Tangerine Auto Hardware Limited v Commissioner of Domestic Taxes [2024] KETAT 648 (KLR) | Tax Assessment | Esheria

Tangerine Auto Hardware Limited v Commissioner of Domestic Taxes [2024] KETAT 648 (KLR)

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Tangerine Auto Hardware Limited v Commissioner of Domestic Taxes (Tax Appeal 159 of 2023) [2024] KETAT 648 (KLR) (26 April 2024) (Judgment)

Neutral citation: [2024] KETAT 648 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 159 of 2023

CA Muga, Chair, BK Terer, D.K Ngala, SS Ololchike & GA Kashindi, Members

April 26, 2024

Between

Tangerine Auto Hardware Limited

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a private limited company incorporated in Kenya whose principal activity is dealing in hardware items.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of the laws of Kenya. Under Section 5(1) of the Act, the Respondent is an agency of the Government for the collection and receipt of all tax revenue. Further under Section 5(2) of the Act 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 Parts 1 & 1of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenue in accordance with those laws.

3. The Respondent conducted tax investigations on the Appellant’s business affairs for the tax period 2017 to 2021 and consequently, on 27th October 2022, the Respondent issued the Appellant with additional Income tax and Value Added Tax assessment for the years 2017 and 2018.

4. The total assessed amount demanded for both the income tax and VAT assessments was Kshs. 5,239,434. 53, being the principal amount.

5. The Appellant objected to both the income tax assessments and the VAT assessments in their entirety on 25th November 2022, where the income tax assessments objections were lodged through the system and the VAT assessments objections were lodged manually.

6. On 19th January 2023, the Respondent issued the objection decision confirming the additional income tax and VAT assessments in their entirety whereupon being dissatisfied with the Respondent’s objection decision, the Appellant filed a notice of late appeal dated 20th February 2023 on 22nd February 2023.

The Appeal 7. The Appellant filed its Memorandum of Appeal on 22nd February 2023 and set out a single ground of appeal which was that the Respondent relied on the banking method, and failed to provide sufficient time for the Appellant to avail all the documents for review even after explaining to the Respondent the challenges the Appellant’s director was going through after suffering multiple strokes.

The Appellant’s Case 8. The Appellant has set out its case in its Statement of Facts dated 20th February 2023 and filed on 22nd February 2023.

9. The Appellant stated that it is a building, civil and water works small contractor operating within Murang’a town dealing with the business of retailing hardware goods, water works and it is a building contractor.

10. The Appellant averred that it fully depended on an Accountant on matters filing and payment of taxes.

11. The Appellant stated that the Respondent raised additional assessments on 27th October 2022 after going through VAT and income tax returns for the years 2017 and 2018 and the Appellant’s bank statements.

12. The Appellant stated that it raised an objection application on 25th November 2022 and it attended to all queries raised by the Respondent but requested for more time to provide records for review.

13. The Appellant stated that the additional assessments were confirmed on 19th January 2023.

14. The Appellant stated that it currently is a small trader having scaled down on building works and water works after being unable to pay for the licenses required due to lack of funds.

Appellant’s Prayers 15. The Appellant prayed that the Tribunal sets aside and annuls the assessments by the Respondent.

The Respondent’s Case 16. The Respondent has set out its case in its Statement of Facts dated 16th March 2023 and filed on 17th March 2023.

17. The Respondent averred that the decision to arrive at the assessments was justified and had basis in law. The Respondent relied on Sections 24 and 31 of the Tax Procedures Act No. 29 of 2015 (hereinafter ‘TPA’) to state that it is not bound by the Appellant’s returns or self-assessment, and it is empowered to vary the assessments using any available information in the Respondent’s possession.

18. The Respondent highlighted that under Section 31(c) of the TPA the taxpayer is liable for the correct amount of tax payable in respect of the reporting period to which the original assessment relates and stated that the additional assessments in question were raised after the Respondent noted variances between the declared turnover against the computed turnover vis-à-vis the withholding VAT and income tax credits for the period under review.

19. The Respondent stated that it raised the income tax assessments by disallowing the expenses and purchases claimed by the Appellant as it failed to provide documentation to support the said purchases and expenses.

