Novixa International Limited v Commissioner of Customs and Border Control [2024] KETAT 1338 (KLR)

Novixa International Limited v Commissioner of Customs and Border Control (Tax Appeal E092 of 2023) [2024] KETAT 1338 (KLR) (Commercial and Tax) (20 September 2024) (Judgment)

Neutral citation: [2024] KETAT 1338 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal E092 of 2023

RM Mutuma, Chair, D.K Ngala, Jephthah Njagi, T Vikiru & M Makau, Members

September 20, 2024

Between

Novixa International Limited

Appellant

and

Commissioner of Customs and Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company whose principal business activity is the importation and manufacture of fertilizer for the Kenyan market.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, 1995. Under Section 5(1), the Respondent is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5 (2) with respect to performance of its functions under subsection (1), the Respondent is mandated to administer and enforce all provisions of the Written laws as set out in Part 1 & 2 of the First Schedule to the Act for purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. The Respondent undertook a Post Clearance Audit (PCA) and reviewed the Appellant’s importation operations for the period January 2018 to December 2019 pursuant to Sections 234, 235 and 236 of the East African Community Customs Management Act (EACCMA) 2004. Vide a letter dated 28th March 2023 the Respondent issued a demand for Kshs. 2,945,740. 00 being short levied taxes.

4. The Respondent reminded the Appellant to respond to the demand vide an email of 17th May,2023 after which the Appellant filed a late Objection dated 1st December 2023 after seeking leave of the Respondent to do so.

5. The Respondent reviewed the Appellant’s Objection and vide a letter dated 18th December 2023 issued its Review Decision confirming the tax demand of Kshs. 2,945,740. 00.

6. Aggrieved by the Respondent’s decision, the Appellant filed its Notice of Appeal dated and filed on 25th January 2024.

The Appeal 7. The Appeal is premised on the following grounds as stated in Appellant’s Memorandum of Appeal dated 25th January 2024 and filed on even date;a.That the Respondent erred in law and fact by defending the Doctrine of Legitimate Expectation in administrative law.b.That the Respondent erred in law and fact by offending the East Africa Customs Common External Tariff (EACCET) 2017 by misinterpreting the Explanatory Notes, the Heading and subheadings, and the Rules 1 - 6 of the General Interpretative Rules (GIR) as envisaged in the EAC CET.c.That the Respondent erred in fact and law by unlawfully demanding Kshs. 2,945,740. 00 an aspect that offends Article 210 of the Constitution of Kenya.

The Appellant’s Case 8. The Appellant supported its grounds of Appeal through its;a.Statement of Facts dated and filed on 25th January 2024 together with the documents attached thereto; and,b.Witness statement of Mr. Michael Okatch Omondi dated, signed and filed 3rd July 2024 and admitted in evidence in chief on the 16th July 2024.

9. The Witness stated that the Appellant imported an assortment of “Fertilizer products namely;a.Potassium Nitrate classified under HS Code 3105. 90. 00- import entry No2019ICD 107423. b.Oligo Gold Iron EDDHA 6 percent classified under HS Code 3105. 90. 00- import entry No 2019 ICD 10438. c.Bronze Iron EDDHA classified under HS Code 3105. 90. 00- import entry No 2019MSA 6745563. d.Osa Veg & Osa Flower classified under 3101. 00. 00- import entry No.2019ICD 119924.

10. The Appellant averred that it first identified the description of the imported product as fertilizer and that based on the General Interpretative Rules the terms of the heading of those goods was appropriately classified under the title of Chapter 31 which described products under this Chapter as fertilizer. Further, that according to the HS Coding system, the first two digits in the coding shows the HS Chapter to which specific products belongs and that Chapter 31 specifically described the product as fertilizer. The Appellant also relied on the GIR 3a which guides on the specific product heading. It therefore asserted that it was right in classifying its goods under specific description of the heading which in this case was 3105. 90. 00 and 3101. 00. 00

11. The Appellant asserted that contrary to the Respondent’s witness statement where it had alleged that in its previous importations the Appellant had correctly classified Potassium Nitrate, Iron Chelates and OSA micronutrients under Tariff Codes 2834. 21. 00 and 3824. 99. 90 however the products the Respondent quoted vide the previous entries are plant insecticides and whose functions differ from the Appellant’s goods under his suit and cannot therefore be said to be similar and/or identical goods.

