THE INCOME TAX (APPEALS TO THE HIGH COURT) RULES:Rules under section 91
L.N.105/1974 L.N.41/1980Citation.
1. These Rules may be cited as the Income Tax (Appeals to the High Court) Rules.Interpretation
2. In these Rules, unless the context otherwise requires –"address for service" means a place of residence or a place of business within the jurisdiction; "appeal" means an appeal to the Court under section 86(2);
"memorandum" means a memorandum of appeal presented under rule 3;
"Registrar" means the Registrar or a Deputy Registrar of the Court;
"respondent" includes a person who under section 89(3) is entitled to appear before a committee;
"section" means a section of the Act.
Form of and time of filing appeal.
3. No appeal shall be filed unless a memorandum of appeal is presented to the Registrar during office hours, and a copy served upon the respondent, within 30 days after the date of service upon the respondent of a notice of appeal under section 86(2); but where the Court is satisfied that, owing to absence from Kenya, sickness, or other reasonable cause, the appellant was prevented from presenting the memorandum of appeal within that period and that there has been no unreasonable delay on his part, the Court may extend that period.Form of memorandum
4. A memorandum shall contain an address for service, shall be signed by the appellant or his advocate and shall set out concisely under distinct heads, numbered consecutively, the grounds of appeal without argument or narrative.Statement of facts of appellant.
5. A memorandum shall be accompanied by -- (a) a copy of the decision or the notice of the decision appealed against;
- (b) a copy of the notice of appeal served on the respondent; and
- (c) a statement, signed by the appellant or his advocate, setting out the facts upon which the appeal is based, and respectively specifying and referring to documentary or other evidence which it is proposed to adduce at the hearing of the appeal.
Registration of Memorandum.
6.(1) After the memorandum and the documents referred to in rule 5 have been presented, and all filing and service fees due in relation thereto have been paid, the Registrar shall cause the date of presentation to be date-stamped thereon, and the appeal shall be numbered and entered (as an Income Tax Appeal) in the register of appeals, in accordance with rule 8(1) of Order XLI of the Civil Procedure Rules.(2) After entry of an appeal in the register of appeals as provided in paragraph (1), the Registrar shall ensure that, in respect of all documents relating to the appeal, the words "Income Tax Appeal" and the number of that appeal are included in the title of the appeal wherever the title occurs.
(3) The date on which the memorandum is presented is the date of filing of the appeal notwithstanding any dispute as to the amount of any service fee payable.
Abatement of appeals.
6A. An appeal shall abate in any case where any filing and service fees due in relation to that case have not been paid in full within fourteen days of the appellant having been notified of the total amount of the fees payable by him, and where an appellant is so notified by post he shall be deemed, until the contrary is proved, to have received notification at the time at which the letter would be delivered in the ordinary course of post.Service of Memorandum of Appeal.
7. A copy of the memorandum of appeal and the documents referred to in rule 5 shall be served by the Registrar upon the respondent upon payment of the prescribed fee for service thereof, but in a case referred to in section 89(3)(c) service shall be made by the appellant.Statement of facts of respondent.
8. The respondent shall, if he intends to contest the appeal, present to the Registrar, during office hours and within thirty days of the service upon him of the copy of memorandum and the documents referred to in rule 5, a statement in duplicate each signed by him, giving an address for service, setting out the facts on which he relies, and respectively specifying and referring to documentary or other evidence which he proposes to adduce at the hearing of the appeal, and a copy of the statement shall be served by the Registrar upon the appellant upon payment of the prescribed fee for service thereof.Notice and place of hearing
9. Unless the parties otherwise agree, the Registrar shall give fifteen clear days’ notice in writing to the parties of the date and place fixed for the hearing of the appeal.Right to begin
10. (1) On the day at the time fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.(2) The Court shall, if it does not dismiss the appeal at once, hear the
respondent and the appellant shall be entitled to reply.
(2) Where the appellant appears and the respondent does not appear, the Court may proceed to hear the appeal ex parte .
(2) If no appeal is pending, the summons shall be entitled in the matter of the intended appeal.
Dismissal of Appeal for Appellant’s Default
11.(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may, subject to section 87(2)(a), make an order that the appeal be dismissed.(2) Where the appellant appears and the respondent does not appear, the Court may proceed to hear the appeal ex parte .
Readmission of Appeal dismissed for default.
12. Where an appeal is dismissed under rule 11 the appellant may Apply to the Court to which the appeal is preferred for the readmission of the appeal, and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit.Rehearing on application of respondent against whom ex parte decree made.
13. Where an appeal is heard ex parte and judgement is pronounced against the respondent, he may apply to the Court to which the appeal is preferred to rehear the appeal; and if he satisfies the Court that the memorandum of appeal and the documents referred to in rule 5 were not duly served, or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.Grounds of appeal.
14. The appellant shall not, except by leave of the Court and upon such terms as the Court may determine, rely on a ground other than a ground stated in the memorandum of appeal.Additional evidence.
15. Should it appear to the Court at the hearing of the appeal that documentary or oral evidence other than that referred to in the statement of facts of the appellant or respondent should be admitted, the Court may admit that evidence.Copies of documents admissible.
16. Subject to section 121 and save where the Court in a particular case otherwise directs or where a party to the appeal objects, copies of documents shall be admissible in evidence, but the Court may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.Proceedings in chambers.
17. (1) Ancillary applications to a judge, if not made at the hearing, shall be made by summons entitled in the matter of the appeal, supported by affidavit.(2) If no appeal is pending, the summons shall be entitled in the matter of the intended appeal.
Execution of decree where tax payable not set out therein.
18. Where a decree following the decision of the Court does not specify the amount of tax payable under the assessment as determined by the Court then, for the purposes of the execution of that decree, the Commissioner shall -- (a) where the decision of the Court results in an amendment to the assessment, file with the Registrar a copy, certified by him, of a notice served under section 87(2)(f) on the person assessed; or
- (b) where the decision does not result in an amendment to the assessment, file with the Registrar a statement signed by him setting out the amount of tax payable under the notice of assessment served under section 78 or the amending notice, as the case may be, and thereupon that decree shall have effect as if it were a decree for the payment of the amount of tax set out in the notice or statement, as the case may be.