30/07/2026
Case Reference:Kinya v Kenya Revenue Authority (Tax Appeal E374 of 2025) [2026] KETAT 224 (KLR) (27 July 2026) (Judgment)
The Background of the Dispute
Rynus Njiru Kinja is a sole proprietor operating a business in Nairobi. His business model was simple: he collected drums from informal traders who did not issue invoices or receipts, received money from a principal client, and passed those funds to the small traders through M-Pesa or cash. He issued receipts to the principal to confirm delivery, believing he was merely acting as an agent rather than making taxable sales.
However, during a review, KRA identified discrepancies in the taxpayer's VAT declarations. Using withholding VAT certificates issued by the principal, KRA concluded that Mr. Kinja had under-declared his taxable sales and raised an additional VAT assessment of Kshs. 26,402,401.1.
The taxpayer objected on January 21, 2025, arguing that he was acting as an agent and that the amounts received were merely disbursements. He also claimed that his records had been destroyed in a fire and that his accountant had vanished with the remaining documentation. KRA accepted the late objection on February 4, 2025, and requested supporting documents. When none were provided, KRA issued an Objection Decision on March 20, 2025, upholding the assessment. Aggrieved, Mr. Kinja lodged an appeal before the Tax Appeal Tribunal on April 18, 2025.
The Issue for Determination
The central issue was whether the Respondent's Objection Decision was justified, and whether the Appellant had discharged its burden of proof under Section 56(1) of the Tax Procedures Act.
Mr. Kinja's position was that KRA erred by charging VAT on disbursements made to third parties, contrary to Section 13(5) of the VAT Act, which excludes such payments from taxable value when a supplier acts as an agent. He further argued that his records were lost in a fire and that some records were taken by his accountant who had since disappeared. He also claimed that KRA had used repeated withholding certificates on one invoice, leading to double charging of VAT.
The Commissioner's position was that Mr. Kinja had failed to provide any supporting documents to substantiate his claims. Without primary records such as an agency agreement, payment schedules, M-Pesa statements, or bank records, the taxpayer could not prove that the amounts received were merely disbursements and not taxable sales.
The Tax Appeal Tribunal's Decision
The Tribunal reviewed the records and ruled against the taxpayer. The key findings were as follows:
On the Agency and Disbursements Claim:
The Tribunal applied Section 13(5) of the VAT Act but emphasized that the burden rests upon the taxpayer to demonstrate the existence of an agency relationship. Mr. Kinja produced no agency agreement, contractual documents, payment schedules, M-Pesa statements, or bank records. The Tribunal stated: "Mere assertions that one acted as an agent are insufficient to establish an agency relationship for tax purposes."
On the Loss of Records Due to Fire:
The Tribunal acknowledged that loss of records may present practical difficulties but observed that Section 23 of the Tax Procedures Act imposes upon every taxpayer the obligation to maintain and preserve tax records for at least five years. Mr. Kinja produced no independent evidence of the alleged fire, such as police abstracts, fire reports, or insurance claims.
On the Duplicated Withholding Certificates:
Mr. Kinja failed to provide the promised reconciliation list, the allegedly duplicated certificates, or any invoice matching schedules. The Tribunal reiterated that allegations of double taxation must be supported by documentary evidence.
On the Burden of Proof:
The Tribunal applied Section 56(1) of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act, finding that the taxpayer bears the burden of proving that an assessment is excessive or incorrect. The Tribunal stated: "The Appellant's failure to establish the existence of an agency arrangement, to substantiate the alleged loss of records, and to provide the promised reconciliation means that it has failed to discharge the burden of proof."
The Final Result
The Tribunal dismissed the appeal, upheld the Commissioner's Objection Decision dated March 20, 2025, and ordered each party to bear its own costs.
LESSONS:
This case underscores the critical importance of maintaining proper records and understanding the burden of proof in tax disputes. Here are my key recommendations for taxpayers:
Maintain Proper Records: Section 23 of the Tax Procedures Act requires taxpayers to keep records for at least five years. Implement a centralized document management system with digital backups and cloud storage to safeguard against physical loss.
Document Everything: Agency relationships, disbursements, and exemptions must be proven with concrete evidence. Ensure you have written agreements, payment schedules, and bank records to support your position.
Report Losses Immediately: If records are lost, report to the police and insurers immediately to create an independent paper trail. Keep copies of police abstracts, fire reports, and insurance claims.
Understand the Burden of Proof: In tax disputes, the taxpayer bears the burden of proving the assessment is incorrect. Mere assertions and verbal explanations are not enough.
Seek Professional Advice Early: Engage a qualified tax professional to assist with record keeping, tax compliance, and dispute resolution.
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