Kachanja Fabricators & Metal Works v Commissioner Domestic Taxes [2024] KETAT 715 (KLR)

Kachanja Fabricators & Metal Works v Commissioner Domestic Taxes (Tax Appeal E074 of 2023) [2024] KETAT 715 (KLR) (9 May 2024) (Judgment)

Neutral citation: [2024] KETAT 715 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E074 of 2023

RM Mutuma, Chair, EN Njeru, M Makau, B Gitari & AM Diriye, Members

May 9, 2024

Between

Kachanja Fabricators & Metal Works

Appellant

and

Commissioner Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a citizen of the Republic of Kenya, trading as a sole proprietor involved in metal fabrication work.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, the Authority 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. The Respondent identified the Appellant’s variance in income tax and VAT for the period between 2018 and 2019 wherein the Respondent noted that the Appellant’s bankings were higher than the declared sales. The Respondent then raised an additional assessment through the assessments dated 27th May 2021 in respect to Income Tax for 2018 at Kshs. 621,679. 00 and VAT for Kshs. 1,345,662. 00 for 2019 amounting to a cumulative principal tax liability of Kshs. 1,967,341. 00.

4. Upon receipt of the additional assessments, the Appellant lodged its notices of objection on 23rd June 2021 challenging the assessments. Upon perusal of the Objection, the Respondent through emails of 6th July 2021 and 26th July 2021 requested the Appellant to validate the Objection.

5. Consequently, the Respondent issued its Objection decision via email on the 17th March 2022.

5. The Appellant being dissatisfied with the Respondent’s decision filed this Appeal.

The Appeal 7. The Appeal is based on the Memorandum of Appeal dated 13th January 2023 and filed on 8th day of March 2023. The Memorandum raises the following grounds:a.That the Respondent only made a decision for assessment for the year 2019 but did not make a decision for the assessment for the year 2018;b.That the Appellant was not given sufficient time to explain its bankings;c.That the Respondent did not consider graduated scale rate when coming up with the decision;d.That all computations were inclusive of VAT;e.That not all bankings were sales. Some were as a result of soft loans and church offerings from Appellant’s local church;f.That purchase of pastor’s car involved several deposits and withdrawals for presentation during steering committee and general church meetings.

The Appellant’s Case 8. The Appellant relied on its Statement of Facts dated 13th January 2023 filed on 8th March 2023.

9. The Appellant stated that it received a phone call on 5th March, 2021 from the Respondent requesting the Appellant to avail itself to KRA offices in Kitui town and agreed to meet on 18th March, 2021. The Appellant alleged that the Respondent demanded for documents for audit for two years to explain some discrepancies for the years 2018 and 2019, respectively. The Appellant alleged that it was never served with any written document. The Appellant further alleged that its accountant whom it had engaged on 1st January, 2020 explained about the meaning of that exercise. On 25th March, 2021 the Appellant presented its bank statements to the Respondent.

10. The Appellant stated that it was never given time to express itself until the 27th May, 2021 when the Respondent called the Appellant to collect a letter of additional assessment from TSO Kitui office. It is the Appellant’s case that since then there was no any other official communication from Kitui Tax Service Office until the 17th March, 2022 when it collected a tax demand letter from that office demanding payment of tax arrears amounting to Kshs. 2,582,655. 00.

