[2024] KETAT 765 (KLR)

Auto Industries Limited v Commissioner of Customs & Border Control (Tax Appeal E234 of 2023) [2024] KETAT 765 (KLR) (24 May 2024) (Judgment)

Neutral citation: [2024] KETAT 765 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E234 of 2023

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

May 24, 2024

Between

Auto Industries Limited

Appellant

and

Commissioner Of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and its principal activity is the assembly and distribution of three (3) wheelers imported in Semi Knocked Down (SKD) form.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, 1995. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all revenue.

3. On 27th January, 2023, the Respondent issued a demand notice of Kshs. 12,531,050. 00 arising from the tariff reclassification of the three-wheeler motor vehicles from tariff heading 8703 to tariff heading 8711.

4. The Appellant applied for a review of the decision in a letter dated 23rd February, 2023.

5. The Respondent confirmed the assessment by issuing the review decision dated 22nd March, 2023 upholding the taxes assessed.

6. Aggrieved by the review decision, the Appellant filed a Notice of Appeal at the Tribunal dated 4th May, 2023 and filed on 18th May, 2023.

The Appeal 7. The Appeal is premised on the Memorandum of Appeal dated and filed on 18th May, 2023 stating the following grounds:-a.That the Respondent erred in law and fact by confirming the demand of Kshs 12,531,050 arrived at by improperly classifying the Appellant's imported three wheelers under Tariff Heading 8711instead of the most appropriate classification of heading 8703. b.That the Respondent erred in law and in fact in finding that the Appellant's new generation product fell under 8711,despite the fact that the products do not fit within the heading, sections, and Explanatory notes of the aforementioned classification.c.That the Respondent erred in law and in fact by failing to appreciate that the judgment issued by the Tax Appeal Tribunal and the High Court of Kenya in relation to the classification of three-wheelers are in relation older generations of the three-wheelers yet the current generation of three-wheelers are more appropriately classified under heading 8703 as they are assembled at the Associated Vehicle Assemblers facility which specializes in the assembly of vehicles of heading 8703and 8704. d.That the Respondent therefore erred in law and in fact by failing to appreciate that the Appellant's products have changed significantly enough to warrant a reclassification of the three-wheelers.e.That the Respondent erred in law and in fact by failing to appreciate that the East African Community Sectoral Council on Trade, Industry, Finance and Investment (SCTIFI) recently considered the issue of classification of three-wheelers and determined that the proper classification of the same was heading 8703. f.That the Respondent erred in law and in fact by failing to appreciate the similar dispositions in favor of heading 8703 which were issued by the World Customs Organization and the East African Community Committee on Customs which is drawn from Commissioners of Customs, or their representatives in the EAC partner states.g.That the Respondent erred in law and in fact by failing to appreciate that they themselves had given out rulings stating that heading 8703 was the proper classification for the three-wheelers. In fact, as recently as 11th May 2023, the Respondent issued a tariff classification ruling confirming this position.h.That at any rate, the Respondent erred in law and in fact by failing to appreciate that the classification under heading 8703 of the Appellant's current three-wheelers in dispute was at the behest, guidance, and recommendation of the Respondent.i.That the Respondent erred in law and in fact by failing to appreciate advising and guiding the taxpayer to apply a certain code, only to thereafter renege the same and issue demands to the Taxpayer constitute a breach of the Appellant's right to fair administrative action, legitimate expectation and presumption of regularity.

Appellant’s Case 8. The Appellant’s case is premised on the following documents:a.Its Statement of Facts dated 10th April, 2024 and filed on 17th April, 2024 together with the attachments thereof.b.Its written submissions dated 10th April, 2024 and filed on 17th April, 2024.

9. That the Appellant and Respondent herein are once again embroiled in a dispute regarding the classification of the Appellant's three-wheeler vehicles. That while the Appellant had classified its imported three-wheelers for the period January 2022 to December 2022 under HS 8703. 21. 10, the Respondent is demanding that the same ought to be classified under Heading 8711.

10. That indeed, this was the premise of the Respondent's issuance of its demand dated 27th January, 2023 wherein the Respondent was demanding from the Appellant a sum of Kshs 12,531,050. 00 as a result of the supposed misclassification.

11. That naturally, being aggrieved by the demand, the Appellant objected to the same on the 23rd February, 2023 elaborating its basis for the classification under Heading 8703 instead of 8711. That despite the Appellant's averments, the Respondent issued a review decision on the 23rd March, 2023 reiterating its position that Heading 8711 was the most appropriate classification for the products. That consequently, the Respondent restated its demand for Kshs 12,531,050. 00.

12. That indeed, it would be remiss of the Appellant not to point out that this is not the first dispute with the Respondent regarding the classification of three-wheelers. That to provide a brief recap of what transpired in the previous dispute; the Appellant highlights the below.

13. That summarily, the cause of dispute in the earlier litigated case was that Respondent conducted a Post Clearance Audit on the Appellant’s products for the period February 2015 to January 2020 pursuant to the provisions of Sections 235 and 236 of the East African Community Customs Management Act, 2004 (EACCMA).

14. That following the completion of the post clearance audit, the Respondent communicated its findings via a management letter dated 5th June, 2020. That in the aforementioned letter, KRA issued an assessment as follows:

15. That in regard to Customs Valuation, on freight and FOB price adjustments and the exceeded remission quantities, Kshs. 758,906,122. 00.

16. That in regard to Tariff Classification, in relation to tariff misdeclaration and freight adjustment, Kshs. 333,183,052. 00.

17. That following the observations raised in the Respondent’s letter dated 5th June 2020, the Respondent issued the company with a demand notice of Kshs. 333,183,052. 00 in relation to the tariff classification dispute.

18. That the Appellant in response wrote to the Revenue Authority on 12th June, 2020 protesting the Respondent's rejection of HS code 8711. 20. 90 under which it had been importing the three-wheeler motorcycle kits. The Appellant stated that it had been importing the three wheelers since 2012 under HS Code 87. 11 as directed by the Secretariat of the East African Community.

