Saleh Mohammed Trust v Commissioner of Domestic Taxes [2023] KETAT 866 (KLR)

Saleh Mohammed Trust v Commissioner of Domestic Taxes (Tax Appeal 1545 of 2022) [2023] KETAT 866 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KETAT 866 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 1545 of 2022

E.N Wafula, Chair, Cynthia B. Mayaka, RO Oluoch, E Ng'ang'a, AK Kiprotich & B Gitari, Members

November 10, 2023

Between

Saleh Mohammed Trust

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is registered as a trust formed with the aim of providing financial assistance to needy students to further education.

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. The Appellant had been granted an exemption from paying income tax as a trust established for the purpose of advancement of education holding exemption certificate reference number 20140127/4175.

4. The exemption certificate was issued on 27th January, 2014 and was to expire on 27th January, 2019. In anticipation of the expiration the Appellant applied for renewal of the exemption on 18th September, 2018.

5. The Respondent rejected the Appellant's application on 18th March, 2022.

6. Following its dissatisfaction with the Respondent’s decision, the Appellant lodged a Notice of Appeal dated 16th April, 2022 and filed on 19th December, 2022.

The Appeal 7. The Appeal is premised on the following grounds as stated in the Appellant’s Memorandum of Appeal dated 1st April, 2022 and filed on the 19th December, 2022. i.That the Respondent erred in law and fact by wrongful interpretation of Paragraph 10 of the First Schedule of Income Tax Act ("ITA") as the Appellant has met the criteria as laid out in the provisions of the ITA.ii.That the Respondent fell in error in contending that the Appellant does not plough back the rent received in order to achieve its objective but in fact the Appellant has been consistent in abiding by its objectives and for that reason has been exempted from income tax up until the exemption application was rejected on 18th March, 2022. iii.That the Respondent erred in law and fact as there is no requirement for qualification of exemption from income tax other than the one laid out clearly in Paragraph 10 of the ITA. The law requires a purposive approach to statutory interpretation and there is a mandatory requirement to construe every piece of legislation in a manner that promotes the spirit, purpose and objects of the Kenyan tax laws. The interpretation of a statute must remain faithful to the actual wording of the statute.

Appellant’s Case 8. The Appellant’s case is premised on the hereunder submitted documents:-i.The Appellant’s Statement of Facts dated 1st April, 2022 and filed on 19th December, 2022 together with the documents attached thereto.ii.The Appellant’s written submissions dated 19th September, 2023 and filed on 20th September, 2023.

9. That the Appellant is a Charitable Trust that seeks to provide relief from poverty or distress by provision of financial assistance for advancement of education for needy students. That the Trust was registered on 2nd October, 1967 under the Trust Act, Cap. 67 of the laws of Kenya.

10. That the Appellant owns two commercial properties namely; Jubilee House (LR. 209/2486 and 209/2487) and the Trust Mansion (LR. 209/2527/6) which are both situated in the Nairobi City Central Business District. That the values of the two properties have been diminishing due to age and rising land value as the prime location values continue to accelerate. That the Appellant is therefore only able to collect Kshs. 32 Million annually from both properties against a market value of approximately Kshs. 800 Million. That most of the market value is attributable to the underlying land.

11. That due to the age of the property, the rent is comparatively lower than the market value hence the need for the creation of a cash buffer to upgrade the buildings to compete with the market and generate substantial rental income. That it should be noted that with the age of the buildings, these buildings over time will need to be demolished and re-developed, which issue the Respondent is aware of. That the aim of the cash endowment for future redevelopment is in a bid to ensure that the buildings remain in a habitable state and also contribute to increased rental, thereby increasing the funds available for charity, the Appellant came up with a re-development plan.

12. That the plan entails the redevelopment of the two properties into retail and commercial complexes with a projected combined cash outlay of Kshs. 931 Million as produced on Appendix 2 of the Appellant’s bundle. That the creation of a cash endowment will be invested and the investment income will be utilised for future needs when the buildings need to be renovated. That based on the trust deeds, the trustees will not be allowed to borrow, and therefore, the re-development costs have to be funded from internal sources.