11. The Appellant argued that not all monies that is deposited into his account were sales but some monies were soft loans from friends. The Appellant gave the following examples:Year 2018i.The Appellant alleged that on January 2018 there was a credit disbursement of Kshs. 70,000. 00. This was an arrangement which re-occurred on monthly basis. (70,000 * 12 = 840,000) being Eazzy loan; on 5th February, 2018 a soft loan of Kshs 30,000 given to Stephen M. Musyoka was refunded on 7th of the same month.ii.On 9th April 2018 Rodgers K. Musyimi advanced the Appellant Kshs. 143,000. 00 of which the Appellant refunded on 28th April Kshs. 140,000. 00 & the balance was tendered in cash.iii.On 3rd May, 2018 Bonee advanced the Appellant a soft loan of Kshs. 100,000. 00 and additional Kshs. 55,000. 00 on 9th May, 2018 to clear a consignment of raw materials from Makutano amounting Kshs. 306,400. 00 which was cleared on 9th May, 2018. On 24th May, 2018 the Appellant received another soft loan from Bonee of Kshs. 100,000. 00 to pay Makutano Kshs. 204,500. 00. iv.On 6 August, 2018 Bonee granted the Appellant a soft loan of Kshs. 100,000. 00 and additional loan of Kshs. 20,000. 00 was advanced on 1st October, 2018. The Appellant also alleged that it received another soft loan from Bonee amounting Kshs. 108,000. 00 (88,000. 00 and 20,000. 00 respectively) to settle for supplies made by Aladin K. Kariuki (Kamawe Investments) which transferred to his account on 10th of the same month. The Appellant alleged that on 6th October, 2018 it received Kshs. 10,000. 00 from F. M. Mengi which was a merry go round.v.Further, the Appellant stated that on 5th November, 2018 the Appellant received a soft loan from Ben Kioko of Kshs. 20,000. 00 and additional Kshs. 15,000. 00 the following day. On 24th November, another merry go round of Kshs. 10,000. 00 was transferred by Vilita to Appellant’s account. Finally, the Appellant stated that Stephen N. Muthui granted the Appellant a soft loan of Kshs. 34,000. 00 on 1 December, 2018.

12. For the year 2019, the Appellant gave the following examples:i.The Appellant alleged that on 3rd January, 2019 Peter Mutemi granted the Appellant a soft loan of Kshs. 50,000. 00. On 8th, a disbursement of Kshs. 70,000. 00 (continued for the whole year amounting to Kshs. 840,000. 00). On 9th Kshs. 70,000. 00 soft loan was advanced to settle supply of Kshs. 288,000. 00. ii.On 4th February 2019, the Appellant received a soft loan of Kshs. 118,000. 00 from Rodgers (two deposits to Jeffers of Kshs 59,000. 00 each) and Bonee Kshs. 290,000. 00 (that is 100,000. 00, 90,000. 00 & 100,000. 00 respectively), to settle for supplies from Makutano amounting to Kshs. 500,000. 00 (split into two equal payments of Kshs. 250,000. 00 each). The Appellant alleged that on 25th February, 2019 it requested for a soft loan of Kshs. 205,500. 00 from Bonee to pay Kamawe investments Kshs, 334,000. 00. iii.On 14th March, 2019 Rodgers granted the Appellant a soft loan of Kshs. 150,000. 00 & Bonee Kshs. 200,000. 00 (total 250,000. 00) to pay Makutano stores Kshs. 352,265. 00 while Steve requested the Appellant for a soft loan of Kshs. 20,000. 00 which was refunded on 18th March, 2019. iv.The Appellant stated that on 5th May 2019, Mourine sent Kshs. 70,000. 00 and cash of Kshs. 140,000. 00 making a total of Kshs. 210,000. 00 which the Appellant deposited Kshs. 70,000. 00 twice using the Appellant’s two mobile numbers. On 18th June, 2019 Mourine sent Kshs. 70,000. 00 and another cash of Kshs. 121,000. 00 to clear a supply from Aladin K. Kariuki of Kamawe Investments Kshs. 272,000. 00 which was supposed to be cleared the same day.v.The Appellant also alleged that on 8th July, 2019 & 11th the same month Mr. Nicholas N. Syuki transferred Kshs. 50,000. 00 & Kshs. 62,500. 00 respectively from merry go round to clear some supplies from Kamawe Investments.vi.On 4th October, 2019 Mr. Alex K. Mumbi and Bornface Muna allegedly advanced the Appellant soft loans of Kshs. 100,000. 00 & Kshs. 140,000. 00 (Mpesa transfer of 70,000. 00 two times) respectively to pay Kamawe Kshs 338,000. 00. It is alleged that on 16th October the Appellant received a soft loan from Mourine of Kshs. 60,000. 00 and additional Kshs. 110,000. 00 from Mr. R. K. Musyimi.vii.The Appellant also alleged that on 16th November, 2019 Mourine advanced the Appellant Kshs. 50,000. 00 and on 23 November, 2019 the Appellant received additional Kshs. 60,000. 00 from Mr. R. K. Musyimi. On 30th November, it is alleged that Mourine gave the Appellant a soft loan of Kshs. 60,000. 00, while on 14th, 17th and 30th December Mrs. Mourine gave the Appellant a soft loans of Kshs. 70,000. 00, Kshs. 69,700. 00 & Kshs. 70,000. 00, respectively.