19. That on 15th July, 2020, the Respondent issued its response to the Appellant's rejection stating as follows:“i.The Three-Wheeler Motorcycle kits imported by the Company are properly classifiable under heading 87. 03 and more specifically under sub-heading 8703. 21. 90-petrol and 8703. 31. 90-diesel and not under heading 87. 11 as declared by the Appellant;ii.That the correct tariff codes attract an import duty rate of 25%, excise duty rate of 20 % and VAT at the rate of 16%;iii.India, the country of export of the Three-Wheeler Motorcycle kits also classifies the items as under heading 87. 03; andiv.That for accuracy and consistency in accordance with Article 3 (1)(a)(i) of the International Convention on the Harmonized System to which India and Kenya are signatories, the correct heading for three wheeled vehicles is 87. 03. ”

20. That the Appellant in turn, through its tax advisors, wrote to the Commissioner of Customs on 25th November 2020 objecting to the assessed taxes.

21. That unfortunately, despite the company's objections, the Authority in a letter dated 10th December, 2020 proceeded to confirm the assessments.

22. That the Appellant being dissatisfied with the decision of the Authority, filed an appeal before the Tax Appeal Tribunal where the matter was litigated, and judgement issued in favor of the Appellant. That being dissatisfied with the decision, the Respondent appealed to the High Court and the court once again ruled in favor of the taxpayer.

23. That indeed, looking at the Respondent's review decision dated 22nd March, 2023 and its Statement of Facts dated 16th June 2023, it is noted that the Respondent has stated severally that the basis of its demand is the judgment issued by this Tribunal, and the High Court in favor of Heading 8711. That however, in asserting as such, the Respondent has failed to appreciate that the nature of the products has changed significantly enough to warrant a reclassification to Heading 87. 03 instead of 87. 11 which was prescribed by the esteemed courts.

24. That furthermore, since the issuance of the Judgments by this Honorable Tribunal, rulings on the proper classification of three-wheelers have been issued by the Sectoral Council on Trade, Industry, Finance and Investment, and by the World Customs Organization (WCO). That in fact, even the Respondent itself has issued tariff rulings in favor of Heading 8703. That it is quite hypocritical therefore for the Appellant to be singled out and subjected to a tariff not recognized by the East African Community (EAC), the WCO and the Respondent itself.

25. That at any rate, the Respondent has failed to understand that the Judgment issued was in regard to historical issues, and specifically, the dispute in the previous cases was in relation to the Appellant's imports for the period 2015-2020. That the judgment in the aforementioned cases cannot be applied to future imports especially where the character of the imported item has changed, and the said judgments have been superseded by rulings of regional and international bodies charged and mandated with the governance of customs.

26. That in light of the aforementioned, the Appellant deems these as the issues for determination before this Honorable Tribunal:a.Whether the Appellant's imported three-wheelers should be classified under Heading 8703 or Heading 8711b.Whether the Appellant's imported three wheelers should be classified under Heading 8703 or Heading 8711

27. That this is perhaps the most pertinent and fundamental issue and the crux of the matter. That the Appellant and the Respondent are at loggerheads as to whether the Appellant's three-wheelers vehicles commonly referred to as tuk-tuks should be classified under Heading 8703 or Heading 8711.

28. That the Respondent is indeed insisting, in light of the Judgment issued by the Tribunal and the High Court in TAT No 21 of 2021 and HCCOMMITA/E008/2022 respectively, the issue of classification of three-wheelers has been well settled in favor of Heading 8711. That indeed, it is the Appellant's unequivocal submission that the aforementioned judgments cannot and should not be transposed on the Appellant's case at hand.

29. That to substantiate the Appellant’s reasoning, one must first look at the audit periods involved. That indeed, the subject matter of the previous disputes was the Appellant's imports between the years 2015-2020. That this was in fact the audit period covered by the Respondent's desk audit period. That in contrast, the current dispute is from January 2022 to December 2022. That manifestly, a period of 7 years has passed between the two audits.

30. That it should be appreciated that the technology and automotive sectors are highly dynamic with constant changes and developments occurring. That in fact, studies show that the rate of technological advancement in the automotive sector is between 5% -10% per year. That given the above, it would be unreasonable to transpose and impose a decision emanating from an audit of the subject matter imported nearly a decade ago on the Appellant's new-generation products, and yet that is what the Respondent is attempting to do.

31. That at any rate, it cannot be overstated that the judgments issued by this Honorable Tribunal and the High Court in TAT No 21 of 2021 and HCCOMMITA/E008/2022; the averments therein have since been overtaken by events. That as has been intimated, since the issuance of the decisions by the Honorable Courts, both the Sectoral Council on Trade, Industry, Finance, and Investment (SCTIFI), and the World Customs Organization (WCO) have both issued decisions on the appropriate classification of the Appellant's three-wheelers. That indeed, these decisions have been annexed to the Appellant's Statement of Facts.

32. That before delving into the averment and decision of the aforementioned regional and international organizations, one first needs to appreciate who they are, and the crucial role they play when it comes to management of customs affairs.

33. That to address this, the first port of call the Appellant shall seek to berth is the Treaty Establishing the East African Community. That particularly the Appellant shall seek to highlight Article 9 of the aforementioned Statute which establishes and provides for the Organs and Institutions of the Community. That before addressing the same however, it must be appreciated that the Treaty Establishing the East African Community is the apex law of the region. That it is the grundnorm from which all other laws and regulations flow. That accordingly, any laws, regulations and decisions made in contravention of the treaty are void ab initio.

34. That with that in mind, one can now look at Article 9 of the Treaty Honorable Members. That the aforementioned Article reads as follows:“Article9Establishment of the Organs and Institutions of the Community1. There are hereby established as organs of the Community:(a)the Summit;(b)the Council;(c)the Co-ordination Committee;(d)Sectoral Committees;(e)the East African Court of Justice;(f)the East African Legislative Assembly;(g)the Secretariat; and(h)such other organs as may be established by the Summit.”

