Failing to Attach an Objection Decision to a Tax Appeal Is Costly

Case Reference: Utumishi Ventures Ltd v Commissioner of Domestic Taxes (Appeal E004 of 2026) [2026] KETAT 329 (KLR) (28 August 2026) (Judgment)

The Dispute

The dispute began when the Kenya Revenue Authority (KRA), through the Commissioner of Domestic Taxes, reviewed the returns of Utumishi Ventures Limited, a Kenyan company engaged in general supplies, for the year 2022. The review revealed variances, and on 20th November 2024, KRA issued additional assessments demanding Kshs. 1,548,216.97.

Utumishi objected to the assessment on 22nd January 2025. The company later claimed it never received any communication from KRA stating that its objection was invalid, and it took this silence to mean the objection had been validly lodged.

On 27th February 2025, KRA confirmed the assessment. Dissatisfied, Utumishi filed a Notice of Appeal on 3rd January 2026, followed by a Memorandum of Appeal on 3rd February 2026.

The Appeal and Utumishi’s Argument

Utumishi’s grounds of appeal were straightforward: the Commissioner had erred by subjecting Value Added Tax to exempt supplies for the period of 2022. The company argued that it does general supplies and that the income subjected to VAT related to exempt supplies. It prayed that the Tribunal set aside the tax decision and annul the assessment.

KRA’s Defence

KRA opposed the appeal through a Notice of Preliminary Objection dated 27th March 2026. The Commissioner argued that the appeal was incompetent and fatally defective because Utumishi had failed to comply with the mandatory provisions of Section 13(2) of the Tax Appeals Tribunal Act.

Specifically, KRA contended that Utumishi had failed to file a statement of facts and had failed to attach a copy of the objection decision. KRA further argued that Utumishi had not sought leave under Section 13(3) of the TAT Act to extend time to file the tax decision. Without the appealable decision, KRA submitted, the Tribunal could not tell exactly what decision the Appellant sought to challenge.

The Tribunal’s Findings

The Tribunal examined the record and found that Utumishi had filed its statement of facts, rendering that limb of the preliminary objection unfounded. However, the Tribunal found a fatal problem: Utumishi had not attached the impugned tax decision to its appeal.

The Tribunal noted that it had granted Utumishi leave on 5th March 2026 to regularize its appeal by filing the objection decision within 14 days. Utumishi failed to do so.

The Tribunal referred to Section 13(2) of the TAT Act and Rule 3(2) of the TAT Procedure Rules, which require a memorandum of appeal, a statement of facts, and the appealable/tax decision to be filed together. The Tribunal explained that it would be in a quandary if it were invited to determine an appeal from a tax decision it had not seen.

The Tribunal relied on Kibunyi v. Commissioner of Legal Services [2023] KETAT 872 (KLR) and Aspire Kenya Limited v. Commissioner of Domestic Taxes [2025] KETAT 245 (KLR), both of which held that an appellant cannot appeal against a non-existent tax decision and that failure to present the appealable decision deprives the Tribunal of jurisdiction.

The Outcome

The Tribunal upheld the preliminary objection. It found the appeal incompetent for contravening the mandatory provisions of Section 13(2) of the TAT Act and Rule 3(2) of the TAT Procedure Rules. The appeal was struck out. Each party was ordered to bear its own costs.

Critically, the Tribunal did not decide whether the additional assessment was correct. Utumishi lost not because its tax arguments were wrong, but because it could not produce the tax decision it was appealing against.

Practical Implications for Taxpayers

This case reinforces critical principles that every taxpayer and professional must understand:

1. The Tax Decision Is Not Optional Section 13(2) of the TAT Act requires the appealable decision to be filed together with the memorandum of appeal and statement of facts. Without it, the Tribunal has no jurisdiction to hear the appeal.
2. You Cannot Appeal Against a Decision the Tribunal Cannot See The Tribunal cannot determine an appeal from a tax decision it has not seen. Failure to attach the decision renders the appeal incompetent.
3. Leave to Regularize Must Be Used If the Tribunal grants leave to file missing documents, use it. Utumishi was given 14 days to file the objection decision and failed to do so. That failure was fatal.
4. Procedure Is the Gate You may have the evidence and all the facts. But in tax appeals, procedure is the gate. If you do not file the tax decision you are appealing, the Tribunal may never get to hear the merits of your case.
5. Engage Qualified Tax Professionals Early Utumishi fought this case and lost because of a procedural failure. Early engagement with qualified tax lawyers or consultants could have identified the missing document and potentially resolved the matter before the appeal was struck out.

Conclusion

The Utumishi case is a sobering reminder that in tax disputes, procedure is not a technicality—it is everything. A taxpayer with a meritorious case can lose entirely because of a failure to file the one document that gives the Tribunal jurisdiction to hear the appeal. The law’s protections are powerful but conditional. Know the conditions, file the required documents, and prove your case.