20. The Respondent relied on Section 56(1) of the TPA that places the burden of proof on the Appellant to prove a tax decision is incorrect and stated that the Appellant did not discharge its burden of proving that the Respondent’s VAT and income tax assessments were erroneous as it did not adduce sufficient evidence to support its objection and the Respondent was right to confirm the assessments.

Respondent’s Prayers 21. The Respondent prayed for the following orders from the Tribunal:i.That the Appeal be dismissed with costs to the Respondent.ii.That the additional VAT and income tax assessments raised by the Respondent amounting to Kshs. 5,239,434. 53 be confirmed and the principal taxes and interests be found due and payable as per the objection decision rendered by the Respondent.

Parties Submissions 22. The Appellant’s written submissions dated 4th October 2023 were filed on 5th October 2023 whilst Respondent’s written submissions dated 29th September 2023 were filed on 2nd October 2023.

23. The Appellant raised two issues for determination as follows;

a. Whether the assessment order dated 27th October 2022 is valid in law 24. The Appellant stated that the Assessment Order dated 27th October 2022 violates Article 47 of the Constitution on the right to fair administrative action which provides as follows:“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

25. The Appellant submitted that Section 4(2) of the Fair Administrative Action Act No, 4 of 2015 (hereinafter ‘FAA’) provides as follows:“Every person has the right to be given written reasons for any administrative action that is taken against him."

26. The Appellant submitted that the gross violations to Article 47 of the Constitution and Section 4(2) of the FAA are captured in the Respondent's assessment order of 27th October 2022.

27. The Appellant submitted that the said assessment order was a product of Section 31 of the TPA; this was an amended assessment, meaning it was an alteration of the Appellant's self-assessment made under Section 28 of the TPA.

28. The Appellant cited the case of Republic vs Kenya Revenue Authority Ex Parte Jaffar Mujtab Mohamed [2015] eKLR, where the High Court held that:“Whereas this court is not entitled to question the merits of the decision of a taxing authority, that authority must exercise its powers fairly and ought to be a basis for the exercise of such powers. A taxing authority is not entitled to pluck a figure from the air and impose it upon a taxpayer without some rational basis for arriving at that figure and not another figure. Such action would be arbitrary, capricious and in bad faith. It would be an unreasonable exercise of power and discretion and that would justify the court in intervening.”

29. The Appellant therefore submitted that it was incumbent upon the Respondent to furnish the Appellant with written reasons for amending the Appellant’s self-assessment and that it was not enough for the Respondent to amend or modify or alter the Appellant's self-assessment and call upon the Appellant to either pay or object to the assessment as this would not be different from plucking a figure from thin air and imposing it upon the Appellant as cited by the High Court in the above-cited case of Ex-Parte Mujtab Mohamed.

30. That Appellant stated that it is incumbent upon the Respondent to give the Appellant written reasons as to why the Respondent saw it fit to alter the Appellant's self-assessment and that since the impugned assessment order did not offer any reasons to the Appellant as to why the decision to amend the self-assessment was made, the actions of the Respondent in this regard offended the dictates of the Constitution and are therefore null and void.

31. The Appellant relied on Article 27(1) of the Constitution, which stipulates as follows:“Every person is equal before the law and has the right to equal protection and equal benefit of the law”.

32. The Appellant submitted that the assessment order also failed the test of procedural fairness as highlighted by Justice Majanja in Geothermal Development Company Limited v. Attorney General & 3 Others eKLR where the High Court stated:“I find that the Tax Demand letter of 20th June 2011 sent to the Company fell short of the requirements of a proper notice in as far as it failed to disclose its nature and the implication and consequences of non-compliance as well as notifying the taxpayer of the avenues of appeal or review available to it. A notice of the nature issued to enforce collection of taxes must clearly state to be such a notice, state the amount claimed, state the legal provision under which it is made and draw the taxpayers attention to the consequences of failure to comply with the law and the opportunity provided by the law to contest the finding, Such a notice would give the opportunity to any Kenyan to know the case against it and utilise the legal provisions to contest the decision. The right to fair administrative action and the right of access of justice now enshrined in our Constitution demand nothing less."

33. The Appellant submitted that a look at the notice of assessment does not state the provision under which it was made for the Appellant to utilize the legal provision to contest the decision.

34. The Appellant therefore requested the Tribunal to protect the Appellant’s rights finding the Respondent contravened the Appellant’s fair administrative rights.

b. Whether the objection decision dated 19th January 2023 is valid in law. 35. The Appellant submitted that the objection decision dated 19th January 2023 offended Section 51(4) of the TPA.

36. The Appellant submitted that it was important to restate the chronology of the tax dispute for the benefit of demonstrating this violation of the law;a.The Respondent issued an Assessment Order on 27th October 2022. b.The Appellant filed an objection to the assessment on 25th November 2022. c.The Respondent issued an objection decision on 19th January 2023.

37. The Appellant submitted that nowhere in the above chronology did the Respondent ever engage with the Appellant save for the issuance of the Assessment and the objection decision.

38. The Appellant submitted that in the objection decision dated 19th January 2023, the Respondent in paragraph 2. 0 reiterated the Appellant's grounds of objection as appearing in the notice of objection. Under paragraph 3. 0, the Respondent gave the statement of findings as follows;“You did not provide any documents to support your objection as stated in your objection letter attached to the notice of objection lodged in i-tax dated 25th November, 2022. ”

39. The Appellant submitted that the objection decision did not inform the Appellant that its objection was not validly lodged as required under Section 51(4) of the TPA.

40. The Appellant relied on Section 51(4) before the amendments brought in by the Finance Act 2023 where it read:“Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within a period of fourteen days notify the taxpayer in writing that the objection has not been validly lodged.”

41. The Appellant submitted on the importance of stating that even with the amendment brought in by the Finance Act 2023, the obligation to inform the taxpayer that a notice of objection has not been validly lodged, still remains.

42. The Appellant submitted that the only addition brought in by the amendment was a new obligation to "request the taxpayer to submit the information specified in the notice within seven days after the date of the notice." but nonetheless, the applicable law is the one prior to the amendment.

43. In TAT No. 402 OF 2021 KCB Bank Kenya Limited V Commissioner of Domestic Taxes, the Tribunal held as follows at paragraph 82 of its judgment:“On whether the Appellant's Objection was validly lodged, the Tribunal agrees with the Appellant's contention that the Respondent is compelled to inform the taxpayer immediately if the Respondent considers the Objection not to have been validly lodged."

44. Similarly, in TAT No. 398 of 2021 I&M Bank Limited V Commissioner of Domestic Taxes, the Tribunal held as follows at paragraph 44 of its judgment:“Further, the Tribunal notes that Section 51(3) of the TPA is followed by a rider Section 51(4) which states as follows: - "where the Commissioner has determined that a notice of objection lodged by the taxpayer has not been validly lodged, the Commissioner shall immediately notify the taxpayer in writing that the objection has not been validly lodged". The above subsection, we hold, is couched in mandatory terms."

45. It was the Appellant’s submission that this failure to inform the Appellant that the objection was not validly lodged is a gross violation of the Appellant's right to fair administrative action under Article 47 of the Constitution.

46. In effect, the Appellant submitted that the Respondent's failure to inform the Appellant within fourteen (14) days as mandated by Section 51(4) of the TPA, locked out the Respondent from ever raising the lack of provision of said documents as a ground for rejecting the Appellant's Objection.

47. The Appellant submitted that the Respondent ought not to be allowed to benefit from a serious misstep in the procedures set down by law and punish the Appellant as a result thereof.

48. The Appellant therefore prays that the Tribunal quashes the assessment orders together with the decision dated 19th January 2023 for grossly violating Article 47(2) of the Constitution and Section 51(4) of the TPA.

49. In its written submissions, the Respondent identified two issues for determination which it analysed hereunder.

a. Whether the additional assessments were justified in law. 50. The Respondent averred that the decision to arrive at the assessments was justified and had basis in law as required under the TPA and that the Respondent was not bound by the Appellant's returns or self-assessment and it is empowered to vary the assessments using any available information in the Respondent's possession.

51. The Respondent submitted that whereas Section 24 of the TPA allows a taxpayer to submit tax returns in the approved form and manner prescribed by the Respondent, the Respondent is not bound by the information provided therein and can assess for additional taxes based on any other available information.

52. Section 24(2) of the TPA states that:“The Commissioner shall not be bound by a tax return or information provided by, or on behalf of a taxpayer's tax liability using any information available to the Commissioner.”

53. The Respondent submitted that Section 31 of the TPA empowers the Respondent to make alterations or additions to original assessments from available information for a reporting period based on its best judgment. This Section 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 judgment, to the original assessment of a taxpayer for a reporting period to ensure that -(a)In the case of a deficit carried forward the Income Tax Act (cap 470), the taxpayer is assessed in respect of the correct amount of the deficit carried forward for the period.(b)In the case of an excess amount of input tax under the Value Added Tax Act, 2013, the taxpayer is assessed in respect of the correct amount of the excess input tax carried forward for the reporting period; or(c)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. The Respondent submitted that what constitutes its best judgment was dealt with extensively in the case of Saima Khalid v. The Commissioners for Her Majesty's Respondents Revenue & Customs TC/2017/02292 at paragraph 29. Therein, the Tribunal set out the following requirements for a decision to be to the best of HMRC's judgment as follows:“...the very use of the word 'judgment' makes it clear that the commissioners are required to exercise their powers in such a way that they make a value judgment on the material which is before them...Secondly, clearly there must be some material before the commissioners on which they can base their judgment. If there is no material at all it would be impossible to form a judgment as to what tax is due.Thirdly, it should be recognized, particularly bearing in mind the primary obligation, to which I have made reference, of the taxpayer to make a return himself, that the commissioners should not be required to do the work of the taxpayer in order to form a conclusion as to the amount of tax which, to the best of their judgment, is due. In the very nature of things frequently the relevant information will be readily available to the taxpayer, but it will be very difficult for the commissioners to obtain that information without carrying out exhaustive investigations.In my view, the use of the words 'best of their judgment' does not envisage the burden being placed on the commissioners of carrying out exhaustive investigations. What the words 'best of their judgment' envisage, in my view, is that the commissioners will fairly consider all material placed before them and, on that material, come to a decision which is one which is reasonable and not arbitrary as to the amount of tax which is due. As long as there is some material on which the commissioners can reasonably act then they are not required to carry out investigations which may or may not result in further material being placed before them.”

55. The Respondent submitted that the additional income tax assessments in question were raised after the Respondent noted that there were variances between the turnover declared by the Appellant against the computed turnover vis-à-vis the withholding VAT and income tax credits for the period under review.

56. The Respondent submitted that it raised the income tax assessments by disallowing the expenses and purchases claimed by the Appellant as it failed to provide documentation to support the said expenses and/or purchases.

57. The Respondent submitted that it was therefore justified in issuing the assessment based on information available to it and based on its best judgement, the Appellant having failed and declined to provide information that had been requested by the Respondent.

b. Whether the Appellant discharged the burden of proof by providing documentary evidence in support of its objection. 58. The Respondent submitted that Section 56(1) of the TPA places the burden of proof on the taxpayer to prove that a tax decision is incorrect.“In any proceedings under this Part, the burden shall be on the Appellant to prove that a tax decision is incorrect."

59. The Respondent submitted that the Appellant did not discharge its burden of proving that the Respondent's VAT and income tax assessments were erroneous since it did not adduce sufficient evidence to support its objection.

60. The Respondent submitted that the Appellant had a duty under Section 51(3)(c) of the TPA to provide all relevant documentation in support of its objection.

61. The Respondent submitted that Section 23 of the TPA mandates the Appellant to maintain documents required under any tax law and to provide the same upon request by the Respondent. This is to ensure that the taxpayer's tax liabilities can be readily ascertained. The Appellant failed to provide the relevant supporting documents to discharge the burden of proving the assessments as incorrect.

62. The Respondent relied on the Tribunal’s holding in the case of TAT No. 70 of 2017 Afya X-Ray Centre v Commissioner of Domestic Taxes, as follows;“From the foregoing chain of events, it is our understanding that the Appellant failed in its duty in providing documents in order that a comprehensive analysis of its affairs is done. Accordingly, the Respondent can hardly be faulted for raising the assessment in accordance with the availed documents..."

63. The Respondent further relied on TAT Appeal No. 538 of 2021 Greenroad Kenya Limited v Commissioner of Domestic Taxes, where the Tribunal at paragraphs 52 and 53 held that;“52. The Tribunal's considered view is that the failure by the Appellant to avail the documents requested granted the Respondent the power to use its best judgement as provided for under Section 31(1) of TPA 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.

53. In view of the foregoing, the Tribunal makes a finding that the Respondent's assessment, and Objection Decision are proper in law.”

64. The Respondent submitted that having issued its assessment, it was upon the Appellant to provide evidence that demonstrated that the assessment was excessive, erroneous or unlawful as provided for in Section 30 of the Tax Appeals Tribunal Act No. 40 of 2013 (hereinafter ‘TAT’), however it failed to do so.

65. The Respondent submitted that Section 30 of the TAT on burden of proof provides that:“In a proceeding before the Tribunal, the appellant has the burden of proving-(a)where an appeal relates to an assessment, that the assessment is excessive; or(b)in any other case, that the tax decision should not have been made or should have been made differently"

66. In Pearson v. Belcher CH.M Inspector of Taxes, Tax Cases Volume 38 referred to by Justice D.S. Majanja in PZ Cussons East Africa Limited v. Kenya Revenue Authority (2013) eKLR it was held that;“Where there is an assessment made by the Commissioner upon the Appellant; it is perfectly settled by cases such as Norman Vs. Galder 267C 293, that the onus is upon the Appellant to show that the assessment made upon him is excessive and incorrect and of course he has completely failed to do. That is sufficient to dispose of the appeal, which I accordingly dismiss with costs.57. .........the Appellant in the present appeal has manifestly failed to discharge such an onerous burden of proof placed squarely on it...."

67. The Respondent averred that the Appellant did not provide sufficient documentation in support of its objection and the Respondent was right in confirming the VAT and income tax assessments.

Issues For Determination 68. Having carefully considered the parties pleadings, documents and submissions, the Tribunal has identified the following single issue for determination as outlined hereunder;Whether the Respondent’s objection decision dated 19th January 2023 was justified

Analysis And Findings 69. The Tribunal notes that the Respondent’s main reason for confirming the VAT and income tax additional assessment fully, was that the Appellant failed to provide any supporting documents to its objection, yet the onus of proof that the Respondent’s additional assessments were wrong laid with the Appellant.

70. The Tribunal notes that the issue of onus of proof was dealt with in the High Court case of Kenya Revenue Authority v Maluki Kitili Mwendwa [2021] eKLR. where the court adopted the doctrine in the Canadian Supreme Court case of Johnston v Minister of National Revenue where the court (1948) S.C.R. 486 where the court held that:“The onus is on the taxpayer to "demolish the basic fact on which the taxation rested."

71. The Tribunal also laid down this position in TAT Appeal no. 55 of 2018 Boleyn International Ltd v. Commissioner of Investigations and Enforcement where it held that:“We find that the Appellant at all times bore the burden of proving that the Respondent’s decisions and investigations were wrong. The Tribunal is guided by the provisions of Section 56(1) of the TPA, 2015…”

72. The Tribunal notes that the Appellant’s objections were mere assertions regarding the Respondent’s conduct in confirming the additional assessments. Further, the Tribunal observes that in order to ensure the burden of proof was sufficiently met by the Appellant, both parties ought to have complied with the procedures under the TPA and in this case, the procedure at the objection stage.

73. The Tribunal’s view is that, after the Appellant objected to the additional assessment by the Respondent, the Respondent was required to deliberate on whether the objection was valid or not. Where the objection is found to be invalid, the Respondent should notify the Appellant of that fact in writing, within fourteen (14) days, informing it of the reasons why its objection has been invalidated and the amendments required in order to validate its objection as provided for under Section 51(3) & (4) of the TPA which provides as follows:“(3)A notice of objection shall be treated as validly lodged by a taxpayer under subsection (2) if—a.the notice of objection states precisely the grounds of objection, the amendments required to be made to correct the decision, and the reasons for the amendments;b.in relation to an objection to an assessment, the taxpayer has paid the entire amount of tax due under the assessment that is not in dispute or has applied for an extension of time to pay the tax not in dispute under section 33(1); and(c)all the relevant documents relating to the objection have been submitted.(4)where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within a period of 14 days notify the taxpayer in writing that the objection has not been validly lodged.”

74. This provision was corroborated by the case of TAT No. 398 of 2021 I&M Bank Limited V Commissioner of Domestic Taxes, where the Tribunal held as follows:“Further, the Tribunal notes that Section 51(3) of the TPA is followed by a rider Section 51(4) which states as follows: - "where the Commissioner has determined that a notice of objection lodged by the taxpayer has not been validly lodged, the Commissioner shall immediately notify the taxpayer in writing that the objection has not been validly lodged". The above subsection, we hold, is couched in mandatory terms."

75. Where an objection is invalid for any of the above reasons, the Respondent is required to inform the Appellant that the objection has not been validly lodged. The Tribunal notes that the Respondent thereafter has up to 60 days from the date of receipt of a valid notice of objection to issue an objection decision. This is provided for under Section 51(11) of the TPA which provides as follows;“51(11).The Commissioner shall make the objection decision within sixty days from the date of receipt of a valid notice of objection failure to which the objection shall be deemed to be allowed.”

76. In the instant case, the Tribunal’s finding is that the Respondent did not invalidate the Appellant’s objection but instead proceeded to issue an objection decision. The Tribunal is of the view that in cases where the Commissioner does not inform the taxpayer that its objection has not been validly lodged, then it is to be presumed that such an objection has been validly lodged. In the instant Appeal, it is the Tribunal’s view that the Appellant’s objection dated was validly lodged and it follows that the Respondent was entitled to render an objection decision within the statutory timelines provided in the TPA.

77. The Tribunal will now proceed to consider whether the Respondent’s objection decision dated 19th January 2023 was justified.

78. The sole ground on which the Appellant raises in challenge to the objection decision is contained in its Memorandum of Appeal where it states that the Respondent relied on the banking analysis method and failed to provide sufficient time for it to provide all the documents for review even after it explained the challenges its director was going through after suffering multiple strokes.

79. It is trite that the burden of proving that an assessment is erroneous, excessive or unlawful rests on the Appellant. This is as pursuant to the provisions of Section 30 of TAT and Section 56 of TPA which provide that the Appellant bears the burden of proving that the tax decision complained about is incorrect.

80. The Tribunal having examined the Appellant’s pleadings notes that the Appellant has not produced any evidence to support the assertions it has made. First, the Appellant has not provided any evidence to support its assertion that its director had suffered multiple strokes and was not able to provide the documents requested by the Respondent.

81. The Tribunal notes that the Appellant could not produce the documents at the objection stage since the Respondent did not ask for them. However, there was no reason why it did not adduce the requisite documented evidence to the Tribunal in support of its Appeal. Secondly, the Appellant did not produce any evidence to show that it indeed asked the Respondent for more time and that the Respondent failed to grant the accommodation sought. Thirdly, no evidence was adduced to show the Tribunal that the assessments were erroneous, excessive, or unlawful.

82. In the circumstances, the Tribunal has reached the inescapable finding that the Appellant has failed to discharge the evidentiary burden placed on it by statute.

83. The Appellant having failed to demonstrate that the objection decision was incorrect, and or that the assessments were erroneous, excessive and or unlawful, the Tribunal finds and holds that the Respondent’s objection decision dated 19th January 2023 was justified.

Final Decision 84. For the reasons set out above, the Tribunal finds that this Appeal fails and proceeds to make the following Orders:a.The Appeal be and is hereby dismissedb.The Respondent’s objection decision dated 19th January 2023 be and is hereby upheldc.Each party to bear its own costs.

85. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF APRIL, 2024CHRISTINE A. MUGA....................CHAIRPERSONBONIFACE K. TERER...................... MEMBERDELILAH K. NGALA..........................MEMBERSPENCER S. OLOLCHIKE ................... MEMBERGEORGE KASHINDI.............................MEMBER