12. The Appellant did not file any written submissions despite being directed by the Tribunal.

13. The Appellant therefore prayed for the following;a.The Appellant prays that the Tax Appeals Tribunal vacates the Demand Notice under Ref; KRA/C&BC/PCA/244/23 (CRD) in its entirety; and,b.That the cost of this Appeal be provided for.

The Respondent’s Case 14. The Respondent’s case is premised on its;a.Statement of Facts dated and filed on 18th March 2024 together with the documents attached thereto;b.Witness statement of Mr. Moses Luande signed, dated and filed on 26th April 2024 and admitted in evidence in chief on 16th July 2024; and,c.Written submissions dated and filed on 13th August 2024.

15. In addressing the Appellant’s grounds outlined in the Memorandum of Appeal, the Respondent established four issues for determination.

Whether the Respondent was justified in classifying potassium nitrate under subheading 2834. 21. 00 using GIR 1 and 6. 16. The Respondent averred that it was justified in law to classify potassium nitrate under subheading 2834. 21. 00 using GIR 1 and 6 as the classification of goods in the Common External Tariff (CET) of the East African Community is done in accordance with the General Interpretative Rules for the classification of goods read together with the World Customs Organizations Harmonized Commodity Description and Coding System Explanatory Notes (ENS) which are the official interpretation of the Harmonized System at the International level.

17. It averred that GIR 1 inter-alia states that classification shall be determined according to the terms of the heading of the tariff schedule and any relative Section or Chapter Notes provided the headings and notes do not require otherwise according to GIR 2 through to 6. Further, that Note 1 (b) to Chapter 31 states that separate chemically defined compounds (other than those answering to the descriptions in Note 2 (a), 3 (a), 4 (a) and 5 are excluded from the chapter.

18. It was the Respondent’s averment that Notes 2 (a), 3 (a), 4 (a) and 5 to Chapter 31 give a limitative list of fertilizer products to be classified under headings 3102. 31. 04 and 31. 05. Hence all goods falling outside the limitative list are to be classified elsewhere and that subheading 2834. 31. 00 caters for the classification of nitrate of nitrates of potassium.

19. The Respondent stated further that the WCO Explanatory Notes Heading 3105 states in the pertinent part that the heading does not include other chemically defined compounds not specified in Headings 31. 02 to 31. 04 even if they could be used as fertilizers e.g potassium nitrate (Heading 2834) and potassium phosphate (Heading 2835).Based on this the Respondent averred that potassium nitrate was classifiable under subheading 2834. 21. 00 using GIR 1 and 6.

Whether the Respondent was wrong in classifying micronutrient preparations under subheading 3824. 99. 00 using GIR 1 and 6. 20. The Respondent maintained that it was justified in classifying micronutrient preparations under subheading 3824. 99. 00 using GIR 1 and 6 by averring that Heading 31. 05 covers Mineral as chemical fertilizers containing two or three of the fertilizer elements nitrogen, phosphorous and potassium, other fertilizers, goods of this chapter in tablets or similar forms or packages of a gross weight not exceeding 10kgs. The Respondent averred further that Chapter 31 Note 1 (b) states that the chapter does not cover separate chemically defined compounds (other than those answering to the description in Note 2 (a), 3 (a), 4 (a) or 5 as this give in details the types of fertilizers that are classifiable in Headings 31. 02, 31. 03, 3104 and 31. 05.

21. It was the Respondent’s assertion that the WCO Harmonized Commodity Description and Coding System Explanatory Notes to Chapter 31 state in the pertinent part that the Chapter excludes micro nutrient preparations which are applied to seeds, to foliage, or soil assist in seed germination and plant growth, and goes further to state that these preparations may contain small amounts of the fertilizer elements Nitrogen, phosphorous and Potassium but not as essential constituents as they are classifiable under subheading 38. 24. 99. 00

22. As a result of the above the Respondent asserted that Oligo Gold Iron-EDDHA 6% was a chelated iron micronutrient preparations intended for prevention and correction of Chlorosis (Iron deficiency in soil). Similarly, that Bronze Iron EDDHA was a micronutrient preparation for correction for iron deficiency in soil while OSA Veg Plus and OSA Flower Plus were Orthosiliac Acid (OSA) based micronutrient preparations to enhance root development in plants.