13. That with the re-development of the two properties, the annual rent collected is projected to increase from Kshs. 32 Million to a minimum of Kshs. 130 Million after stabilization. That additionally, both the property values and the yield will increase achieving a higher impact in advancement of education for the benefit of needy Kenyan citizens.

14. That the Appellant’s board of directors have met severally and approved the re-development plans via the Minutes dated 25th June, 2018, 9th May, 2017 and 12th May, 2016. That the aim of this is ensuring that the accumulation of funds match the re-development capital cost as the current rental cash flows are insufficient to procure commercial debt at the projected level.

15. That the Appellant disputes the decision by the Respondent which incorrectly averred that not only does the Appellant not plough back the rent received in order to achieve its objective but also it accumulates the same with no evidence provided for its building plans. That the Appellant further disputes the Respondent’s assertion that there is no evidence provided within the Appellant’s financial statements illustrating expenses relating to its objectives.

16. That on the grounds expounded on below, the Appellant demonstrates that it not only provided evidence of its re-development plans but has also demonstrated that these expenses incurred are in line with the Appellant’s objectives. That the Appellant will further demonstrate that the law relating to income that is exempt in Kenya is not ambiguous and should be interpreted remaining faithful to the ordinary meaning of the statute and had the Respondent done so, it would not have reached the unfair decision that was delivered.

17. That the Appellant qualifies for exemption as per Paragraph 10 of the First Schedule of the ITA.

18. That the law exempts income established for the purposes of the relief of poverty or for the advancement of education under Paragraph 10 of the First Schedule of the ITA. The said provision clearly states that;“Subject to section 26, the income of an institution, body of persons or irrevocable trust, of a public character established solely for the purposes of the relief of the poverty or distress of the public, or for the advancement of religion or education-(a)established in Kenya; or(b)whose regional headquarters is situated in Kenya,in so far as the Commissioner is satisfied that the income is to be expended either in Kenya or in circumstances in which the expenditure of that income is for the purposes which result in the benefit of the residents of Kenya:Provided that any such income which consists of gains or profits from a business shall not be exempt from tax unless those gains or profits are applied solely to those purposes and either -(i)the business is carried on in the course of the actual execution of those purposes; or(ii)the work in connection with the business is mainly carried on by beneficiaries under those purposes; or(iii)the gains or profits consist of rents (including premiums or similar consideration in the nature of rent) received from the leasing or letting of land and chattels leased or let therewith.and provided further that an exemption under this paragraph-(A)shall be valid for a period of five years but may be revoked by the Commissioner for any just cause; and(B)shall, where an applicant has complied with all the requirements of this paragraph, be issued within sixty days of the lodging of the application.”

19. That the Appellant believes that the provisions of law above are clear and should be interpreted with the ordinary meaning of the words used. That Justice G V Odunga in Republic v Kenya Revenue Authority & another Ex-parte Fontana Limited [2014], upheld the ruling in Cape Brandy Syndicate vs. Inland Revenue Commissioner [1921] 1 KB 64, where it had been held that: “In a taxing act one has to look merely at what is clearly stated… There is no presumption as to tax.”

20. That the natural and ordinary meaning in this case is that the income of the Appellant should be exempt so long as the Trust was established for purposes of relief of poverty or advancement of education.

21. That the Appellant meets the criteria of Paragraph 10 of the First Schedule in the following ways:Criteria Meets the conditions laid out in Paragraph 10

Income of a body established solely for the purposes of the relief of the poverty or distress of the public, or for the advancement of religion or education Yes

Established in Kenya Yes

The income is to be expended either in Kenya or in circumstances in which the expenditure of that income is for the purposes which result in the benefit of the residents of Kenya Yes

The gains or profits are applied solely to those purposes stated below;a) the business is carried on in the course of the actual execution of those purposes;b) the work in connection with the business is mainly carried on by beneficiaries under those purposesc) the gains or profits consist of rents (including premiums or similar consideration in the nature of rent) received from the leasing or letting of land and chattels leased Yes

22. The Appellant further contends that the above rules have consistently been met before the Respondent’s unsubstantiated decision, and that is the reason it retained a valid exemption certificate based on its activities that are in line with its objectives as laid out in the Trust Deed.

