Silverstone Quarry Limited v Commissioner of Domestic Taxes [2024] KETAT 280 (KLR)

Silverstone Quarry Limited v Commissioner of Domestic Taxes (Tax Appeal 1520 of 2022) [2024] KETAT 280 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KETAT 280 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 1520 of 2022

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

March 8, 2024

Between

Silverstone Quarry Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a resident company whose principal activity is to extract stones.

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 Respondent raised additional assessments in respect of Corporation Tax for the 2016-2021 tax periods on 18th and 29th August, 2022.

4. The Appellant objected to the additional assessments on 4th September on iTax and further on 27th September, 2022 through a letter.

5. The Respondent issued the confirming notice on 2nd November, 2022.

6. Following its dissatisfaction with the Respondent’s decision of 2nd November, 2022, the Appellant filed a Notice of Appeal to the Tribunal on 1st December, 2022.

The Appeal 7. The Appeal is premised on the following ground as stated in the Appellant’s Memorandum of Appeal dated 14th December, 2022 and filed on 15th December, 2022:-i.That the Respondent assessed taxes based on estimated, incorrect and excessive incomes and issued additional assessments for the years of income 2016-2021 without considering the Appellant's audited financial statements and other documentation and before they could submit their self-assessment returns using figures derived from the audited accounts.

Appellant’s Case 8. The Appellant’s case is premised on the Appellant’s Statement of Facts dated 14th December, 2022 and filed on 15th December, 2022.

9. The Respondent raised additional assessments in respect of Corporation tax for the 2016-2021 tax periods on 18th and 29th August, 2022.

10. That the additional assessments were objected to on 4th September, 2022.

11. That the Respondent issued the confirming notice on 2nd November, 2022.

12. That the Appellant's main director, Mr. Ramji Varsani who was instrumental in running the financial and administrative affairs of the firm, fell ill and in 2017 succumbed to his illness. That this resulted in the delay in submitting the annual self-assessment return for the year of income 2015.

13. That before the audit could be concluded, and without any prior consultation with the Appellant, an additional assessment of Kshs. 34,813,049. 70 was issued, which was later confirmed through an objection decision. That the Appellant later appealed this decision and through the consent adopted by the Honourable Tribunal, it was held that the additional assessments be vacated to allow the Appellant to submit the self-assessment return using the figures in the audited financial statements and tax computations. That this would also allow filing of the tax returns for the subsequent tax periods.

14. That the Respondent on 16th April, 2021 sent a letter to the Appellant informing it of a verification exercise covering tax declarations for the periods 2015 – 2020. That in the letter, the Respondent requested for documentation to aid in its verification process, including audited financial statements and bank statements. That bank statements for the periods 2015-2020 and audited financial statements for the periods 2015-2017 were availed. That the audited financial statements for the year 2018 were later finalised and sent to the Respondent via email on 31st January, 2022.

15. That the Respondent later issued a notice of assessment dated 29th July, 2022 claiming that it had requested for documentation which the Appellant only availed part of. The Appellant reiterated that documentation requested for periods 2016 to 2018 was availed at the time and part of the documents requested for the periods 2019 and 2020 were also availed as the audit was being concluded at the time of the Respondent's request. That this fact was mentioned to the Respondent in prior emails, requesting for additional time to conclude the same.

16. That notwithstanding, the Appellant had already availed documentation for the periods 2015 to 2018, which were duly received by the Respondent via its email of 7th September 2021. That the Respondent erred in disregarding the already availed audited financials and documentation while assessing the tax payable for the said periods.

17. That in its assessment notice, the Respondent claimed that the Appellant had failed to submit tax declarations for Income Tax and further submitted nil returns despite declaring sales on the Appellant's monthly VAT returns. That the matter was addressed in another concluded tax dispute, Tax Appeal number 775 of 2021, which was based on the same facts and issues, and which was shared to the Respondent in the Appellant's objection notice.

18. That in the matter, the Respondent had raised additional assessments against the Appellant for years of income 2014 and 2015 based on estimated figures. That the Appellant objected to the assessments and later appealed the matter at the Tax Appeals Tribunal after the objection was rejected. That this Honourable Tribunal adopted the consent entered into by the parties through ADR, which directed that the assessments be vacated to allow the Appellant to file its self-assessment tax returns (using the figures depicted in the audited financial statements and tax computation).

19. That the Respondent is yet to vacate the said assessments, which has hindered the submission of the self-assessment returns for the subsequent periods.

20. That in its assessment notice, the Respondent assessed Corporation taxes based on the sales declared in the VAT returns, allowed for purchases in the VAT returns (which were not correctly extracted) and staff emoluments declared on the iTax payroll as employment expenses, and demanded Corporation Tax for the years 2016 - 2021 of Kshs. 240,008,087. 00 consisting of principal tax of Kshs. 223,475,584. 00, penalties of Kshs. 11,173,779. 00 and interest of Kshs. 5,358,725. 00.

21. That the Respondent erred in law and fact by disregarding the Appellant's audited financial statements for the years 2016 - 2018 and basing its assessment on incorrect estimates. That the correct tax position for the years of income 2016 - 2018 was as per the audited financial statements that were availed to the Respondent in previous correspondences with the Appellant. That the same was also highlighted in the Appellant's objection letter where the excess tax levied on the Appellant amounted to Kshs. 83,147,037. 00, Kshs. 27,003,656. 00 and Kshs. 17,830,964. 00, respectively, for this period.

22. That the Respondent further issued additional assessments amounting to Kshs. 38,876,485. 00, Kshs. 26,609,996. 00 and Kshs. 10,258,140. 00 for the years of income 2019, 2020 and 2021, respectively. That this was done by the Respondent before the conclusion of the external audit, thereby again using incorrect estimates to arrive at the tax payable for the said periods.

23. That the audit for the years of income 2019 and 2020 was later concluded, with the figures for the taxable income still not matching with the figures arrived at by the Respondent. That this was explained in the Appellant's objection, where in addition to availing the audited financial statements for the said periods, the taxable incomes for the periods were recomputed to include other incomes and expenditures, and allowable and disallowable expenses. That the Respondent therefore erred in its estimates by failing to take into account the full disclosures as entailed in the audited financial statements and supporting documentation to arrive at the correct tax position, and the additional tax liability is therefore incorrect.

24. That the Respondent erred in fact and in law by ignoring documentary evidence adduced to enable determination of the actual incomes of the Appellant and instead relied on other bases as noted above, which were not accurate as the figures were grossly overstated and incorrectly captured in total disregard of all the documentation that had been requested and duly provided to the Respondent.

25. That the Respondent later sent an email on 7th September, 2022 requesting for additional documents to support the objection, which was responded to vide the Appellant’s letter of 27th September, 2022 after being granted additional time to compile the requested documents.

26. That a meeting was later held with the Respondent on 5th October, 2022 where the Respondent was exploring the option of either to amend the additional assessments issued or to vacate the said assessments and adopt the figures in the audited financial statements, provided that additional documents were availed to them.

27. That this was followed by the Appellant’s email of 17th October, 2022 where it availed a schedule of cost of sales and expenses claimed in the audited financial statements for the years of income 2015-2020 as was requested during the meeting.

28. That in light of the documents that had been availed, the Respondent should have used the information and documentation provided to amend the assessments to the correct tax position.

29. That this Honorable Tribunal should note that even after provision of the documentation as noted, the Respondent did not amend its assessment, which remained as per its 'incorrect' assessments.

30. That the Respondent issued an objection decision vide its email of 3rd November, 2022, confirming the assessments originally issued. That in its decision, the Respondent alleged that the Appellant had submitted nil returns, which made the Respondent issue additional assessments rather than default assessments under Section 29 of the Tax Procedures Act 2015.

31. That as mentioned above, the Appellant was not able to submit the tax returns for the years 2016-2018 owing to the additional assessments for the years of income 2014 and 2015 that are yet to be vacated. That the Appellant had also raised this matter in response to a similar demand by the Respondent, however the matter is yet to be resolved.

32. The Appellant further contended that the self-assessment tax returns for the years of income 2016-2019 were submitted on 28th November, 2019 as a requirement from the Commissioner to issue a tax compliance certificate. That the nil returns were therefore solely done to allow for issuance of the said TCC.

33. That the Respondent in its objection decision alleged that amongst other documents, bank statements had not been availed upon request. The Appellant noted and reiterated that bank statements for the 2015-2020 periods were actually availed to the Respondent vide its letter of 27th April, 2021, which the Respondent acknowledged on 29th April, 2021. That it is therefore inaccurate for the Respondent to claim otherwise.

34. That from the Respondent's email of 3rd, November 2022 attaching the objection decision, the Respondent had sent another email of 28th, October 2022 where it had requested for additional documentation to support the Appellant's objection. The Appellant requested the Tribunal to note that it only had knowledge of the email later on and had no intention of frustrating the Commissioner's efforts in resolving the matter.

35. That additionally, the Respondent in its email requested for additional information to be provided within seven (7) days. That the Respondent proceeded to issue the objection decision, dated 2nd November 2022, which was a day before the expiry of the granted timeline, which is in contravention to the provisions of Article 47 of the Constitution of Kenya, 2010 which guarantees the Appellant's right to fair administrative action that is reasonable and procedurally fair. That whereas the information was ready and being compiled, issuing the objection decision therefore meant that the only recourse would be to appeal to this Honorable Tribunal.

36. That notwithstanding, the Appellant clarified that it is able to avail the documentation requested in the Respondent’s email (and as noted above, had already previously submitted the bank statements) for the periods in which it had concluded the audit, which are years of income 2015-2020. The documents were attached to the Appellant’s pleadings.

37. That the Respondent in its objection decision purported to have estimated the figures therein based on expenses declared by the Appellant in its VAT returns and payroll records as filed on the iTax platform. That however, and without prejudice, even when only considering the declared purchases as per the VAT returns filed by the Appellant on iTax, material differences were noted in the Commissioner's calculations of the 'purported purchases' which understated the total expenditure by Kshs. 159,548,889. 00 and Kshs. 8,823,159. 00 for the 2016 and 2018 tax periods, respectively, thereby grossly overstating the Appellant’s 'estimated taxable incomes' by similar amounts.

38. That the Respondent's estimates are therefore baseless and misleading and this Honorable Tribunal should not allow the incorrect estimates by the Respondent as they would result in excessive taxes being demanded, and which the Appellant would not financially be capable of paying as no such incomes were earned.

39. That the Respondent in its decision alleged that the expenses declared by the Appellant in the audited financial statements were materially different from what was declared in the VAT and payroll (PAYE) records on the iTax platform. That this allegation is without merit because the Respondent has failed to consider other expenditures, including finance costs (interest expenses) and other allowable expenses wholly and exclusively incurred in the production of the income as provided under Section 15 of the Income Tax Act and which do not require to be declared in the VAT returns, and which should be considered when arriving at the taxable income for a taxpayer. That the variance that arises therein is highlighted in the VAT / IT2C reconciliation attached to the Appellant’s pleadings.

40. That additionally, the Respondent failed to consider the documentation included in the Appellant's objection letter of 27th September, 2022, received by the Respondent on 5th October, 2022, where financial statements were provided and a reconciliation of the Respondent's estimated amounts and the amounts as per the audited financial statements was attached indicating the excess tax charged.

41. That the Respondent, as noted above, failed to consider finance costs of Kshs. 12,150,755. 00, Kshs. 572,308. 00, Kshs. 4,766,603. 00 ,KShs.30,705,936. 00. and Kshs. 28,986,99400 for the years of income 2016, 2017, 2018, 2019 and 2020 respectively as part of expenditure when arriving at the correct tax position for the tax periods 2016-2020.

42. That as noted above, the Appellant availed bank statements to the Respondent in addition to audited financial statements. That these sets of documents would justify finance costs as a deduction due to the fact that the Appellant had borrowings which were financed by debts bearing finance charges. That the Respondent disregarded this fact whereas it was supported by documentary evidence, and in its estimates, failed to consider that due to the borrowings, the Appellant had finance charges and other related costs which would form part of allowable expenses but would not have been declared in the VAT returns.

43. That the claim by the Respondent that it was not able to vouch such expenses therefore holds incorrect. The Appellant provided breakdowns and supporting documentation of the finance charges, including relevant loan agreements in its pleadings.

44. That the Respondent erred in fact and in law by not allowing for employment expenses of Kshs. 79,154,572. 00 for the periods 2016-2020 that were wholly and exclusively incurred in the production of taxable income as provided under Section 15 of the Income Tax Act, but not included in the payroll. That these include casual wages and other payroll-related costs, which were highlighted in the breakdown attached to the Appellant’s pleadings. That these costs were not included in the Respondent's estimates as allowable deductions as per Section 15 of the Income Tax Act, CAP 470.

45. That the Respondent in its objection decision alleged that the declarations as highlighted in the audited financial statements represent a 3% net profit margin which is significantly lower than the industry margins and that the 22% margin established by the Commissioner was within the industry margins.

46. That additionally, the Respondent's claim is baseless as it has not stated the actual industrial profit margin neither has it demonstrated the manner or formula that it used to arrive at the alleged comparative figure. Further, the sources of products and business models of the industry players may vary. That the Respondent's claim is therefore not adequate as it disregards the specific and unique operational problems and losses that may arise in day to day activities.

47. That the Respondent in its decision claimed that the Appellant was unable to reconcile the variances between the figures presented by the Commissioner and the figures declared in the financial statements. That this argument lacks merit as a reconciliation was included in the objection letter that was availed to the Commissioner.

48. That in the objection, the Appellant clearly outlined the variances in arriving at the taxable income for the years that had been audited. That the same was also highlighted in the attachments to the Appellant’s pleadings where the variances in incomes and expenditure were clearly highlighted. That it is therefore incorrect for the Respondent to disregard the facts that were laid out in the documentation availed to it.

49. That as demonstrated in the explanation by the Appellant above, it is evident that allowing the additional assessments raised by the Respondent will lead to actual and total collapse of the Appellant's business as the estimates established by the Respondent are grossly overstated and appear to be deliberately deduced as noted by:-i.Incorrect extraction of 'purchases' by omission of balances, resulting in understatement by Kshs. 159,548,889. 00 and Kshs. 8,823,159. 00 for the 2016 and 2018 tax periods respectively.ii.Incorrect application of formulae in arriving at its claimed 'industry margin' of 22% whereas as per its estimates there would be between 37%- 41% margins, which would be exceedingly beyond the claimed industry margins.iii.Omission of allowable expenses wholly and exclusively incurred in the production of the income as provided under Section 15 of the Income Tax Act, Cap. 470.

Appellant’s Prayers 50. The Appellant prayed that its Appeal be allowed and further that the Respondent be required to amend the 2016-2021 additional assessments to nil in light of the Memorandum of Appeal.

Respondent’s Case 51. The Respondent’s case is premised on its Statement of Facts dated 15th January, 2023 and filed on 16th January, 2023 together with the documents attached thereto.

52. That the Respondent issued additional Income tax assessments on 29th August, 2022 for the period 2016-2021 and the Appellant made a late objection to the additional assessments on 4th September, 2022.

53. That the backbone statute in this matter was Section 31(1)(c)of the Tax Procedures Act 2015 which provides that;“Subject to this section, the Commissioner may amend an assessment (referred to in this section as the “original assessment") by making alterations or additions, from the available information and to the best of the Commissioner's judgement, to the original assessment of a taxpayer for a reporting period to ensure that in any other case, the taxpayer is liable for the correct amount of tax payable in respect of the reporting period to which the original assessment relates.”

54. That the tax decision in the matter herein was issued from estimates that were based on the information available to the Commissioner as legally stipulated in the above provision.

55. The Respondent stated that the taxpayer had been a nil filer for the years of income 2016 to 2021. That the Respondent could therefore not establish the Appellant's actual cost of purchases and sales throughout the years.

56. That upon review of the Appellant's tax records, it was established that the revenues declared in the Appellant's audited financial statements were less than the sales declared in the VAT returns. That the sales declared in the VAT returns as revenue for Income tax purposes as well as the allowed purchases claimed in the VAT returns and staff emoluments declared in the company's payroll were brought to a Corporation tax charge of 30%.

57. That the additional assessments were issued against the Appellant under Section 31 of the Tax Procedures Act, 2015 as stated above as a way of enhancing the nil return taxes already declared by the Appellant rather than as a default assessment under Section 29 of the Tax Procedures Act, 2015.