23. The Respondent averred that these positions have been buttressed with the following Respondent’s Tariff Rulings that are readily available on the KRA website.i.2017/CUS/V&T/TARI/RUL/481 of 20th December 2017 - OSA Tuber Micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 90;ii.2017/CUS/V&T/TARI/RUL/482 of 20th December 2017 - OSA Vegetable Micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 00;iii.2017/CUS/V&T/TARI/RUL/482of 20th December, 2017 - Osa Wheat Micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 90iv.2018/CUS/V&T/TARI/RUL/044 of 14th February 2018-Iron EDDHA 6% Micronutrient preparation for prevention and correction of chlorosis in soil classifiable under subheading 3824. 99. 00

Whether the Respondent offended the Doctrine of Legitimate Expectation 24. The Respondent contended that legitimate expectation is created within and in accordance with the law and in tax law, the legitimate expectation is that a taxpayer will pay the correct amount of taxes as per the applicable rate and that Article 210 of the Constitution of Kenya 2010 provides that;“No tax or licensing fee may be imposed, waived or varied except as provided by legislation”

25. The Respondent stated that the provisions of Sections 235 and 236 of EACCMA grants the Commissioner the power and mandate to undertake a Post Clearance Audit and that Section 135 of the aforementioned Act empowers the Commissioner to collect any duty that has been short levied. Further, that under the Article 7 of the World Trade Organization (WTO) Trade Facilitation Agreement, each member with a view to expediting the release of goods, shall adopt or maintain post – clearance audit to ensure compliance with customs and other related laws and regulations. The Respondent therefore averred that it acted within its statutory mandate in issuing a demand for the short-levied taxes amounting to Kshs. 2,945,740. 00.

26. The Respondent stated that classification of goods in the Common External Tariff (CET) of the East African Community is done in accordance with the General Interpretative Rules for the Classification of goods, therefore the Appellant cannot claim legitimate expectation in the classification of its goods where the GIRs, WCO Explanatory Notes, Chapter heading and subheading notes have been flouted. It averred further that the Appellant had been rather impulsive with the classification of some of its OSA micronutrient preparations, choosing to classify them under Headings 3824 and 31. 01 as it pleases. For instance, the Appellant declared OSA micronutrient using the following Customs Entries. 2018ICD65129

2018MSA6966947

2018MSA6886872

2020ICD244978

2021ICD320119

2021ICD286651

27. The Respondent therefore averred that as a result of the foregoing, legitimate expectation cannot be created contrary to the law and especially in such a case where the Appellant evidently knew the correct tariff code to apply and chose to apply the same inconsistently. It stated further that as explained earlier the Respondent diligently and correctly applied the provisions of the EAC-CET 2017, WCO Explanatory Notes, Chapter, Heading and subheading notes and averred in conclusion that it lawfully demanded the short- levied taxes pursuant to Section 135 of the EACCMA, 2004.

28. In its Written submissions, the Respondent raised three issues for determination

Whether the Appellant misclassified the potassium phosphate, iron chelate and OSA micronutrients imported between 2018 and 2019. 29. The Respondent maintained that the Appellant misclassified the potassium phosphate, iron chelate and OSA micronutrients, where in its witness statement, the Appellant had stated that it identified the description of the imported products as fertilizer hence classified the product under Chapter 31. It stated further that the Appellant simply relied on the terms of heading as stipulated in GIR 1 but failed to consider any relative section or chapter Notes.

30. The Respondent submitted that as per paragraph 3 (1) of the Appellant’s Witness Statement sworn by Michael Okatch Omondi, the emphasis was only on how the Appellant classified the goods as per the terms of the heading while conveniently ignoring the conjunction ‘and’ that comes immediately after the words “according to the terms of the headings” it submitted further that this erroneous position was clearly brought out when the said witness was cross – examined during the cross – examination on 16th July 2024 wherein he confirmed that the Appellant classified the goods based on the terms of heading only.

31. It was the Respondents submissions that a sentence conjoined with the word “and” must be read as a whole and not as two distinct parts. Further that the effect of using the conjunction ‘and’ is that both parts and all the parts of the sentence must be read together. The Respondent argued therefore that the Appellant erred by reading and applying the first part of GIR 1 only and failed/omitted to read the second part.

