Every taxpayer who receives an adverse tax assessment from the Kenya Revenue Authority (KRA) has a fundamental right: the right to appeal. But as a recent decision by the Tax Appeal Tribunal (TAT) painfully illustrates, that right is not absolute. It comes with procedural strings attached. And if you ignore them, your appeal may be dead on arrival – regardless of how strong your case is on the merits.
The case is Hashia Contractors & Supplies v Commissioner of Investigation & Enforcement (Tax Appeal E1444 of 2024). The facts are familiar. A small partnership in Tana River County was hit with a massive Kshs 50 million tax assessment based on bank deposit and IFMIS analysis. The taxpayer objected. The KRA declared the objection invalid for lack of supporting documents. The taxpayer sought to appeal to the Tribunal. And then came the fatal error: they never filed a Notice of Appeal.
The Critical Mistake
The Tribunal did not strike out the appeal because the taxpayer was wrong about the law. It did not rule on whether the bank deposit analysis was flawed or whether the KRA had assessed the wrong legal entity. All of those substantive arguments became irrelevant.
Why? Because the Tribunal found that there was no Notice of Appeal on record – not in the physical file, not on the online case tracking system (CTS).
Section 13(1) of the Tax Appeal Tribunal Act is unambiguous: a notice of appeal must be filed within 30 days of the Commissioner’s decision. That notice is the jurisdictional trigger. Without it, the Tribunal has no power to hear the matter.
As the Tribunal reminded us, quoting the famous Motor Vessel “Lillian S” case:
“Jurisdiction is everything. Without it, a court has no power to make one more step.”
The fact that the Tribunal had previously granted the taxpayer leave to appeal out of time did not rescue the situation. That leave assumed an appeal existed. But an appeal cannot exist without a Notice of Appeal. You cannot cure an absence; you can only cure a delay.
Key Takeaways for Taxpayers and Practitioners
This case offers several hard lessons for anyone navigating the tax appeals process in Kenya.
The Notice of Appeal is non-negotiable. Filing a Memorandum of Appeal, a Statement of Facts, or written submissions does not replace the Notice of Appeal. That document is the first and most important step. File it within 30 days of the KRA’s objection decision. Do not assume the Tribunal will overlook its absence.
