Case ID:172969

Eliora Energy Limited v Commissioner of Domestic Taxes [2021] eKLR

Case Metadata

Case Number:

Tax Appeal E148 of 2020

Parties:

Eliora Energy Limited v Commissioner of Domestic Taxes

Date Delivered:

26 Mar 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

David Amilcar Shikomera Majanja

Citation:

Eliora Energy Limited v Commissioner of Domestic Taxes [2021] eKLR

Advocates:

Ms L. Ng’ang’a, Advocate instructed by the Commissioner of Domestic Taxes, Kenya Revenue Authority

Ms Thindigua instructed by Waceke Thindigua and Company Advocates for the Respondent

Case History:

(Being an appeal from the Judgment and Decree of the Tax Appeal Tribunal at Nairobi delivered on 31st March 2020 in Tax Appeal No. 110 of 2018)

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Advocates:

Ms L. Ng’ang’a, Advocate instructed by the Commissioner of Domestic Taxes, Kenya Revenue Authority

Ms Thindigua instructed by Waceke Thindigua and Company Advocates for the Respondent

History Docket No:

Tax Appeal No. 110 of 2018

History Advocates:

Both Parties Represented

History County:

Nairobi

Case Outcome:

Notice of motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D.S. MAJANJA J.

TAX APPEAL NO. E148 OF 2020

BETWEEN

ELIORA ENERGY LIMITED......................................................APPELLANT

AND

COMMISSIONER OF DOMESTIC TAXES.......................... RESPONDENT

(Being an appeal from the Judgment and Decree of the Tax Appeal Tribunal at Nairobi delivered on 31

st

March 2020 in Tax Appeal No. 110 of 2018)

RULING

1. This matter concerns an appeal from the decision of the Tax Appeals Tribunal (“the Tribunal”) delivered on 31

st

March 2020. The Respondent (“the Commissioner”) has filed a Notice of Motion dated 8

th

February 2021 seeking to strike out the Appeal filed on 21

st

December 2020. The application is supported by the Commissioner’s Advocate, Lydia Ng’ang’a, sworn on 8

th

February 2021.

2. The application is grounded on the following uncontested facts. The Tribunal delivered its judgment on 31

st

March 2020 after which the Appellant filed its Notice of Appeal on 17

th

December 2020 together with an application seeking stay of enforcement of the Tribunal’s orders. The Appellant served the Record of Appeal on 4

th

February 2021. It is clear therefore that the appeal was filed out of time as the Notice of Appeal ought to have been served within 30 days from the date of the judgment hence the last day of filing the appeal was 30

th

April 2020.

3. Counsel for the Appellant concedes that the appeal has been filed out time but draws the court’s attention to the Notice of Motion dated 11

th

December 2020 in which the Appellant sought an order that,

“the Applicant be granted leave to file the Notice of Appeal out of time against the whole judgment dated 31

st

March 2020 issued by the Tax Appeal Tribunal in Tax Appeals No. 110 of 2017.”

4. When the application came up for mention for directions on 15

th

January 2021, it was determined by the following orders:

1. Application dated 11

th

December 2020 is allowed and a stay pending appeal is granted by consent on condition that the Appellant shall pay to the Respondent Kshs. 2,351,390.00 within 60 days from the date hereof.

2. The Appellant shall file the Record of Appeal to be filed and served within 14 days.

3. The Respondent shall file and serve the Statement of Facts within 14 days thereafter.

4. Mention on 3

rd

March 2021 for directions.

5. To my mind therefore, the application was in fact allowed and the appeal otherwise validated. The parties have now complied by filing the respective Record of Appeal and Statement of Facts. Further and according to the order, the Appellant has been directed to pay some money as a condition for stay pending appeal.

6. In the circumstances, there I find this appeal is deemed as duly and properly filed. The Notice of Motion dated 8

th

February 2021 is dismissed. I however make no order as to costs.

7. The parties shall now exchange written submissions on the main appeal.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MARCH 2021.

D. S. MAJANJA

JUDGE

Ms L. Ng’ang’a, Advocate instructed by the Commissioner of Domestic Taxes, Kenya Revenue Authority.

Ms Thindigua instructed by Waceke Thindigua and Company Advocates for the Respondent.