[2024] KETAT 1474 (KLR)

Kenya Breweries Ltd v Commissioner of Domestic Taxes (Tax Appeal 706 of 2021) [2024] KETAT 1474 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KETAT 1474 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 706 of 2021

RM Mutuma, Chair, M Makau, Jephthah Njagi, D.K Ngala & T Vikiru, Members

October 11, 2024

Between

Kenya Breweries Ltd

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Ruling

1. The Respondent/Applicant approached the Tribunal by way of a Notice of Motion filed under Certificate of Urgency on the 15th July 2024 supported by the affidavit sworn on the 15th July 2024 by Silvester Oketch, an officer of the Respondent, seeking the following orders;a.Spent;b.That the documents adduced through the Appellant’s supplementary statement of facts dated 3rd February 2023 and filed on the same date be and are hereby expunged from the Tribunal’s record;c.That the Appellant’s witness statement of Esther Kinuthia dated 3rd March 2023 and filed the same date to the extent that it refers to the documents adduced through the Appellant’s statement of facts dated 3rd February 2023 be expunged from the Tribunal’s record;d.That the Appellant’s supplementary witness statement of Esther Kinuthia dated 7th June 2023 filed on the same date to the extent that it refers to the documents adduced through the supplementary statement of facts dated 3rd February 2023 be expunged from the Tribunal’s record;e.That without prejudice to the above, an order be and is hereby issued pursuant to section 29 (3) (c) (ii) of the Tax Appeals Act referring the matter to the Respondent to review and reconsider the Objection Decision of 23rd August 2021 in light of the documents adduced by the Appellant vide Appellant’s supplementary statement of facts dated 3rd February 2023; and,f.That the Respondent be awarded the costs of the application.

2. The Respondent’s application is premised on the following grounds that;a.On 27th January 2023, the Honourable Tribunal through a Ruling dated 20th January 2023 granted the Appellant leave to file Supplementary Statement of Facts and the additional documents to support its Appeal.b.On 3rd February 2023, the Appellant filed the supplementary Statement of Facts dated 3rd February 2023 which introduced additional documents in support of its Appeal.c.In its Ruling dated 20th January 2023, this Tribunal at paragraph 10 granted the Respondent liberty to substantively interrogate the relevancy and admissibility of the new documents adduced by the Appellant.d.The Respondent in line with the ruling has reviewed the Appellant’s supplementary statement of facts dated 3rd February 2023 and the additional documents filed therewith in support of its Appeal.e.The Respondent’s review has disclosed that all the additional documents adduced by the Appellant on 3rd February 2023 are new fresh evidence which were neither produced during the assessment stage nor the objection review stage.f.The impugned documents were not reviewed by the Respondent and thus did not inform the Objection Decision, the subject of the Appeal before this Honourable Tribunal.g.The Appellant through new documents is arguing a fresh case and a new case that was neither considered nor reviewed by the Respondent during both the assessment and during the objection review.h.It is a trite law that the Appellant is bound by its own case as presented in its Notice of Objection letter dated 11th May 2021 and the documents produced through several correspondences in June, July and August 2021. i.Production of new and fresh evidence at the Appeal stage, which were not considered by the Respondent both at the assessment and the objection review stage amounts to patching up of the Appellant’s own previous omissions.j.The Appellant is seeking to circumvent the Respondent’s request for documents made pursuant to Sections 31, 51 and 59 of the Tax Procedures Act during the audit, Assessment and the Objection review.k.It is prejudicial to the Respondent if the Appellant is to be allowed to use the leave granted by the Tribunal to patch up and/or fill up gaps in its case at this appeal stage.l.Section 3 of the TAT Act strictly mandates the Tribunal, “to hear appeals filed against any tax decision made by the Commissioner.”m.This Honourable Tribunal’s jurisdiction flows from the Respondent’s Objection Decision dated 23rd August 2021 and thus the relevance is to be attached to only what informed, and not what ought to have informed the said decision.n.To the extent that the impugned documents did not inform the Respondent’s Objection Decision being challenged in this Appeal, this Tribunal’s mandate is limited to the documents reviewed/failed to be reviewed by the Respondent.o.The impugned documents are thus irrelevant, foreign to the Respondent’s Objection Decision dated 23rd August 2021, inadmissible and this Tribunal does not have jurisdiction to consider the said documents.p.On account of irrelevance to the Objection Decision (subject of Appeal) inadmissibility and the illegality, the impugned documents are not of any probative value to this Tribunal or the Appellant’s case.q.If the said documents are not expunged from the record, the Respondent is likely to suffer prejudice as the Commissioner will not be in a position to amend the assessment and or the Objection Decision to incorporate them.r.On 16th July 2024 the Tribunal is scheduled to fix a hearing date of the Appellant’s Appeal herein to take viva voce evidence of the Appellant’s witnesses and lest this application as heard first, the Respondent will not have another opportunity to challenge the new evidence adduced.s.Unless the Respondent’s application herein is certified urgent and the orders sought are granted, the Respondent’s right to fair hearing and fair administrative action is likely to be infringed by the Appellant.