32. On the classification of Potassium Nitrate, the Respondent submitted that it is classifiable under subheading 28. 34. 21. 00 using GIR 1 and 6 and not under 3105. 90. 00 as classified by the Appellant. This is because Heading 28. 34 specifically caters for classification of nitrates and nitrites and that subheading 2834. 21. 00 covers classification of nitrates of potassium, which is the heading which the Appellant ought to have used. It submitted that Chapter 31 Note 1 (b) states that the chapter does not cover separate chemically defined compound (other than those answering to the description in note 2 (a), 3 (a), 4 (a) or 5. Further that Notes 2 a, 3 a, 4 a and 5 give in detail the types of fertilizer that are classifiable in Heading 31. 02,31. 03,31. 04 and 31. 05.

33. The Respondent asserted that Notes, 2 (a), 3 (a), 4 (a) and 5 to Chapter 31 give a limited list of fertilizer products to be classified under Headings 31. 02,31. 03,31. 04 and 31. 05 and that all goods failing outside the limited list are to be classified elsewhere.

34. The Respondent maintained that Heading 2834. 21. 00 caters for the classification of nitrates of potassium and that the Explanatory Notes to Heading 31. 05 in the pertinent part state that the heading does not include other chemically defined compounds not specified in Heading 31. 02 to 31. 05 even if they could be used as fertilizers (e.g. potassium nitrate Heading 28. 34), potassium phosphate (Heading 28. 35. ).The Respondent therefore submitted that the Appellant’s classification of potassium nitrate under 3105 as opposed to 2834 was erroneous.

35. On classification of Oligo Gold Iron EDDHA 6%, Bronze Iron EDDHA, OSA Veg and OSA Flower, the Respondent submitted that Oligo gold and others are classifiable under subheading 3824. 99. 00 using GIR 1 and 6 and not under 3105 and 3101 for Oligo Gold Iron EDDHA 6% Bronze Iron EDDHA OSA Veg and OSA Flowers respectively. The Respondent argued that it classified the Oligo Gold Iron EDDHA 6% under subheading 3824. 99. 00 on the ground that it is a chelated iron micronutrient preparation intended for prevention and correction of chlorosis, which is an iron deficiency in soil.

36. It averred that similarly Bronze Iron EDDHA was a micronutrient preparation for correction of iron deficiency in soil while OSA Veg plus and OSA Flower plus are Orthosilicic Acid (OSA) based micronutrient preparations to enhance root development in plants. It therefore submitted that the Explanatory Notes to Chapter 31 state that the chapter excluded micronutrients preparations, which are applied to seeds, to foliage or to soil to assist in seed germination and plant growth. Further that the Explanatory notes classified Oligo Gold Iron EDDHA 6%, Bronze Iron EDDHA, OSA Veg & OSA Flower under Heading 38. 24 which was what it had advised the Appellant in numerous Tariff Rulings.

37. It was the Respondent’s averment that the Explanatory Note 1 (b) to Chapter 31 states that the Chapter does not cover separate chemically defined compounds other than those answering to the description in Note 2 (a), 3 (a), 4 (a) or 5. It therefore submitted that relying on the above analysis, the Appellant’s classification of Oligo Gold and others under 3105 and 3101 for OSA Veg as opposed to 3824. 99. 00 was erroneous.

38. The Respondent reiterated that the Appellant conveniently and selectively applied the GIR Rules by selectively reading, interpreting and applying the law in a way that only favours it due to the tax implication whilst ignoring the other accompanying provisions from Section and Chapter Notes.

Whether the Respondent offended the doctrine of legitimate expectation in administration of tax laws 39. On the Appellant’s argument that the Respondent had erred in law and fact by offending the doctrine of legitimate expectation in administrative laws, the Respondent submitted that the Appellant cannot claim legitimate expectation on the classification of its goods where the Appellant had violated and flouted the GIR WCO Explanatory Notes, Chapters, Headings and subheadings. It submitted further that having correctly classified OSA micronutrients preparations in previous imports, the Appellant knew the correct Tariff Code to apply but elected to apply the incorrect one and as such cannot claim legitimate expectation.

