https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1531

Geo Chem Middle East v Commissioner for Domestic Taxes (Civil Appeal E581 of 2024) [2026] KECA 1531 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1531 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E581 of 2024 F Tuiyott, MN Nduma & M Sila, JJA July 31, 2026 Between Geo Chem Middle East Appellant and Commissioner for Domestic Taxes Respondent (Being an appeal against the Judgment of the High Court Commercial & Tax Division at Nairobi delivered on 7th June 2024 in HCCC. NO. E053 OF 2022 Income Tax Appeal E053 of 2022 ) Judgment 1.In 2009, Kenya Bureau of Standards (KEBS), made a decision to commence the inspection and testing of petroleum products, so as to be assured of the quality and quantity of petroleum products being imported into the country. KEBS opted to outsource the service, which hitherto was being undertaken by the oil marketers themselves on a self-regulation basis, and the tender was won by the appellant, Geo Chem Middle East (referred to in this judgment as ‘the appellant’ or simply ‘Geo Chem’) a foreign company incorporated in Dubai, but recognized as a company doing business in Kenya pursuant to Section 366 of the Companies Act, 1948 (now repealed by the Companies Act, 2015). The contract between KEBS and the appellant was signed on 5 June 2009 and it provided that it was for a period of 36 months, commencing 6 July 2009, and could be renewed for a further period of 3 years. Under the contract, the appellant was expected to inspect imported petroleum products and issue certificates on the quality and quantity which would then be used to calculate the taxes payable. The contract provided for a fee component of 0.6% of Cost, Insurance and Freight (CIF) of the products being imported, out of which the appellant was to remit a portion of 0.2% to KEBS as royalty fees on a monthly basis, payable on the 15th day of the subsequent month. This fee may have been adjusted pursuant to Legal Notice No. 142 of 3 September 2009, which set the fee payable at 0.675% of the assessed CIF value of the products inspected, out of which KEBS would retain 0.2% as royalties, meaning that the appellant would retain 0.475% of the value as its fees. To be able to perform its part of the contract, the appellant set up an office and laboratory in Mombasa, and commenced operations. 2.According to the appellant, it operated for only 7 months, that is the period between August 2009 and March 2010. Within that period, it is posited that it became difficult for the appellant and KEBS to collect the fees from the oil marketers, and a decision was made to have the Kenya Revenue Authority (KRA), Customs Department, appointed as an agent for purposes of collecting the requisite fees. Under this pact, KRA was to collect the fees from the oil marketers and remit the money to KEBS, and through a letter 25 Feb 2010, KRA duly informed the oil marketers of this arrangement. On 23 March 2012, KRA wrote to KEBS, informing KEBS that it had in its possession the sum of Kshs.344, 473,856.36 or USD4,100,879.22 (at the exchange rate of Kshs.84/= per dollar) collected as fees under the contract. In a letter of 23 October 2012, the Principal Secretary, Industrialization, acknowledged that KRA had remitted the money to Treasury and Treasury could remit the monies to KEBS. Out of this sum, the appellant claims to have been entitled to Kshs.296,960,219.37 or USD 3,535,240.17, while KEBS was entitled to Kshs. 87,988,213.15 or USD 1,047,478.73. There is on record a letter dated 23 March 2012, where KEBS wrote to the Commissioner General, KRA, requesting KRA to remit to the appellant the sum of Kshs. 296,960.219.37, and remit Kshs. 87,988.213.15 to KEBS as royalties. It is not clear whether KEBS received any money. What is clear, and is common ground, is that the appellant never received a cent. 3.Regarding performance of the contract, on 26 March 2010, KEBS wrote to the appellant informing her that it had suspended the contract, pursuant to a decision of the Government of the Republic of Kenya, and directed the appellant to immediately suspend all activities related to the contract until further notice. On 15 July 2013, KEBS wrote to the advocates of the appellant confirming that the contract was terminated and in the same letter, denied any liability to the appellant under the contract. The appellant proceeded to declare a dispute for breach of contract and claimed damages, which dispute proceeded to arbitration, as the contract had an arbitration clause. The tribunal made an award on 29 July 2016, in favour of the appellant as follows: USD 3,687,437.213 inclusive of interest and VAT for the unpaid invoices and; USD 11,714,067.504 inclusive of interest and VAT for loss of income. KEBS had a counterclaim on royalties and was awarded a sum of Kshs. 87,988,213.15/= on that account. 