3. The Notice of Motion application is supported by the affidavit of Silvester Oketch, an officer of the Respondent, sworn on the 15th July 2024, who stated as follows;a.That he was involved in the review of the tax assessment of 12th April 2021 and the Appellant’s Notice of Objection dated 10th May 2021, and being seized of the facts and attendant circumstances surrounding these proceedings, therefore competent to swear the affidavit.b.During the objection review he requested the Appellant to provide documents including detailed export data for the month of February 2021 and the supporting schedules, the certificates of landing for each certificates of exports, the T1 Entries amongst other documents.c.That the Appellant did not provide all the requested documents as per Section 51 (3) (c) of the TPA, and thus did not sufficiently support its Notice of Objection despite several requests.d.That some of the documents submitted by the Appellant during the Objection review to support its case were not in the Appellant’s name and thus were irrelevant to the Appellant’s case as they did not belong to the Appellant.e.That after reviewing the 146 Entries produced by the Appellant purportedly to be Export Entries for goods destined for Uganda and South Sudan and it turned out that 143 of the 146 entries were for the East African Breweries Ltd, a different person from the Appellant.f.That from the documents submitted by the Appellant the Respondent concluded that the Appellant submitted the documents that are not related to it and given that the Appellant had admitted to this fact in its Notice of Objection.g.That in the Memorandum of Appeal, the Appellant admits at paragraph 11 (c) of the grounds of Appeal that it never provided all the documentation requested by the Respondent. The Appellant stated;“in any event, as requested, the Appellant provided the Respondent’s compliance team with most certificates of exports save for a few which the Appellant is still in the process of retrieving and should be able to furnish the Respondent with the same.”h.That the Appellant on 5th November 2021, subsequent to the filing of the Appeal, delivered to the Respondent a letter dated 29th October 2021 whose subject indicated that it was, “Request for assistance in obtaining transit documents for exports through Uganda to South Sudan.”i.That from the said letter it is apparent that the Appellant was circumventing its failure to honour the Respondent’s request for documents pursuant to Sections 51 (3) (c) and Section 59 (1) of the TPA after failing to keep its promise to submit documents within one month.j.That he is aware that to get documents for the purposes of the review of objection, the Respondent needed to ask its authorized agent for the same and not Uganda Revenue Authority or South Sudan’s National Revenue Authority.k.That the Appellant on 12th July 2022 just a day to the hearing of the appeal on 13th July 2022, filed an application seeking leave to file a supplementary statement of facts and adduce additional documents in support of the Appeal.l.That on 27th January 2023, the Tribunal through a Ruling dated 20th January 2023 granted the Appellant leave to file supplementary statement of facts and the additional documents to support its Appeal.m.That on 3rd February 2023, the Appellant filed the supplementary statement of facts dated 3rd February 2023 which introduced additional documents in support of its Appeal.n.That in its Ruling dated 20th January 2023, this Tribunal at paragraph 10 granted the Respondent the liberty to substantively interrogate the relevancy and admissibility of the new documents adduced by the Appellant.o.That in line with the ruling he reviewed the Appellant’s supplementary statement of facts dated 3rd February 2023 and the documents filed in support, and the review disclosed that all the additional documents adduced by the Appellant are new and fresh evidence which were neither produced during the assessment stage nor objection stage.p.That the impugned documents were not reviewed through the impugned new documents, thus, did not form part of the Objection Decision which was issued on 23rd August 2021, which is subject of the Appellant’s Appeal.q.That the Respondent’s counsel has advised that through the impugned new documents is arguing a fresh case and a new case that was neither considered by the Respondent during the assessment nor reviewed during the objection review.r.That the Appellant is bound by its own case as presented in its Notice of Objection letter dated 11th May 2021 and the documents produced several correspondences in June, July, and August 2021 as this is what justice and right to fair hearing demands.s.That production of new and fresh evidence at the Appeal stage, which were not considered by the Respondent both at the assessment and the objection review stage amounts to patching up of the Appellant’s own previous omissions and failure to honour the Respondent’s request for documents.t.That it is prejudicial to the Respondent if the Appellant is to be allowed to use the leave granted by the Honourable Tribunal to patch up and or fill the gaps in its case at the Appeal stage.u.That if the Tribunal is to consider the fresh documents produced by the Appellant at the Appeal stage, will set a bad precedent for information/documents knowing this Honourable Tribunal will grant them leave to adduce them at the Appeal stage to the prejudice of the Respondent.v.That if that is to happen, the said unscrupulous taxpayers will seek to use and abuse this Honourable Tribunal’s discretion’s under Section 13 (6) of the Tax Appeals Tribunal Act to circumvent the compliance with the Respondent’s requests under Sections 31, 51 and 59 of the TPA.w.That to the extent that the impugned documents did not inform the Respondent’s Objection Decision, the Tribunal ‘s mandate is limited to the documents reviewed, and those submitted but not reviewed, if any.x.That the impugned documents are therefore irrelevant, foreign to the Respondent’s objection dated 23rd August 2021, and inadmissible and the Tribunal should not consider the said documents.y.That upon review of the impugned documents, it was established that part of them (at pages 122 – 130 of the Appellant’s Statement of Facts) are either unreadable or illegible and thus impossible to verify their contents, validity or accuracy.z.That upon review of the impugned documents, it was established that majority of them (pages 95 – 121) are irrelevant as they are not for the month of February 2021 (assessment in question) but March 2021 which is outside the scope of the assessment and the Respondent’s Objection Decision.aa.That on account on account of irrelevance to the Objection Decision, inadmissibility and illegibility, the impugned documents are of no probative value to the Tribunal or the Appellant’s case.ab.That if the said documents are not expunged from the record based on the above grounds, the Respondent is likely to suffer prejudice as it will not be in a position to amend the assessment and or the Objection Decision to incorporate them.ac.That it is therefore in the interest of justice that the Respondent’s application be heard expeditiously and the orders sought granted.