13. The Appellant stated that demanding for tax arrears amounting to Kshs. 660,127. 00 for the financial year ended 31st December 2018 and Kshs. 1,325,310. 00 for the 2019 is erroneous because when arriving at such figures the Respondent did not consider the graduated scale rate as per the tax bands which took effect on 1st January, 2018 until the 20th day of April 2020. The Appellant maintained that the value is exaggerated because it is taxed at a rate of 30%.

14. According to the Appellant, secondary values brought as variance of Kshs 2,200,426 for 2018 and Kshs. 4,609,703. 00 for 2019 financial years, respectively, all are inclusive of VAT which is against Income Tax Act.

15. The Appellant argued that the Respondent’s computation was based on bankings yet not all what goes to the bank is as a result of a sale. According to the Appellant, its core business is purely welding and that it does not sell metal but it is used as a raw material which is used to weld doors, windows, gates among other jobs. Customers deposit money direct to Appellant’s bank account or pay cash then later the Appellant deposit that money to buy raw materials according to their demands. It is the Appellant’s case that the amount deposited has a sale profit margin which the labour charge ranging from 10% to 25% depending on the assignment allocated. The Appellant illustrated by the following examples:i.The Appellant alleged that it made an order on 18th March, 2018 to Makutano Stores — Matuu Limited and on that day the Appellant deposited Kshs. 80,000. 00 and the following day the 19th March another deposit of Kshs. 50,000. 00 was made then later on 20th, a deposit of Kshs. 28,000. 00. The Appellant also deposited Kshs. 2,000. 00 to get the consignment delivered valued Kshs. 158,990. 00 whereby the Appellant made transfer of Kshs. 158,900. 00 and remained with a balance due of Kshs. 90. 00. The Appellant alleged that this is indicated in the bank statement as per the invoice number 3639 from Makutano Stores and also cash sales receipts from invoice number 2449 to 2464 for the monies received from different customers.ii.The Appellant alleged that from 6th April, 2018 as indicated on the bank statement, Kavililo Secondary School ordered for service and deposited Kshs. 15,000. 00 to Appellant’s account and another Kshs. 143,000. 00 cash which was deposited and later mobilized different customers to make payments in order for their jobs to be done then later until the 14th the Appellant requested for materials from Kamawe Investments who delivered on 28th April, 2018. The Appellant withdrew Kshs. 100,000. 00 from Miriam N. Muteti (Eazzy Agency) and transferred Kshs. 40,000. 00 to Rodgers Kamola Musyimi also an eazzy agent to get cash then a balance of Kshs. 54,000. 00 was paid by cash. All this totalled to Kshs. 294,700. 00. The Appellant alleged that this is captured under invoice number 34905 of Kamawe investments.iii.The Appellant alleged that on 14th September, 2018, it paid Makutano Kshs. 250,000. 00 and the balance of Kshs. 65,500. 00 paid in cash so as to deliver raw materials as per the invoice number 12031 delivered on 19th September, 2018. All these materials were made for orders as scanned cash sales from invoice number 2665 to 2700. iv.On 28th February 2019 Kamawe investments delivered materials worth Kshs. 387,250. 00 (delivery number note number 82059) upon payments made on 26th February 2019 of Kshs. 250,000. 00 and Kshs. 84,000. 00 respectively (Aladin Kaumbu Kariuki) and a cash payment of Kshs. 52,350. 00 on the day of delivery. These materials were to meet customer payments as per cash sale receipts from numbers 2899 to 2941. v.Finally, the Appellant alleged that on 16th August 2019, it deposited Kshs. 107,000. 00 and 17th August 2019 deposited Kshs. 100,000. 00. Later on 21st August 2019 the Appellant deposited Kshs. 44,600. 00 and Kshs. 92,000. 00 respectively for material had previously supplied on credit. Upon delivery on 18th August 2019 the delivered materials were worth Kshs. 246,000. 00 but on the Appellant’s account it had overpaid by Kshs. 20,000. 00 which was refunded in cash since the supplier’s lorry could not load beyond capacity as illustrated as per invoice number 1528.