23. That the Respondent, failed to interpret the law correctly as it relied on an internal matrix pay-out ratio which is not available in the public domain and is not supported by the law. That by failing to interpret the law correctly, the Respondent breached the Appellant’s legitimate expectation on the basis that the Appellant has previously attained its exemption status based on its past and current activities that have remained unchanged as guided by its Trust Deed.

24. That the Respondent breached the Appellant’s legitimate expectation by revoking the exemption certificate and by failing to provide adequate justifications demonstrating how the Appellant failed to meet the provisions of Paragraph 10 of the First Schedule of the ITA.

25. That according to De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6th Edition Sweet & Maxwell page 609:“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”

26. That this position was expounded on further in R (Bibi) vs. Newham London Borough Council [2001] EWCA Civ. 607 [2002] 1 WLR 237 where it was stated that:-“In all legitimate expectation cases, whether substantive or procedural, practical questions rise, the first question is to what has the public authority, whether by practice or by promise, committed itself to; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment…”

27. That it is the duty of the Respondent to act fairly in carrying out its mandate and it is paramount for it to be impartial in administering its role in collection of taxes. That this was the position in Doody vs. the Home Secretary of State [1993] 1 All ER 151 where it was held that:“Where an Act of Parliament confers administrative power there is a presumption that it will be exercised in a manner which is fair.”

28. That if the law intended to exempt income of organizations established with the sole aim of advancing education and relieving poverty, the Respondent cannot deny taxpayers their Constitutional right to rely on the predictability of such laws without demonstrating the same within law.

29. That the law must not be interpreted in a form and manner that is highly prejudicial and against public policy. That the Respondent must be reasonable in its assessments. That in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 the court set out the standard of unreasonableness of public body decisions, that if unreasonable, would make (the decision) liable to be quashed.

30. That as held in R v Inland Revenue Commissioner, ex-parte Unilever p/c [1996], ‘the Court is there to ensure that the power to make and alter policy is not abused by unfairly frustrating legitimate individual expectations…. This is contrary to the scope and powers of the revenue authority which to administer the collection of taxes and not to severely undermine the law in efforts to increase their revenues...’

31. That the Respondent cannot after reviewing documentation provided, such as financial statements claim that the Appellant did not provide for the expenses of its objective. That in fact, the Appellant provided a breakdown of donations to various organizations which matches the expenses as illustrated in its Financial Statements.

32. The Appellant further asserts that Section 4 of the Fair Administrative Actions Act, 2015, provides that any administrative action is to be taken expeditiously, efficiently and lawfully and that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to Section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.

33. That based on the above provisions and the submission of documents to the Respondent, the Appellant contends that it had put all efforts in place to ensure that it is in compliance with Paragraph 10 of the First Schedule and the Respondent has not clearly demonstrated how the Appellant has failed to meet the exemption criteria.

34. The Appellant avers that it provided documentary evidence such as the re-development strategy via Minutes dated 25th June, 2018 and a re-development strategy document with a detailed analysis of both the financial and strategic impact of the same.

35. That the Appellant further submitted a breakdown of donations to various organizations, which matches the expenses it incurs as demonstrated in the financial statements and highlighted via testimonials the effect of its donations to the organizations it directly impacts.

Appellant’s Prayers 36. The Appellant prays that this Honourable Tribunal:i.Allows this Appeal;ii.Annuls the Respondent’s rejection of the application for renewal of the tax exemption and orders the Respondent to renew the certificate based on the application by the Appellant based on the grounds above, as well as the information contained in the Statement of Facts attached; andiii.Awards costs of this Appeal to the Appellant.

Respondent’s Case 37. The Respondent’s case is premised on the hereunder filed documents and proceedings before the Tribunal: -i.The Respondent’s Preliminary Objection dated 18th April, 2023 and filed on 19th April, 2023. ii.The Respondent’s Statement of Facts dated and filed on 19th January, 2023 together with the documents attached thereto.iii.The Respondent’s witness statement of Margaret Karanja dated 21st July, 2023 and filed on 26th July , 2023 that was admitted in evidence under oath on the 5th September, 2023.

38. The Respondent’s Preliminary Objection raised the following issues:i.That the decision rendered on 18th March, 2022 rejecting the Appellant’s application for exemption does not constitute an “appealable decision” as envisaged under Section 2 of the Tax Procedures Act.ii.That the instant Appeal is premature noting that the Respondent has not issued any assessments which would necessitate the issuance of an objection decision subject to appeal.iii.That the Tribunal lacks the requisite jurisdiction to consider this Appeal which challenges the Respondent's actions as unlawful and arbitrary, whose appropriate forum is judicial review. In the circumstances, the present appeal is an outright abuse of the Tribunal process and ought to be dismissed with costs to the Respondent.

39. That the Appellant had been granted an exemption from paying income tax as a trust established for the of purpose advancement of education, holding exemption certificate reference number 20140127/4175.

40. That the exemption certificate was issued on 27th January, 2014 and was to expire on 27th January, 2019. That in anticipation of the expiration the Appellant applied for renewal of the exemption on 18th September, 2018.

41. That after deliberation, the Respondent rejected the Appellant's application on 23rd February, 2022.

42. The Respondent states that the Appellant fell short of the criteria provided under Part 1, Paragraph 10 of the First Schedule to the Income Tax Act as its funds were neither solely nor substantively channelled to the furtherance of education.

43. That the exemption to income tax under the relevant Paragraph 10 is principally anchored in Section 13(1) of the Income Tax Act which provides as follows:“Notwithstanding anything in Part Il, the income specified in Part I of the First Schedule which accrued in or was derived from Kenya shall be exempt from tax to the extent so specified.”

44. That the provision above indicates that the types of income which are exempt are specified. That the character of such an income is described precisely, conditions attendant to the exemption are given and the nature of the income is well circumscribed. That the specification alluded to helps ensure that the boundary of exempt income and taxable income is well delineated.

45. That the relevant provision in the current matter is Paragraph 10, Part 1 of the of the First Schedule to the Income Tax Act which provides as follows:“Part I - Income Accrued In,derived From Or Received In Kenya Which Is Exempt From TaxSubject to section 26, the income of an institution, body of persons or irrevocable trust, of a public character established solely for the purposes of the relief of the poverty or distress of the public, or for the advancement of religion or education-(a)established in Kenya; or(b)whose regional headquarters is situated in Kenya, in the benefit of the residents of Kenya:Provided that any such income which consists of gains or profits from a business shall not be exempt from tax unless such gains or profits are applied solely to such purposes and either-(i)such business is carried on in the course of the actual execution of such purposes;(ii)the work in connexion with such business is mainly carried on by beneficiaries under such purposes; or(iii)such gains or profits consist of rents (including premiums or any similar consideration in the nature of rent) received from the leasing or letting of land and any chattels leased or let therewith; and provided further that an exemption under this paragraph-(A)shall be valid for a period of five years but may be revoked by the Commissioner for any just cause; and(B)shall, where an applicant has complied with all the requirements of this paragraph. be issued within sixty days of the lodging of the application.”

46. That the provision provides for the requirements which have to be complied with before an Applicant can be granted exemption. That of particular relevance is the requirement of an exclusive worthy purpose. That the Applicant must show that it is an institution, body of persons or a trust of a public character established purely for the purpose of reducing poverty or distress to the public or advancing education or religion.

47. That in addition to showing that it is established solely for a worthy cause, the organisation must show that it applies the income solely for the purpose for which it was established. That when the Appellant applied for the renewal exemption, the Respondent reviewed the Appellant's expenditures from 2014-2019 to ascertain whether the income had been channelled to the charitable activities for which the exemption was granted.