4. The Appellant/Respondent in response to the application filed a Notice of preliminary Objection dated 17th July 2024 and raised the following preliminary objection;a.That the Tribunal has no jurisdiction to entertain the Respondent/Applicant’s application; and,b.The application is an abuse of process and a collateral attack on the ruling of the TAT dated 20th January 2023 allowing the application to adduce additional evidence as well as the judgement of the High court dated 13th May 2024 dismissing the KRA’s appeal against the ruling.

Parties Submissions 5. The Respondent/Applicant in its written submissions dated 25th July 2024, the Respondent/Applicant submitted that the Honourable Tribunal has requisite jurisdiction to hear and determine the application herein.

6. The Applicant submitted that its application essentially seeks to have the Tribunal interrogate the documents adduced by the Appellant and pronounce itself as to their admissibility and relevance to the appeal before it. It further submitted that this invokes the Tribunal’s jurisdiction under Section 3 of the TAT Act which reads, “There is established a Tribunal to be known as the Tax Appeals Tribunal to hear appeals filed against any tax decision made by the Commissioner.”

7. It was submitted that some of the questions the Tribunal is being asked to determine is: whether the impugned documents adduced by the Appellant informed the Respondent’s decision subject of the Appeal, and whether the said documents are relevant and admissible.

8. It was further submitted that the issues to be determined by the Tribunal falls within the ambit of Section 3, 26, and 29 (3) of the Tax Appeals Tribunal Act, thus the Tribunal has jurisdiction to consider and determine the application herein.

9. On the contention that the issues raised in this application have been determined by the Tribunal in its ruling dated 20th January 2023, the Applicant submitted that this was not true, and submitted that the ruling was on the Appellant’s application for leave pursuant to Section 13 (6) of the TAT Act. It submitted that in granting leave to Appellant, the Tribunal did not consider the admissibility and relevance of the impugned documents since at the time of delivering the ruling, the Appellant had not filed its Supplementary Statement of Facts dated 3rd February 2023.

10. The Applicant further submitted that in the said ruling at paragraph 10, the Tribunal held;“with the appeal still pending for substantive hearing and determination thereof, there is no conceivable prejudice to be suffered by the Appellant with the Respondents being allowed to file the additional documents. The Appellant remains at liberty and has an opportunity to seek to adduce any incidental additional evidence in the appeal and it shall be available to the Appellant during hearing of the appeal to appropriately and substantively interrogate the relevancy and admissibility of the further documents.”

