Mohamed Yusuf of Cross Junction Hardware and Suppliers v Commissioner of Domestic Taxes [2025] KETAT 68 (KLR) | Vat Penalties | Esheria

Mohamed Yusuf of Cross Junction Hardware and Suppliers v Commissioner of Domestic Taxes [2025] KETAT 68 (KLR)

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Mohamed Yusuf of Cross Junction Hardware and Suppliers v Commissioner of Domestic Taxes (Tax Appeal E344 of 2024) [2025] KETAT 68 (KLR) (17 January 2025) (Judgment)

Neutral citation: [2025] KETAT 68 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E344 of 2024

RO Oluoch, Chair, Cynthia B. Mayaka, AK Kiprotich & G Ogaga, Members

January 17, 2025

Between

Mohamed Yusuf of Cross Junction Hardware and Suppliers

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a private company incorporated under the Companies Act and operates as a hardware in Minjala Town, Tana River County.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, and 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 conducted a mock purchase on 1st December, 2023 at the Appellant’s premises.

4. Further, the Respondent issued the Appellant with a Notice of Offence, No. 10521, for failure to issue a tax invoice as per the provisions of Section 42 of the VAT Act, 2013 and obstruction of authorized officers while carrying out their duties as per Section 100 of the Tax Procedures Act, 2015.

5. Thereafter, a total penalty of Kshs. 300,000. 00 was raised on iTax on 9th January, 2024 under Penalty Order No. KRA202458768231.

6. The Appellant objected on 30th January, 2024 and the Respondent issued an objection decision confirming its decision on 13th February, 2024.

7. The Appellant being dissatisfied with the Commissioner’s decision filed its Memorandum of Appeal and Statement of Facts on 25th March, 2024.

The Appeal 8. The Appeal is premised on the following grounds as stated in the Memorandum of Appeal dated 23rd March, 2024 and filed on 25th March, 2024:i.That the Respondent erred in law and in fact by ordering the Appellant to pay a fine of Kenya Shillings Three Hundred Thousand (Kshs. 300,000. 00).ii.That the Respondent erred in law and in fact for finding the Appellant guilty of not issuing an ETR tax invoice yet the ETR tax invoice was issued after a bit of delays from the ETR machine itself.iii.That the Respondent erred in law and in fact by ordering an excessive, unproportional, exorbitant and unreasonable fine against the Appellant for an ETR Tax Invoice of a product of Kenya Shillings One Hundred and Fifty only (Kshs. 150. 00) which was issued a bit late due to the KRA Covert Operator pretending to be in a hurry and leaving the tax invoice behind.iv.That the Respondent erred in law and in fact by ignoring how the Appellant was lured when he was advised to admit to the offence in writing so as to be accorded leniency only to be slapped by an excessive and unreasonable fine.v.That the Respondent erred in law and in fact by ignoring the fact that the Appellant was fined excessively by tricking and misleading him into admitting to the offence.vi.That the Respondent erred in law and in fact by using covert operators who are inconsiderate, intolerable, arrogant and determined to just punish the Appellant. The covert operators are used to trap the Appellant by pretending to be in a hurry and leaving behind the tax invoice only to accuse the Appellant of committing a tax offence.

Appellant’s Case 9. The Appellant’s case is premised on the following documents:i.The Appellant’s Statement of Facts filed on 25th March, 2024 together with the documents attached thereto.ii.The Appellant’s written submissions dated 29th October, 2024 and filed on 4th November, 2024.

10. That the Appellant is a hardware and supplies shop at Minjila within Tana River County and that the shop is known as Cross-Junction Hardware and Supplies.

11. That on the 1st day of December 2023, as the Appellant’s director was busy with his daily business activities at his shop and one of the customers bought thread tape which was costing Kenya Shillings One Hundred and Fifty only (Kshs.150. 00). That the customer paid via pay bill and left in a hurry, the Appellant’s director printed the ETR invoice and receipt and then tried calling the client back to take his receipt and the ETR. That efforts by the Appellant to reach the client were futile.

