Cellini Holdings Limited v Commissioner of Domestic Taxes [2025] KETAT 211 (KLR) | Capital Gains Tax | Esheria

Cellini Holdings Limited v Commissioner of Domestic Taxes [2025] KETAT 211 (KLR)

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Cellini Holdings Limited v Commissioner of Domestic Taxes (Tax Appeal E710 of 2024) [2025] KETAT 211 (KLR) (10 April 2025) (Ruling)

Neutral citation: [2025] KETAT 211 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E710 of 2024

CA Muga, Chair, T Vikiru & BK Terer, Members

April 10, 2025

Between

Cellini Holdings Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

Background 1. The Applicant moved the Tribunal vide a Notice of Motion dated 20th March, 2025 and filed on even date seeking the following Orders;a.Spent.b.Spent.c.That the question of leave to file an amended Statement of Facts and Supplementary Record of Appeal be heard and determined in limine before resumption of the adjourned hearing.d.That the Tribunal be pleased to grant the Appellant leave to file their Amended Statement of Facts and Supplementary Record of Appeal.e.That the Amended Statement of Facts and Supplementary Record of Appeal be admitted as being duly part of the Record.f.That the costs of this Application be in the cause.

2. The Application was supported by a sworn affidavit of Paul Kinuthia Muchene a director of the Appellant, dated and filed on 20th March, 2025 wherein the Appellant cited the following as its grounds for the Application:a.That resumption of the substantive Appeal before granting leave to the Appellant to file the Amended Statement of Facts and Supplementary Record of Appeal may be an impediment to the Tribunal in their quest to effectively determine the dispute in the Appeal.b.That in conformity with the directions of the Tribunal on 20th March, 2025, it would be most imperative that leave be granted, the same be admitted and deemed duly filed and on record.c.That as it stands the Appellant’s Record of Appeal was not whole owing to the novice evidence that has been retrieved and it was its plea that the same be admitted in order to meet the ends of justice unless the Application is granted.d.That the documents the Appellant sought to be relied upon were as follows:i.Confirmation Letter from the County Government of Kajiado, Department of Lands, Physical Planning and Urban Development; Physical Planning Section;ii.Form LRA 49 Registered and sealed on 26th April 2023 evidencing Transfer of Title Nairobi/Block14/284 from Cellini Holdings to Gran Movimiento Limited;iii.Duly executed Transfer Deed form LRA 49 evidencing transfer of Nairobi/Block 14/ 284 from Gran Movimiento to Thatcham Limited;iv.Certificate of Title for Nairobi/Block 14/284 in favour of Gran Movimiento Limited;v.Gran Movimiento Limited CR 12 as at 16th February, 2025;vi.Certificate of Title for IR 30455/4 (Nairobi/Block 14/ 284);vii.Domestic RTGS transfers for the purchase price for Nairobi/Block 14/ 284 from Gran Movimiento to Pevans; andviii.Pevans East Africa Limited Board Resolution resolving to sell Nairobi/Block 14/ 284 to Gran Movimiento.e.The Appellant’s hearing and arguments will be buttressed and pegged on the above cited, exonerating and intrinsic evidence to be adduced in the Supplementary Record of Appeal and documents filed herein contemporaneously.f.That granting of the prayer to file and or adopt the amended Statement of Facts and Supplementary Record of Appeal filed herein contemporaneously was critical to a full and final determination of the Appeal.g.That having studied the objection decision of the Respondent upholding the tax assessment against the Appellant, the Appellant is heavily persuaded that it had good grounds to beseech the Tribunal to grant it leave to file the amended Statement of Facts and Supplementary Record of Appeal and render them properly on record.h.That on the other hand, resumption of the hearing of the Appeal before granting leave to file the amended Statement of Claim[sic] and Supplementary Record of Appeal may result in a situation where intrinsic parts of the dispute were left unresolved amicably and may spill over to the High Court and even Court of Appeal.i.That considering the fact that this is the first Appeal, the failure to grant leave to file the amended Statement of Facts and Supplementary Record of Appeal would eternally bar the Appellant from ever filing the said documents as matters of fact and evidence could not be raised in second and subsequent Appeals.j.Granting of the Application prayers at this stage would advance the overriding objective of the Tribunal and avoid a multiplicity of proceedings.k.That it was in the best interest of equity and justice that this Application be allowed. Granting this Application will enable the Court to dispense justice effectively, expeditiously, affordably and in line with Article 159 of the Constitution of Kenya, 2010.