4.On 3 October 2016, KEBS filed an application under S.35 Arbitration Act, 1995, to set aside the award vide High Court Misc. Cause No. 455 of 2016, Kenya Bureau of Standards vs Geo Chem Middle East. In a ruling delivered on 30 May 2017, the motion was dismissed and the award recognized as a judgment of the court (Kenya Bureau of Standards v Geo-Chem Middle East [2017] KEHC 9937 (KLR). KEBS filed an appeal before the Court of Appeal, being Nairobi Civil Appeal No. 259 of 2018, Kenya Bureau of Standards vs Geo Chem Middle East. The Court of Appeal, in a judgment delivered on 22 November 2019, set aside the ruling of the High Court, and with it the award (Kenya Bureau of Standards v Geo Chem Middle East [2019] KECA 109 (KLR). The appellant lodged an appeal at the Supreme Court, being Petition No. 47 of 2019, Geo Chem Middle East vs Kenya Bureau of Standard. In a judgment delivered on 18 December 2020, the Supreme Court set aside the judgment of the Court of Appeal, effectively reinstating the ruling of the High Court (Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 1 (KLR) (18 December 2020) (Judgment). KEBS filed an application for review being Supreme Court Civil Application No. 33 of 2020, but this was dismissed in a ruling dated 17 March 2021 (Kenya Bureau of Standards v Geo Chem Middle East (Application 33 of 2020) [2021] KESC 60 (KLR) (17 March 2021) (Ruling). 5.To press for settlement by KEBS, the appellant filed a garnishee application dated 24 December 2020 which was opposed. While this application was pending, KRA, through a notice dated 26 March 2021 issued to KEBS a preservation order under S. 43 (1) Tax Procedures Act, 2015, directing KEBS and other institutions, to preserve funds due to the appellant to the tune of Kshs. 1,084,776,666/= until otherwise advised. Subsequently, KRA filed a motion dated 30 March 2021 before the High Court, being High Court at Nairobi (Milimani Commercial Court) Misc, Civil Application No. E222 of 2021, Kenya Revenue Authority vs Kenya Bureau of Standards & Others, seeking extension of the preservation order for a further 60 days. The appellant on her part filed High Court at Nairobi (Milimani Commercial Court) Misc. Civil Application. No. E231 of 2021, seeking orders to restrain KRA from interfering with its funds in the various institutions subject of the preservation order. The dispute regarding the preservation orders was determined by the High Court (Mabeya J) in a ruling delivered on 22 April 2021 (Geo Chem Middle East Ltd v Kenya Revenue Authority & 2 others; National Bank of Kenya Ltd & 2 others (Interested/Parties) [2021] KEHC 7687 (KLR). The High Court was not persuaded that the preservation order was made in good faith, proceeded to dismiss the application by KRA, and lifted the preservation orders as requested by the appellant. 6.Through a letter dated 7 April 2021 (while the ruling regarding the preservation orders was pending) the respondent issued to the appellant a tax assessment in the sum of Kshs. 1,084,776,666.00/= constituting Corporation Tax and VAT for the year 2016. Aggrieved, the appellant lodged a notice of objection to the tax assessment vide its letter dated 28 April 2021. The respondent, through letter dated 30 April 2021, declared the objection invalid, for reason that it did not meet the statutory requirements spelled out in Section 51 (3), citing that it was not supported by the relevant documentation. Discontented with this explanation, the appellant filed an appeal to the Tax Appeals Tribunal (the Tribunal) being, Appeal No. 252 of 2021. That appeal urged that the respondent erred in raising the tax assessment dated 7 April 2021, on the grounds inter alia that as at the date of assessment, the appellant had not earned or received any income; that it is the appellant as agent of KEBS who had collected all the income generated by the appellant including VAT; that the matter was undergoing proceedings which had not been conclusively determined at the date of assessment; that enforcement of the arbitral award had been stayed pending determination of the legal challenges and no income was realized during that period; that the income was of doubtful collectability; that no such tax had accrued; that the respondent carried out an audit on a different company Geochem ME (Kenya Branch); and that the respondent intended to collect tax outside the five year period provided by S. 29 (5) of the Tax Procedures Act. The appellant asked that the assessment dated 7 April 2021 be annulled and the respondent’s decision in the letter dated 30 April 2021 be set aside. 