58. That the Appellant failed to explain and/or support the existing variance as communicated by the Respondent; as such, the Respondent confirmed the assessments as they were.

59. That the burden to prove that the above stated variance was wrongfully charged rested wholly on the Appellant as per Section 56 of the Tax Procedures Act.

60. That the Appellant has since failed to discharge this burden and prove either the assessments or the decision wrong by explaining the noted variance with evidence and reconciling the same.

61. That additionally, the Appellant claimed expenses as well as cost of sales which the Respondent requested it to support. That the Respondent specifically asked the Appellant to provide: - sales and purchases invoices and ledgers; audited trial Balances; bank statements; contractual documents; stock records and detailed reconciliation of variances between the figures established by the Commissioner and details in order to establish the correct position of the company as well as figure out what in particular was left out leading to an understatement as claimed by the Appellant.

62. That instead, the Appellant went ahead and provided financial statements and self-generated documents and schedules, which the Respondent could neither authenticate nor prove.

63. The Respondent averred that the documents and private records provided by the Appellant cannot in any way be relied upon to establish the Appellant's claim of understatement for purchases and expenses. That as such, the Respondent relied on the information available, which was the VAT totals so as establish sales and purchases. That uncorroborated/unsupported documents cannot stand as evidence in tax issues.

64. That it is fundamental to note that since it was upon the Appellant to prove the expenses claimed as left out in the assessment, the Respondent indeed made room for the expenses that were proved and supported as such. That the same was allowed as evidenced in the Respondent's objection decision leaving only the expenses that the Appellant failed to support. That additionally, the Respondent allowed purchases claimed in the VAT returns as well as staff emoluments as an expense.

65. That the Appellant, in paragraph 4 of its Memorandum of Appeal as well as Bundle of Documents attached an Alternative Dispute Resolution (ADR) Agreement for Tax Appeal No. 755 of 2021 and further claimed that the issues addressed in the Appeal herein were settled in the said Agreement. The Respondent averred that the ADR Agreement in question settled taxes in dispute for the period 2015 while the assessments relating to the Appeal herein relate to the period 2016 to 2021.

66. That the two Appeals are separate and distinct covering different amounts of taxes in dispute as well as different periods of assessment. That there has not been a hearing for the new issue raised in the current Appeal. That the Appellant cannot therefore use the attached Agreement and the settled matter thereto to justify the taxes due in the current Appeal. That the Tribunal ought not to allow such misguidance and mischief from the Appellant.

67. That in Paragraph 8 of the Appellant's Memorandum of Appeal, it stated that it filed nil returns solely for the purpose of issuance of a Tax Compliance Certificate. The Respondent averred that the stated claim is a move towards misguidance of the Commissioner, which is actually an offense. That the Appellant purposefully misled the Commissioner by filing nil returns so as to obtain a Tax Compliance Certificate.

68. That it is the Appellant's responsibility as the taxpayer in this case, to file accurate returns. That consequently, upon mischievously misguiding the Commissioner, it was the Appellant's sole responsibility to undertake an amendment of the falsely filed nil returns and instead file the correct and accurate returns.

69. That Section 31 (2) of the Tax Procedures Act provides that;“A taxpayer who has made a self-assessment may apply to the Commissioner, within the period specified in subsection (4)(b)(i), to make an amendment to the taxpayer's self-assessment.”

70. That failure to take the above responsibility was purely an error on the Appellant's part and as such, it is only natural and reasonable that the consequences of the same befalls the Appellant itself.

71. That it is important to note that despite filing nil Income tax returns, the Appellant had been paying instalment and advance taxes which completely disproves the Appellant filing nil returns in the first place.

72. That with reference to the Respondent's applied formulae that the Appellant claims exceeds the industrial margin, the Respondent categorically averred that the 22% margin was not used to tabulate the total tax due in this matter. That the Respondent merely used an industrial margin in order to determine the accuracy of documents.

73. The Respondent further averred that the Appellant's declaration representing a 3% net profit margin was significantly lower than the industrial margins whereas the 22% margin established by the Respondent was within the industry margins.

74. The Respondent submitted that it was purely upon the Appellant to support the assertion and demonstrate evidentially how it arrived at the 3%. That in the absence of these supporting documents however, to the best of its knowledge and with the available information, the Respondent carried out an analysis and an industrial margin which tabulated to the said 22% was applied.

Respondent’s Prayers 75. The Respondent prayed that the Tribunal finds that:i.The Respondent’s decision of 2nd November, 2022 and tax demand was therefore properly issued as provided under law.ii.This Appeal be dismissed with costs to the Appellant as the same is without merit.

Issue For Determination 76. The Tribunal has evaluated the pleadings and documentation filed by both parties and is of the considered view that the singular issue for its determination is Whether the Respondent’s objection decision was justified.

Analysis And Determination 77. The Tribunal having ascertained the issue for determination as set out above proceeds to deal with the same as hereunder.

78. This dispute arose from the Respondent’s action of issuing an objection decision confirming additional income tax totalling Kshs. 308,483,350. 00.

79. The Appellant argued that it provided comprehensive documents to the Respondent and therefore the Commissioner’s decision was not justified.

80. The Respondent submitted that the Appellant failed to provide the information it requested ahead of its objection decision and therefore invalidated the Appellant’s objection as a result and subsequently confirmed the assessment.

81. A review of the parties’ pleadings by the Tribunal confirmed the dates of the below key documents:i.A tax assessment notice by the Respondent dated 29th July, 2022ii.An objection, to the additional assessments, by the Appellant dated 27th September, 2022. iii.The objection decision dated 2nd November, 2022.

82. The Tribunal further noted that the below listed correspondences occurred after the objection was submitted by the Appellant and prior to the issuance of the objection decision by the Respondent:i.An email from the Respondent dated 7th September 2022 informing the Appellant that its objection was invalid.ii.An email dated 17th October 2022 from the Appellant to the Respondent submitting a schedule of expenses for the years 2015-2020. iii.An email dated 28th October, 2022 confirming receipt of the Appellant’s objection dated 27th September, 2022 and requesting for various documents within 7 days.iv.An email by the Respondent dated Thursday 3rd November, 2022 issuing the objection decision dated 2nd November, 2022 to the Appellant.

83. The Tribunal notes that from the above trail of correspondences, and specifically, the Respondent’s email dated 28th October, 2022 that gave the Appellant 7 days to file sales ledgers and purchases ledgers as well as sample invoices, audited trial balances, bank statements, and a detailed reconciliation of variances between the figures established by the Commissioner; the Tribunal notes that this information, other than bank statements, was not provided by the Appellant by the time the objection decision was issued on 3rd November, 2021.

84. The above notwithstanding, the Tribunal further notes that the Appellant stated that it was aggrieved by the fact that the Respondent issued its objection decision without waiting for the 7 days from 28th October, 2022 to lapse. It follows therefore that the Appellant was expected to submit the requested documents by 4th November, 2022.

85. The Tribunal confirms that the Respondent gave the Appellant 7 days from 28th October, 2022 to provide the residual documents that it had not provided but however went ahead to issue its objection decision before the 7 days lapsed.

86. Further, the Tribunal is of the considered view that by its email of 28th October, 2021, the Respondent provided a timeline for submission of the Appellant’s residual documents which enlarged time for the Appellant to submit these documents failure to which the Commissioner would then be within its rights to issue an objection decision thereafter.

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

88. As a result of the foregoing, the Tribunal finds that the Respondent’s objection decision was prematurely issued and is to that extent not justified.

Final Decision 89. In view of the foregoing, the Tribunal finds that the Appeal is merited and accordingly makes the following Orders: -a.The Appeal be and is hereby allowed.b.The Respondent’s objection decision dated 2nd November, 2022 be and is hereby set aside.c.The matter is hereby remitted back to the Respondent on the following terms:-i.The Appellant to supply the Respondent with the documents as requested by the Respondent in its letter dated 28th October, 2021 within Fifteen (15) days of the date of delivery of this Judgment.ii.The Respondent is at liberty to issue an appropriate objection decision within Sixty (60) days of the date of its either receipt of the documents requested from the Appellant or upon the lapse of the period within which the Appellant is to supply the documents, whichever comes earlier.d.Each Party to bear its own costs.

90. It is so ordered.

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