[2023] KETAT 326 (KLR)

East African Sea Foods Limited v Commissioner of Domestic Taxes (Appeal 61 of 2022) [2023] KETAT 326 (KLR) (2 June 2023) (Judgment)

Neutral citation: [2023] KETAT 326 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 61 of 2022

E.N Wafula, Chair, Grace Mukuha, AK Kiprotich & Jephthah Njagi, Members

June 2, 2023

Between

East African Sea Foods Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

1. The appellant is a limited liability company incorporated in Kenya and a registered taxpayer.

2. The respondent is a principal officer appointed under and in accordance with section 13 of the Kenya Revenue Authority Act and which 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 appellant filed its income tax returns for 2015 to 2018 on iTax. In the said returns, the appellant claimed tax credits under section 13. 4 of the returns.

4. The respondent thereafter on October 26, 2021 raised additional assessments for the years 2016 to 2018 totalling Kes 54,687,157. 00 inclusive of interest.

5. The appellant objected to the assessments on November 5, 2021.

6. On December 24, 2021, the respondent issued the appellant with its objection decision confirming its decision to disallow the appellant’s tax credits as claimed and also confirmed the demand of additional tax assessment of Kes 30,037,994. 00.

7. The appellant being dissatisfied with the objection decision filed its notice of appeal dated January 11, 2022 on the same date.

The Appeal 8. The appeal is premised on the following grounds as stated in the memorandum of appeal dated January 25, 2022 and filed on the same date.a.That the respondent erred in law and fact in disallowing the tax credits claimed by the appellant on the income tax company assessment under section 42 of the Income Tax Act cap 490 Laws of Kenya.b.That with the disallowing of the valid tax credits, the respondent erred in demanding payment of the alleged tax liability of Kes 30,037,994. 00 from the appellant for the period 2016 to 2018 and yet the appellant had made overpayments for the previous years for which it was claiming for credits thereto to offset any alleged tax liabilities.c.That the iTax corporation self-assessment tax return template did not recognise the rental withholding certificates in offsetting the liabilities of the appellant and yet it was the responsibility of the respondent to design a self-assessment return (SAR) template that would allow the appellant to appropriately claim its tax credits arising from the overpayments. This forced the appellant to claim the refund in the field designated for credits on the existing SAR template for which recognised tax credits as per section 42 of the ITA and this was the only available option for the claiming of tax credits.d.That the respondent erred both in law and fact in failing to account for the manual tax overpayment transfers from 2013 and 2014 that had been made by the appellant through the legacy system to the detriment of the appellant.e.The respondent erred both in law and in fact in failing to introduce transitional procedures for smooth transition from legacy tax system to ensure that the taxpayers were not adversely affected during the transition period. As a result, the respondent had failed to act fairly as against the appellant in disallowing the tax credits and yet the issue was due to the system configuration for which they were responsible .f.That in view of the foregoing, the appellant is apprehensive that the actions of the respondent lack in merit, are unlawful and gravely unjust and that unless the orders sought are granted, the appellant risks being unjustly required to pay for the alleged taxes to its prejudice.

The Appellant’s Case 9. The appellant’s case is premised on the hereunder filed documents:a.The appellant’s statement of facts dated January 25, 2022 and filed on the even date together with the documents attached thereto.b.The appellant’s written submissions dated November 3, 2022 and filed on November 4, 2022 together with the authorities filed therewith.

10. The appellant raised five grounds of Appeal and which it has argued separately as hereunder.Ground 1:The respondent erred in law and in fact in disallowing the tax credits claimed by the appellant on the income tax company assessment under section 42 of the income tax Act.

11. The appellant stated that based on the self-assessment lodged by it on various dates in respect of the various periods including 2016 to 2018 ,it claimed for tax credits for the tax overpayments that it had made.

12. The appellant argued that vide various letters on various dates beginning in the year 2003 and issued within stipulated timelines and addressed to the respondent it requested for the recognition of its tax credits and subsequent utilisation of the same to offset any outstanding tax liabilities.

13. The appellant added that the respondent approved the utilisation of some of the credits for some of the years and for some years failed to respond to the appellant’s letters requesting for the same and proceeded to issue additional assessments.

14. The appellant stated that vide the letter dated December 17, 2021 the respondent acknowledged the existence of tax credits in favour of the appellant and advised the appellant to have the same reconciled and validated by section 42 credit validation project team. That before the appellant could action as directed by the respondent on December 24, 2021 the appellant was issued with the objection decision and demand for Kes 30,037,994. 00.

15. The appellant further submitted that the validity of its tax credits resulting from overpayments had not been questioned by the respondent. That the respondent had acknowledged that the credits were accounted for outside iTax system and that the dispute at hand required further reconciliation to capture the credits on the iTax system.

16. That the respondent having not questioned the validity of the tax credits should have proceeded to capture the tax credit into iTax system instead of issuing a demand for additional tax on the appellant. That in the circumstances the respondent erred in disallowing the tax credits.

17. The appellant further submitted that during the whole period it had sought and even gotten the approval to utilise its credits. That logically the alleged monies owed by the appellant were with the respondent and as such the demand for penalties and interest by the respondent is misplaced and an abuse of power.

18. The appellant also submitted that the Kenyan regime is based upon self-assessment as statutorily provided under section 28 (1) of the TPA and that a taxpayer who has made a self-assessment shall be treated as having made an assessment of the amount of tax payable for the reporting period for which the return relates to.Ground 2:The respondent erred in demanding payment of alleged tax liability of Kes 30,037,994. 00 from the appellant for the period 2016 to 2018 and yet the appellant had made overpayment for the previous years for which it was claiming for credits thereto to offset any alleged tax liabilities.

19. The appellant submitted that the respondent failed to utilise the appellant’s tax overpayments to offset the alleged tax liability imposed by the respondent and in so failing resulted in a demand of taxes of Kes 30,037,994. 00 and that the behaviour of the respondent was meant to enable the respondent to charge additional tax, penalties and interest. The appellant in this regard relied on the case of Kenafric Industries Ltd v Commissioner of Domestic Taxes & 4others [2012]e KLR.Ground 3:Income tax corporation self-assessment tax return did not recognise the rental withholding certificates in offsetting the liabilities of the appellant and yet it was the responsibility of the respondent to design a self-assessment template that would allow the appellant to appropriately claim its tax credits arising from the overpayments.

20. The appellant submitted that in respect of the year 2018,the respondent in its assessment summed up Kes 4,520,624. 00 which was the rental withholding tax amount on iTax and Kes 4,538,953. 00 which was the amount that was claimed as section 42 credits. That this was an element of double accounting as Kes 4,520,624 was included in the amount of Kes 4,538,953. 00.

21. The appellant added that the amount of Kes 4,520,624. 00 was made up of genuine rental withholding tax credits which were available on the iTax system.

22. That the remaining Kes 18,329. 00 was offset using the remaining credit from the years 2013 and 2014 that was left unutilised after offsetting the liability for the year 2016.

23. The appellant averred that the double taxation resulted from the iTax corporation self-assessment return template did not recognise the rental withholding tax amount of Kes 4,538,953. 00 which was the amount claimed under section 42 of the ITA for purposes of offsetting the liabilities of the appellant.

24. The appellant added that the failure of the respondent to install the proper template as above stated should not be used to penalise the appellant (The appellant’s proof of payment documents are attached to its statement of facts)

25. That further in respect of the period 2017,the respondent raised an additional assessment on the amount claimed under section 42 amounting to Kes 909,211. 74. The appellant added that this amount claimed was due to the manual withholding certificates on interest incomes and rental withholding tax certificates.

26. That vide letters dated August 2, 2017 M Oriental wrote to the respondent confirming that it had made payments of withholding taxes for the appellant and duly attached the certificates in respect thereof and on August 29, 2019 the appellant wrote to the respondent requesting for the recognition of the said credits and subsequent utilisation of the same to offset the tax liabilities but the respondent did not respond to the letters. That instead the respondent issued demand notices.

27. The appellant averred that the respondent issued its decision without any legal basis as the appellant had discharged its burden of proof by furnishing the respondent with all the documents in support of its claim. The appellant in this regard relied on the case of Saj Ceramics Ltd v Commissioner of Domestic Taxes [TAT 531 of 2020]Ground 4:That the respondent erred in law and fact in failing to account for the manual tax overpayment transfers from 2013 and 2014 that have been made by the appellant through the legacy system.

28. The appellant averred that in respect of the period 2018 that the respondent did not take into account the manual tax overpayments arising from the year 2013 to 2014 of Kes 24,848,116. 00 for the year 2018 that were not reflected on the respondent’s iTax system. That the appellant had written to the respondent on 20th January 2016 requesting for the said amount of Kes 24,848,116. 00 to be utilised to offset the appellant’s liability in regard to the year of income 2016 for Kes 24,589,828. 00 and that since an excess of Kes 258,288. 00 remained as credit the same was to be used to offset the remaining liability of Kes 18,330. 00 for the year of income 2018.

29. The appellant submitted that the request for the utilisation of the Kes 24,848,116. 00 in tax credits was not addressed by the respondent in terms of offsetting for the period 2016 leading to the respondent in its additional assessment demanding for the principal of Kes 24,589,828. 00 together with interest of Kes 17,458,778. 00.

30. The appellant also submitted that from the income tax return, the manual payments could only be claimed under section 42 of the ITA. That the respondent therefore had no basis whatsoever of denying the utilisation of the tax credits whose existence was recognised by the respondent vide its letters dated 17th December 2021. Ground 5:The respondent erred in law and fact in failing to introduce transitional procedures for smooth transition from legacy to iTax system to ensure that the tax payers were not adversely affected during the transition period. That as a result the respondent failed to act fairly as against the appellant in disallowing the tax credits and yet the issue was due to the system configuration for which they were responsible.

31. The appellant submitted that upon introduction of the iTax system by the respondent, the respondent ought to have introduced transitional procedures for a smooth transition from the legacy to the iTax system and should have expedited the process so that upon reversal of section 42 credits, no additional assessment is generated on the iTax as against the appellant. On this the appellant relied on the case of Kenya Bankers Association v KRA [2018] wherein the court held that the implementation of the impugned administrative decision amounts to imposition of tax upon the applicant’s members in situations where they may well not be obliged to pay the same.

32. The appellant has also submitted that the respondent erred in acting in contravention of the provisions of the Fair Administrative Actions Act and article 47 (1) of the Constitution of Kenya. That the respondent failed to discharge its mandate to ensure expeditious, efficient, lawful, reasonable and procedurally fair action in respect of the ascertainment and utilization of the existing tax credits claimed by the appellant.

33. The appellant further averred that the respondent acted in bad faith by issuing its objection decision prematurely confirming its additional assessment of tax without determining the tax credits of the appellant yet acknowledging the need for reconciliation of the appellant’s tax ledgers to ascertain the valid tax credits.

34. The appellant added that the respondent failed to discharge its obligation to determine the applications by the appellant in respect of the approval and migration of its existing tax credits timeously. That the respondent’s averments in paragraph 22 of its statement of facts that the respondent is not confined to statutory timelines to process and ensure swift reconciliation of the tax credits is tenuous as the courts have emphasized severally that the applications by the taxpayers for refunds should be processed expeditiously as a legitimate expectation.

35. The appellant in support of its case relied on the cases of R v KRA ex-parte LAB International Kenya Ltd Mombasa [HC Misc No 82 of 2010 (Unreported); Kenya Data Networks Limited v KRA Nairobi Petition No 87 of 2012 [2013] eKLR and Kenafric Industries Ltd v Commissioner of Domestic Taxes & 4others.

Appellant’s prayers 36. The appellant prayed that the tribunal makes a finding in its favour as follows:-a.Sets aside the objection decision as issued by the respondent on December 24, 2021 demanding Kes 30,037,994. 00 in tax arrearsb.Order the respondent to duly utilise immediately any tax credits in the appellant’s KRA Account to offset any tax liabilities due from the appellantc.Order that the actions of the respondent in failing to update its records on the iTax system for nearly nineteen years on aggregate and subsequently demanding payment of alleged tax arrears and interest thereto whereas the appellant has valid tax credits under the manual legacy system for which it made several requests for the utilisation of the same within stipulated timelines is lawful, places an unnecessary compliance burden on the appellant and is an abuse of office by the respondentd.Costs of the Appeal

Respondent’s Case 37. The respondent’s case is premised on the documents stated hereunder:a.The statement of facts dated February 24, 2022 and filed on the same dateb.The written submissions dated July 29, 2022 and filed on August 1, 2022 together with the authorities filed therewith.

38. The respondent averred that the credit claimed by the appellant was not related to foreign tax payable in respect of income earned under special arrangement and further that the overpayments from the previous years which the appellant was seeking to carry forward through section 42 of the ITA were claimable under section 47 of the TPA as a refund.

39. That the respondent did not state that the appellant was not entitled to a refund but that the appellant was to correctly apply the law by simply removing the credits from field 13. 4 because they were not claimable there.

40. That the appellant in its notice of objection did not attach any evidence of foreign tax being paid as required to support its averments.

41. The respondent stated that it notified the appellant that the tax credits for taxes paid locally should not be claimed under section 42 of ITA but rather under section 47 of the TPA and that as the case maybe the appellant ought to have written to the respondent to claim over payments.

42. That the respondent acknowledged that the issue at hand required reconciliation for other amounts and it was going to take time to reconcile and that the appellant had been advised in the objection decision dated December 24, 2022 on the steps to undertake and the said letter was very elaborate on the same.

43. The respondent averred that the taxes paid in 2013 and 2014 were paid manually and the same must be reconciled as the bank statements have to be obtained from the Central Bank of Kenya.

44. The respondent submitted that it invited the appellant to provide documents and have the reconciliation done (paragraph 7 and 8 of the objection decision) on other tax credits that are not Section 42 credits and that once its satisfied that the appellant had provided documents in support of the tax credits a tax decision would be communicated to the appellant.

45. The respondent averred that the law does not give timelines within which reconciliation should be done and therefore the appellant’s rights have not been violated as the same can be done upon provision of records and adherence with section 47 of TPA.

46. That the appellant will not be prejudiced by the process of reconciliation as the respondent has not instituted any measures on the appellant.

47. The respondent contended that the matter is prematurely before the Tribunal as the respondent is yet to pronounce herself on whether the local tax credits are genuine or not.

48. The respondent averred that the appellant having failed to prove that it had section 42 credits the logical conclusion is that the appellant had failed in discharging its burden of proof contrary to section 56 of the TPA.

49. The respondent also averred that the appellant having failed to provide the documentation required in support of its objection the respondent was right in upholding the assessments.

50. That without prejudice to the foregoing, the respondent averred that it had advised the appellant to consult the credit validation team at Ushuru Pension Plaza Westlands with all the documentation to facilitate the capturing of all credits if the same had not been captured on iTax.

51. That the reconciliation will enable the parties address the issues of overpayments alleged by the appellant and the issues of manual tax payments for the years 2013 and 2014 as alleged by the appellant.

52. The respondent submitted that the appellant should honour the advice in the letter dated 24th December 2021 to facilitate the data migration from the legacy system to the iTax system. That this is to confirm that its credits are properly migrated and that nothing is lost in the process and also to bypass the automatic triggering of “amended assessments” during the data migration process.

53. The respondent relied on the cases of 474_of_2020-JUDGEMENT_2021_eKLR.pdf National Bank of Kenya Ltd v Commissioner of Domestic Taxes [TAT No 474 of 2020] and R v KRA & another ex-parte Kenya Nut Company Ltd [2014] e KLR in support of its case.

Respondent’s Prayers 54. The respondent prayed for the tribunal to :a.Direct the appellant to consult the respondent’s credit validation project with the relevant documentation to enable the issues of reconciliation be dealt with finalityb.Uphold the respondent’s decision as proper and in conformity with the provisions of the lawc.Dismiss the appeal with costs to the respondent as the same is devoid of any merit

Issues For Determination 55. The tribunal has considered the pleadings filed by both parties together with all their submissions and documentation and has narrowed down the issues for determination as follows:a.Whether the appeal is prematurely before the Tribunalb.Whether the commissioner was justified in raising the additional assessments against the appellant

Analysis and Findings 56. The tribunal having ascertained the issues for determination as set out above proceeds to deal with the same as hereunder.

Whether the appeal is prematurely before the tribunal 57. The respondent had contended in its submissions that the appeal is prematurely before the tribunal as the respondent is yet to pronounce itself on whether the local tax credits are genuine or not.

58. The appellant has appealed against the objection decision dated December 24, 2021. Section 12 of the Tax Appeals Tribunal Act gives a taxpayer the right to appeal against any decision of the commissioner on any matter and states as follows:“A person who disputes the decision of the commissioner on any matter arising under the provisions of any tax law, upon giving notice in writing to the commissioner, appeal to the tribunal”

59. Section 52 of the TPA also provides for any taxpayer dissatisfied with the decision of the commissioner to appeal against the decision and it provides as follows:-“A person who is dissatisfied with an appealable decision may appeal the decision to the Tribunal in accordance with the provisions of the Tax Appeals Tribunal Act, 2013”

60. Section 3 of the TPA defines what is an appealable decision and states as follows:“Appealable decision” means an objection decision and any other decision made under a tax law other than –a.a tax decision; orb.a decision made in the course of making a tax decision”

61. The appellant was issued with an objection decision upholding the tax demand for additional income taxes and it decided to appeal against the same. The law as demonstrated hereabove clearly allows for the course of action taken by the appellant.

62. The tribunal in the circumstances determines that the appeal is properly before it.

Whether the respondent was justified in raising the additional assessments against the appellant 63. The dispute originated with the respondent raising additional assessments against the appellant in income tax for the years 2016,2017 and 2018 amounting to in total Kes 54,687,157. 00, inclusive of interest.

64. The appellant objected to the assessment vide its notice of objection dated November 5, 2021 on the basis of the fact that the appellant had made manual tax overpayments in the years 2013 and 2014 and rental withholding certificates overpayments which amounts were to be expended in offsetting the tax liabilities for the years in question.

65. The appellant had also made applications to the respondent to use the overpayments as credits to offset its tax liabilities aforesaid. However, the applications had been made under section 42 of the ITA and therein lies the crux of the matter.

66. The Kenyan tax regime is based upon self-assessment as statutorily provided under section 28 (1) of the TPA and a taxpayer who has made a self-assessment shall be treated as having made an assessment of the amount taxable for the reporting period to which the return relates to by dint of the section aforesaid.

67. It was submitted by the appellant that the validity of its tax credit resulting from overpayment has todate not been questioned. The respondent had acknowledged that the credits were accounted for outside the itax system and that the dispute at hand required further reconciliation as to capture the credits in the itax system. That the respondent having not questioned the validity of the tax credits should have proceeded to capture the tax credits in its itax system instead of issuing a demand for additional tax on the appellant.

68. In its submissions the appellant further contended that the respondent required the appellant to undertake the reconciliation exercise through the tax refund system which is section 47 of the TPA. That section 47 of the TPA provides that a taxpayer who has overpaid a tax under a tax law may apply to the commissioner for a refund within five years of the date in which the tax was paid. That the use of the word “may” in section 47 makes it clear that it is not mandatory for the taxpayer to seek a refund for overpaid taxes leaving it open to the taxpayer to either seek a refund or pursue other options such as utilising the funds to offset its future tax liabilities.

69. The appellant further submitted that the respondent in using the mechanics of the itax system in unlawfully disallowing its valid tax credits it had accrued over the years was in breach of its rights and in especially so considering that the respondent had not provided an alternative avenue through which the appellant could claim its tax credits. That due to the respondent’s failure to configure the itax system to allow for the claim of tax credit the appellant had no other choice but to use the field reserved for section 42 of the ITA to declare the valid tax credit- as the credit would not be declared anywhere else on the iTax Income tax return template.

70. The respondent on its part submitted that section 42 relates to tax credits arising from tax paid on foreign income and when the appellant made its application under the same, the respondent disallowed the tax credit on the itax platform by crediting a debit on the appellant’s ledger. That the debit comes as an assessment purely since this is an accounting entry.

71. The tribunal notes that the dispute herein therefore revolves around the disallowance of the appellant’s tax credits from overpayments and the manner in which the credits were claimed. The appellant made the application under section 42 of the ITA which states as follows:-(1)This section shall have effect where, under a special arrangement, foreign tax payable in respect of income derived by a person resident in Kenya is to be allowed as a credit against tax chargeable in respect of that income”.

72. Section 47 of the TPA stipulates as follows with regard to refund of overpaid taxes:-(1)When a tax payer has overpaid a tax under a tax law the tax payer may apply to the commissioner, in the approved form ,for a refund of the overpaid tax within five years of the date on which the tax was paid.Provided that for value added tax the period of refund shall be provided for under the Value Added Tax Act,2013(No,35 of 2013)(2)The commissioner may ,for purposes of ascertaining the validity of the refund claimed, subject the claim to an audit(3)The commissioner shall notify in writing an applicant under subsection(1) of the decision in relation to the application within ninety days of receiving the application for a refund.(4)Where, in relation to an application for a refund made under this section or made under any other tax law, the commissioner is satisfied that a taxpayer has overpaid a tax, the commissioner shall apply the overpayment in the following order –a.In payment of any other tax owing by the tax payer under the tax law;b.In payment of a tax owing by the tax payer under any other tax law; andc.Any remainder shall be refunded to the tax payer.(5)The commissioner shall repay the overpaid tax within a period of two years from the date of the application, failure to which the amount due shall attract an interest of 1% per month or part thereof of such unpaid amount after the period of two years.”

73. The appellant made its application for the offsetting of its tax liabilities against its tax credits under section 42 ITA while the respondent contends that Section 47 TPA is clear on the right procedure to be followed. The parties are in agreement that the right procedure is as per section 47 TPA but the appellant qualifies why it used section 42of ITA instead.

74. The tribunal on perusing the two sections in issue is in agreement with the commissioner that the right procedure to be followed in applying for credits is under the provisions of section 47 of the TPA and section 42 of the ITA is only applicable to special agreements dealing with foreign liabilities and only tax credits applications falling under that can therein be claimed.

75. The above observation notwithstanding the tribunal takes into consideration the submissions of the appellant that the technicalities in place at the time of its application for tax credits could not allow it to lodge its claim under section 47 of the TPA and this averment is not disputed by the respondent. The validity of the tax credits has also not been questioned by the respondent.

76. The respondent in the objection decision also indicated clearly that it was amenable to further exploring the matter with the appellant and stated in the objection decision as follows:“However, we do acknowledge that the issue at hand requires reconciliation for other amounts. Hence for paving way for reconciliation of your ledger, you are hereby advised to consult with section 42 credit validation Project at Ushuru Pension Plaza-Westlands. Kindly provide the team with all the documents to facilitate the capturing of all credits if the same has not already been captured in iTax”.

77. The tribunal has also noted that as per the appellant’s averments and which averments have not been disputed by the respondent some of the applications by the appellant though made through the same procedure (via section 42) were allowed by the respondent.

78. The respondent had also submitted that the tribunal do find the appeal to be prematurely before it as it was yet to determine whether the tax credits were genuine or not. The tribunal can only conclude in the circumstances that the objection decision was issued prematurely before a determination was made as to whether there were any additional taxes due or not.

79. The tribunal has also taken into consideration the holding in the case of Saj Ceramics Ltd v Commissioner of Domestic Taxes [TAT No. 531 of 2020] where the parties were embroiled in a similar dispute involving a technical issue between them and the same caused by the respondent’s technical system and it was held as follows:“Seeing as this is a technical issue caused by the respondent’s system, it would have been prudent for the respondent to first consider the appellant’s complaint as opposed to such dismissing as it did in the instant case”

Final Decision 80. The Tribunal after considering all the evidence in the matter and the case law in issue determines that the matter ought to be reconsidered again and, in the circumstances, proceeds to make the following orders:-a.The appeal be and is hereby allowedb.The respondent’s objection decision dated December 24, 2021 be and is hereby set aside as the same was issued prematurelyc.The appellant is hereby directed to lodge its application for credit refunds within 30 days of the date of delivery of this Judgment and the respondent to validate the same accordingly within 90 days of the date of receipt of the appellant’s application for refund.d.The respondent will be at liberty to issue an objection decision in respect of any additional taxes accruing subsequent to the processing of the appellant’s refund claim. The objection decision to be issued within sixty (60) days of the date of completion of the process for the refund claim.e.Each party to bear its own costs.It is so ordered

DATED AND DELIVERED AT NAIROBI THIS 02ND DAY OF JUNE, 2023. ……………………….ERIC N. WAFULACHAIRMAN………………………….. …..………………CYNTHIA M BOUNDI GRACE MUKUHAMEMBER MEMBER………………………….. ……………………ABRAHAM KIPROTICH JEPHTHAH NJAGIMEMBER MEMBER