3. In response to the Application, the Respondent filed an opposing replying affidavit sworn by Mr. Henry Rotich, an officer of the Respondent dated and filed on 28th March, 2025 as directed by the Tribunal wherein it stated the following as its grounds:a.That from the records available to the Tribunal the Respondent conducted a compliance check on the tax affairs of the Appellant in relation to Capital Gains Tax (hereinafter “CGT”) on two parcels of land namely Land Reference Number Kajiado/Kaputiei North 2141 and Nairobi/Block No. LR. 14/284. b.That from the review, it was established that the Appellant was not compliant and proceeded to raise default assessments amounting to Kshs. 25,739,867 for the tax period October 2022 and April 2023. c.That while the Appellant lodged a Notice of Objection on 12th March 2024, upon review of the same the following was noted by the Respondent:i.It issued its objection decision on 23rd May 2024 confirming CGT assessments amounting to Kshs. 27,150,550. 00 and allowed payments of Kshs. 791,950. 00 paid in relation to property no. LR 14/284 upon making the following findings: That the Appellant provided the following documents for review: - Purchase agreement and sale agreement;

Land transfer instruments;

Copies of Title deeds;

I-tax records and information;

electronic mail correspondence from the Taxpayer; and

correspondences from the lawyers Muchoki Kangata Njenga and Company Advocates and Nyachae & Ashivata Advocates.

Property No. LR KJD/Kaputiei North 2141 sold to Kikora Ltd: Review of the documents provided revealed that the Appellant did not demonstrate that the land is an agricultural land and solely used for farming;

The review of income tax returns shows that the Appellant had never reported farming income;

Whereas the Appellant argued that the land is exempt based on the provisions of the Income Tax Act, CAP 470 of Kenya’s Laws (hereinafter “ITA”), first schedule paragraph 36 (d)(ii), there was no further relevant document availed to support the said claim;

The fact that the stamp duty paid @2% rate does not prevent the transfer of land to attract a CGT as it can be utilized for commercial purposes;

While the Appellant argued to have incurred incidental costs prior to the sale, no documents were provided to support the same; and

From the foregoing, the ground of objection was not successful.

Property No. LR Nairobi/Block 14/284 Sold to Gran Movimiento: It was noted that the agreement for sale was made on 23rd May 2013 between Christopher Mwangi Chege (vendor) and Cellini Holdings Limited (the purchaser) to transfer the property LR. No. 330/720 Naivasha Road at the value of Kshs. 91,000,000. 00. The Appellant had not fully supported the cost of acquisition to be factored in computing CGT.

Review of the Appellant's income tax returns for the period has never indicated the existence of the parcel of land acquired as an asset.

The Company filed the self-assessment return and paid CGT amounting to Kshs.791,950. 00 on 18th March 2021. The interim payment of CGT on property Nairobi Block LR. 14/284 was considered in computing revised CGT payable.

The Respondent also noted that the Appellant included incidental expenses amounting to Kshs. 13,161,000. 00 however this was not supported by relevant documents.

The transaction between the Appellant and other parties prior to the transfer by the registrar of land are private and beyond the scope of the Respondent. The Appellant was then advised to address the same privately amongst themselves.

The transfer of property to Gain Movimiento Limited was effected in April 2023 hence applicable CGT rate is 15% and not 5% as determined by the Respondent.

The sale agreement provided established that the parties entered into an agreement for sale of property LR. No. 30772 on 25th August 2022, however, the transfer date was 18th April 2023 as per the stamp duty payment of Kshs. 6,000,000. 00 made by the purchaser, the value of the land being Kshs. 150,000,000. 00.

The tax point for CGT is upon registration of the transfer instrument in favour of transferee.

The Transfer of ownership took place in 2013[sic] when effective rate for CGT was 15% therefore the Appellant's notice of objection was partially accepted.