12. That minutes later, two Kenya Revenue Authority officers stormed the shop revealing that the earlier customer was a covert operator for KRA which explained the unreasonable hurry. That the KRA officers accused the Appellant’s director of committing an offence by violating Section 42 of the VAT Act by failure to issue a proper tax invoice. That this was despite the fact that the Appellant’s director tried to explain himself showing that the ETR invoice and the receipts were on the counter ready to be issued just that the 'customer' left in a hurry.

13. That the Appellant’s director enquired as to who the KRA officers were and that is when they started harassing him and hurling insults and issuing threats at him by saying "tutakuonyesha sisi ni nani!”. That the Appellant’s director reported the harassment incident at Garsen Police Station under OB No. 19/01/12/2023.

14. That the Appellant’s director was summoned to Domestic Taxes Department at Malindi where a Committee of four members was constituted and his case read to him in the absence of his attorney, witness and/or legal representation clearly violating his right to a fair trial. That further the Appellant’s director was tricked and coerced into admitting to the offence on the promise that he shall be forgiven only to be met with a hefty, excessive and exorbitant fine of Kshs. 300,000. 00.

15. That the Committee further misdirected the Appellant’s director by telling him that the Committee’s verdict is final and cannot be appealed upon clearly violating his right to information under the Constitution. That the Appellant engaged the Station Manager who also dismissed the director and stated that the decision was final with no appeal.

16. That all the charges were dropped and the Appellant was only charged with failure to issue an ETR invoice.

17. That further, the Appellant is a Withholding Agent for Kenya Revenue Authority and the same happened to the Appellant after Malindi KRA Station carried out an overclaimed VAT inputs verification exercise.

18. That from the circumstances, it is quite clear that the Appellant was entrapped by the covert operators of the KRA and was penalized an excessive fine of Kshs. 300,000. 00. That further, the officers pretended to be customers and were in too much hurry indicating that they were on a mission to achieve a certain objective meted with ill will and mischief.

19. That the Appellant made a notice of objection to the demand for penalty dated 30th January, 2024, after which the Respondent took action by considering the Appellant’s notice of objection, and rendered its decision dated 13th February, 2024.

20. That in good faith and without prejudice, the Appellant objected to the demand for penalty dated 18th January, 2024 as the same was and still is unfair, disproportionate, excessive and exorbitant for the allegation of not issuing a proper tax invoice of only Kshs. 150. 00 which was in fact issued but the officer deliberately left.

21. That the selling price of Kshs. 150. 00 attracts a VAT tax of 16% which is merely Kshs. 24. 00. That fining a loyal taxpayer who is a law-abiding citizen Kshs. 300,000. 00 for such is burdening the taxpayer and discouraging the good course of tax paying in the Country.

22. That the Appellant was not accorded its right to fair trial as the offence it allegedly committed was not explained to the Appellant in a language that its director understood and that he was not represented by his attorney. Further, the Appellant did not have a witness present. That additionally, the Appellant was tricked and coerced into admitting to committing the offence on the premise that its director shall be forgiven only to be met with a hefty, excessive and exorbitant fine.

23. That Article 50 of the Constitution of Kenya 2010 states that every citizen has a right to fair hearing and in particular, Article 50(2)(I) stipulates that an individual has the right to refuse to give self-incriminating evidence.

24. That in the instant Appeal, the Appellant was lured into admitting an offence it did not commit and thus has presented self-incriminating evidence in violation of its Constitutional rights pursuant to the aforementioned provision.

25. That Section 25A of the Evidence Act explicitly states that confessions and admissions are generally inadmissible unless they meet specific criteria. That the pertinent Section provides as follows:“(1)A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate, or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and in the presence of a third party of the accused person's choice.”

26. That in the present case, the admission by the taxpayer’s director was not made before a judge, magistrate, or police officer of the rank of Inspector. That consequently, the purported admission is inadmissible by law.

