[2024] KETAT 842 (KLR)

Avery Lounge Limited v Commissioner of Domestic Taxes (Tax Appeal E523 of 2023) [2024] KETAT 842 (KLR) (28 June 2024) (Judgment)

Neutral citation: [2024] KETAT 842 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E523 of 2023

RM Mutuma, Chair, M Makau, EN Njeru, B Gitari & AM Diriye, Members

June 28, 2024

Between

Avery Lounge Limited

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a limited liability company duly incorporated under the Companies Act, 2015 and a registered taxpayer. The Appellant operates a lounge along the Eastern Bypass Road in Nairobi.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, the Authority is charged with the responsibility of among others, assessment, collection, accounting, and the general administration of tax revenue on behalf of the Government of Kenya.

3. The Commissioner carried out investigations into the tax affairs of the Appellant for the period 2020 to 2021 on the basis that the Appellant was a nil filler and thus failed to disclose sales and income made under the years of review. After various correspondences between the parties, the Respondent relied on the information acquired and raised assessments for income tax and VAT through the letter dated 5th of May 2023.

4. The Appellant objected to the assessment raised on the 2nd June 2023. Upon considering the objection, the Respondent issued its Objection Decision on the 26th July 2023 rejecting the Appellant’s Objection.

5. The Appellant being aggrieved by the decision, filed this Appeal vide Notice of Appeal dated and filed 25th August 2023.

The Appeal 6. The Appellant lodged Memorandum of Appeal filed on 25th August 2023 raising the following three grounds:a.That contrary to the provisions of the Income Tax Act and VAT Act, the Respondent erred and misdirected itself in relying on third party records including bank account statements in issuing the impugned tax assessment and assuming that all the monies that passed through the Appellant’s bank account were income and sales.b.That contrary to Section 15 of the Income Tax Act, the Respondent erred and misdirected himself in law and fact by disallowing expenses incurred wholly and exclusively in generating income for the business of the Appellant.c.That the Respondent erred in law and fact by holding that the Appellant had not provided supporting documents and explanations required to prove its objection against the Respondent’s principal tax assessments.d.That the Respondent erred in law and fact by charging PAYE on employees engaged by the Appellant earning below the lower tax bracket of Kshs. 24,000. 00 a month.e.That the Respondent fell into error and misdirected himself in purporting to subject director's drawings to PAYE, yet the Appellant had provided sufficient evidence to demonstrate that the drawing made by the director were deductible expenses incurred by the Company.f.That despite being furnished with evidence of purchase invoices and receipts, the Respondent erred in law by disallowing Input VAT attributable to making of taxable supplies that were claimed in strict compliance with Section 17 of the VAT Act.g.That the Respondent erred in law by finding that the Appellant’s claim for Input VAT incurred in making taxable supplies was time barred.

The Appellant’s Case 7. The Appellant’s case is premised upon its;i.Statement of Facts filed on 25th August 2023 together with the documents attached thereto; and,ii.Written submissions dated and filed on dated 22nd January 2024.

8. On 16 September 2022, the Respondent issued the Appellant with its investigation findings by which it alleged that the Appellant was a nil filler who failed to disclose its sales made for the year of income 2020 to 2021. The Respondent also contended that the Appellant had filled NIL PAYE returns yet its analysis of the payroll submitted together with the bank Statements had shown that the Appellant had employees who were eligible to be taxed PAYE. The Respondent then proceeded to issue a Notice of Assessment dated 5th May 2023 seeking to recover corporation tax, PAYE and VAT. The Appellant objected to the assessments followed by the Respondent’s Objection Decision.

9. According to the Appellant, whereas the Respondent in its Objection Decision heavily relied on figures derived from bank statements to confirm the Assessment, the Appellant contended that such figures are erroneous as they are inclusive of costs of purchases and income deposits such as operating cash flow advanced by the Directors of the Appellant. It stated that the Respondent merely considered credit entries and ignored debit entries which had purchases, expenses and reversals. It argued that in operating a lounge, the Appellant certainly incurred costs on purchases associated with running an entertainment establishment.

10. The Appellant contended that being a relatively new business and establishment, the Appellant incurred costs relating to leasing of the property, construction and renovation, licensing and permits, marketing and advertising, staffing, operational supplies, administrative costs and food and beverage costs. It argued that the Respondent failed to consider these operating costs associated with starting and running an entertainment establishment and in doing so, failed to take into account relevant considerations in arriving at its impugned Objection Decision.