7.After hearing the matter, the Tribunal made its decision on 14 April 2022 and ordered as follows :a.The appeal be and is hereby allowed.b.The respondent’s decision of invalidation of the notice of objection dated 30 April 2021 be and is hereby set aside.c.The respondent is hereby directed to determine and issue an appropriate objection decision in respect of the appellant’s notice of objection dated 28 April 2021. The respondent is at liberty to specifically request any material documents absolutely necessary in reaching a sound objection decision.d.Each party to bear its own costs. 8.The appellant was not quite settled with the decision of the Tribunal and filed an appeal before the High Court Commercial and Tax Division at Nairobi, being Income Tax Appeal No. 053 of 2022 on the grounds that:1.The Tribunal erred in law and violated the stare decisis principle by disregarding the High Court decision in Geochem Middle East vs Kenya Revenue Authority & 2 Others; National Bank of Kenya & 2 Others (interested parties) (2021) eKLR (Misc Civil Application E231 of 2021) which was directly applicable to the dispute and was extensively submitted upon:i.Failing to find or hold that the 2016 Arbitral Award (on which the respondent assessed VAT and corporation tax) was not a receipt of funds under the law and proceedings were taken by the parties up to the Supreme Court and that process concluded on 17th March 2021;ii.Failing to hold and find that the assessment made by the Respondent related to a different entity and consequently the appellant was a stranger to that assessment;iii.Failing to hold and find that the appellant was deprived of its contractual and legal entitlements due to the respondent’s wilful conversion of funds paid by petroleum importers and which the respondent converted;iv.Failing to find or hold that the respondent had collected, kept, and retained the appellant’s funds totalling Kshs. 256,485,643.20/= due to the appellant as fees under the contract. And that the respondent could not levy interest or penalties over funds it had all along kept. But was obligated, in fact, to first give credit for the Kshs. 256,485,643.20/= belonging to the appellant before the respondent could make any claim.2.The Tribunal’s violation of precedent violates the rule of law and the predictability, certainty, and uniformity that precedent brings to the administration of tax disputes.3.The Tribunal further erred in fact and in law by purporting reliefs which no party had pleaded for or submitted on and where that relief was not the most appropriate relief in the circumstances of the appeal.The appellant prayed that the decision of the respondent contained in the letter dated 30 April 2021 be set aside in its entirety. 9.The High Court dismissed the appeal, and held inter alia that the crux of the appeal before the Tribunal was whether the respondent’s decision to invalidate the notice of objection was justified. The court held that it was not necessary, at that point, for the Tribunal to delve into the merits of the assessment, but rather, the dismissal of the notice of objection. The Court was of opinion that where an objection notice has been invalidated by the respondent for want of compliance with the mandatory provisions of Section 51 of The Tax Procedures Act, the respondent has an obligation to inform the taxpayer that the objection was not validly lodged. The taxpayer’s recourse would then be to validate the objection notice based on the shortcomings set out by the respondent. The court held that the Tribunal was correct in steering off the substance of the objection decision to allow the respondent make a finding on the tax dispute. The court further held that to ask it to delve into the substantive issues raised in the appeal, which were not substantively considered by the Tribunal, would be in breach of the doctrine of exhaustion, as the court’s jurisdiction could only be invoked on appeal where the Tribunal has substantively adjudicated on the matter. The Court aligned itself with the findings of the Tribunal and dismissed the appeal but with no orders as to costs. 