40. The Respondent submitted that it adduced the following evidence of previous imports in which the Appellant correctly declared the OSA micronutrient proportions using the correct Tariff Code being 3824. 99. 00 2018ICD65129

2018MSA6966947

2018MSA6886872

2020ICD244978

2021ICD320119

2021ICD286651

41. It therefore submitted that this was sufficient evidence that the Appellant, by mis-declaring, sought to evade paying the requisite taxes, which it had been paying previously hence no legitimate expectation arises in this case. Further that legitimate expectation is created within and in accordance with the law and in this case, the expectation is that the Appellant would pay the correct amount of taxes due and shall not benefit from an illegality.

42. The Respondent relied on the Supreme Court case of Kenya Revenue Authority vs. Export Trading Company Limited (petition 20 of 2020 [2022] KESC 31(KLR) where at paragraph 54 the principles on legitimate expectations and the requisite threshold to be met were established for a party to invoke legitimate“a There must be an express, clear and unambiguous promise given by a public authority;b.The expectation itself must be reasonable;c.The representation must be on which it was competent and lawful for the decision making to make; andd.There cannot be a legitimate expectation against clear provisions of the law or the Constitution”

Whether the Respondent erred in law by demanding Kshs 2,945,740. 00. 43. The Respondent submitted that the Appellant cannot claim legitimate expectation when it has flouted the law as this contravenes Article 210 of the Constitution and the holding of the Supreme Court that there cannot be legitimate expectations against clear provisions of the law. It was the Respondent’s averment that the applicable law in this case was the Common External Tariff (CET) of the East African Community as guided by the General Interpretative Rules for the Classification of Goods (GIR) read together with the World Customs Organizations Harmonized Commodity Description and Coding System Explanatory Notes (ENS) which are the official Interpretation of the Harmonized System at international level.

44. The Respondent submitted that contrary to the Appellant’s argument that the Respondent had erroneously and unlawfully demanded Kshs. 2,945,740. 00, it maintained that it lawfully demanded the short -levied taxes pursuant to Section 135 of the East African Common Customs Management Act, (EACCMA) 2004 while drawing its powers from Section 5 of the Kenya Revenue Authority Act hence the demand for the said taxes from the mis-declaration was anchored in law and justified.

45. In conclusion, the Respondent reiterated the decision of the High Court in Republic vs. Kenya Revenue Authority Ex-parte Bata Shoe Company (Kenya) Limited which held;“payment of tax is an obligation imposed by the law. It is not a voluntary activity. That being the case, a taxpayer is not obliged to pay a single coin more than is due to the taxman. The taxman on the other hand is entitled to collect up to the last coin that is due from a taxpayer”

46. The Respondent prayed that;a.The correct classification of potassium nitrate subheading 2834. 21. 00;b.The correct classification of micronutrient preparation is subheading 3824. 99. 00;c.The demand for Kshs. 2,945,740. 00 short levied taxes are justified and taxes due and payable; and,d.The appeal lacks merit and should be dismissed with costs to the Respondent.

Issues For Determination 47. The Tribunal has carefully considered the parties pleadings, documentation and the Respondent’s submissions and is of the view that this Appeal raises a sole issue for determination.Whether the Respondent was justified in reclassifying the Appellant’s products;

Analysis And Findings 48. The dispute arose after the Respondent, following a post clearance audit review reclassified the Appellant’s products from HS Code 3105. 90. 00 and 3101. 00. 00, which the Appellant had used; to HS Codes 2834. 21. 00 and 3824. 99. 00 preferred by the Respondent. The products were for the following import entries for 2018 and 2019;2018MSA6745563- OSA Veg Plus & OSA Flower Plus2019ICD107423-Potassium Nitrate2019ICD104380-Oligo Gold EDDHA 6%2019ICD119924-Bronze Iron EDDHA

49. It is worth noting that there was no dispute as to the chemical composition of the products. However, parties disagreed on the classification of the products the Appellant preferring to classify them under Chapter 31 whose Heading was fertilizer. However, the WCO Harmonized Commodity Description and Coding System Explanatory Notes to Chapter 31 state in the pertinent part that the chapter excludes micronutrients preparations which are applied to seed, foliage or to soil to assist in seed germination and plant growth. It states further that the preparations may contain small amounts of the fertilizer elements nitrogen, phosphorus and potassium but not as an essential constituent.