11. The Appellant further contended that during its formative years, the Company relied heavily on capital injections from its directors. The directors regularly provided the company with funds to help cover the initial setup costs, operating expenses and unforeseen emergencies occasioned by the lockdown brought about by Covid-19. It contended that despite being provided with explanations and documentation supporting the fact that these contributions by the directors were deposited to the Appellant’s account and the same were deployed to reduce the cash flow challenges associated with a new business, the Respondent failed to consider this explanation or to adjust its findings.

12. It was the Appellant position that the Respondent further fell into error by purporting to subject all the deposit to income tax. In doing so, it erroneously assumed that every deposit made into the Appellant’s accounts amounted into income capable of being charged tax. In this regard therefore, the Appellant stated that the Respondent took into account irrelevant considerations in arriving at its impugned Objection Decision.

13. In addition, the Appellant also contended that through its tax agent, it made substantive clarifications to the Respondent through various engagements to counter the erroneous assumption that all the deposits made to the Appellant’s bank account were not all income as they included reversals transactions. However, the Respondent chose to ignore the explanations provided.

14. The Appellant maintained that the Respondent failed to appreciate the fact that the Company is in the hospitality and service industry and incurs significant costs such as purchases of beverages and food, staff salaries, business permit and licenses, among many others which can be shown from payments/withdrawals side of the Appellant’s Bank statements. To arrive at the taxable profits or gains of the Company, the Appellant argued that the Respondent should have, but failed to consider the expenses incurred by the Company by treating the withdrawals as costs for production of income.

15. The Appellant averred that the Respondent erroneously assumed that the Appellant was making profit during the period under review, yet it is a matter of public notoriety that the hospitality industry was adversely affected by lockdowns occasioned by COVID 19 pandemic resulting into may businesses recording losses and even shutting down.

16. According to the Appellant, it sources its merchandise from suppliers and sells it locally to its customers. The cost for purchasing its merchandise and suppliers is wholly and exclusively incurred by the Appellant in the generation of business income. The Appellant cited Section 15 (1) of the Income Tax Act to argue that the section permits allowable deductions from income tax and provides that only costs wholly and exclusively incurred in the production of income is tax deductible.

17. The Appellant stated that it purchased various merchandise from local suppliers for its hospitality business. Upon purchasing the said merchandise, it was issued with invoices which can be confirmed from records from its suppliers. The purchases made by the Appellant in the course and in furtherance of its business, wholly and exclusively relate to the income of the Appellant. The Appellant therefore contended that the Respondent should have allowed the deduction of expenditure wholly and exclusively incurred in production of the Appellant’s income.

18. Turning to PAYE assessment for the period under review, the Appellant stated that it was engaging casuals who earned below the lower income tax bracket of Kshs. 24,000. 00. In the circumstances, the Appellant contended that there was no PAYE due and payable to the Respondent.

19. In addition, the Appellant argued that the Respondent failed to appreciate that the hospitality industry regularly engages casual staff on weekly or on a need basis. It is the Appellant’s case that there are instances where the wages of the casuals engaged are paid cumulatively over a period. In this regard therefore, the Appellant stated that the Respondent failed to take into account relevant considerations in arriving at its impugned Objection Decision.

20. Being the authorised signatories to the Appellant’s bank account, the Appellant contended that the withdrawals made by the directors were done solely to cater for the expenses incurred by the business that need to be settled on cash basis. As such, the same cannot be said to have conferred benefit to the director for it to be subjected to PAYE.

21. In respect of VAT, the Appellant argued that the Respondent based its VAT Assessment on the analysis of deposits made into the Appellant’s bank account. However, the Appellant contended that such an assessment is erroneous as it is based on a generalised assumption that all the deposits made into the Appellant’s bank account related to the sales made. The Appellant affirmed that some of the deposits made into the Appellant’s bank account relate to bank reversals and directors’ deposits therefore, such deposits cannot be classified as sales made by the Appellant for which VAT applies.

22. The Appellant further contended that contrary to the VAT Act, the Respondent failed to consider and grant input VAT deduction relating to valid and supported purchases of taxable supplies incurred by the company when confirming the assessment. It asserted that it incurred huge capital investment on construction, purchasing of equipment, fixtures and fittings which qualify for input VAT deduction pursuant to Section 17 of the VAT Act which would have resulted the Appellant being in a VAT credit position.

23. The Appellant contended that the decision taken by the Respondent is materially influenced by an error of the applicable tax law, is not rationally connected to the information provided to the Respondent and violates the legitimate expectations of the Appellant. The Appellant maintained that in arriving at the erroneous findings, the Respondent failed to consider the provisions of the law and in doing so, acted in excess of jurisdiction or power conferred under the tax laws highlighted above. Consequently, the Appellant asserted that the Objection Decision issued by the Respondent is unreasonable and unfair, and the same should be vacated.

24. In the submissions, the Appellant identified three issues for determination, being;i.Whether the Respondent’s Corporation Tax assessment is incorrect and excessive;ii.Whether the Respondent’s PAYE assessment on employees and director’s current accounts is incorrect and excessive; andiii.Whether the Respondent’s VAT assessment is incorrect and excessive.

25. The Appellant’s submissions are similar to the contents of its Statement of Facts therefore the Tribunal highlights below, a summary of the submissions.

26. In relation to the first issue, the Appellant submitted that although Section 29 of the Tax Procedures Act allows the Respondent to make an assessment based on such information as may be available and to the best of their judgment, it submitted that the same should be reasonable. In this regard, the Appellant relied on Republic vs. Kenya Revenue Authority Ex-Parte: Cosmos Limited [2016] eKLR, where it was held that even though the Respondent has powers to assess and demand payment of taxes due, such powers can only be exercised validly if they are exercised reasonably, rationally and properly. The Appellant also cited the case of Republic vs. Kenya Revenue Authority ex parte Aberdare Freight Services Limited [2004] eKLR, where Nyamu J stated that:“It is now an accepted principle in this field of law that statutory powers and duty must be exercised and performed reasonably.”

27. The Appellant also submitted that the Respondent's assessment of the cash deposits was in breach of basic accounting principles and was not based on information available to the Respondent because bank credit entries do not qualify as income and gains or profits from a business chargeable to tax under Section 3 (2) (a) (i) of the Income Tax Act and; that the Respondent action of taking all of the Appellant's bank credit entries as income does not allow the deduction of the expenditure incurred by the Appellant in the production of income. The Appellant argued that this was contrary to Section 15 of the Income Tax Act.

28. The Appellant submitted that Respondent ignored the debit entries of the bank statement and only sought to subject all the credit entries to a flat corporation rate of 30%.

29. To support a preposition that the Respondent ought to have used the industry margin in calculating taxes, the Appellant relied on Afya X-Rays Centre Limited vs. Commissioner of Domestic Tax (Appeal No. 70 of 2017) wherein this Tribunal recommended that the Respondent ought to have ascertained the chargeable income using industry averages depending on the nature and type of business.

30. With regard to the second issue, the Appellant submitted that it employs casuals who do no fall within tax brackets. Secondly, the Appellant submitted that its director and shareholder, one Mr. Aloise Kuria advanced the initial start-up capital and regularly finances the company’s day-to-day operational costs as evidenced in the bank statements therefore the company reimbursed the director. The Appellant submitted that these reimbursements do not amount to directors' drawings and, as such, are not taxable income from business, employment, or services rendered under Sections 3 (1) and 3 (2) (a) (i) of the Income Tax Act.

31. The Appellant relied on Republic vs. Business Premises Rent Control Tribunal & Another Ex-parte Albert Kigera Karume [2015] eKLR to support the preposition that the Respondent ought to act within the statute. The Appellant also cited the case of Republic vs. Commissioner of Domestic Taxes, Large Taxpayer’s office ex parte Barclays Bank of Kenya Ltd [2012], to submit that the Respondent must demonstrate clearly that a certain payment forms the basis of a particular tax before issuing an assessment.

32. On the third issue, contrary to the Respondent’s assertion that the Appellant failed to provide ledgers and any other relevant supporting documents, the Appellant submitted that that it availed ledgers and bank statements to the Respondent for the period, which showed the amount of tax due, if any.

33. The Appellant submitted that the Respondent did not exercise best judgment when considering the Appellant’s documents. It cited the cases of Van Boeckel vs. C & E QB Dec 1980, [1981] STC 290 and Raghubar Mandal Harihar Mandal vs. The State of Bihar AIR 1952 Pat 235, to support the position that the Respondent should exercise best judgment when making its decisions.

34. Finally, the Appellant submitted that the Respondent’s VAT Assessment is not arithmetically sound as entries were wrongly included in the bank analysis, which should have been adjusted as they were unrelated to sales. It submitted that the Respondent failed to adhere to the banking test that were set out in CA McCourtie LON/92/191.

Appellant’s Prayers 35. The Appellant urged the Honorable Tribunal to grant orders that:a.The Commissioner’s Assessment and Objection Decision dated 26th July 2023 demanding Kshs. 92,727,600. 25 in principal tax together with penalties and interest be and are hereby set aside.b.The Commissioner, either through its employees, agents or any other person purporting to act on its behalf be and is hereby restrained or estopped from demanding or taking any other action towards enforcement or recovery of the principal tax, penalties and interest from the Appellant.c.The cost of this Appeal be and are hereby awarded to the Appellant.d.Any other remedies that the Tribunal may deem just and reasonable.

The Respondent’s Case 36. The Respondent’s case is premised on its;i.Statement of Facts dated 6th October 2023 and filed on 9th October 2023 together with the documents attached thereto; and,ii.Written submissions dated and filed on 17th January 2024.

37. In response to ground one of the Memorandum of Appeal, the Respondent stated that it profiled the Appellant as a nil-filer this was despite the Appellant being fully operational and having registered for Income Tax, VAT and PAYE obligations on its iTax portal. Consequently, the Respondent wrote to the Appellant’s bank as well as to their suppliers in a bid to try and establish the tax liability of the Appellant. The Respondent relied on Section 59 of the Tax Procedures Act which empowers the Respondent to get records from the Appellant’s bank and suppliers for the purpose of obtaining the full information in respect of Appellant’s tax liability.

38. The Respondent averred that since the Appellant was a nil-filer the Respondent had to use the information available to it and apply its best judgement in coming up with the tax assessment which according to the Respondent, was in accordance with Section 29 (1) of the Tax Procedures Act.

39. The Respondent relied on the case of Gashi vs. Respondent of Taxation [2012] FCA 638, wherein the court stated that:“it is not enough for the applicants to establish that the Respondent’s estimations were mistaken or erroneous in some or even many respects. It is necessary that they go further and establish what their taxable incomes actually were. But the bottom-line question, as it were, will always be: what were the taxable incomes of the applicants? It is for them to determine how they will go about answering that question.”

40. The Respondent therefore argued that it is upon the Appellant to show what its actual income was in order to challenge the assessments of the Respondent. The Respondent asserted that the Appellant was unable to do this and therefore their allegation that the Respondent’s assessments were issued erroneously fails.

41. In response to second ground of the Memorandum of Appeal, the Respondent stated that the Appellant was requested to provide ledgers and invoices to support its claim for expenses wholly and exclusively incurred in its production of income. The Respondent also stated that the Appellant did not provide the document and that the Appellant was requested to provide audited books of account that would have shown capital deductions claimed by the Appellant but it did not provide any such documents. The Respondent cited the case of Mulherin v. Commissioner of Taxation [2013] FCAFC 115 where the Court held:“Taxpayer must satisfy the burden of proof to successfully challenge income tax assessments. The onus is on the Taxpayer in proving that assessments were excessive by adducing positive evidence which demonstrates the taxable income on which tax ought to be levied.”

42. In response to ground three of the Memorandum of Appeal, the Respondent cited Section 56 of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act which provides that the burden shall be on the Taxpayer to prove that a tax decision is incorrect.

43. The Respondent averred that it wrote to the Appellant on the 12th June 2023 requesting the Appellant to provide documentation to support its objection. The Respondent maintained that the Appellant did not respond to the said email neither did it produce any of the documents requested by the Respondent. It relied on the case of Zulma Traders Limited vs. Commissioner Investigations & Enforcement TAT No. 234 of 2018 wherein the Tribunal at paragraph 89 of its Judgement stated:“At no point has the Tribunal encountered any response to the said requests by the Appellant communicating that the same has been provided or would be provided. This leads us to the inference that the same was not availed at least up to this point.”

44. The Respondent argued that the Appellant herein has not demonstrated in its pleadings how the assessments raised against it were excessive. The Respondent also pointed out that the Appellant has not attached any evidence to illustrate how the assessments were excessive.

45. In response to ground four of the Memorandum of Appeal, the Respondent stated that it had vide the email dated the 12th June 2023 requested the Appellant to provide supporting evidence i.e. listing of the casuals, I.D. Numbers, phone numbers and sign off sheets and evidence of payment to casuals to support their assertion. According to the Respondent, these documents would have assisted the Respondent in verifying the status of employees by the Appellant. However, the Appellant was unable to provide any document to support this claim.

46. In response to ground five of the Memorandum of Appeal, the Respondent averred that the Appellant was unable to provide supporting evidence that shows the withdrawals made by the directors were to cater for business expenses that were settled on cash basis. According to the Respondent, the taxpayer only provided a bank statement and could not provide any other supporting documents that showed how the withdrawals made by the director were channeled towards business expenditure.

47. The Respondent cited Section 17 of the VAT Act which provides for deduction of input tax. The Respondent argued that input tax is deductible after a Taxpayer has provided valid documents to support its claim as envisioned by the Act. The Respondent maintained that the Appellant was requested to provide documents to support its claim for input VAT but it failed to provide the requested documentation including purchase invoices and receipts which would have been critical in determining the Appellant’s claim.

48. Further, the Respondent averred that the Appellant was a nil filer and did not declare any sales for the period under review. According to the Respondent, this is in contravention of Section 5 of the VAT Act, 2013.

49. The Respondent cited the case of Metcash Trading Limited vs. Commissioner for the South African Revenue Service and another (CCT3/00) [2000] ZACC 21, where the Court held that the burden of disproving a VAT assessment falls on the Taxpayer. The Respondent argued that the Appellant did not provide any document to support its claims for VAT.

50. In response to ground six of the Memorandum of Appeal, the Respondent relied on Section 17 (2) of the VAT Act which provides that a claim for deduction of input VAT under the VAT Act shall be allowable within six months after the end of the Tax Period in which the supply occurred.

51. The Respondent added that the Appellant was a nil-filer and that it did not declare any sales that they made during the period under review. The Respondent argued that the Appellant could not therefore claim deductions of input VAT since the same should have been done as prescribed by Section 17 (2) of the VAT Act. The Respondent maintained that the Appellant’s claim was time barred.

52. The Respondent in its submissions relied on the cases of Ingala Building and Construction Limited vs. Commissioner of Domestic Taxes (Appeal 627 of 2022) [2023] KETAT 353 (KLR) (Civ) (9 June 2023) (Judgment) and Commissioner of Domestic Taxes vs. Metoxide Ltd (2021), wherein it was held that a taxpayer has burden to prove that the Respondent’s decision is incorrect.

Respondent’s prayers 53. The Respondent prayed that this Honourable Tribunal finds that:a.That this Appeal be dismissed;b.The taxes due and unpaid together with interest thereon be paid to the Respondent;c.The Respondent reserves the right to adduce any further oral and written evidenced during the hearing of the Appeal; and,d.That the Appellant be compelled to pay costs to the Respondent.

Issues for Determination 54. The Tribunal having considered the Memorandum of Appeal, the parties’ Statements of Facts and submissions, puts forth the following issue for determination:i.Whether the Appellant discharged the burden of proof under Section 56 (1) and Section 30 of the Tax Appeals Tribunal Act; and,ii.Whether the Respondent’s Objection Decision was justified.

Analysis And Findings 55. The Tribunal wishes to analyse the issues as hereunder.

i. Whether the Appellant discharged the burden of proof under Section 56 (1) and Section 30 of the Tax Appeals Tribunal Act; 56. Section 56 (1) of the Tax Procedures Act provides as follows:“In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.”

57. While section 30 of the Tax Appeals Tribunal Act provides as follows:“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; orb.in any other case, that the tax decision should not have been made or should have been made differently.”

58. From these two laws, it is undisputed that the tax payer has statutory burden to prove that the Respondent’s tax decision is incorrect.

59. The parties herein have traded accusations and counteraccusations. Whereas the Appellant claimed that it provided documents in support of the notice of objection, the Respondent claimed that the Appellant did not provide supporting documents save for a bank statement. The Respondent also alleged that the Appellant was a nil-filer therefore, the Appellant did not deserve to claim input tax.

60. Section 13 (2) (b) of the Tax Appeals Tribunal Act requires an Appellant to file Statement of Facts. The Statement of Facts should support and expound the contents of the Memorandum of Appeal. The Statement of Facts should explain why and how the Respondent’s decision is incorrect. Rule 5 of the Tax Appeals Tribunal (Procedure) Rules, 2015 also speaks to this position.

61. Rule 5 of the Tax Appeals Tribunal (Procedure) Rules, 2015 provides as hereunder:‘‘(1)Statement of fact signed by the appellant shall set out precisely all the facts on which the appeal is based and shall refer specifically to documentary evidence or other evidence which it is proposed to adduce at the hearing of the appeal.(2)The documentary evidence referred to in paragraph (1) shall be annexed to the statement of fact.’’

62. The Respondent alleged that it requested the Appellant to provide ledgers and invoices to support its claim for expenses wholly and exclusively incurred in its production of income. The Respondent also alleged that it requested the Appellant to provide audited books of account that would have shown capital deductions claimed by the Appellant. The Respondent also claimed that it requested the Appellant to provide purchase invoices and receipts which would have been critical in determining the Appellant’s VAT claim. The Respondent asserted that the Appellant did not provide these documents to support the Notice of Objection, neither did the Appellant adduce these documents to support this Appeal.

63. The Tribunal has examined the documentary evidence as filed by the Appellant. The Tribunal notes that the Appellant filed the following documents: a letter of findings from the Respondent dated 16th September 2022, Notice of assessment dated 5th May 2023, a Notice of Objection dated 2nd June 2023, and its bank statements. The Appellant also filed written submissions accompanied with a bundle of authorities dated and filed on 22nd January 2024.

64. Accompanying the bank statements was a summary of banking analysis which showed the total deposits and the adjustments thereto, the Appellant’s VAT estimates and the net taxable loss for the period in review. This summary of the bank analysis which showed the annual totals of directors’ deposits and reversal was not supported by a schedule nor were the transactions highlighted on the bank statements for reference by the Tribunal.

65. This is contrary to Rule 5 of the Tax Appeals Tribunal (Procedure) Rules, 2015 which mandates the Appellant to file a Statement of Facts which must refer specifically to documentary evidence or other evidence which it is proposes to adduce at the hearing of the Appeal; and the documentary evidence referred to in paragraph must be annexed to the Statement of Fact.

66. This Tribunal in the case of Digital Box Limited vs. Commissioner of domestic investigations and Enforcement [2020] affirmed that that the burden to prove that the Respondent’s decision is wrong falls on the taxpayer. Similarly, the High Court in Darwine Wholesalers Limited vs. Commissioner of Investigations and Enforcement (Income Tax Appeal E051 of 2021) [2023] KEHC 23537 (KLR) held as follows:“Under section 59 of the TPA and section 43 of the VAT Act the Commissioner is expressly empowered to ask for additional information to ascertain the tax chargeable. This legal position is in consonance with section 107 and 112 of the Evidence in that the balance of proof lies with the party with the knowledge of facts. Further section 30 of the Tax Appeals Tribunal Act (TATA) and section 56 of the TPA imposes the burden of proof on the tax payer to prove that an assessment was wrong or that it was excessive.”

67. Tribunal therefore finds that the Appellant failed to present its documentary evidence in support its Appeal. Thus it did not discharge its statutory burden of proof.

68. The Tribunal having held that the Appellant’s Appeal is unmerited, the Tribunal shall not delve into the other issue for determination as the same have been rendered moot.

Final Determination 69. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal is unmerited and consequently makes the following orders; -a.The Appeal be and is hereby dismissed;b.The Respondent’s Objection Decision issued on 26th July 2023 be and is hereby upheld; and,c.Each party to bear its own cost.

70. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 28THDAY OF JUNE 2024ROBERT M. MUTUMA - CHAIRPERSONMUTISO MAKAU - MEMBERELISHA N. NJERU - MEMBERBERNADETTE M. GITARI - MEMBERABDULLAHI DIRIYE - MEMBER