11. It was also submitted that the foregoing position was affirmed by the High Court in deciding the Respondent’s Appeal challenging the leave granted by this Honourable Tribunal, where in Commissioner of Domestic Taxes vs. Kenya Breweries Ltd (ITA E026 of 2023) at para. 16 it was held;“16. In rebuttal, the Respondent submitted that the Appellant would not suffer any prejudice regarding the appeal hearing since it was afforded the chance to file a Supplementary Statement of Facts, and any desired documents upon receiving the additional evidence from the Respondent. Further, the Tribunal noted that no judgement had been rendered yet on the validity of the Respondent’s appeal, with the respondent tasked with proving that the Appellant’s objection decision was flawed.

17. This court notes that the Tribunal did acknowledge and address the potential prejudice to the appellant, which contradicts the Appellant’s claim of the Tribunal’s oversight. At para. 10 of the ruling, the Tribunal expressed itself as follows; …the appellant remains at liberty and has an opportunity to seek to adduce any incidental additional evidence in the appeal and it shall be available to the Appellant during the hearing of the appeal to appropriately and substantively interrogate the relevancy and admissibility of the further documents.”

12. The Applicant submitted that it is on the basis of paragraph 10 of the Tribunal’s ruling dated 20th January 2024, and paragraphs 16 and 17 of the said High Court Judgement that the Respondent/Applicant has reviewed the documents whose outcome informed the filing of this Application to challenge the admissibility and relevance of the impugned documents adduced by the Appellant.

13. It was therefore submitted that the Honourable Tribunal has jurisdiction to consider the Respondent/Applicant’s Notice of Motion dated 15th July 2024.

14. On whether the Application herein is an abuse of the judicial process, the Applicant submitted that it is utilizing the opportunity granted by the Tribunal to challenge the admissibility and relevance of the impugned documents adduced by the Appellant. It submitted that having been granted and utilized the liberty and opportunity “to appropriately and substantively interrogate the relevancy and admissibility of the further documents” adduced by the Appellant, the Appellant’s allegation that this application is an abuse of the process is unfounded.

15. In the alternative, the Respondent submitted that it seeks an order to have the matter in dispute referred back to the Respondent pursuant to Section 29 (3) of the TAT Act. By its nature, the order sought cannot be determined by the preliminary objection, and invited the Tribunal to find that the Appellant’s Notice of Preliminary Objection dated 17th July 2024 lacks merit.

16. On whether the additional documents adduced the Appellant’s Supplementary Statement of Facts dated 3rd February 2023 should be expunged, the Applicant submitted that the Appellant adduced new and fresh documents at the Appeal stage which are prejudicial to the Respondent, the adduced documents were not considered at the objection stage, and that the impugned documents are inadmissible, illegible, and irrelevant to the Appeal before the Tribunal.

17. On whether an order referring the matter back to the Tribunal should issue, the Applicant submitted in view of the fact that the Appellant never produced the impugned documents adduced by the Appellant in its Supplementary Statement of Facts dated 3rd February 2023, it may be necessary to refer back the matter back to the Respondent so that the Respondent may consider the said documents at the objection review and issue a fresh Objection Decision.

18. The Applicant relied on the following cases to buttress its submissions;i.Style Industries Ltd vs. Commissioner of Legal Services and Board Coordination TAT E128 OF 2023;ii.Wanjie & Others vs. Saikwa & Others (1984) KLR 275;iii.Family Fashion Clothing Ltd vs. Commissioner of Investigations and Enforcement ITA E050 of 2021KLR 406;iv.Sea-Tech Ltd vs. Commissioner of Domestic Taxes TAT 636 of 2022; and,v.Bahari Dow Ltd vs. Commissioner of Domestic Taxes TAT 41 of 2022.

19. The Appellant in its written submissions dated 2nd August 2024 submitted that at the outset, the application made by the Respondent/Applicant on 15th July 2024 intention is to bring the administration of justice into disrepute.

20. It submitted that in the Tribunal ‘s ruling on 23rd January 2023, the claims by the Applicant that it will be prejudiced were addressed by the Tribunal as follows;“With the appeal still pending for substantive hearing and determination thereof, there is no conceivable prejudice to be suffered by the Respondent with the Appellant being allowed to file additional documents. The Respondent remains at liberty and has an opportunity to seek to adduce any incidental additional evidence in the appeal and it shall be available to the Respondent during the hearing of the appeal to appropriately and substantively interrogate the relevancy and admissibility of the further documents.”

21. The Appellant submitted that the interrogation of the relevancy and admissibility of the additional documents was to take place at the hearing and not at the Respondent’s offices.