50. The Tribunal further noted that the Appellant had not demonstrated by way of evidence that its products contained the essential constituents that would rightfully classify them under Chapter 31. It is also worth noting that although Chapter 31 covers fertilizer, it has exclusions which the Appellant chose to ignore. In particular Note 1 (b) of the chapter does not cover;“Separate chemically defined compounds (other than those answering to the descriptions in Notes 2 (a), 3 (a), 4 (a) or 5. ”

51. As stated above, the Appellant’s position may be considered if they satisfied the description under Notes 2 (a), 3 (a), 4 (a) or 5. For a better understanding, the Tribunal will reproduce the said Notes,2 (a)“Goods which answer to one or other of the description given below,i.Sodium nitrate, whether or not pureii.Ammonium nitrate, whether or not pureiii.Double salts, whether or not pure, of ammonium sulphate and ammonium nitrateiv.Ammonium sulphate, whether or not purev.Double salts (whether or not pure) or mixtures of calcium nitrate and ammonium nitratevi.Double salts (whether or not pure) or mixtures of calcium nitrate and magnesium nitratevii.Calcium cyanamide, whether or not pure or treated with oil,viii.Urea, whether or not pure3 (a)“Goods which answer to one or other of the description given below:i.Basic slag;ii.Natural phosphates of heading 25. 10 calcined or further heat-treated than for the removal of impurities;iii.Superphosphates (single, double or triple);iv.Calcium or the hydrogenorthophosphate containing not less than 0. 2% by weight of fluorine calculated on the dry anhydrous product.4 (a)“Goods which answer to one or other of the description given below;i.Crude natural potassium salts (for example, carnallite, kainite and sylviteii.Potassium chloride, whether or not pure, except as provided in Note 1(c) above;iii.Potassium sulphate, whether or not pure;iv.Magnesium potassium sulphate, whether or not pure5“Ammonium dihydrogenorthophosphate (mono ammonium phosphate) and diammonium phosphate whether or not pure, and intermixtures thereof are to be classified in heading 31. 05”

52. From the description of the Notes stated above, the Appellant’s products being micronutrients preparations do not feature in any of the categories stated above and would therefore be disqualified under Chapter 31.

53. The Tribunal has perused through the documentation and has sighted the following Tariff Rulings that were issued by the Respondent for the products that the Appellant has been importing over time; 2017/CUSV&T/TARI/RUL/481 of 20/12/2017- OSA Tuber micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 00

2017/CUS/V&T/TARI/RUL/483 of 20/12/2017- OSA Vegetable micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 00

2017/CUS/V&T/TARI/RUL/483of 20/12/2017- OSA wheat micronutrient preparation to enhance root development classifiable under subheading 3824. 99. 00

2018/CUS/V&T/TARI/RUL/044 of 14/2/2018 - Iron EDDHA 6% micronutrient preparations for prevention and correction of chlorosis in soil classifiable under subheading 3824. 99. 90. 54. The Tribunal noted that the Appellant never disputed the Respondent’s Tariff Rulings and continued to import its products under the HS Code 3824. 99. 00 as evidenced in the following customs entries for imports that were done between years 2018 to 2021; 2018ICD 65129

2018MSA6966947

2018MSA688872

2020ICD244978

2021ICD244978

2021ICD320119

2021ICD286651

55. Having continued to declare its imports as per the Respondent’s Rulings and in the absence of proof of change in the character of the Appellant’s product, there is no proper justification to change the classification to Chapter 31.

56. Consequent to the above analysis, it is the Tribunals considered view and finding that the Respondent was justified in reclassifying the Appellant’s products.

Final Decision 57. The upshot of the foregoing is that the Appeal is bereft of merit and the Tribunal will proceed to make the following final orders:a.The Appeal be and is hereby dismissed;b.The Respondent’s Review Decision dated 18th December 2023 be and is hereby upheld; and,c.Each party to bear its own costs.

58. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2024ROBERT M. MUTUMA - CHAIRMANDELILAH K. NGALA - MEMBERJEPHTHAH NJAGI - MEMBERDR, TIMOTHY B. VIKIRU - MEMBERMUTISO MAKAU - MEMBER