35. That of pertinence to the Appeal are the Sectoral Committees which after having been established in Article 9, have been fleshed out in Articles 20 and 21 of the Treaty. That in particular, Article 21 establishes the functions of these Sectoral Committees. That the provision reads as follows:“Article 21Functions of the Sectoral CommitteesSubject to any directions the Council may give, each Sectoral Committee shall:(a)be responsible for the preparation of a comprehensive implementation programme and the setting out of priorities with respect to its sector;(b)monitor and keep under constant review the implementation of the programmes of the Community with respect to its sector;(c)submit from time to time, reports and recommendations to the Coordination Committee either on its own initiative or upon the request of the Co-ordination Committee concerning the implementation of the provisions of this Treaty that affect its sector; and(d)have such other functions as may be conferred on it by or under this Treaty.”

36. That indeed, the Sectoral Council on Trade, Industry, Finance, and Investment (SCTIFI) is one such Sectoral Committee. That as was rightfully noted by the World Trade Organization, the SCTIFI Committee is responsible for making decisions and recommendations to the Council of Ministers on trade policy issues, such as customs tariff, trade remedies, duty remissions, elimination of non-tariff barriers (NTBs), export promotion, competition, SME development, trade in services, trade relations with external parties, industrial development, and investment promotion.

37. That accordingly, in line with the above mandated, the SCTIFI Committee at their 40th Meeting sat and deliberated on the issue of classification of three-wheelers within the Region. That following its deliberations, the Committee noted as follows at paragraph (XIII):“TVS King 4s Three-Wheeler, Bajaj 3-Wheeler RE 250 Auto Rickshaw and Piaggio Ape 3-Wheeler Model Ape City NXT" which use a motor cycle engine and wheels are to be classified under heading 87. 03 because they are used for transport of persons”

38. That notably, the SCTIFI Committee outrightly mentioned the Appellant's products and stipulated that the same be classified under Heading 87. 03. That however, contrary to the above, the Respondent's demand and review decision is manifestly asking the Appellant to classify its three-wheelers under Heading 8711 contrary to the explicit decision of the SCTIFI Committee.

39. That to further reinforce the Appellant's basis for classification under Heading 87. 03, the Tribunal should note the decision of the WCO which had equally contemplated the issue of classification of the three-wheelers. That the Appellant has attached the same to its pleadings.

40. That, the WCO noted at page 7 of the decision that:“if the information that the TVS King 4s Three-Wheeler, Bajaj 3-Wheeler RE 250 Auto Rickshaw and Piaggio Ape 3-Wheeler Model Ape City NXT use a motorcycle engine and wheels is confirmed, the secretariat is inclined to classify these vehicles in heading 87. 03 because they are designed for the transport of persons. The classification at the subheading level (subheading 8703. 21 or 8703. 31) depends on the type of engine.”

41. That thus, again. the Respondent's cannot and should not be allowed to demand that the Appellant classify its three-wheelers contrary to the explicit decision of the WCO. That this is especially because it is the mandate of the Respondent to enforce rulings and decisions of the WCO and yet in the dispute at hand, it is the Appellant who is reminding the Respondent of its duties and essentially playing the role of the Customs Authority.

42. That this becomes even more appalling when one considers the Witness Statement filed by the Respondent on 10th January 2024, wherein there seems to be a confusion with the Respondent in regard to its mandate of enforcing WCO rulings and decisions.

43. That indeed, despite the witness statement being filed by a Customs practitioner and agent of the Respondent, when the witness was questioned on cross-exam on whether the Respondent had a mandate, duty and obligation to enforce WCO rulings and decisions, the witness replied affirmative “NO”.

44. That fearing a grievous oversight and a fundamental lack of understanding by the Respondent in regard to its functions, the Appellant feels obligated to reiterate the crucial role the WCO plays in relation to customs matters.

45. That as the Tribunal is undoubtedly aware, the World Customs Organization (WCO), established in 1952 as the Customs Co-operation Council (CCC), is an independent intergovernmental body whose mission is to enhance the effectiveness and efficiency of Customs administrations. That indeed, among the WCO's vast roles and responsibilities is the maintenance of the International Harmonized System (HS) goods nomenclature, as well as administration of the technical aspects of the World Trade Organization (WTO) Agreements on Customs Valuation and Rules of Origin.

46. That indeed, the International Harmonized Description and Coding System (HS) is a nomenclature used for the uniform classification of goods or items traded in international commerce and it classifies products by a unique numerical code. That the HS is a publication of the WCO and the 184 Member States of the WCO use it for the classification of goods.

47. That the International Harmonized Description and Coding System has been adopted by the EAC as the East African Community Common External Tariff (EAC/CET) and is the primary document used for the classification of goods imported into the partner states. That in fact, the dispute at hand involves two tariffs contained in the aforementioned document, that is Heading 8703 and Heading 8711.

48. That looking at even the WCO website, it will be noted that the WCO has rightfully referred to itself as “As the global center of Customs expertise, the WCO is the only international organization with competence in Customs matters and can rightly call itself the voice of the international Customs community”.

49. That thus, where the WCO has already prescribed the HS Code to be applied in regard to the classification of three-wheelers, the Respondent is merely mandated to enforce the same, and yet, what exists is a rogue Customs Authority which seeks to enforce its own will contrary to the decisions of the SCTIFI Committee and the World Customs Organization. That if this is the case, the state might as well dispose with the EAC CET in general and rely on the whims of the Respondent for classification of all future imports as even the CET is a creature of the WCO to which the Respondent is in active rebellion.

50. That it is indeed quite ironic that the Respondent in its Statement of Facts dated 16th June, 2023 states in paragraph 62 that it is mandated to ensure uniform interpretation and application of the Harmonized System Convention, and yet it blatantly ignores the ruling and decision of the WCO who are charged with maintaining the Harmonized System Convention.

51. That this is further aggravated by the fact that despite ignoring the WCO ruling when the same is applicable to the Appellant's three-wheelers, the Respondent is still issuing classifications and advising other players in the industry to classify their three-wheelers under Heading 8703. That it is on this basis that the Appellant feels it is being singled out and punished by the Respondent for reasons unbeknown to it. That needless to say, the Respondent's actions are thus creating uncertainty and ambiguity in the application of tax laws and regulations.

52. That on 25th June, 2021, the Respondent herein issued a tariff classification referenced CUS/V&T/TARI/ADV/007/2021 wherein it provided that the appropriate classification of three-wheeler tuk-tuk was Heading 8703. That while this tariff ruling was not issued to the Appellant herein, it was issued to another player in the industry who imports three-wheelers identical to those imported by the Appellant. That the aforementioned ruling has been annexed to the Appellants pleadings.

53. That on 11th May, 2023, the Respondent yet again issued another ruling in relation to three-wheelers and again held that the same ought to be classified under Heading 8703. That looking at the timelines involved, it will be noted that the first decision was issued after the Judgment of the Tax Appeal Tribunal had been issued, and the Second judgment was issued after the High Court Judgment was issued.

54. That the hypocrisy of the Respondent's actions therefore manifests itself wherein it attempts to portray a façade of reverence to precedents laid down by courts and demanding that the Appellant equally fall before the court's feet, yet on the other hand, they are blatantly ignoring the court's judgments and issuing rulings contra to the decisions of the court.

55. That it is equally amusing that the Respondent is on one hand attempting to hold itself out as a bastion of consistency and uniformity, and yet on the other hand it is causing chaos and confusion by imposing two different tariff codes to players in the same industry importing identical products.

56. That it is therefore quite ironic that the Respondent has averred at paragraph 47 of its Statement of Facts that:“The Respondent further humbly avers that Kenya is not bound by rulings of the India Customs Department, which in some instances might be erroneous, but if this ruling was to emanate from the World Customs Organization the global body mandated to give such rulings, and which Kenya is a signatory, the courts or the tribunal then the Respondent would abide by the Ruling. In fact in this case the Respondent followed the decisions of the courts.”

57. That the Respondent has lucidly averred and admitted that where a ruling is issued by the WCO, then it would abide by it, and yet in the instant case, despite the WCO issuing a decision that the Appellant three-wheelers are to be classified under heading 8703, the Respondent is blatantly ignoring the same despite having professed its reverence and willingness to abide by all WCO rulings.

58. That naturally therefore, the Appellant feels that the Respondent has chosen a vendetta against it. That this is not a far-fetched assumption, but a very justified apprehension of the Appellant when the facts in play are considered. That the SCTIFI Committee issues a ruling indicating that three-wheelers are to be classified under Heading 8703, the Respondent ignores the same.

59. That the World Customs Organization, the apex body in relation to Customs matters issues a decision in favor of 8703, the Respondent still chooses to ignore the same, and yet all the while, it is happily issuing tariff rulings in favor of 8703 to other players in the industry. That while all this is happening, the Appellant and only the Appellant is being asked to classify its products under a different tariff code which is a stranger to both regional and international bodies charged with the administration and maintenance of the HS Convention.

60. That it is therefore the Appellant's unequivocal submission that the Respondent's actions are causing confusion and ambiguity in the application of tax laws. That fundamentally, the key question posed to the Appellant by the Respondent's actions is whether the Appellant should erroneously classify its goods under 8711, knowing very well that the same is erroneous in light of the decisions issued by the SCTIFI Committee and the WCO just to pacify the Respondent. That should the Appellant choose to go this route, there is no assurance from the Respondent that it shall not issue another demand stating that the Appellant's declaration is in contravention of the SCTIFI Committee and WCO decisions and the Appellant should thus pay another demanded amount. Honorable Members, suffice to say, the Appellant feels trapped between a rock and hard place.

61. That it is a cardinal and fundamental aspect of a taxation system that the tax laws of a Country be certain and leave no room for ambiguity. Ideally, tax certainty calls for clear and simple rules and regulations to minimize disputes.

62. That in the case at hand, despite all the bodies mandated with the administration and maintenance of the Tariff Nomenclature having issued a decision in favor of 8703, effectively marking an end to the confusion and ambiguity as to the appropriate classification of three wheelers, the Respondent is reinforcing the same by insisting on a classification that goes against the will of the aforementioned bodies. That in fact, the Respondent is further causing confusion wherein it is placing the Appellant in a position where it is unsure whether to follow the Revenue Authority's decision or that of the World Customs Organization.

63. That in its defense, the Respondent is arguing that a decision on the classification of three wheelers has been made by this Honorable Tribunal and the High Court. That in arguing as such, the Respondent fails to appreciate that the decision was in respect to old generation models of three wheelers as the audit period considered was from 2015-2020. That on the contrary, the new generation models are more appropriately classifiable under Heading 8703 as further evidenced by the fact that the Appellant has now been gazetted by the National Treasury to assemble the three-wheelers at the Associated Vehicle Assemblers facility which specializes in the assembly of vehicles of Heading 8703.

64. That furthermore, the Respondent fails to appreciate that the Judgment has since been overtaken by the decisions of the SCTIFI Committee and the WCO which have both unequivocally settled the confusion in relation to the classification of three-wheelers by averring that the Appellant’s products are to be classified under Heading 8703. That consequently, as a result of the fact that regional law supersedes domestic law in Kenya, the decision of the regional and international organizations supersedes the judgement of the court especially since they are more reflective of the new generation models of the Appellant's products.

65. That this is not a whimsical assertion of the Appellant, as it is trite law that where there exists a conflict between regional law and domestic law, it is regional law that succeeds. That to that effect, reference is made to Section 253 of the EACCMA which sets out to address this lacuna in law by providing:“That this Act shall take precedence over the Partner States' laws with respect to any matter to which its provisions States' laws will relate.”

66. That the rule calling for certainty in the application of tax laws is equally not a naive assertion of the Appellant but rather, it is a crucial cornerstone of tax law in a Country, and to that effect, reference is made to the case of Waweru & 3 others (suing as officials of Kitengela Bar Owners Association) & another v National Assembly & 2 others; Institute of Certified Public Accountants of Kenya (ICPAK) & 2 others (Interested parties)(Constitutional Petition E005 & E001 (Consolidated) of 2021)[2021]KEHC 58 (KLR)wherein it was stated that:“Article 10 (1) (b) and (c) of the Constitution provides that the National values and principles of governance bind all State organs, State officers, public officers, and all persons whenever any of them enacts, applies, or interprets any law or makes or implements public policy decisions. The said national values and principles of governance are provided for under Article 10 (2) and include the rule of law, equality, and non-discrimination. The fundamental principle of rule of law as encapsulated in Article 10 of the Constitution is that the law must be certain. Certainty of the law is especially more critical in legislation that imposes taxes on members of the public.”

67. That bearing the aforementioned in mind, the question of what happens when a law is uncertain or ambiguous arises. That case law providing an answer to this are numerous. That essentially, where the law is uncertain, indeterminate or ambiguous, typically it should be interpreted in favor of the citizen or in this case the taxpayer. That these sentiments were stated in the case of Commissioner of Income Tax vs. Westmont Power (K) Ltd Nairobi High Court Income Tax Appeal No. 626 of 2002, the Court while citing Inland Revenue vs. Scottish Central Electricity Company [1931]15 TC 761 expressed itself as follows:“Even though taxation is acceptable and even essential in democratic societies, taxation laws that have the effect of depriving citizens of their property by imposing pecuniary burdens resulting also in penal consequences must be interpreted with great caution. In this respect, it is paramount that their provisions must be express and clear so as to leave no room for ambiguity...any ambiguity in such a law must be resolved in favor of the taxpayer and not the Public Revenue Authorities which are responsible for their implementation.”

68. That a similar position was also held in the case of Keroche Industries Ltd v KRA & 5 others [2007]eKLR; wherein it was held that the effect of the Judge's finding was to give rise to ambiguity on the provision of a tax law and that any such ambiguity must be resolved in favor of the tax payer as held by the High court Visram, J as he then was) in Commissioner of Income Tax v Westmont Power (K) Ltd [2006] eKLR.

69. That additionally, in the case of Stanbic Bank Kenya Ltd vs Kenya Revenue Authority [2009]eKLR, Nyamu, J A adopted with approval the words of Lord Simonds in Scott v Russell [1948]2AIl E R 1 that the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax upon him.

70. That it is also worth noting that in paragraph 54 of its Statement of Facts, the Respondent stated that “there is an inherent danger of loss of revenue by the government if the Appellant's goods are released without the Appellant depositing the whole amount of taxes due.” That first and foremost, there are no goods to be released, the genesis of the matter is in fact a post-clearance audit for the Appellant's imports made in 2022. That consequently, the goods have since been sold in the market, hence there is nothing to be released.

71. That secondly, the Respondent is under the misguided assumption that just because it demands for an amount the same is automatically due and payable regardless of the appeal avenues available to the Appellant. That indeed, this assertion manifests itself wherein the Respondent has stated at paragraphs 56 and 57 of its Statement of Facts that:“It, therefore, follows that the money that was then being demanded herein is money that belongs to the general public good and is meant to be used for the general public and the responsibility of collecting it is on the Respondent.It would generally be wrong for this Tribunal to interfere with the obligation of the Respondent as a public body to uphold the law and enforce compliance with the tax laws”

72. That it cannot be overstated that the law has put in place safeguard mechanisms to ensure that taxpayers are never at the mercy of the Respondent nor any Government institution. That indeed, Chapter 10 of the Revised Kyoto Convention, Section 230 of the EACCMA, Section 12 of the Tax Appeal Tribunal Act and even Section 50 of the Tax Procedures Act are all in force to protect the taxpayer from the exact wanton behavior the Respondent is exhibiting. That needless to say, the taxpayer's right to appeal against decisions by the Respondent is unfettered and just because the Respondent has demanded monies allegedly due and payable does not mean that the Taxpayer has no other recourse than to pay the same.

73. That it is on this premise that the Appellant equally notes that the Respondent's handling of this case has been in stark contravention of the Appellant's right to fair administrative action as enshrined in Article 47 of the Constitution of Kenya.

74. That it is the Appellant’s further assertion that the Respondent's action in this case constitutes a breach of the Appellant's right to fair administrative action. That the Constitution of Kenya, 2010 provides in Article 47 that:“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”.

75. That the Constitution of Kenya under the aforementioned Article indeed clothes one with the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. That the Fair Administrative Action Act thereafter reiterates and emphasizes the same principles before adding additional rights a citizen is entitled to.

76. That the Fair Administrative Action Act defines an administrative action to mean:“(i)the powers, functions and duties exercised by authorities or Quasi-judicial tribunals; or(ii)any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.”

77. That appreciating that the Constitution provides that actions by public authorities should be expeditious, efficient, lawful, reasonable, and procedurally fair for it to qualify under Article 47, the Appellant shall establish how the Respondent breached the above doctrines in handling its case.

78. That the Respondent, despite being fully aware that the classification of three wheelers has indeed been resolved at the apex and regional levels by both the WCO and the SCTIFI Committee, is still insisting that the Appellant and only the Appellant should classify its three wheelers under Heading 8711.

79. That even while the Respondent is demanding that the Appellant classify its products under Heading 8711, it is on the other hand allowing other players in the industry to classify their products under Heading 8703, thereby singling out only the Appellant and subjecting it to a tariff code that has been declared erroneous by the both the WCO, the SCTIFI Committee and even the Respondent’s own tariff rulings.

80. That this is prima facie unlawful, unreasonable and procedurally unfair action constituting a fundamental breach of the Appellant’s right to fair administrative action as enshrined in Article 47 of the Constitution of Kenya.

81. That indeed, as a matter of principle, the Commissioner's exercise of his statutory power is subject to the discipline of administrative law. That this means that in the making of its decision, the Respondent is bound by the provisions of fair administrative action, and yet in the case at hand, the Respondent has fundamentally breached the same.

82. That the importance of adhering to the doctrines, and principles and stating of fair administrative action were highlighted in the Court of Appeal case of Judicial Service Commission v Mbalu Mutava & another [2015JeKLR it was stated that:“(23)...... Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1)to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

Appellant’s prayers 83. The Appellant prayed that:a.That this Appeal be allowed.b.That the Respondent's objection decision dated 22nd March, 2023 be set aside.c.That the Appellant's imported three-wheelers be declared as correctly classified under Heading 8703.

The Respondent’s Case 84. The Respondent’s case is premised on the Respondent’s Statement of Facts dated and filed on 16th June, 2023 together with the documents attached thereto and the Witness statement of Stephen Wafullah dated 10th January, 2024 and filed on the 18th January, 2024 that was admitted in evidence under oath on the 26th March, 2024.

85. That the Appellant being a licensed assembler of motor vehicles, had imported the three wheelers completely knocked down (CKD) and enjoyed remission of both import and excise duties under tariff subheading 8703. That tariff heading 8711 attracted 25% import duty and a specific excise duty regardless of the form the vehicles were imported in.

86. That the reclassification was founded in the determination made by the Tribunal on TAT No. 21 of 2021 on 12th November, 2021 and the High Court Judgment made on 30th November, 2022.

87. That the Appellant applied for a review of the decision in a letter dated 23rd February, 2023 citing reasons without evidence.

88. That the Appellant was compelled by the Respondent to misclassify the three wheelers through its inconsistent actions and various assessments which led to the appeal at TAT.

89. That the Appellant was forced to declare the three wheelers under tariff Heading 8703 for the period the matter was under litigation.

90. That the Appellant's averments that the Respondent forced it to declare under tariff heading 8703 was not supported by law. That the Respondent was guided by the Constitution and the EACCMA, 2004.

91. That Tax and Customs jurisprudence envisages that a decision made by the Respondent can be reviewed upon application by the Appellant. That the same jurisprudence allowed the Appellant to appeal the Commissioner's review decision to the Tax Appeals Tribunal. That the Commissioner appealed the Tribunal's decision to the High Court which clearly pronounced itself on the matter on 30th November 2022.

92. That the Respondent being bound by the superior Court's judgment, assessed the appropriate taxes as a result of this tariff non-compliance and issued the Commissioner's review decision dated 22nd March, 2023 upholding the taxes assessed. This was the basis of this Appeal.

93. That in regard to how the Customs Department determines the HS code to be used, the General Interpretation Rules (GIR) as cited in the East Africa Community Common External Tariff (CET) govern tariff classification of goods. That according to GIR1, classification shall be determined according to the terms of the headings and any relative Section or Chapter notes and, provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

94. That the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Common External Tariff and provides the commentary on the intent and the scope of each tariff heading under the CET as approved by the Customs Cooperation Council.

95. That in regard to how the Department reached a conclusion that the product is a three-wheeler of tariff Heading 8711, from the written and oral submissions of the Respondent and the Appellant in TAT No. 21 of 2021 and case number HCCOMMITA/E008/2022, the Tribunal and the High Court determined that the three wheelers were properly classifiable under tariff Heading 8711.

96. That in the excerpts of the TAT determination and the High Court Judgement, they considered the design characteristics/features of the three-wheeler vis a vis the Explanatory Notes. That they also considered the classification decision of the WCO HS Committee in November 2011.

97. That the Tribunal after analysing the features of the three wheelers, determined that the Appellant distinguished its vehicles from being classified under tariff Heading 8703. That the Appellant's defence was premised on the lack of the design characteristics/features of vehicles of tariff heading 8703 as listed In the Explanatory Notes. They submitted that the three wheelers.“1. Do not have a motor car steering type system or both reverse gear and differential.2. Are not mounted on a T-shaped chassis.3. Do not have permanent seats with safety equipment. These must be fabricated and installed locally.4. Do not have rear windows.5. Do not have doors when imported.6. Do not have permanent barriers.7. Do not have comfort features etc.”

98. That the Tribunal pursuant to GIR 3 (c) and GIR 4 found that the imported three wheelers did not meet the design characteristics/ features of vehicles of tariff heading 8703 and were most appropriately classifiable under tariff heading 8711.

99. That in his High Court ruling, Justice Majanja, in paragraph 38 of his decision held that the Appellant provided prima facie and unrebutted proof that the three-wheelers have a handle bar steering as opposed to the motor car type steering system, they have a differential that is different from that of a motor car, they have a monocoque chassis as opposed to a T-type chassis and that they do not have a single central control stick as the gears are operated from the handle bar type steering. That he further held that these features are not characteristics of vehicles under tariff heading 8703which as per the Explanatory Notes fall under tariff Heading 8711.

100. That the High Court held that the Tribunal rightly analysed the evidence on record and concluded that was also supported by the EACCET, the GIRs and the Explanatory Notes.

101. That the Court found that the Respondent erred in classifying the three wheelers under tariff Heading 8703 as opposed to tariff Heading 8711.

102. That guided by the both the Tribunal and the High Court, the Commissioner reached a conclusion that the product was a three-wheeler of tariff heading 8711.

103. That the Appellant did not demonstrate the substantial transformation of the three wheelers to warrant a change in the tariff reclassification. That advancement in technology alone cannot warrant a change in tariff classification.

104. That the advance Ruling dated 25th June, 2021 adduced by the Appellant does not belong to it. That it belongs to Car and General Trading Limited. That it was issued by the Respondent during the period the matter was under litigation. That it was however overruled by the Tribunal ruling dated 15th October, 2021.

105. That neither the tariff ruling issued to Westminster Consulting Limited, nor the product being classified belong to the Appellant. That the Appellant imports BAJAJ brand of three wheelers and not Piaggio Ape three wheelers.

106. That Section 248A of the EACCMA, 2004, envisages that the decision issued by the Commissioner shall be binding on the applicant and the Commissioner. That the Appellant was not an applicant in the two rulings aforementioned.

107. That furthermore, the Appellant was legitimately expected to abide by the High Court judgment.

108. That the Sectoral Council on Trade Industry Finance and Investment (SCTIFI) through the Republic of Uganda received classification guidance on the three wheelers from the WCO.

109. That the SCTIFI concluded that according to the WCO guidance, the design characteristics or key features that would qualify the classification of the three wheelers to tariff heading 8703 would be as follows:a.That if it has all the design characteristics of a vehicle of heading 8703; for example, equipped with an engine, wheels, steering etc. of a kind normally used in motor vehicles of heading 8703, then it won't be considered a motorcycle.b.That if the three-wheeler has some characteristics of a motorcycle of heading 8711but by virtue of their mechanical structure, possess the characteristics of conventional cars e.g., a motor car type steering system, or both reverse gear and differential, it would be classified in heading 8703. c.That if it has a motorcycle engine etc. and lacking the characteristics of conventional motor cars, such as motor car type steering system or both reverse gear and differential, it will be classified in heading 8711.

110. That the key features observed were:1. Type of steering system. (Motor car type or motor cycle type)2. Mechanical structure (e.g., type of chassis)3. Type and Size of Engine.4. Availability and unavailability of reverse gears.5. Availability and unavailability of a differential system.

111. That the design characteristics above were discussed in detail by the Tribunal in TAT Number 21 of 2021. That the conclusions made were that the three wheelers did not have the design characteristics of the conventional cars as stipulated under the Explanatory Notes to Heading 8703.

112. That the Tribunal and the High court have already issued decisions in favour of the taxpayer in so far as this product is concerned. That the Commissioner would not have any other argument to distinguish this case from the others.

113. That the decision by the Tribunal and the High Court was the basis for the assessment. That it was in favour of the Respondent in this case.

114. That it is imperative to note that tariff classification in Kenya is governed by the East Africa Community Customs, Common External Tariff 2017 read together with its Explanatory Notes, guided further by the General Interpretation Rules of classification and also based on the sample material presented and material information availed.

115. That the legal force governing HS tariff classification is premised on the WCO Harmonized Commodity Description Coding System principles of General Interpretative Rules (GIRs) of classification, which was adopted and codified by the East African Community Partner States through the Common External Tariff (CET)book.

116. That the goods for tariff determination for this case and purposes is classified as presented at the time of importation.

117. That this tariff system is premised on the World Customs Organization Harmonized Commodity Description Coding System and its principles of general interpretative Rules (GIRs) of classification.

118. That further, the said EAC CET is derived from and informed by the International Convention on the Harmonized Commodity Description and Coding System, to which Kenya and indeed all members of the East African Community are signatories.

119. That following the sequence of events the Respondent has exercised due diligence, by involving the Appellant in the deliberation of this matter with no success.

120. The Respondent gave a brief procedure or process that follows Tariff Classification as follows:a.A tariff dispute is forwarded from the release stationb.An analysis leading to tariff determination is done online and memo is done to the importer on the decision undertaken.c.In case, the importer is dissatisfied, and an appeal is lodged by the importer.d.A review of the appeal is undertaken and the review ruling communicated to the importer.e.The importer would still object to the findings, the matter is then forwarded to Policy for the constitution of a Technical Committee to deliberate on the tariff dispute.f.The Ruling of the technical Committee is deemed to be the final findings of the Commissioner.g.The importer is required to abide by the ruling or forward the matter to the Tax Appeal Tribunal.The Respondent stated that the above processes were undertaken in this case.

121. The Respondent stated that the Appellant in this matter was called upon to prove its case and parties had consecutive meetings to discuss the issues in this matter and also having in mind the decisions of the Court and the Tribunal.

122. The Respondent further averred that parties held several meetings with the Appellant and their representatives to discuss the law in relation to this product and it was apparent that the product was the same that the Appellant was importing and had no characteristic difference.

123. The Respondent stated that it is imperative to note that Tariff Classification determination is based on the sample material presented and material information availed.

124. That the Respondent classifies the sample material as presented at the time of importation bearing in mind the decision of the High Court and the Tribunal.

125. The Respondent averred that its decision does not in any way undermine the Harmonized system of classification of goods, but is guided and informed by the same in reaching its decisions.

126. The Respondent further averred that its decision does not breach any treaty obligations or international trade agreements. The Respondent stated that, in fact, it has followed the binding decisions of the Court and the Tribunal since the product did not change any characteristics.

127. The Respondent further averred that Kenya is not bound by rulings of the India Customs Department, which in some instances might be erroneous, but if this ruling was to emanate from the World Customs Organization the Global body mandated to give such rulings, and which Kenya is a signatory, the Courts or Tribunal then Respondent would abide by the ruling. That in fact in this case the Respondent has followed the decisions of the Courts.

128. The Respondent averred that the Appellant is blowing hot and cold to where the decision will favour them.

129. That the dispute of the three wheeler that the Appellant imports has already been decided by the courts and since this decision now requires the Appellant to pay duty it has now shifted goal posts to the HS Code that the Respondent had early classified the product and that the Courts had rejected. That the Appellant cannot be left to have its cake and eat it as and when it feels the same should be in its favour.

130. The Respondent averred that Section 34 of EACCMA empowers an officer appointed by the Respondent to check goods to be entered provided that the said officer is furnished with full particulars of the goods to be entered.

131. That Rule 187 of the EACCMA Regulations then provides for Entry & Examination of goods. That the Respondent is mandated to require an authorized person (taxpayer's agent) to produce the goods for examination at the port of entry or at the place of processing before release for inward processing.

132. The Respondent stated that it can only allow entry of goods when the same have met all standards including the right tariff classification. That where an importer fails to correctly classify a good during entry, the Respondent is mandated by law to advise the taxpayer of the tariff applicable. That where the taxpayer is not agreeable, they have a right of appeal.

133. That the Appellant's conduct in this matter has demonstrated a lack of interest in settling the taxes due despite being accorded several opportunities to be heard.

134. That there was an imminent danger of loss of revenue by the Government if the Appellant’s goods are released without it depositing the whole amount of taxes due.

135. That Section 32 (1) of the Tax Procedures Act categorically provides that a tax payable by a person under a tax law shall be a debt due to the Government and shall be payable to the Commissioner. Further, there is no fairness to tax and there is no equity to tax.

136. That it therefore follows that the moneys that is being demanded herein is money that belongs to the general public good and it is meant to be used for the general public and the responsibility of collecting it is on the Respondent.

137. That it would generally be wrong for this Tribunal to interfere with the obligation of the Respondent as a public body to uphold the law and enforce compliance with the tax laws.

138. That the Respondent’s major role is protecting the society, the local manufactures against unscrupulous traders engaged in unfair trade practices. That thus by payment of duty payable the Appellant will be on the level playing field with the local manufactures/traders and industries.

139. That it is in the public interest that the Appellant remits the taxes in line with the provisions of Article 201 (b) (i) of the Constitution of Kenya which requires that the tax burden be equitably shared by all persons.

140. That the Respondent is mandated by the above laws to give correct tariff rulings thus the Respondent stated that the Ruling issued in this matter is accurate and in accordance with the law.

141. That the Respondent is also mandated to enforce uniform interpretation and application of the Harmonised System Convention to which Kenya is a party.

142. That the Respondent is mandated to collect and record accurate traded statistics, and assess and account for import taxes.

143. That the Respondent relied on the following laws:i.The General Interpretation Rules (GIRs) for classification of goods in the Nomenclature.ii.Section 4(1) (a) of the East African Community Customs Management Act, 2017:-administration of the Common External Tariff.iii.Explanatory Notes, 2017. iv.Application of GIRs in a sequential manner. where:a)GIR 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.b)GIR 3(b) that states, "When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:(a)The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods..."c)GIR6 that states "For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires."v.Sections 234 and 236 of EACCMA Act, 2004; This Section gives the Respondent powers to call for documents and conduct a PCA on the import and export operations of a taxpayer within a period of five years from the date of importation or exportation.vi.Sections 135 and 249 of EACCMA Act, 2004; empowers the Respondent to recover any such amount short levied or erroneously refunded with interest at a rate of two percent per month for the period the taxes remain unpaid.vii.Section 229 of the EACCMA which provides for application for review by any person affected by the decision or omission of the Respondent on matters relating to Customs and provides the statutory timelines to be observed.

144. That following the sequence of events the Respondent has exercised due diligence, by involving the Appellant in the deliberation of this matter with no success.

145. That in arriving at its decision, the Respondent analyzed the law and the product before it and had several meetings where both parties and their representatives attended and deliberated on this issue extensively.

146. That no evidence has been adduced by the Appellant to show that the Respondent arrived at its decision by misapprehending the facts and evidence tabled before it.

147. That it is the Respondent's position therefore that the Appellant cannot claim that the Tribunal failed to properly analyse and re-evaluate the facts and evidence when the Tribunal merely confirmed what the Appellant failed to negate.

148. That the decision taken by the Department while handling this matter was done within the timelines as provided for under Section 229 EACCMA 2004

Respondent’s prayers 149. The Respondent prayed that that this Tribunal considers the case and finds that:a)The Appeal herein be dismissed with costs to the Respondent.b)The Respondent’s Ruling be allowed.c)The goods declared be found to be under HS Code 8711.

ISSUES FOR DETERMINATION 150. The Tribunal having carefully reviewed the pleadings and submissions made by the parties, the supporting documentation and the oral testimony of the Respondent’s witness, is of the view that the issues that call for its determination in this Appeal are:a.Whether there is a valid Appeal before the Tribunal.b.Whether the Respondent erred in reclassifying the Appellant’s imports under tariff heading 8711.

Analysis and Findings 151. Having identified the issues falling for its determination, the Tribunal wishes to analyze them as hereunder.a.Whether there is a valid Appeal before the Tribunal

152. A review of the Appellant’s pleadings confirmed that the Respondent issued its review decision on 22nd March, 2023. The Appellant on its part submitted its Notice of Appeal to the Tribunal on 18th May, 2023.

153. Section 13 of the Tax Appeals Tribunal Act provides as follows regarding Appeals to the Tribunal;“Procedure for appeal(1)A notice of appeal to the Tribunal shall—(a)be in writing;(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.(2)The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of—(a)a memorandum of appeal;(b)statements of facts; and(c)the tax decision.(3)The Tribunal may, upon application in writing, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).”

154. A plain reading of the above Section makes it clear that, in terms of timelines, a Notice of Appeal to the Tax Appeals Tribunal must be submitted within 30 days of receipt of a decision by the Commissioner.

155. Given that the review decision was served on the Appellant on 22nd March, 2023, the Appellant ought to have filed its Notice of Appeal on or before 21st April, 2023. The Tribunal took note of the fact that the Appellant filed the Notice of Appeal on 18th May, 2023 which was 57 days subsequent to the Appellant being notified of the tax decision on 22nd March, 2023. This was 27 days late.

156. A taxpayer who defaults in lodging an Appeal within the statutory timeline has the legal remedy to seek for leave to lodge the same out of time from the Tribunal. This is provided for under Section 13 (3) and (4) of the Tax Appeal Tribunal Act as follows:“(3)The Tribunal may, upon application in writing, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).(4)An extension under subsection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period.” (Emphasis added)

157. A perusal of the Appeal documents lodged by the Appellant clearly indicates that the Appellant did not seek for leave for the enlargement of time in lodging its Appeal.

158. The Tribunal is bound to uphold the strict statutory timelines provided by law to any party. The High Court in emphasizing the strict application of statutory timelines had this to say in Equity Group Holdings Limited -Vs- Commissioner of Domestic Taxes 2021 (eKLR):-“A statutory edict is not procedural technicality. It’s a law which must be complied with. Parliament in its wisdom expressly and in mandatory terms provided…”

159. The Tribunal is of the considered view that the Appellant could not found an appeal against the tax decision out of time without applying to the Tribunal for enlargement of time. In light of the foregoing circumstances the Appeal lodged by the Appellant is found to be invalid.

160. Having found that this Appeal was out of time and contrary to the provisions of Section 13 of the Tax Appeals Tribunals Act and hence invalid, the Tribunal did not delve into the substantive issues in the Appeal.

Final Decision 161. The upshot of the foregoing analysis is that the Appeal is incompetent and consequently the Orders that recommend themselves to the Tribunal are as follows:-a.This Appeal be and is hereby struck out.b.The Respondent’s review decision dated 22nd March, 2023 be and is hereby upheld.c.Each Party to bear its own costs.

162. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MAY, 2024ERIC NYONGESA WAFULA - CHAIRMANCYNTHIA B. MAYAKA - MEMBERDR. RODNEY O. OLUOCH - MEMBERTIMOTHY B. VIKIRU - MEMBERABRAHAM K. KIPROTICH - MEMBER