10.Not persuaded by the decision of the High court, the appellant has preferred a further appeal to this Court on the following grounds:1.The learned Judge erred in law in holding that the appeal before the court “is anchored on grounds that seek to have the court consider and analyse the merits of the assessment…” while it was patently clear that the appeal was limited to that part of the Tribunal decision which directed the respondent to make “appropriate objection decision” on the appellant’s tax assessment.2.The learned Judge erred in law in not appreciating that the tax assessment made in April 2021 was based upon an Arbitral award delivered in 2016 and not on receipt of income.3.The learned Judge erred in law in considering that the appellant’s complaints were based on “merits” of the assessment whilst no such grievance had been raised by the appellants.4.The learned Judge erred in law in ignoring previous decisions of the High Court which specifically directed the respondent to issue credit for Kshs. 256,485,643/= to which the respondent received in 2013 to the account of the appellant but which the respondent converted to its use to date.5.The learned Judge erred in law in considering that the objection decision could be made oblivious of all other lawful considerations.The appellant proposes that the judgment and decree of the High Court be set aside and substituted with an order allowing the appellant’s appeal in the High Court with costs. 11.The appeal was canvassed by way of written submissions and oral highlights. We have taken into account these submissions, which were made by Mr. Fred Ngatia (Senior Counsel) for the appellant, and Ms. Chelang’at Mutai, learned counsel for the respondent. 12.We need not rehash the entire set of facts relating to this case which we have outlined above in considerable detail. However, in a nutshell, and for ease of reference, it will be recalled that on 7 April 2021, the respondent raised a tax assessment against the appellant, demanding the sum of Kshs. 1,084,776,666/= as tax due ostensibly as corporation tax, VAT, and interest. The appellant raised an objection vide its letter dated 28 April 2021. In his response dated 30 April 2021, it was the opinion of the respondent that this was not a valid notice of objection under Section 51 (2) of the Tax Procedures Act, for reason that it was not accompanied by the requisite documentation as required by Section 51 (3) (c) of the Tax Procedures Act. It will further be recalled that the appellant appealed this decision to the Tax Appeal Tribunal which directed the respondent to hear the objection, and if he needed any documentation, he could specify which, and ask the appellant to provide the same. Being aggrieved, the appellant unsuccessfully filed an appeal before the High Court and has now filed a second appeal before this Court. 13.In his submissions, Mr. Ngatia SC, asserted that the appellant has never received any income at all, as all the fees were collected by the respondent, and therefore, the respondent cannot demand for tax that he already has in his possession. He further submitted that what his client filed, in response to the tax assessment, met the criteria of a valid objection decision, whose validity had been upheld by the Tribunal, and that being the case, the respondent had only 60 days as provided by Section 51 (11) of the Tax Procedures Act, to make an objection decision. He submitted that this time has now lapsed, and thus, the respondent is barred by statutory timelines from making any objection decision. He submitted that Section 51 of the Tax Procedures Act does not provide for enlargement of time, and the result therefore is that the appellant’s objection must be deemed to have been allowed by dint of Section 51 (11) of the said statute. He referred us to the cases of Republic vs Commissioner of Customs Services ex parte Unilever Kenya Limited (2012) eKLR; Vivo Energy Kenya Limited vs Commissioner of Customs & Border Control & Others (2020) KEHC 1498 (KLR); Eastleigh Mall Limited vs Commissioner of Investigations & Enforcement (2023) KEHC 20000 (KLR); and Equity Group Holdings Limited vs Commissioner of Domestic Taxes (2021) KEHC 25 (KLR) to press the point that this period of 60 days is not subject to extension. 14.Mr. Ngatia SC, further submitted that once the Tribunal found that the objection was valid, then it could not now ask the respondent to proceed to determine the objection, for reason that the period given for determination of an objection is 60 days, which had long expired. He emphasised, relying on the authorities that we have alluded to above, that the 60 days period is non-negotiable and not subject to extension. He submitted that the effect of the tribunal decision was to extend the period given in Section 51 (11) for which it did not have residual power to extend. He faulted the High Court for not finding as much and was disappointed that the High Court made no decision on this issue which was central to the appeal before the High Court. 15.We have given due consideration to these weighty arguments. 