48. That the Respondent's review revealed that the Appellant was applying only a small percentage of its income for the advancement of education. That the Appellant had applied 22%, 21%, 13%, 9%, 8%, 7% of its income as grants to needy children in 2014, 2015, 2016, 2017, 2018 and 2019, respectively.

49. That the Respondent also noticed that the substantive part of the rental and operating income earned was channelled to an investment. That to encapsulate the findings, the Respondent discovered that the total amounts expended on the charitable purpose was less than the amount the Appellant would have paid if its income were taxed, for each and all the years under review.

50. The Respondent states that all the requirements must be met before an exemption is granted. That it is a trite and settled position of law that a taxpayer seeking exemption must strictly comply with the exempting provisions. That additionally, there is no room for intendment in a tax legislation. That if the Act requires that the gains be channelled solely to the advancement of education, then the condition must be met strictly.

51. That accumulating the profits for the future investments, while enjoying a tax exemption which is conditioned on the fact that such gains be exclusively channelled into the charitable purpose, defeats the purpose of the exemption.

52. The Respondent states that since the Appellant does not conduct business, the test under Paragraph 10 on whether the business is related to the charitable cause cannot be utilised in processing the application for exemption. That the Appellant's income majorly consists of rent, as such it has to be examined based on the destination of income test. That when the Respondent noted that the income majorly ended up banked in a financial institution, totalling to Kshs. 513,560,167. 00 by 2020, it reasonably concluded that the Appellant had failed the destination of income test.

53. The Respondent further averred that the Appellant's contention that it was storing the funds to carry out repairs to the leased property and improve its earning capacity was not supported by any building plans submitted for approval to the relevant authorities. That the Appellant merely wishes to produce Minutes for meetings in which the plans were allegedly approved in 2016, 2017 and 2018 yet none of the plans has been acted upon.

54. That the Appellant claims that it has been previously compliant and cites the fact it has consistently been granted exemption. That it is this reasoning that also grounds the Appellant's claim of infringement of legitimate expectation. The Respondent replies to this by stating that the fact that the exemption has been previously granted does not mean that the Appellant is automatically and unconditionally entitled to the exemption.

55. That Part I, Paragraph 10(A) provides that the exemption is valid for five years. That notably, it also allows the Respondent to revoke an exemption that has been granted even before expiration of five years for a just cause. That Paragraph 10(B) on the other hand states that it is only when all the requirements have been complied with that an exemption is to be granted to an applicant.

56. That from the foregoing, it is evident that the Respondent is not bound by the fact that it has previously exempted an applicant. That there cannot arise a legitimate expectation that the Respondent will allow an application merely because it has previously exempted the applicant even where there is evidence that it would be just to deny the exemption. That as such the Respondent cannot be faulted on this ground.

57. That exemptions, are for good reason considered as tax expenditure on the part of the Government. That in cases where actual income is exempted such as this, a quantifiable amount of tax is foregone. That where the Respondent considers that the foregone amounts are not being applied for the charitable purposes for which they were excluded from the taxman’s purview, for a considerable period of six years, the Respondent has the right to decline an application for further exemption.

Respondent’s Prayers 58. The Respondent prays that the Tribunal finds:-i.That the Commissioner’s decision to reject the application for exemption under Paragraph 10, Part I of the First Schedule to the Income Tax Act was proper.ii.That this Appeal be hereby dismissed with costs to the Respondent as the same is without merit.

Issues For Determination 59. The Tribunal has evaluated the pleadings and documentation filed by both parties and is of the respectful view that the singular issue falling for its determination is:- Whether the Appeal is valid

Analysis And Determination 60. The Tribunal having established the issue for its determination, proceeded to analyse it as hereunder.

61. This dispute arose from the Respondent’s action of rejecting the Appellant’s application for a renewal of income tax exemption on its income.

62. The Appellant averred that it meets the criteria of Paragraph 10 of the First Schedule and should be exempt under this provision. It further averred that its income should be exempt so long as the Trust was established for purposes of relief of poverty or advancement of education.