In calculating the CGT, the Respondent factored in the payment of Kshs. 791,950. 00 and the Tax liability was then reviewed as follows:d.That the Appeal herein as evidenced by the Notice of Appeal dated 25th June 2025 and the Memorandum of Appeal dated 25th June 2024 was against the decision of the Respondent issued on 23'" May 2024 in which decision the Appellant failed to provide the documents to support its Objection.e.That the objection decision was reviewed and issued in line with the provisions of Section 51(8), (9) and (10) of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”) based on the grounds of objection and documents put forth by the Appellant and thus, the Respondent's objection decision remained valid.f.That Section 51 (8), (9) and (10) of the TPA provide as follows:“(8)Where a notice of objection has been validly lodged within time, the Commissioner shall consider the objection and decide either to allow the objection in whole or in part, or disallow it, and Commissioner's decision shall be referred to as an "objection decision".(9)The Commissioner shall notify in writing the taxpayer of the objection decision and shall take all necessary steps to give effect to the decision, including, in the case of an objection to an assessment, making an amended assessment.(10)An objection decision shall include a statement of findings on the material facts and the reasons for the decision.”g.That in the Application filed by the Appellant herein, the Appellant sought to introduce documents which it failed to provide at the point of objection as provided for in Section 51(3) (c) of the TPA.h.That Section 51(3) (c) of the TPA provides as follows:“3)A notice of objection shall be treated as validly lodged by a taxpayer under Subsection (2) if-a.the notice of objection states precisely the grounds of objection, the a1nend1nents required to be 1nade to correct the decision, and the reasons for the amendments; andb.in relation to an objection to an assessment, the taxpayer has paid the entire amount of tax due under the assessment that is not in dispute.c.All the supporting documents have been provided…”i.That the main aim and intention of introduction of the said: documents is to patch up the gaps that were noted by the Respondent at the objection stage. In particular, the Appellant was now attempting to provide documents which: Answer to the land type in dispute in LR Kajiado/ Kaputiei North 2021 as well as the issue of the incidental[sic]whereas the objection stage when the Appellant was asked to provide a map, photos of the land or to take the Respondent for a site visit, it declined to do so. The costs claimed have still not been supported.

Answers to the purchases claimed as well as the proof of payment during the purchase of land in LR Nairobi Block No. 14/284.

That even though the Appellant's documents on the face of it appear to cover the gaps noted, the Respondent's assessment team has to be given an opportunity to look at the said documents and reach at an independent finding on its validity and effect to the Appeal thus the matter is best referred back to the Respondent for review within 60 Days.j.That the production of the new documents in this case will very much prejudice the Respondent's case as follows: The said documents which the Appellant sought to introduce were not in the Respondent's view at the point of making the objection decision, a fact which was acknowledged by the Appellant's Counsel on 20th March 2025 when the matter came up for Hearing and in this Application.

In fact, the Respondent highlighted in its decision that the documents were requested for but were not provided.

The introduction of the new documents means that the Respondent’s review at the objection stage and as provided for in Section 51 (8) and (9) of the TPA is rather a sham exercise in the eyes of the Appellant as if the Application is allowed documents can be provided even after a decision has been issued yet the Appellant had a chance at the review stage and objection stage to provide the said documents.

Allowing production of the said documents at this point of the Appeal will create a bad and dangerous precedents where Appellant's refuse to produce documents at review/ audit and Objection stages and only provide the same at the Appeal and hearing stage thus jeopardizing the Respondent's statutory mandate.

Moreover, this will interfere with the Respondent's statutory mandate of reviewing the objection and issuing a decision as provided for in Section 51 (8) and (9) of the TPA a mere sham and will encourage the Appellants not to comply with the mandatory provisions of Section 51(3) of the TPA.

Since February 2024 when the Respondent conducted the compliance check and issued the default assessment, the Appellant had all the time to seek the said documents and to provide the same to the Respondent for review at the review stage, at the objection stage and prior to the issuance of the objection decision but chose not to do so.

The Appellant had not explained to the satisfaction of the Respondent why these documents were never provided and is only insisting that the same will aid their case, this is not a sufficient reason for being granted the orders sought.

That the Tribunal and the High Court have in numerous occasions disallowed Applications of such nature as the one herein and held that if a document was not provided at the objection stage the same cannot be produced at the Appeal stage. That the High Court on 25th March,2025 in HCITA no. E128 OF 2024 in BAC/GKA JV Company Limited vs. Commissioner of Domestic Taxes has also upheld this position.

The Appellant had initially filed an application seeking leave to file the additional documents out of time which was disallowed. If the A [sic].

Allowing the Application will be against the statutory provisions of Section 51 of the TPA.k.That the only remedy available to the Appellant at this point, ADR having collapsed, is for the Tribunal to refer the matter back to the Commissioner for review and determination as was decided in TAT Appeal No. 38 of 2022 Avic International Beijing East Africa Company Limited Vs. Commissioner of Customs & Boarder Control.l.That the Appellant had numerous chances to provide the supporting documents at the review stage and at the objection stage as provided for in Section 51(3) of the TPA which the Appellant failed to comply with.m.That it was not enough for the Appellant to claim that there is no undue delay in filing the Application, the Appellant ought to give sufficient and reasonable grounds for not providing the said documents to the Respondent and explain why it should now be allowed to file the documents in question.n.That the objection decision issued in this matter was anchored on what the Appellant provided at the objection stage however what the Appellant is striving to provide at this stage are the same documents which the Appellant refused to provide earlier making it very clear that it is patching up the gaps that had been noted in the objection stage.o.That the Appellant had sufficient chances and opportunity during the review stage, the objection stage and on the other side at ADR to produce all the necessary documentary evidence and cannot now claim that there is a new document to be introduced at this stage.p.That it was not enough to state that the Appellant has not provided reasonable and sufficient reasons and or explanation why these documents were not provided earlier as this is more than one year since the review was done as such the Application is a mere afterthought and a ploy to cover that which it failed to do.q.That should the Tribunal allow the production of the said documents, the same will change the dynamics of the case and the decision in dispute in this Appeal.r.That allowing the production of the documents will also be a miscarriage of justice on the part of the Respondent who in reviewing the notice of objection and issuing the objection decision was acting in compliance with the statutory mandate bestowed upon it by the Kenya Revenue Authority Act, CAP 469 of the Laws of Kenya the TPA and the Constitution of Kenya 2010 and all the enabling laws.s.That the Respondent will be highly prejudiced if the Application is allowed and prays that the same be disallowed.t.That the Application herein is a violation of the rules of procedure on objections and appeals as provided for by the TPA.u.That the Appellant had failed to meet the threshold for grant of leave to adduce additional evidence as in the Respondent's view, the Appellant having[sic].v.That the Respondent acted in accordance with the Law and those were sound policy decisions, which this Court should be extremely reluctant to interfere with in its ongoing processes.w.That the Notice of Motion Application dated 20th March 2025 and pray that the same be dismissed with costs.

4. On 21st March, 2025 parties were directed by the Tribunal to file their respective written submissions on or before 4th April, 2025. Neither party complied with the Appellant filing its written submissions on 8th April, 2025 and the Respondent filing its written submissions on 6th April, 2025. outside of the timelines as directed by the Tribunal on 21st March, 2025. The Tribunal has not therefore considered the written submissions as directed on 21st March, 2025.

Analysis and Findings 5. The Tribunal notes that the Appellant herein was seeking the indulgence of the Tribunal to allow it to file an interlocutory application to submit additional documents, file amended supplementary statement of facts and introduce new witnesses. The Appellant had filed an appeal against the objection decision by the Respondent which had brought the capital gains from the sale of two properties to charge. The Respondent opposed this Application on the basis that the documents the Appellant sought to introduce would be prejudicial to its case and further that the objection decision was not based on the documents the Appellant sought to introduce. The Respondent in its Replying affidavit even went as far as to direct the Tribunal on how to decide on the Appeal by urging the Tribunal to return the assessment to it for reconsideration as it did in the case TAT Appeal No. 38 of 2022 AVIC International Beijing East Africa Company Limited Vs. Commissioner of Customs and Border Control.

6. The Tribunal’s power to determine an application of this nature is anchored on the following provisions of Rule 21 of the Tax Appeals Tribunal (Procedure) Rules 2015:21. Amendment of pleadings“A party may at any time before the closure of the case, orally apply to amend its pleadings and the Tribunal may, at its discretion, allow such application on such terms and conditions including granting leave to the other party to amend its pleadings provided the amendments do not raise new issues.”

7. The Tribunal also notes the following provisions of Section 13 (6) of the TATA:“The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which the decision relates. " (Emphasis added)

8. The Tribunal therefore has jurisdiction to determine the matter on whether to allow additional documentary evidence. The Tribunal is also guided by the following holding in the case of Commissioner of Income Tax-vs-Total Kenya Limited [2021] eKLR in making its determination on whether to allow the Appellant to file additional documents:“In Tarmohamed & Another v. Lakhani & Company [1958] EA 567, the Court of Appeal for Eastern Africa adopted the decision in Ladd v. Marshall [1954] WLR 1489 and stated: -Except in cases where the application for additional evidence is based on fraud or surprise: to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given. it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.In Wanjie & Others v. Sakwa & Others {19841 KLR 275. in considering the need for restricting reception of additional evidence under Rule 29 of the Court of Appeal Rules, Chesoni JA observed at pg 280 thus: -“This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorise the admission of additional evidence for the purpose of removing lacunae and filing in gaps in evidence. The appellate court must find it needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”From the foregoing, it is clear that the power to admit additional evidence is discretionally. However, it should be exercised restrictively. That the evidence should be needful and not meant to patch up an applicant's case on appeal. Finally, the power should be exercised sparingly but for the ends of justice. In the present case, the evidence was in the possession of the applicant during the trial before the tribunal. However, it was contended, and not controverted, that it was not produced at the trial because the parties knew or conducted themselves in a manner suggesting that it was not necessary. This is so because, the parties with knowledge that the mutual agreement process had collapsed, resorted to the appeal before the Tribunal before and without considering the Alternative Dispute Resolution required under Article 24 of the Double Taxation Agreement. This is the Article the Tribunal relied on to determine the matter against the applicant.”The Court has considered that the evidence sought to be relied on is needful. This is so because there was no contention that the respondent had raised the issue of jurisdiction before the Tribunal. It was submitted that that was the case because the parties knew of the position of the MAP that there was no requirement for ADR before approaching the Tribunal.The Court is persuaded that, if it be true that the Tribunal's decision was based on the unavailability of the intended evidence and reliance thereon was suo motto, that piece of evidence would have been crucial to the applicant's case. There would be no prejudice to be suffered if the said evidence is adduced at this stage. "

9. In the case of Mohamed Abdi Mahmud-vs-Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR the Supreme Court expressed itself by holding as follows:“We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:a.the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;b.it must be such that. if given. it would influence or impact upon the result of the verdict. although it need not be decisive;c.it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;d.Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;e.the evidence must be credible in the sense that it is capable of belief,f.the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;g.whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;h.where the additional evidence discloses a strong prima fade case of wilful deception of the Court;i.The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.j.A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.k.The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. " (Emphasis added)

10. Guided by statute and the principles outlined in the authoritative and persuasive precedents as outlined in the previous paragraphs, the Tribunal infers that though the Appellant incorrectly referred to a record of Appeal, it sought to adduce additional documentary evidence which it was of the view would assist the Tribunal to have clarity on its case. It is notable that the documents were not provided at the formative stage of the dispute and it is therefore the mandate of the Tribunal to determine whether or not the documents will bring clarity on the matter in dispute.

11. The Tribunal notes the Appellant’s attempts to appeal against the decision of the Respondent in that the Appellant applied to enjoin third parties to the suit with its Application being dismissed by the Tribunal vide a Ruling delivered on 24th January, 2025. Further on, the Appellant’s first Application to file additional documents was struck out by the Tribunal on the basis that the Application was improperly filed as it was premised on Civil Procedure Rules and further that the Appellant did not specify the documents it wished to add.

12. When the matter came up for hearing, the Tribunal took into consideration the Applications brought before it and having considered the same, the Tribunal is of the view that it could not deny the Appellant a right to be heard and it has now given the Appellant a final opportunity to express itself before the conclusion of the case. The further view of the Tribunal is that the following documents as listed by the Appellant are critical in supporting the Tribunal to clarify the facts of the dispute its final decision:i.Confirmation Letter from the County Government of Kajiado, Department of Lands, Physical Planning and Urban Development; Physical Planning Section;ii.Form LRA 49 Registered and Sealed on 26th April 2023 evidencing Transfer of Title Nairobi/Block14/284 from Cellini Holdings to Gran Movimiento Limited;iii.Duly executed Transfer Deed form LRA 49 evidencing transfer of Nairobi/Block 14/ 284 from Gran Movimiento to Thatcham Limited;iv.Certificate of Title for Nairobi/Block 14/284 in favour of Gran Movimiento Limited;v.Gran Movimiento Limited CR 12 as at 16th February, 2025;vi.Certificate of Title for IR 30455/4 (Nairobi/Block 14/ 284);vii.Domestic RTGS Transfers for the purchase price for Nairobi/Block 14/ 284 from Gran Movimiento to Pevans; andviii.Pevans East Africa Limited Board Resolution resolving to sell Nairobi/Block 14/ 284 to Gran Movimiento.1. The Tribunal’s discretion, pursuant to the provisions of section 13 (6) of the TATA, is limited by the provisions of Order 21 of the Tax Appeals Tribunal (Procedure Rules), 2015.