16.Although Mr. Ngatia SC expressed ‘disappointment’ that the High Court did not make a determination as to whether the time for the objection had lapsed by dint of Section 51 (11), our perusal of the memorandum of appeal and submissions made before the High Court, inform us that the argument was never actually raised before the High Court but was raised for the first time before us. One cannot therefore fault the High Court for not delving into the issue. The arguments made before the High Court revolved around whether the Tribunal was correct in remitting the matter back to the respondent for a merit decision or whether the tax assessment ought to be annulled for the reasons given by the appellant, inter alia, that all the fees were collected by KRA and not a cent was paid to her. 17.Nevertheless, we will address the issue raised by Mr. Ngatia SC as it formed a core component of his submissions before us. 18.It is correct that Section 51 (11) of the Tax Procedures Act is drawn in mandatory terms, and requires that an objection decision be made within 60 days of receipt of a valid notice of objection. At the Tribunal, the appellant raised two main issues. First, whether the whole assessment should be annulled and secondly, whether the letter of 30 April 2021 should be set aside on the basis that the appellant had actually presented a valid notice of objection to the tax assessment. On this second issue, the position of the respondent was that the appellant had not presented a valid objection for want of compliance with Section 51 (3) of the Tax Procedures Act, which provides as follows: 3.A notice of objection shall be treated as validly lodged by a taxpayer under subsection (2) if—a)the notice of objection states precisely the grounds of objection, the amendments required to be made to correct the decision, and the reasons for the amendments;b)in relation to an objection to an assessment, the taxpayer has paid the entire amount of tax due under the assessment that is not in dispute or has applied for an extension of time to pay the tax not in dispute under section 33 (1); andc)all the relevant documents relating to the objection have been submitted (emphasis ours).Specifically, the respondent asserted that the objection was not accompanied by the requisite documents to support the objection. 19.The tribunal held that what the appellant had presented to the respondent, vide her letter of 28 April 2021, was a valid notice of objection in accordance with Section 51 (2) of the Tax Procedures Act and directed the respondent to consider the merits of that objection. It is the position that by the time the tribunal was making its decision, 60 days from 28 April 2021, which is the date that the objection was made by the appellant, had lapsed. However, the same Section 51 at subsection (4) does allow the respondent to reject a notice of objection by informing the taxpayer, that his objection is not one that is validly lodged. It is significant to note that there have been a series of amendments to subsection (4) after 2021, and it now reads as follows: 3.Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within a period of fourteen days notify the taxpayer in writing that the objection has not been validly lodged and request the taxpayer to submit the information specified in the notice within seven days after the date of the notice.As at 2021, subsection (4) was drawn as follows:(4)Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall immediately notify the taxpayer in writing that the objection has not been validly lodged.In addition to subsection (4), there was (and still exists) subsection (4A) which provides as follows:(4A)Despite subsection (3), where a taxpayer fails to provide the information required under subsection (4) or fails to provide the information within the specified period, the Commissioner may make an objection decision within sixty days after the date on which the notice of objection was lodged. 20.One may of course be aggrieved by the decision of the Commissioner declaring his objection as one which is “invalid” and may proceed to raise a dispute. If such dispute, as to the exercise of the power of the Commissioner under subsection (4) is raised, and the dispute is subsequently determined in favour of the taxpayer, declaring that the objection was all along a valid one, we do not see how it can be that the period taken for the determination of the dispute under subsection (4) can be deemed as running against the Commissioner under subsection (11). If the tribunal or the court makes a determination that the Commissioner was wrong in rejecting the objection by dint of subsection (4), and holds that the objection is valid, our view is that time against the Commissioner will start running from the date of the final determination of the validity of the objection. 