Kenya proposes changes to Tax Appeals Tribunal Act, 2013

15 June 2021

Executive summary

The Kenyan Government introduced The Tax Appeals Tribunal (Amendment) Bill, 2021 (the Bill) in the National Assembly in May 2021. The Bill proposes various changes to the current Tax Appeals Tribunal Act, 2013.

This Alert summarizes the key changes introduced by the Bill.

Detailed discussion

Appointment of the Tax Appeals Tribunal (TAT) by the Judicial Service Commission

Currently, the Chairperson and members of the Tribunal are appointed by the Cabinet Secretary, National Treasury and Planning. The Bill proposes the appointment of the Chairperson and members of the Tribunal by the Judicial Service Commission (JSC).

In addition, the Bill proposes to alter the composition of the TAT. Currently, the number of advocates of the High Court of Kenya who may be appointed as members of the TAT is limited to five. The Bill proposes that the number of advocates of the High Court of Kenya should not be less than five and no more than nine.

The Bill also proposes appointment procedures for filling TAT member vacancy slots. Appointment of members is to be done by a selection panel designated by the JSC. The selection panel is tasked with conducting the recruitment process and submitting the names of recommended persons to the JSC for appointment.

Full-time service to the TAT

Currently, there is no requirement that the Chairperson and members of the TAT serve on a full-time basis. The Bill proposes that they serve on a full-time basis.

Secretary to the Tribunal

The Bill proposes the appointment of a Secretary to the Tribunal by the Public Service Commission. The Secretary will be responsible for:

Day-to-day management of the Tribunal’s affairs
Record keeping in respect of tax appeals filed, judgments delivered and negotiated settlements
Policy and strategic leadership of the Tribunal under the guidance of the Chairperson

Digitalization of processes

The Bill proposes digitalization of the TAT processes, which means communication may through electronic means as well as in paper format (writing). These processes include:

A notice of appeal to the TAT being made by electronic means
Application for extension of time for filing a notice of appeal
Communication of hearing dates
Withdrawal of an appeal

Review process at the TAT

The Bill proposes the introduction of an application for review to the TAT when a party is not in agreement with a decision or decree of the TAT. The application is to be made within seven days from the date of the decision provided an appeal has not been referred to the High Court.

A party may apply for review under the following circumstances:

Where there is discovery of new and important evidence which, despite the exercise of due diligence, was not within the knowledge of the applicant seeking a review or could not have been produced at the time the decree or order was made
Where there is an error apparent on the face of the record
For any other sufficient reason

The TAT may upon receipt of an application for review set aside, vary or affirm the decree or the order stating reasons for the review as it deems fit.

Appeals to the High Court

Lastly, the Bill proposes the introduction of a two-day time limit within which a party who has filed an appeal with the High Court serves the notice of appeal to the other party.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young (Kenya), Nairobi