63. The Respondent, in its Preliminary Objection, noted that the decision rendered on 18th March, 2022 rejecting the Appellant’s application for exemption does not constitute an "appealable decision" as envisaged under Section 3 of the Tax Procedures Act. That the instant Appeal is premature noting that the Respondent has not issued any assessments which would necessitate the issuance of an objection decision subject to appeal.

64. The Respondent further argued that all the requirements must be met before an exemption is granted. That it is a trite and settled position of law that a taxpayer seeking exemption must strictly comply with the exempting provisions. That additionally, there is no room for intendment in a tax legislation. That if the Act requires that the gains be channelled solely to the advancement of education, then the condition must be met strictly.

65. The Respondent further averred that accumulating the profits for the future investments, while enjoying a tax exemption which is conditioned on the fact that such gains be exclusively channelled into the charitable purpose, defeats the purpose of the exemption.

66. The Tribunal gleaned through the parties’ pleadings and established that the Respondent’s email dated 18th March, 2022 was a rejection of the Appellant’s application for renewal of its exemption. Specifically, the Respondent’s email stated as follows in its conclusion:“The application does not conform to the requirements under paragraph 10 and is hereby rejected.”

67. The Tribunal notes that Section 52 of the TPA states as follows regarding appeal of appealable decisions to the Tribunal:“Appeal of appealable decision to the Tribunal(1)A person who is dissatisfied with an appealable decision may appeal the decision to the Tribunal in accordance with the provisions of the Tax Appeals Tribunal Act, 2013 (No. 40 of 2013).(2)A notice of appeal to the Tribunal relating to an assessment shall be valid if the taxpayer has paid the tax not in dispute or entered into an arrangement with the Commissioner to pay the tax not in dispute under the assessment at the time of lodging the notice.”

68. The TPA defines an appealable decision to mean:“an objection decision and any other decision made under a tax law other than—(a)a tax decision; or(b)a decision made in the course of making a tax decision;”

69. Further, Section 51 of the TPA provides an internal mechanism for review of a decision by the Commissioner and provides as follows regarding objections to decisions by the Commissioner:-“(1)A taxpayer who wishes to dispute a tax decision shall first lodge an objection against that tax decision under this section before proceeding under any other written law.(2)A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision.”

70. Thereafter, Section 51(8) of the TPA provides as follows in relation to the Commissioner’s response to a taxpayer’s objection:“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".

71. The Tribunal notes that the communication by the Respondent to which the Appellant lodged its Appeal at the Tribunal was an email from the Respondent informing the Appellant that its application for tax exemption was rejected on the basis that it did not conform to the requirements under Paragraph 10. In relation to the provisions of the TPA laid out above, this email was a tax decision by the Commissioner.

72. From the chronology of events, the Appellant failed to follow due process as it appealed a tax decision by the Respondent rejecting its application for exemption in response to which it should have lodged a valid objection as per Section 51 of the TPA. The Tribunal concludes therefore that the decision forming the basis of the Appellant’s appeal to this Tribunal was not an appealable decision as defined under Section 2 of the TPA.

73. The Tribunal is guided by the decision in the case of W.E.C. Lines Ltd vs. The Commissioner of Domestic Taxes [TAT Case No. 247 of 2020] where it was held in relation to compliance with statutory procedures as thus:-“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”.

74. Having established that the appeal by the Appellant was not based on an appealable decision, the Tribunal makes a finding that this Appeal was premature and there is therefore no valid appeal before the Tribunal.

Final Decision 75. In view of the foregoing, the Tribunal finds that the Appeal is incompetent and unsustainable in law and accordingly proceeds to make the following Orders:-a.The Appeal be and is hereby struck out.b.Each Party to bear its own costs.

76. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023ERIC NYONGESA WAFULA - CHAIRMANCYNTHIA B. MAYAKA - MEMBERDR. RODNEY O. OLUOCH - MEMBEREUNICE NG’ANG’A - MEMBERABRAHAM K. KIPROTICH - MEMBERBERNADETTE GITARI - MEMBER