16. In further support of the Appeal, the Appellant filed written submissions dated 26th September 2023 and filed on 1st October 2023, wherein the Appellant identified three issue for determination. That is,i.What were the purpose of the several deposits and withdrawals and ii. Whether they warranted deductions;iii.Whether all banking’s were sales; and whether the Appellant was given sufficient time to explain his banking’s.

17. With regards to the first issue, the Appellant relied on Section 16 of the Income Tax Act to submit that most of the deposits and withdrawal were for church contributions and contributions for buying the pastor’s car.

18. With regards to the second issue, the Appellant submitted that not all bankings were sales. The Appellant submitted that some were soft loans while some were for purchase of pastor’s car.

19. With regards to the third issue, the Appellant submitted that it was not given sufficient time to explain his bankings but the Respondent’s official were busy harassing it and asking for bribes and when it reported the matter, the officers were terminated.

Appellant’s Prayers 20. Consequently, the Appellant prayed that this Honourable Tribunal be pleased to;i.Set aside the Respondent's assessment; and,ii.Allow the Appeal and that the cost of the Appeal be borne by the Respondent.

THE RESPONDENT’S CASE 21. The Respondent’s case is premised on its;i.Statement of Facts dated 5th April 2023 and filed on 6th April 2023. ii.Written submissions dated 9th October 2023 and filed on 11th October 2023.

22. The Respondent stated it raised-an additional assessment to the Appellant on 27th May 2021 in respect to Income tax for 2018 at Kshs. 621,679. 00 and VAT of Kshs. 1,345,662. 00 for 2019 amounting to a cumulative principal tax liability of Kshs. 1, 967,341. 00. The Appellant objected. The Respondent alleged that it wrote to the Appellant on 6th July 2021 informing the Appellant that the grounds it stated in its Objection were not valid and requested for documents in support of the Objection.

23. The Respondent, also stated that via an email sent on 26th July 2021, it requested the Appellant to provide further documents, and specifically requested for the following missing documents;i.Tax invoices for the purchase of water tanks, pipes and gutters to account for the claim amounting to Kshs. 665,350. 00;ii.Supporting documents to account for the balance after purchase of vehicle of Kshs. 140,000. 00;iii.The Respondent also indicated that the minutes of the Executive Committee that were submitted had not been signed or stamped.

24. It is the Respondent’s case that the Appellant never responded to the emails neither did the Appellant avail the documents requested by the Respondent, hence the Respondent proceeded to issue an Objection decision.

Responses to the Appellant's Ground of Appeal 25. The Respondent raised a Notice of Preliminary Objection on grounds that the Appeal contravenes the provisions of Section 13(1) (b) and 13 (2) of the Tax Appeals Tribunal Act and is therefore fatally defective and a gross abuse of the court process in particular, the chronology of facts is as follows:i.The objection decision was rendered on 17th March 2022 communicating the Objection decision to the Appellant herein.ii.That the Appellant failed to lodge a Notice of Appeal within thirty (30) days as required under Section 13 (1) of the Tax Appeals Tribunal Act.iii.That further, the Appellant did not file a Memorandum of Appeal, Statement of Facts and the objection decision within the statutorily required timelines.iv.That for the avoidance of doubt, the subject Memorandum of Appeal was filed on 8th March 2023, which is 325 days later. That usually, the last day for filing the Notice of Appeal ought to have been 17th April 2022 whereas the last date to file the Appeal documents contained under Section 13 (2) of the Tax Appeals Tribunal Act ought to have been 1st May 2022. v.In the instant case, it is evident that the Appellant did not file this Appeal within the statutorily prescribed timelines.

26. The Respondent argued that the Appellant herein did not file an application before the Tribunal seeking enlargement of time to file an Appeal as foreseen under Section 13 (3) & (4) of the Tax Appeals Tribunal Act. Therefore, the Respondent stated that the Appeal is fatally defective and ought to be struck out for want of compliance.

27. The Respondent averred that the Appellant’s main activity was metal fabrication works through which it earned an income making it liable for Income tax. The Respondent also stated that the Appellant voluntarily registered for VAT obligation on 1st January 2020 and from then on became liable to file VAT tax returns and VAT tax liability.

28. The Respondent relied on Section (5) (1) (a) which provides that VAT shall be charged on a taxable supply made by a registered person in Kenya. The Respondent also relied on Section 17(1) of the VAT Act which provides for deduction of input tax to the extent that the supply should be in relation to the taxable supplies and that the Appellant would need to provide the documentation required under Section 17 (3) of the VAT Act in order to be allowed to claim input tax.

29. The Respondent relied on Section 31 of the Tax Procedures Act which allows the Commissioner to amend assessments by making additions from the available information and to the best of the Commissioner’s judgment. The Respondent argued that based on the variance detected, the Respondent raised an additional VAT tax assessment upon the Appellant based on information available to it such as the Appellant’s bankings.

30. In response to allegation that not all his banking’s were sales and that some were soft loans and church offerings from his local church, the Respondent stated that the Appellant was requested to provide documentation to support his claim, which he did not despite being given several chances. The Respondent maintained that the Appellant merely made claims on the sources of his funds but did not provide any supporting documentation to prove the same.

31. The Respondent argued that the Appellant failed to discharge the burden of proof under Section 56 (1) of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act.

32. In further support of its case, the Respondent relied on its written submissions dated 9th October 2023 wherein the Respondent identified three issues for determination:i.Whether the Appellant provided adequate documents as specifically requested by the Respondent;ii.Whether the Respondent’s charge of tax on the Appellant had a basis in law; andiii.Whether the notice of preliminary objection dated 5. 04. 2023 is merited.

33. On the first issue, the Respondent submitted that it severally requested for documents but the Appellant failed to avail the documents. The Respondent relied on Section 59 (1) of the Tax Procedures Act to submit that it is the duty and responsibility of the Appellant to keep documents and to provide the same upon request for verification by the Respondent. The Respondent cited the decision in TAT No. 70 of 2017: Afya X-Ray Centre vs. Commissioner of Domestic Taxes wherein this Tribunal provided that:“From the foregoing chain of events, it is our understanding that the Appellant failed in its duty in providing documents in order that a comprehensive analysis of its affairs is done. Accordingly, the Respondent can hardly be faulted for raising the assessment in accordance with the availed documents...”

34. The Respondent relied on Section 56 (1) of the Tax Procedure Act and Section 30 of the Tax Appeals Tribunal Act to argue that since the Appellant failed provided documents as required under Sections 51 and 59 of the Tax Procedures Act, the Appellant failed to discharge its burden of proof. The Respondent cited Pearson vs. Belcher CH.M Inspector of Taxes) Tax Cases Volume 38 referred to by Justice D.S. Majanja in PZ Cussons East Africa Limited vs. Kenya Revenue Authority (2013) eKLR where the court stated that: -“Where there is an assessment made by the Additional Commissioner upon the Appellant; it is perfectly settled by cases such as Norman Vs. Galder 267C 293, that the onus is upon the Appellant to show that the assessment made upon him is excessive and incorrect and of course he has completely failed to do. That is sufficient to dispose of the appeal, which I accordingly dismiss with costs.” The Appellant in the present appeal has manifestly failed to discharge such an onerous burden of proof placed squarely on it...”

35. On whether the Respondent’s charge of tax on the Appellant had a basis in law, the Respondent submitted that it relied on Section 3(2) of the Income Tax Act which allows charging of tax; Section (5) (1) (a) of the VAT Act which allows charging VAT on a taxable supply made by a registered person in Kenya; Section 17 (1) of the VAT Act which allows deduction of input tax provided there is taxable supplies at the end of the tax period in which the supply occurred.

36. The Respondent also submitted that it raised additional assessments on the Appellant pursuant to Section 29 of the Tax Procedures Act following an income tax and VAT variance identified for the period of 2018 and 2019.

37. On whether the Notice of Preliminary Objection dated 5. 04. 2023 is merited, the Respondent stated that there is no proper Appeal before this Honourable Tribunal for determination as the Appeal herein was filed out of time without the leave of the Tribunal contrary to the provisions of Section 13 of the Tax Appeals Tribunal Act.