21.We do not find any basis to hold that the Commissioner ought to be prejudiced for exercising his powers under subsection (4) or be prejudiced for the time taken to determine a subsection (4) dispute. Indeed, it will render worthless any exercise of the power under subsection (4), for in almost all instances, any dispute over the exercise of subsection (4) powers will overrun the 60 days period spelt out in subsection (11). It would mean that all a taxpayer needs to do when the Commissioner exercises his subsection (4) power, is to appeal that decision, and hope that it will be held in his/her favour, upon which he/she will escape any tax liability. That, would be unfair to the Commissioner, and it certainly could not have been the intention of the statute. The only reasonable conclusion, and which we are persuaded to express, is that in the event of a dispute concerning the validity of an objection under Subsection (4), the 60 days period under subsection (11) will start running once such dispute is finally determined. To be emphasised is that the notice of objection contemplated in Subsection 11 upon which time starts to run is; a validly lodged objection; or where a taxpayer has been granted an opportunity to provide further information under Subsection (4) and fails to do so, the notice of objection already lodged; or in cases, like here, where there is contestation regarding the validity of the objection, the date when the dispute is finally determined. 22.In light of the above, we are not persuaded by the appellant’s argument that the objection made by the appellant to the tax assessment must be upheld for reason that the 60 days from 30 April 2021, when the decision on the validity of the objection was made, have since lapsed. As we have taken considerable space to elaborate, the 60 days period will start running from the time the final decision is made from a dispute arising from subsection (4) regarding the validity of the objection. In our case, that would be 60 days from the date of this judgment bar a further appeal. 23.At this juncture, we deem it important to emphasise that the decision of the Commissioner under Section 51 (4) of the Tax Procedures Act is not the equivalent of an objection decision under Section 51 (11) of the same Act. An objection decision under subsection (11) is a merit decision on the objection. The decision under subsection (4) is not a merit decision but a validity decision, which is a decision that pronounces whether or not the notice of objection meets the requisite statutory criteria under subsection (3) that would enable the Commissioner to make an informed substantive merit decision under subsection (11). In other words, the law permits the Commissioner to reject an objection on the basis that it is not a competent objection and that power ought not to be defeated by the time taken in litigating the verdict of the Commissioner on whether or not the validity decision was proper or not. 24.The authorities relied upon by Mr. Ngatia SC, which are at paragraph 13 of this judgment, are distinguishable. We do not find it necessary to cite the facts of each of the cases, as in all of them, the Commissioner did not make an objection decision on merit within the stipulated time, that is, within the 60 days as provided in subsection (11) (save for the decision of Commissioner of Customs Services ex parte Unilever Kenya Limited where the law in issue was the East African Community Customs Management Act, where S. 229 (4) at the time required the decision to be communicated within a period of 30 days). The High Court, in all the said authorities, held that the decision was out of time and consequently the objections should be deemed as allowed. The said authorities do not address the situation where the Commissioner is of opinion that the objection lodged is invalid under subsection (4). In none of those cases did the Commissioner decline to make a merit decision for reason that the objection is invalid because the requisite documentation was not supplied. The said authorities are therefore, with respect, not applicable to the case at hand. 25.In her submissions, Ms. Mutai, learned counsel for the respondent, raised the issue that the decision invalidating an objection is not an appealable decision, and that once the respondent decides that an objection is not valid, the only recourse that a taxpayer has is to comply with the directive of the respondent. This argument was raised before the Tax Appeals Tribunal and the Tribunal returned the verdict that the decision of the Commissioner invalidating an objection is an appealable decision. No cross-appeal was filed by the respondent towards this determination, and having not done so, it will be unprocedural and an ambush on the appellant for the respondent to bring up that argument for this court to make a decision on the same. Whatever the case, we are not persuaded to depart from the holding of the tribunal that the decision of the Commissioner invalidating an objection is one that is appealable. 