Inland Africa Logistics Limited v Commissioner of Investigation and Enforcement [2024] KETAT 274 (KLR) | Tax Assessment Timelines | Esheria

Inland Africa Logistics Limited v Commissioner of Investigation and Enforcement [2024] KETAT 274 (KLR)

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Inland Africa Logistics Limited v Commissioner of Investigation and Enforcement (Tax Appeal 974 of 2022) [2024] KETAT 274 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KETAT 274 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 974 of 2022

E.N Wafula, Chair, Cynthia B. Mayaka, RO Oluoch, T Vikiru & AK Kiprotich, Members

March 8, 2024

Between

Inland Africa Logistics Limited

Appellant

and

Commissioner of Investigation and Enforcement

Respondent

Judgment

Background 1. The Appellant is a private limited company incorporated in Kenya, whose principal activity of that of clearing and forwarding agency and sugar importation.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority (KRA) Act, and KRA is charged with the responsibility of among others, assessment, collection, accounting and the general administration of tax revenue on behalf of the Government of Kenya.

3. On 27th September, 2021, the Commissioner raised Corporate Tax additional assessments amounting to Kshs. 761,423,596. 54.

4. On 30th September, 2021, the Commissioner raised Income Tax - PAYE additional assessments amounting to Kshs. 445,896,393. 70.

5. On 1st October, 2021, the Commissioner raised Value Added Tax additional assessments amounting to Kshs. 122,754,275. 00.

6. The Appellant objected to the said assessments in their entirety on 26th October, 2021, 27th October 2021 and 26th October 2021, respectively.

7. The Appellant further lodged a detailed notice of objection on 11th December, 2021

8. The Respondent issued an objection decision on 11th August, 2022 wherein the tax demanded was revised downwards to Kshs, 497,709,467. 00.

9. Following its dissatisfaction with the Respondent’s decision, the Appellant appealed by filing a Notice of Appeal to the Tribunal on 8th September, 2022.

The Appeal 10. The Appeal is premised on the following grounds as stated in the Appellant’s Memorandum of Appeal dated 7th September, 2022 and filed on 8th September, 2022:-i.That the Commissioner erred and acted ultra vires the provision of Section 51 of the Tax Procedures Act, 2015 by issuing an objection decision outside sixty days from the date the objection was lodged by the taxpayer.ii.That the objection decision was erroneous and based on assumptions as opposed to a true record of their tax position.iii.That the Commissioner erred in facts and in law in its demand for taxes without sharing the findings with the taxpayer before objection decision.iv.That the Commissioner erred in facts and in law in its demand for taxes on disbursement money. Disbursement money is client money that is used to pay client expenses. Disbursement made on behalf of the Appellant’s clients shall be excluded taxable amount.v.That the Commissioner erred in facts and in law in its demand for corporation tax on disbursements money in the financial year 2015 and 2016. The assessment is not based on the material facts provided.vi.That the Commissioner erred in facts and in law in its demand for corporation tax on work-in-progress adjustments in the financial year 2017 and 2018. Disbursement income received at the end of the financial year, whose disbursement expenditures fall in another financial year are recorded as work-in-progress.vii.That the Commissioner erred in law and facts by relying on bank statements credit and debit to demand PAYE tax in 2015, 2016 and 2017 as opposed to using the basic principles of accounting and material facts that were provided.viii.That the Commissioner erred in law and facts by relying on bank statements credit and debit to demand Corporation Tax and Value Added Tax in the financial year 2018 as opposed to using the basic principles of accounting and material facts that were provided.ix.That the Commissioner erred in facts and in law in its demand for Corporation tax on sugar imports in the year 2014. The assessment is not based on the material facts provided.x.That the Commissioner erred in facts and in law in its demand for Value Added Tax on understated sugar sales in VAT returns for the financial year 2015, 2016, 2017 and 2018. The assessment is not based on the material facts provided.xi.That the Commissioner erred in facts and in law in its demand for Corporation tax on under declared sugar profits in 2015 and 2016. The assessment is not based on the material facts provided.xii.That the Commissioner erred in facts and in law in its demand for Corporation tax on under declared sugar profits in 2015 and 2016. The assessment is not based on the material facts provided.xiii.That the Commissioner erred in facts and in law in its demand for Corporation tax and Value Added Tax on un-invoiced clients using Customs data for the year 2014, 2015, 2016, 2017 and 2018. The assessment is not based on material facts provided.

Appellant’s Case 11. The Appellant’s case is premised on the following documents:i.It’s Statement of Facts dated 7th September, 2022 and filed on 8th September, 2022 together with the documents attached thereto.ii.The Appellant’s submissions dated 21st March 2023 and filed on 22nd March 2023.

12. That on 26th and 27th October 2021, the taxpayer objected to thirteen assessment orders for Corporation tax, Value Added Tax and Income Tax-PAYE through the iTax portal and received objection application acknowledgement receipts.

13. That on 17th February, 2022 a meeting was held between the taxpayer, Commissioners' representatives and the tax agent at Kenya Revenue Authority, Corporate Business Centre, Upper Hill, and 6th Floor Boardroom.

14. That on 22nd February, 2022 the Commissioner’s representative in-charge sent an email requesting specific records which the Appellant provided.

15. That on 15th March 2022, the Commissioner’s representative in-charge of the case replied through email stating that “Your objection has now been validated. We shall revert in accordance with the law”. That thereafter on 11th August, 2022 the Appellant received the subject objection decision from the Commissioner.

16. That the objection decision was issued approximately 289 days from the time the Taxpayer objected the assessment orders to the time objection decision was communicated.

17. That the Tax Procedures Act, 2015, the relevant Section 51(11) provided that:“Where the Commissioner has not made an objection decision within sixty days from the date that the taxpayer lodged a notice of objection, the objection shall be allowed.”

18. That the Commissioner failed to accord the taxpayer a chance to be heard, respond and provide further information of the demanded tax. That the Commissioner's actions were in breach of Articles 47 and 50(1) of the Constitution of Kenya and Section 4(3) of the Fair Administrative Actions Act (FAAA).

19. That the taxpayer a being clearing and forwarding agent, receives money from clients prior to the arrival of the consignment to be cleared. That the taxpayer raises a disbursement invoice as sales to recognize the receipt of the money that are for third party expenses. That when expending the money the taxpayer maintains disbursement expense account for each consignment. That the taxpayer accounts to the client how the money has been utilized by providing third party supporting documents. That the disbursement money is not for the furtherance of the taxpayer's business hence it does not qualify to be taxed under the taxpayer's Pin Number.

20. That when the disbursement money is received in the current financial year and the related expenditures for that consignment are going to be incurred the next financial year, the received money is deferred into the next year by passing journal entry debiting sales account and crediting work-in-progress account. That work-in-progress is like a client account; the money belongs to the client hence shall be excluded from tax.

21. That in regard to variance between Income tax and VAT turnover, the Appellant provided a reconciliation to confirm that it accounted only the net income as turnover i.e. agency fees earned from its business activities which included disbursements and sugar sales in its VAT returns in the year 2015 and 2016.

22. The Appellant further provided a work-in-progress reconciliation.

23. The Appellant submitted that the variance under the year 2019 was in relation to disbursement income which is not vatable.

24. That in relation to undeclared income, the Commissioner relied on bank debits and credits to demand the Income tax PAYE. That the assessment breaches the basic accounting principles. That as regards the demanded PAYE tax, the Commissioner did not allow it as an expense for purposes of Corporate tax and if this is allowed, the taxpayer would suffer the effects of double taxation.

25. That the Commissioner relied on bank debits and credits to demand the Corporation tax and Value Added Tax in the financial year 2018. That the assessment breaches basic accounting principles. That it is common knowledge that every deposit in account is not necessarily income to the taxpayer. That as per the audited accounts, the cash flow statement clearly indicates how the activities were financed in the year 2018. That it shows a decrease in cash and cash equivalents when read together with comparative figures for 2017. That the taxpayer provided bank reconciliations for each bank account and by the taxpayer being a clearing agent, there is possibility of having client money in its bank account.

26. That the Commissioner erred by demanding Value Added Tax on under stated sugar sales in VAT returns. That all invoices for sugar sales are correctly declared under VAT returns. That some invoices were declared in the VAT return under customers not registered for VAT. That there were two invoices declared in the VAT return but the description for goods/services column were wrongly described as agency services rather than sugar sales.

27. That the Commissioner erred by demanding Corporation tax on under declared sugar profits in 2015 and 2016. That further, the Commissioner used wrong figures as sugar sales and wrong figures as cost of sales. That sugar sales leger and purchase ledger together with credit notes were provided.

28. That the Commissioner relied on Custom data to generalize that a total of 533 entries were not invoiced. That transit and local cargo declared, are invoiced at agreed rates which vary from customer to customer. That further, some Customs entries relate to Uganda consignees as the taxpayer is sub-contracted by Apex Commodities to clear the goods. That in that arrangement, the taxpayer invoices Apex Commodities and Apex Commodities invoices its clients. That in that regard, the demanded Corporation tax and Value Added Tax is erroneous and not based on material facts.

29. That the Tax Procedures Act gives the guidelines and timelines to be adhered to on objections raised by a tax payer. That the Act is particular on communication of the objection decision by the Commissioner to the taxpayer. The same provides as follows:“51 (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.(11)The Commissioner shall make the objection decision within sixty days from the date of receipt of a valid notice of objection failure to which the objection shall be deemed to be allowed.”

30. That an objection decision was thereafter communicated to the Appellant on 11th August, 2022, being over 10 months after the Appellant lodged the objection in total contravention and violation of Section 51(11) of the Tax Procedures Act. That this was way outside the 60 days statutory period allowable under the Act.

31. That Section 51 (11) of the Act further provides that:“Where the Commissioner has not made an objection decision within sixty days from the date that the taxpayer lodged a notice of the objection, the objection shall be allowed.”

32. That the Act has explicitly spelt out the consequences of failure by the Respondent to communicate the objection decision within the statutory period of 60 days being allowing the objection raised in its entirety.

Appellant’s Prayers 33. The Appellant prayed that This Tribunal to be guided by the Tax Procedures Act, No. 29 of 2015 and uphold all the objections raised by the Appellant as highlighted in Paragraphs 9 to 14 of the Memorandum of Appeal.

Respondent’s Case 34. The Respondent’s case is premised on the hereunder filed documents and proceedings before the Tribunal: -i.The Respondent’s Statement of Facts dated 7th October, 2022 and filed on 13th October, 2022 together with the documents attached thereto.ii.The Respondent’s written submissions dated and filed on 7th March 2023

35. That the Respondent undertook a comparative analysis and it established that there existed some variances on the turnover declaration in Income tax and VAT.

36. That the Respondent issued a demand for documents in line with objection lodged through email for delivery notes, purchase invoices, delivery notes, supplier statements and bank statements.

37. That the Appellant, however, failed to provide all the relevant supporting documents of records and invoices for the period under review in support of its objection. That the Appellant's VAT, Income and PAYE was therefore estimated, as this was the only reasonable basis of assessing the tax and the objection decision issued on 11th August, 2022 thereafter confirmed tax of Kshs. 497,709,467. 00.

38. The Respondent averred that the Appellant was requested to avail documents in support of its objection on 17th February 2022 and the final documents were received by the Respondent on 16th June, 2022 hence the 60 days stipulated under Section 51(11) of the TPA started running on the 16th day of June, 2022 when the Appellant furnished the Respondent with the final set of documents. That this effectively means that the 60 days contemplated under Section 51(11)(b) of the TPA started running on 16th June, 2022 when the Respondent received the last set of documents from the Appellant and validated the objection.

39. That Section 51(3) of the Tax Procedure Act states that an objection shall be treated as valid where all the relevant documents relating to the objection have been submitted. The Section states 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 amendments required to be made to correct the decision, and the reasons for the amendments; and(b)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 relevant documents relating to the objection have been submitted.”

40. That the assessments were correctly issued and conform to the Income Tax Act. That the Appellant did not provide any evidence that would have altered the assessment. That the Tax Procedure Act places the onus of proof in tax objections on the taxpayer who in this case failed to avail evidence that would support a contrary assessment or that would have guided the Respondent at arriving to a different objection decision. The Section provides:-“56(1) In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.”

41. That the objection decision issued was accurate based on the documentation provided by the Appellant and the investigations done by the Respondent. That also, in light of sharing the findings with the Appellant, the Respondent averred that the Appellant was awarded adequate opportunity to defend its position. That the Tax Procedure Act empowers the Respondent to carry out assessment based on the information available. The Respondent averred that the assessment was issued based on information provided.

42. That Section 24 of the TPA provides as follows regarding submission of tax returns:“(1)A person required to submit a tax return under a tax law shall submit the return in the approved form and in the manner prescribed by the Commissioner.(2)The Commissioner shall not be bound by a tax return or information provided by, or on behalf of, a taxpayer and the Commissioner might assess a taxpayer's tax liability using any information available to the Commissioner.”

43. That examination of the Appellant's records, audited accounts and Income tax returns established that the Appellant failed to declare business income and all its incomes for years of income 2015 - 2019 respectfully. That the Respondent is empowered under the Income Tax Act 2013 to bring to charge income where the same is established due. The relevant Section provides as follows:“73. (1)Save as otherwise provided, the Commissioner shall assess every person who has income chargeable to tax as expeditiously as possible after the expiry of the time allowed to that person under this Act for the delivery of a return of income.

(2)Where a person has delivered a return of income, the Commissioner may (a)if he has reasonable cause to believe that the return is not true and correct, determine, according to the best of his judgement, the amount of the income of that person and assess him accordingly.”

44. The Respondent averred that an in-depth examination of the records established that there were inconsistencies in the returns filed by suppliers and the invoices claimed by the Appellant and this indicated a variance as per the VAT returns filed and income tax returns filed. That further to that, it was noted that the invoices provided against the sales registers confirmed that the disbursements were omitted in Income tax returns and the Appellant provided no explanations requested on the variance hence the same was disallowed and additional assessments carried out.

45. That Section 31 of the TPA provides as follows regarding amendment of assessments:“(1)Subject to this section, the Commissioner may amend an assessment (referred to in this section as the "original assessment") by making alterations or additions, from the available information and to the best of the Commissioner's judgement, to the original assessment of a taxpayer for a reporting period to ensure that-(a)in the case of a deficit carried forward under the Income Tax Act (Cap.470), the taxpayer is assessed in respect of the correct amount of the deficit carried forward for the reporting period;(b)in the case of an excess amount of input tax under the Value Added Tax Act, 2013 (No. 35 of2013), the taxpayer is assessed in respect of the correct amount of the excess input tax carried forward for the reporting period; or(c)in any other case, the taxpayer is liable for the correct amount of tax payable in respect of the reporting period to which the original assessment relates.”

46. The Respondent averred that the Appellant provided reconciliations indicating the differences between income declarations in Income tax and VAT returns resulted from work-in-progress adjustments. However, the Appellant did not provide the relevant documents to collaborate the adjustments in the reconciliation schedules therefore it became impossible for the Respondent to make any work-in-progress adjustments for 2017 to 2019. That as a result, the assessments were made based on the only available information based on the best judgement by the Respondent. That the Tax Procedure Act empowers the Respondent to require production of such documents vide issuance of notice as deemed necessary in determination of tax liability. The relevant Section provides as follows:“59(1) For the purpose of obtaining full information in respect of the income of a person or class of persons, the Commissioner may, by notice in writing, require, in the case of the income of a person, that person or any other person, and in the case of a class of persons, any person -(a)to produce for examination by the Commissioner at the time and place specified in the notice, any accounts, books of account, and other documents which the Commissioner may consider necessary; and the Commissioner may inspect such accounts, books of accounts or other documents and may take copies of any entries therein…”

47. The Respondent averred that disbursements were deducted before calculating Corporation tax and that bank credits were lower than the net invoiced receipts. That these variances were treated as drawings by the director and charged as PAYE.

48. That the Commissioner is empowered by the Tax Procedures Act to make such decisions and that the assessment was based on the information provided. The relevant Section provides as follows:“29(1) Where a taxpayer has failed to submit a tax return for a reporting period in accordance with the provisions of a tax law, the Commissioner may, based on such information as may be available and to the best of his or her judgement, make an assessment (referred to as a “default assessment)”

49. The Respondent averred that an analysis of the sales/debtors control accounts was done by comparing net invoiced receipts as per the debtors account against expected sales as per the bank credits. That further to that in the year 2018, a variance was established in the Appellant's total invoiced sales against the total credits in the banks statement which was treated as excess bank credits. That the Respondent insists that the Value Added Tax Act empowers the Respondent to disallow such input VAT where the necessary documents are not provided.

50. That Section 17 of the VAT Act provides as follows regarding credit for input tax against output tax:“(1)Subject to the provisions of this section and the regulations, input tax on a taxable supply to, or importation made by, a registered person may at the end of the tax period in which the supply or importation occurred, be deducted by the registered person, subject to the exceptions provided under this section, from the tax payable by the person on supplies by him in that tax period, but only to the extent that the supply or importation was acquired to make taxable supplies.(2)If, at the time when a deduction for input tax would otherwise be allowable under subsection (1), the person does not hold the documentation referred to in subsection (3), the deduction for input tax shall not be allowed until the first tax period in which the person holds such documentation. Provided that the input tax shall be allowable for a deduction within six months after the end of the tax period in which the supply or importation occurred.”

51. That further, Section 5 of the VAT Act provides as follows regarding charge to tax“(1)A tax, to be known as value added tax, shall be charged in accordance with the provisions of this Act on-(a)a taxable supply made by a registered person in Kenya;(b)the importation of taxable goods; and(c)a supply of imported taxable services.”

52. The Respondent averred that the review revealed that sugar sales from the Appellant's financial statements were entirely omitted in the declarations for the year 2014.

53. The Respondent further submitted that examination of the Appellant's records established that the Appellant earned income clearing and forwarding in the period under audit, however, these incomes were not declared for tax purposes for the year earned. The Respondent asserted that the Appellant carried on business in contravention of the Tax Procedure Act which requires such documents be maintained and for purposes of taxation. That the relevant Sections provides as follows:-“42. Tax invoice

(1)Subject to subsection (2), a registered person who makes a taxable supply shall, at the time of the supply furnish the purchaser with the tax invoice containing the prescribed details for the supply. 43. Keeping of records

(1)Every registered person shall, for the purposes of this Act, keep in the course of his business, a full and true written record, whether in electronic form or otherwise, in English or Kiswahili of every transaction he makes and the record shall be kept in Kenya for a period of five years from the date of the last entry made therein. 93. Failure to maintain documents

(1)A person commits an offence if the person fails to keep, retain or maintain a document that may be required to be kept, retained or maintained in accordance with a tax law without reasonable excuse during a reporting period.”

54. The Respondent denied that the Appellant has paid all its tax dues and reiterated that because of its under-declaration, the Appellant is in debt of Kshs. 497,709,467. 00.

Respondent’s Prayers 55. The Respondent prayed that the Tribunal finds:i.That the Respondent's objection decision be upheld.ii.That the outstanding tax arrears of Kshs. 497,709,467. 00 are due and payable by the Appellant.iii.That the confirmed assessments dated 27th September, 2021 were proper in law.iv.That the Appeal herein be dismissed with costs to the Respondent.

Issues For Determination 56. The Tribunal has considered the pleadings and documentation filed by both parties and is of the respectful view that the issues falling for its determination are:i.Whether the Respondent’s objection decision was issued within the statutory timelines.ii.Whether the Respondent’s assessments were justified.

Analysis And Determination 57. The Tribunal having ascertained the issues for determination as set out above proceeds to deal with the same as hereunder.i.Whether the Respondent’s objection decision was issued within the statutory timelines

58. This dispute arose from the Respondent’s action of raising tax assessments based on alleged undeclared incomes by the Appellant.

59. The Appellant argued that the Respondent’s objection decision was issued out of time and therefore was allowed by operation of the law.

60. The Respondent on its part argued that its objection decision was issued within the statutory timelines.

61. The Tribunal gleaned through the parties’ pleadings and established that the Appellant lodged its objections on diverse dates in October 2021 as follows: 26th October, 2021 for Corporate tax, 27th October, 2021 for PAYE and 26th October, 2021 for VAT respectively.

62. The Tribunal noted that in the Respondent’s pleadings, it stated that it requested the Appellant to avail documents in support of its objection on 17th February, 2022 and the final documents were received by the Respondent on 16th June, 2022 hence the 60 days stipulated under Section 51(11) of the TPA started running on the 16th day of June, 2022 when the Appellant furnished the Respondent with the final set of documents. That this effectively meant that the 60 days contemplated under Section 51(11)(b) of the TPA started running on 16th June, 2022 when the Respondent received the last set of documents from the Appellant and validated the objection.

63. The Tribunal reviewed the parties’ documents to confirm that the parties continued communication after the objection was issued in a bid to establish the point at which the 60-day time-line under the TPA started running. Notably, while the Respondent made this averment, it neither provided documentation to confirm that indeed it communicated with the Appellant on 17th February, 2022 nor the fact that the Appellant submitted the said documents on 16th June, 2022

64. The Tribunal further confirmed that there was communication between the parties as follows:i.A meeting between the parties on 17th February, 2022. ii.An email by the Commissioner’s representative in charge on 1st March, 2022 validating the Appellant’s objection.Therefore the 60-day time-line started running on 1st March, 2022.

65. The Tribunal confirmed that the Respondent issued its objection decision on 11th August 2022 which was over 5 months after the Respondent’s communication validating the Appellant’s objection on 1st March, 2022. By issuing the objection decision on 11th August, 2022, the Respondent was outside the 60 day timeline and therefore did not follow the due process outlined under Section 51 of the TPA.

66. Section 51(8) of the TPA provides as follows:“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".

67. Further, Section 51 (11) of the TPA further provides that:“Where the Commissioner has not made an objection decision within sixty days from the date that the taxpayer lodged a notice of objection, the objection shall be allowed.”

68. To buttress the finding that the Respondent did not follow the due process in law by the issuance of its objection decision out of time, the Tribunal is guided by the holding in the case of W.E.C. Lines Ltd vs. the Commissioner of Domestic Taxes [TAT CASE NO.247 of 2020] on the issue of observing procedures and set statutory timelines where it was held at Para 70 and reiterating the holding in Krystalline Salt Ltd vs. KRA [2019] eKLR that:“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures”. The relevant procedure here is process of making an application for review upon receiving the Respondent’s decision.”

69. Further, the Tribunal has on innumerable occasions emphasized the necessity of the parties to observe the timelines set by the law. The issue has also been determined by the courts as being one of high importance as was held in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 6 Others [2013] eKLR, where the court held as thus:-“This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”

70. As a result of the foregoing, the Tribunal finds that the Respondent’s objection decision was issued outside the statutory timelines.ii.Whether the Respondent’s assessments were justified.

71. The Tribunal, having established that the Respondent’s objection decision was issued outside the statutory timelines, did not delve into the second issue for its determination as it was rendered moot.

Final Decision 72. In view of the foregoing, the Tribunal finds that the Appeal is merited and accordingly makes the following Orders: -i.The Appeal be and is hereby allowed.ii.The Respondent’s objection dated 11th August, 2022 be and is hereby set aside.iii.Each Party to bear its own costs.

73. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MARCH, 2024ERIC NYONGESA WAFULA - CHAIRMANCYNTHIA B. MAYAKA - MEMBERDR. RODNEY O. OLUOCH - MEMBERTIMOTHY B. VIKIRU - MEMBERABRAHAM K. KIPROTICH - MEMBER