27. That in Republic vs. Isaack Kagiri Wanjiku [2021] eKLR, the Court clearly pronounced itself on the issue of confessions and admissions as follows, quoting Section 25A of the Evidence Act, Cap 80 verbatim:“(1)A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person's choice.”

28. The Appellant submitted that it was not accorded an opportunity to nominate a third party to be present during the director’s confession and the particulars of the third party and their relationship was not recorded pursuant to Rule 4 of the Confession Rules, 2009 further reiterating that the purported admission is inadmissible in law.

29. That in considering all the evidence on record, in the case of Republic vs. Raeli & another (Criminal Case 21 of 2016) [2023] KEHC 2193 (KLR), the Honorable Court observed that, a confession or admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

30. That the Court adumbrated the provisions of Section 26 of the Evidence Act which clearly stipulates the admissibility of facts tending to the proof of guilt made by an accused person. That it is imperative to note that the admission in question contravenes the provisions of Section 26 of the Evidence Act.

31. That the taxpayer's admission was obtained on the promise of forgiveness, contravening Section 26 of the Evidence Act, which states as follows:“Confessions and Admissions Caused by Inducement, Threat, or PromiseA confession or admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”

32. The Appellant submitted that, therefore, pursuant to Sections 25 and 26 of the Evidence Act as well as Rule 4 of the Confessions Rules of 2009, the admission made by the Appellant’s director herein is inadmissible in law.

33. It was the Appellant’s submission that self-incriminating evidence does not amount to establishing liability and such evidence is inadmissible by law. That in buttressing this position, the Appellant relied on Republic vs. Mark Lloyd Steveson [2016] eKLR, where the court pronounced itself clearly as follows:“The policy objectives of the right against self-incrimination was stated by Murphy I in Pyneboard Pty Ltd v Trade Practices Commission (1983)152 CLR 328 at 346 (also described as an "overarching principle" in R v White [1999]2SCR 417) at 438:The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigations. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of human personality.28. The modern rationale for the right against self-incrimination was given by the European Court of Justice in Saunders v United Kingdom A/702 (1997) 23 EHRR 313. In this case, Saunders had been asked to produce certain documents and to produce certain documents. He faced punishment for contempt of court under a Statute if he refused to cooperate. At the same time, if he answered any questions or produced any documents, they could be used against him at trial. In pointing out that the rule against self-incrimination implicated not the requirement to provide information but the use of the information provided, the Court found that the questioning was in breach of Article 6of the European Convention of Human Rights (on self-incrimination). The Court explained that the right against self-incrimination lies:…”

34. On the rights of an individual against self-incrimination, the Appellant further relied on the case of Rank Film Distributors Ltd vs. Video Information Centre [1981]2 All E.R.76; [1982] A.C.380 best captures the core of the right.

35. That in the present case, the Appellant issued an invoice as per the requirements of the aforementioned provisions. That the Respondent herein has not come with clean hands because the Appellant duly provided the ETR document as per the law and the Respondent ignored his documentation.

36. The Appellant also relied on the following cases to buttress its case:i.Mini Cabs & Tours Company Limited vAttorney General & 2 others (Petition 450 of 2019)[2022] KEHC 11207 (KLR) (Constitutional and Human Rights)(16 June 2022) (Judgment).ii.Metcash Trading Limited vs Commissioner for the South African Revenue Service and another Case CCT 3/2000. iii.Rahima Traders Limited vs. Commissioner of Investigations and Enforcement 2018

Appellant’s Prayers 37. The Appellant prayed for orders that:i.This Appeal be allowed.ii.That the Objection decision of the Commissioner of Domestic Taxes issued on 13th February, 2024 in the Kenya Revenue Authority offices at Mombasa and all consequential Orders ensuing thereafter be set aside and/or reviewed.iii.That the Tribunal be pleased to make any further relief or further orders as the Court shall deem just and fit in the circumstances.iv.That the Respondent do pay the costs of this Appeal.