26.The other issue raised by Mr. Ngatia SC is that an arbitral award cannot be deemed to be income and he referred us to various authorities on this point. He further urged that the income was earned in 2010, or even if it is to be considered that the income was earned in 2016 when the arbitral tribunal made its award, either way, five years have lapsed and the respondent is now barred from making an assessment based on Section 29 (5) of the Tax Procedures Act, (which prohibits an assessment, save for the exceptions in subsection (6), that comes more than five years after the reporting period). Counsel also submitted that the issue was already settled by the High Court in its ruling of 22 April 2021 (Geo Chem Middle East Ltd v Kenya Revenue Authority & 2 others; National Bank of Kenya Ltd & 2 others (Interested/Parties) [2021] KEHC 7687 (KLR) and that the Tribunal was bound by the doctrine of stare decisis. We beg to disagree. 27.Starting with the latter argument that Tribunal went against the stare decisis doctrine, what was before the High Court leading to the decision in Geo Chem Middle East Ltd v Kenya Revenue Authority & 2 others; National Bank of Kenya Ltd & 2 others (Interested/Parties) [2021] KEHC 7687 (KLR), was a case touching on the preservation order and agency notices issued by the respondent. Whatever sentiments were made by the judge in considering the preservation dispute cannot be taken to be conclusive of the tax that is due and payable by the appellant. The court, while determining the preservation dispute, could not delve into the merits of the tax assessment, and at best, could only, obiter, record its sentiments on it, which sentiments cannot be binding upon the person empowered to make the substantive merit-based decision. 28.On the issue whether the tax was collectable after lapse of 5 years, or that no tax was payable, that would be a merit decision. The Tribunal directed the respondent to make that merit decision and the High Court upheld that direction. We do not find any basis for faulting the Tribunal in remitting the matter back to the respondent, for the respondent to determine the objection lodged by the appellant. The Tribunal held, correctly in our view, that it could not annul the assessment, as doing so would be to delve into a merit review, before the respondent first considered the objection as he was entitled to do under Section 51 of the Tax Procedures Act. We see no basis for faulting the Tribunal and/or the High Court on this point. 29.Finally, it was urged that it was wrong for the Tribunal to make the order remitting the objection back to the respondent for the respondent to make a decision because such prayer was not asked for. An adjudicative body has the jurisdiction to make any auxiliary orders found necessary so long as the same are within the context of the dispute and the context of the prayers sought. For example, it cannot be argued that because one has made a monetary claim of Kshs. 1 million, then the court or tribunal, is limited only to making an award for Kshs. 1 million or dismiss the case, because this is what is prayed for, and cannot in any event make an award of Kshs. 500,000/= even where it is of opinion that this is the amount proved. The dispute would be over the money claimed and the court will be within its jurisdiction to make an award of what has been proved so long as it is within the dispute of Kshs. 1 million. A court or tribunal is not only bound to make or reject the prayers sought by the parties but is also empowered to make such orders as deemed fit within the context of the case before it, so long as those orders are within its jurisdiction to make. In our case the Tribunal had the powers to make any orders it deemed fit, so long as the orders were within the context of the tax assessment made by the respondent, the objection raised by the appellant, and the validity decision contained in the letter of 30 April 2021. The Tribunal cannot therefore be castigated for directing the respondent to make a decision on the objection of the appellant. 30.For the above reasons, we do not find any basis to set aside the decision of the of the High Court. As directed by the Tax Appeals Tribunal and the High Court, the respondent is to make a decision on the objection within 60 days, and if he/she requires any documents, he/she can call for the same. Essentially, we do not find merit in this appeal and it is hereby dismissed. 31.Regarding costs, we are of opinion that each party bears his/her own costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.F. TUIYOTT……………………………...JUDGE OF APPEAL NDUMA NDERI……………………….……..JUDGE OF APPEAL MUNYAO SILA………………………………..JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR