness statement, then they will be denied the opportunity to be heard as accorded under Article 50 of the Constitution.h.The Appellant will not suffer any prejudice and the Appellant has an opportunity to cross examine the Respondent’s witness during the hearing of the case.i.Therefore, it is in the interest of justice that the Respondent’s Application herein be certified urgent, heard expeditiously and the orders sought granted.j.The Respondent has made this Application without unreasonable delay.
3.The Appellant/Respondent upon being served with the instant application filed a Replying Affidavit sworn on 6th November 2024 and filed on an even date by He Kai, an authorized officer of the Appellant, which response raised the following grounds, that;i.The Appellant/Respondent categorically denies all the grounds and allegations in the aforesaid application as the Applicant attempts to mislead the Tribunal.ii.The Applicant is attempting to mislead this Honourable Tribunal by stating that they learnt about the Respondent’s/Appellant’s argument that the purported Objection Decision dated 27th July 2023 not being a valid Objection Decision through the Notice of Motion Application dated 3rd July 2024.iii.The Respondent/Appellant filed a Memorandum of Appeal dated 9th November 2023 and Statement of Facts all dated 9th November 2023. One of the grounds of appeal was that the purported Objection Decision dated 27th July 2023 was not a legally valid Objection Decision.iv.The Respondent/Appellant believes that the Applicant has been aware about this since 9th November 2023 and therefore, the Applicant’s argument that it learnt about it from our Notice of Motion Application dated 3rd July 2024 is misleading.v.The Appellant is also aware that this Appeal was first scheduled for mention for further direction and taking a hearing date on 8th July 2024. However, on 20th June 2024, the Applicant filed an application seeking leave to file their Supplementary List of documents, which was granted.vi.The Appellant believes that it is clear that the Applicant always files an application to introduce something before the hearing of this Appeal.vii.The Appellant is also aware that this matter was first scheduled for hearing on 16th July 2024 but the same did not take place. Thereafter, there have been several mention dates to confirm whether both parties have complied and ready for hearing.viii.The Applicant will not suffer any prejudice should the Notice of Motion Application be denied since the documents to be relied on are on record.
Parties Submissions
4.Neither of the parties filed its written submissions to the application, the Tribunal shall therefore consider the application based on the grounds outlined therein and the response to the said application.
Analysis and Findings
5.The Applicant in the instant application seeks, an order for leave to the Applicant to file an additional witness statement of Linet Anne Ojiambo dated and filed on 28th October 2024, which application the Tribunal shall consider.
6.The Tribunal takes cognizance of the fact that the additional witness statement sought to be filed was pursuant to the ruling delivered on 20th September 2024, in a husk the Applicant seeks to have its witness tender evidence as to occurrences, events and/or activities leading to the issuance of the Objection Decision.
7.The Appellant in response, submitted that the Applicant had ample time and the matters arising from the ruling of 20th September 2024 were well within its knowledge and cannot feign ignorance of that fact.
8.The Tribunal took note of the Appellant/Respondent averments, particularly in its response, that it acknowledged that the documents in relation to the additional witness statement were on record.
9.It is trite practice in tax matters that the pronouncements of any witness before a judicial body as oral evidence ought to be supported by documentary evidence or such other real evidence.
10.The Tribunal has perused the additional witness statement of Linet Anne Ojiambo dated and filed on 28th October 2024, is of the considered view that the proposed additional witness does not seek to introduce new evidence that is not on record and the said witness statement does not seek to alter the cause of action. Additionally, it does not place the Appellant in any position of prejudice in so far as its Appeal extends.
11.Having said that, leave is granted to the Applicant’s for its additional witness statement of Linet Anne Ojiambo dated and filed on 28th October 2024. In the interest of justice, the Appellant is granted corresponding leave to file a supplementary witness statement or an additional witness statement, limited to the matters outlined and/or related to the contents of the additional witness statements.
12.Consequently, the Applicant’s application is merited.
Disposition
13.Based on the foregoing analysis, the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders: -a.The Application dated and filed on 30th October 2024 be and is hereby allowed in the following terms;i.The witness statement of Linet Anne Ojiambo dated and filed on 28th October 2024 be and is hereby deemed as duly filed and served; and,ii.The Appellant be at liberty to file and serve its supplementary witness statement or an additional witness statement, in both instances, limited to the response matters outlined and/or related to the contents of the Respondent’s additional witness statement by close of business on 11th November 2024.b.No orders as to costs.
14.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY NOVEMBER 2024ROBERT M. MUTUMA - CHAIRMANMUTISO MAKAU - MEMBERDELILAH K. NGALA - MEMBERDR. TIMOTHY B. VIKIRU - MEMBERJEPHTHAH NJAGI - MEMBER