13. The Tribunal is of the further view that the documents that the Appellant wishes to adduce as additional documentary evidence are at the core of the dispute where the Appellant is challenging the Capital Gains Tax assessed by the Respondent and the additional documentary evidence will be interrogated by the Tribunal and will influence how the Tribunal will make its decision.

14. It is the view of the Tribunal that the tests prescribed in Mohamed Abdi Mahmud case [SUPRA] have been met to the extent that the additional documents and supplementary statement of facts sought to be adduced will eliminate vagueness or doubt over the dispute and has a direct bearing on the main issue in the Appeal. The Tribunal has not found any evidence to suggest the Applicant’s additional documentary evidence or supplementary statement of facts are calculated to be utilized for the purposes of removing lacunae and filling gaps in evidence. The documents are relevant to the Appeal and it is in the interests of justice and fairness to allow the same to be admitted in evidence.

15. The Tribunal reiterates its holding in the case of Alliance TobaccoLimited vs Commissioner of Legal Services & amp; Border Control [TAT Appeal No. 42 of 2024] to support the position that the guiding principle in applications to amend pleadings is that the same will be liberally and freely permitted unless prejudice and injustice will be occasioned to the opposite party. The Respondent did not prove the grave prejudice it is likely to suffer should the additional documentary evidence be admitted by the Tribunal.

16. The Tribunal notes however, that the Appellant did not attach the proposed witness statements of the new witnesses it proposes to introduce and therefore it was unable to determine whether or not the witnesses would raise new issues at this late stage of the proceedings. Accordingly, the Tribunal will neither allow the introduction of new witnesses nor the amendment of the witness statements already on record.

Disposition 17. The Tribunal is inclined to exercise its discretion in favour of the Appellant and allow a similar latitude in filing any additional documents by the Respondent for the purposes of balancing out the competing interests of the parties in the Appeal.

18. The Orders that accordingly recommend themselves are as follows:i.The Appellant be and is hereby granted leave to file a Supplementary Statement of Facts and to attach to it the following additional documents:i.Confirmation Letter from the County Government of Kajiado, Department of Lands, Physical Planning and Urban Development; Physical Planning Section;ii.Form LRA 49 Registered and Sealed on 26th April 2023 evidencing Transfer of Title Nairobi/Block14/284 from Cellini Holdings to Gran Movimiento Limited;iii.Duly executed Transfer Deed form LRA 49 evidencing transfer of Nairobi/Block 14/ 284 from Gran Movimiento to Thatcham Limited;iv.Certificate of Title for Nairobi/Block 14/284 in favour of Gran Movimiento Limited;v.Gran Movimiento Limited CR 12 as at 16th February, 2025;vi.Certificate of Title for IR 30455/4 (Nairobi/Block 14/ 284);vii.Domestic RTGS Transfers for the purchase price for Nairobi/Block 14/ 284 from Gran Movimiento to Pevans; andviii.Pevans East Africa Limited Board Resolution resolving to sell Nairobi/Block 14/ 284 to Gran Movimiento.b.The Appellant’s supplementary statement of facts and additional documents as listed in Order (a) above, dated and filed on 20th March, 2025 are deemed as having been duly filed and served.c.The Respondent be and is hereby granted corresponding leave to file and serve any Supplementary Statement of Facts and additional documents within Five (5) days of the date of the date of this Ruling.d.The Appeal will be heard on 17th April, 2025. e.No orders as to costs.

DATED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF APRIL, 2025. …………………………CHRISTINE A. MUGA - CHAIRPERSON**………………………DR. TIMOTHY B. VIKIRU - MEMBERBONIFACE K. TERER - MEMBER