38. The Respondent referred to the case of Speaker of the National Assembly vs. James Njenga Karume [1992] eXKLR where Kwach, Cockar & Muli JJ A) stated 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.”

39. The Respondent also cited the decision in TAT Appeal Number 254 of 2021:Salsa Global Investment Co. Limited vs. Commissioner of Domestic Taxes wherein the Tribunal held that:‘‘flowing from the above, this Tribunal finds that this Appeal was filed out of time without seeking and obtaining prior leave of the Tribunal. The Appeal is thus found to be defective for being in contravention of the law and hence the Tribunal lacks the requisite jurisdiction to hear and determine the same.’’

40. Consequently, the Respondent submitted that there is no proper Appeal before this Honourable Tribunal for determination as the Appellant is in breach of the mandatory provisions of Section 13 of the Tax Appeals Tribunal Act.

Respondent’s prayers 41. The Respondent prayed that this Honourable finds that:i.The Notice of Preliminary Objection dated 5th April 2023 be upheld;ii.The Respondent's Objection decision dated 17 March 2022 be upheld; and, iii. The Appeal lacks merit and be dismissed with costs to the Respondent.

Issues For Determination 42. The Tribunal having considered the Memorandum of Appeal, the parties’Statements of Facts and submissions and the Respondent’s Notice ofPreliminary Objection, puts forth the following issues for determination:a.Whether the Appeal is statutorily time barred; andb.Whether the Respondent’s decision is justified in law.

Analysis And Findings 43. The Tribunal wishes to analyse the issues as hereunder.

a. Whether the Appeal is statutorily time barred; 44. The Respondent argued that the Appeal is incompetent for being filed out of time without leave and that this being a preliminary issue of law that goes to the core of the Appeal ought to be determined before any other.

45. The Tribunal notes that the Appellant has not responded to the preliminary objection on points of law.

46. In arguing its case on this matter, the Respondent outlined the chronology of events leading to this Appeal pointing out that the Objection decision was rendered on 17th March 2022 communicating the objection decision to the Appellant herein, however, the subject Memorandum of Appeal was filed on 8th March 2023, which is 325 days later, and that usually, the last day for filing the Notice of Appeal ought to have been 17th April 2022 whereas the last date to file the Appeal documents contained under Section 13(2) of the Tax Appeals Tribunal Act ought to have been 1st May 2022.

47. The Respondent submitted that the Appellant herein did not file an application before the Tribunal seeking enlargement of time to file an Appeal as foreseen under Section 13 (3) & (4) of the Tax Appeals Tribunal Act. Therefore, the Respondent stated that the Appeal is fatally defective and ought to be struck out for want of compliance.

48. Section 13 of the Tax Appeals Tribunal Act (supra) provides for the Procedure for filing an Appeal.

49. It then follows that a taxpayer must obtain leave before filing an appeal out of time. In Kenya Hotel Properties Limited vs.Attorney General & 5 others (Application 2 (E004 of 2021) of 2021) [2021] KESC 49 (KLR), the supreme Court stated as follows at paragraph 18; -‘‘In County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016 [2017] eKLR, this Court found that an appeal filed out of time without leave of this Court is irregular and this Court will not invoke ‘novel’ principles so as to validate such a petition and deem it properly filed.’’

50. The impact of filing pleadings out of time without leave is that it denies the Tribunal the jurisdiction to entertain the Appeal. As Nyarangi J stated in The Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited,“jurisdiction is everything. Without it, the court must down its tools.”

51. The import of the foregoing is that the Tribunal finds and holds that the Appeal is null and void having been filed out of time and without leave. Consequently, the Tribunal downs its tools at this point.

52. Having established that the Appeal is not properly before it, the Tribunal shall not analyse the remaining issues as the same has been rendered moot.

53. Consequently, the Tribunal upholds the Respondent’s Preliminary Objection dated 5th April 2003.

Final Decision 54. The Tribunal having upheld the preliminary objection makes the following Orders:-a.The Appeal is hereby struck out; andb.Each party to bear its own costs.

55. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MAY, 2024ROBERT M. MUTUMA - CHAIRPERSONELISHAH N. NJERU - MEMBERMUTISO MAKAU - MEMBERBERNADETTE M. GITARI - MEMBERMOHAMED A. DIRIYE - MEMBER