Respondent’s Case 38. The Respondent’s case is premised on the following documents:i.Its Statement of Facts dated 20th June, 2024 and filed on 24th June, 2024 together with the documents attached thereto.ii.Its written submissions dated and filed on 11th November, 2024.

39. That the Respondent in pursuit of its field enforcement duties conducted a mock purchase on 1st December, 2023 to identify non-compliant businesses with the issuance of electronic tax invoices for the purpose of enforcement.

40. That in this Appeal, the Respondent's officers conducting the mock purchase posed as customers and purchased an item that was paid through Till No. 5218483, M-pesa ref RL12UU134Y at 10:52am and no tax invoice was issued to which the officer left to conduct other business inspections.

41. That although the Appellant was granted sufficient time to issue a tax invoice as provided for in the VAT Act and the VAT (Electronic Tax Invoice) Regulations 2023, upon return of the officer about an hour later, the Appellant could not provide any evidence including the tax invoice or the daily ETR report (Z-Report) as proof that it was issuing tax invoices. That subsequently, an offence was established and the officers bonded the Appellant.

42. That upon issuance of the Notice of Offence to the Appellant, the owner of the business assaulted the Respondent's officer; an issue which was subsequently escalated to Garsen Police Station under OB No. 15 of 01/12/2013 at 12:52 pm and the Respondent's Regional Security Office in Mombasa.

43. That further, the Appellant was issued with a Notice of Offence No. 10521 for failure to issue a tax invoice as per the provisions of Section 42 of the VAT Act, 2013 and obstruction of authorized officers while carrying out their duties as per Section 100 of the Tax Procedures Act, 2015.

44. That the Appellant was then invited for a case settlement meeting on 7th December, 2023 to which he honored the summons and the Appellant's Director Mr. Mohamed Yusuf appeared at the Respondent's Malindi Tax Service Office on 8th December, 2023 for compounding of the matter.

45. That during the meeting, it was agreed that a case compounding team be constituted to be chaired by an independent officer i.e. Supervisor Corporate Compliance from the Respondent's Malindi Tax Service Office.

46. That during the case settlement meeting, the Appellant was taken through:-i.the case compounding process and the alternative options to settle such mattersii.the nature of the offence committed (failure to issue a tax invoice and obstruction of an authorized officer in the performance of their duties).iii.penalties provided for under Section 63 of the VAT Act as well as Section 100 of the Tax Procedures Act.iv.the possibility that the Committee would also consider the taxpayer's mitigations and any order made by the Commissioner under Section 109 of the Tax Procedures Act.

47. That from the meeting, the Appellant’s director, on his own free will, chose to have the matter settled by filing the “Request form for settlement of a case by the Commissioner” as provided for under Section 109 of the Tax Procedures Act, 2015 and admitted to the offence through a form; serial no. 4369.

48. That in his mitigation, the Appellant’s director stated as follows:-“I wish to mitigate as follows; that I request the Commissioner to pardon me for the offence stated above. We have issued the ETR invoice though there was a bit of delays. We commit to fully adhere to all rules and regulations of KRA. This being the first offence, we request for forgiveness.”

49. That further, an interview was conducted to find out more about the nature of business, size of business, review of tax filings and compliance of the Appellant and the records availed were verified by the committee. That the Appellant, however, could not avail any evidence that supported the narrative that a tax invoice was issued for the test mock purchase and could not avail all the records requested on the Notice of Offence contrary to the provisions of Section 42 of the VAT Act.

50. That Section 42 of the VAT Act, 2013 provides as follows regarding tax invoices:“(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.(2)No invoice showing an amount which purports to be tax shall be issued on any supply-(a)which is not a taxable supply; or(b)by a person who is not registered.(3)Any person who issues an invoice in contravention of this subsection commits an offence and any tax shown thereon shall become due and payable to the Commissioner within seven days of the date of the invoice.(4)A registered person shall issue only one original tax invoice for a taxable supply, or one original credit note or debit note, but a copy clearly marked as such may be provided to a registered person who claims to have lost the original.”

51. The Respondent stated that it thereafter served the Appellant with a Notice of Offence on 1st December, 2023 and was required to appear before the Respondent in Malindi Office on 7th December, 2023.

52. That on 8th December, 2023, the Appellant wrote to the Respondent admitting to the offence of failure to issue proper tax invoice in violation of Section 42 of the VAT Act 2013 and requested the Respondent to deal with it as guided by Section 109 of the Tax Procedure Act,2015.

53. That the Appellant therefore appeared before the Respondent on 8th December and was compounded on 8th December, 2023 for failure to issuance of proper tax invoice contrary to Section 42 of VAT Act as read with VAT Regulations 2020 vide Notice of Offence No: 10521.

54. That after review of records, and listening to the mitigation given by the Appellant, the Committee issued a penalty of Kshs. 300,000. 00 comprising of Kshs. 200,000. 00 for failure to issue a tax invoice as per the provisions of the VAT Act, 2013 and an additional Kshs. 100,000. 00 for obstruction of authorized officers from conducting their duties under order of settlement No. 4369.

55. That the Appellant was therefore ordered to make payment of Kshs 300,000. 00 as penalty as prescribed by Section 63 of the VAT Act, 2013.

56. That subsequently, a total penalty of Kshs. 300,000. 00 was raised on iTax on 9th January, 2024 under Penalty Order No. KRA202458768231.

57. Thereafter, the Appellant being dissatisfied with the decision of the Respondent manually objected to the demand for penalty.

58. That upon review of the Appellant's objection application the Respondent issued an objection decision confirming the entire assessment. That the Respondent's objection decision was based on the assertion that the Appellant's grounds of objection were invalid. That according to the Respondent, the penalty imposed under Section 109 of the TPA is final and not subject to appeal.

59. That the Appellant being aggrieved by the Respondent's decision filed its Memorandum of Appeal before this Tribunal on 27th February, 2024.

60. That Section 109 of the Tax Procedures Act provides as follows in relation to compounding of an offence:“Power of the Commissioner to compound offences(1)The Commissioner may, where he is satisfied that a person has committed an offence under a tax law in respect of which a penalty or a fine is provided, or in respect of which anything is liable to forfeiture, compound the offence and may order that person to pay such sum of money, not exceeding the amount of the fine to which he or she would have been liable if he or she had been prosecuted and convicted for the offence, as the Commissioner may think fit and the Commissioner may order anything liable to forfeiture in connection therewith to be condemned:Provided that the Commissioner shall not exercise his or her powers under this section unless the person admits in writing that he or she has committed the offence and requests the Commissioner to deal with the offence under this section.(2)For the purposes of subsection (1), the Commissioner shall constitute a committee of not less than three officers to consider applications for the compounding of offences.”

61. The Respondent argued that it was upon the Appellant to discharge the burden of proof as provided for in Section 56 of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act and prove that the “delay” witnessed was actually caused by the Respondent’s ETR machine.

62. That Section 56 of the Tax Procedures Act provides as follows regarding the burden of proof in tax cases;:“In any proceedings under this Part, the burden shall be on the Appellant to prove that a tax decision is incorrect”

63. That the Respondent also relied on Section 30 of the Tax Appeals Tribunal Act which provides as follows:“In a proceeding before the Tribunal, the appellant has the burden of proving-(a)where an appeal relates to an assessment, that the assessment is excessive: orb.In any other case, that the tax decision should not have been made or should have been made differently.”

64. The Respondent averred that the Appellant was given a fair trial, since the meeting between the Appellant and the Respondent did not require legal representation nor did it require witnesses. That however, should the Appellant have required one, then it ought to have sought for time to avail a counsel and a witness, which was not done in this case.

65. That the Appellant had acted contrary to Section 42 of the Value Added Tax Act therefore attracting the said penalty as prescribed by the law.

66. That further, based on the Appellant having agreed to have the offence compounded and having also paid the resultant fine, the matter was concluded at that point and under the law there is no room for appeal once an offence has been compounded and penalty paid.

67. The Respondent also stated that the penalty order. which is subject to this Appeal, is neither an assessment or an appealable decision as per the definition given by Section 3 of the Tax Procedures Act and as such there is no proper Appeal before the Tribunal for determination as the Tribunal also does not have the jurisdiction to hear and determine this Appeal.

68. The Respondent stated that Section 59 of the Tax Procedures Act 2015 requires the Appellant to provide records to enable it determine its tax liability.

69. The Respondent maintained that contrary to the Appellant's averments, the Respondent's decision was rendered in accordance with the law.

Respondent’s Prayers 70. The Respondent prayed that the Honorable Tribunal do find:i.That there is no proper Appeal before the Tribunal for determination, as the penalty order issued as a result of compounding is final and cannot be subjected to appeal.ii.That the Appeal be dismissed with costs to the Appellant.

Issues for Determination 71. The Tribunal considered the pleadings and documentation filed by both parties and is of the view that the issues falling for its determination are:i.Whether there is a valid Appeal before the Tribunalii.Whether the Respondent’s penalty was justified.

Analysis and Findings 72. The Tribunal having established the issues falling for its determination proceeds to analyse them as hereunder.

i. Whether there is a valid Appeal before the Tribunal 73. The Appellant averred that the Respondent erred in law and fact by issuing it with a penalty of Kshs. 300,000. 00 for not issuing an ETR invoice and obstructing the Respondent’s officers in the course of their duties.

74. The Respondent, on its part, stated that it followed the law in issuing the penalty and acted within the provisions of the relevant Acts that it invoked. The Respondent further stated that the Appeal before the Tribunal was invalid due to lack of a decision for Appeal.

75. The Tribunal reviewed the parties’ pleadings and confirmed that indeed the Appellant filed a Memorandum of Appeal and Statement of Facts but did not file a Notice of Appeal or the subject decision by the Respondent that necessitated its Appeal to the Tribunal.

76. Section 12 of the Tax Appeals Tribunal Act provides as follows in relation to filing of Appeals before the Tribunal:“A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal…”

77. Section 13(1) of the Tax Appeals Tribunals Act provides as follows regarding the procedure for appeal:“(1)A notice of appeal to the Tribunal shall—(a)be in writing;(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.” (Emphasis added)

78. The Tribunal asserts that Section 13 of the TATA is couched in mandatory terms and therefore an Appellant must file a Notice of Appeal.

79. The Appellant in the instant case did not follow the procedure for Appeal as provided for under Section 13 of the TATA and did not file the Notice of Appeal which is a mandatory document that is a precursor for an Appeal to the Tribunal.

80. Further, the Tribunal states that the procedure for appeal must be adhered to by parties. In this regard, and to buttress the fact that the procedure under Section 13 of the TATA should be adhered to in filing of tax appeals, the Tribunal relied on the case of W.E.C. Lines Ltd vs. The Commissioner of Domestic Taxes [TAT Case No. 247 of 2020] where it was held 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”.

81. Due to the foregoing, it is clear that the Appellant fell short of the mandatory provisions of Section 13 which inevitably rendered the instant Appeal invalid.

ii. Whether the Respondent’s penalty was justified. 82. The Tribunal, having found that the Appeal before it is invalid, did not delve into the second issue for its determination as it was rendered moot.

Final Decision 83. The upshot of the foregoing analysis is that the Tribunal finds that the Appeal is incompetent and unsustainable in law and accordingly makes the following Orders:a.The Appeal be and is hereby struck out.b.Each Party to bear its own costs.

84. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JANUARY, 2025. DR. RODNEY O. OLUOCH - CHAIRPERSONCYNTHIA B. MAYAKA - MEMBERABRAHAM K. KIPROTICH - MEMBERGLORIA A. OGAGA - MEMBER