22. It was submitted that as succinctly summarized at paragraph 12, 13 to 15 of the judgement of the High Court dismissing the Applicant’s Appeal, the Appeal was mounted on several grounds with the principal one being that the Tribunal had;“erred in allowing the documents which the Respondent had declined to avail during the objection review stage and now the Honourable Tribunal seeks to sit as an objection reviewer at the appeal stage to the prejudice of the Appellant.” There were also complaints of alleged breaches of Section 29 (4) of the TAT Act and Rule 24 of TAT Rules. as well as alleged failure by the Tribunal to, “consider and make a finding on the prejudice to be suffered by the appellant from admission of new documents (which were not considered at the objection review) during the appeal.”

23. The Appellant/Respondent also submitted that in dismissing the Respondent/Applicant’s Appeal, the High Court stated;“In seeking to balance between the need to ensure that the Tribunal has all the material before it to render a just determination of the issues on the one hand and the need for expeditious determination of the appeal as well as provide safeguards to ensure that no prejudice is suffered by the Appellant, this court aligns itself with the determination by the Tribunal. I am of the view that the Tribunal exercised its discretion judiciously in allowing the application by the Appellant.”

24. It was further submitted that the application hearing filed on 15th July 2024, when the matter was coming up for mention to fix a hearing date, rehashed the same grounds the Applicant had unsuccessfully argued in opposition to the admission of additional evidence before the Tribunal. The Applicant claimed that these grounds as to the admissibility of the documents came to light when as directed by the Tribunal it interrogated the documents afresh, notwithstanding that the interrogation of the documents was to take place at the hearing.

25. On the issue of jurisdiction, the Appellant submitted that the Honourable Tribunal is not authorized to grant any of the reliefs sought, that is the expunging of the additional evidence as well as the witness statement relied on, or alternatively the prayer by the Applicant that it reconsiders the matter afresh considering the additional documents.

26. The Appellant further submitted that it is trite that a statutory body such as this Tribunal can only do that which is expressly or by necessary implication authorized to do. Unlike the High Court, it has no inherent jurisdiction. There is no statutory basis, whether those cited by the Respondent or at all, to grant the reliefs sought by the Respondent. Lacking jurisdiction to grant the reliefs sought, the only recourse for the Tribunal is to down tools and dismiss the Applicant’s Notice of Motion.

27. On the issue of Estoppel/abuse of process, the Appellant submitted that each of the substantive grounds on which the July 2024 Application is founded were raised and considered by this Honourable Tribunal and rejected, which rejection the High Court unreservedly endorsed. Therefore, the Respondent/Applicant ‘s bare assertion that the July 2024 Application is distinct cannot withstand scrutiny.

28. The Appellant submitted that a review of the grounds submitted by the Respondent/Applicant in opposition to the initial application, and those in support of the application herein the core issue is the same – that the additional documents were not submitted during the objection review process and objection decision making, thus prejudicing the Applicant.

29. It submitted that the issue of whether the Appellant should be barred from relying on the additional documents as those were not produced at the objection review stage or prejudicial has been settled with finality by operation of the principal of issue estoppel/res judicata, and the Applicant is precluded from challenging them by way of the July 2024 application or at all.

30. The Appellant cited the case of George Kamau Kimani & 4 others vs. The County Government of Trans-Nzoia & Anor (2016) eKLR, quoting Trade Bank Ltd vs. LZ Engineering Construction Ltd (2001) E.A 266, were the court adopted and applied the definition of issue estoppel in Halsbury’s laws of England (4th Ed.) pg. 861;“An estoppel which has come to be known as Issue Estoppel may arise where a plea of res judicata could not be established because the causes of action are not the same. A party is precluded from contending the contrary of any precise point which having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second issue are different, the finding on a matter which came directly (not collaterally or incidentally) in issue on the first action, provided it is embodied in a judicial decision is final, is conclusive in a second action between the same parties and their privies. The principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact or law.”

31. It was submitted that this principle applies with equal force to all decisions whether judgements or rulings – Beatrice Kwangala Kutonda vs. Peter Itumo Pius Ngove & Anor [2021] eKLR,“If added parties or new set of facts are meant to peg the claim on the same core grounds or issues which have been determined, res judicata will still be invoked since the addition of a party or new grounds or facts would in that case for the sole purpose of decoration and dressing and nothing else.”

32. The Appellant submitted that the Applicant’s application also seeks to reverse the very orders sanctioning, conditionally so with equal liberty to the Respondent, the Appellant’s production of additional documents as specified in the January 2023 Ruling. The Applicant contested such production before the High Court and failed. It was submitted that these are the very same documents the applicant wants expunged, a palpable abuse of the judicial process, which abuse must not be tolerated.

33. On the issue of Functus officio, the Appellant submitted that the July 2024 Notice of Motion is in essence an application to this Honourable Tribunal to review its previous Ruling or to sit in an appeal of its own decision. However, Section 53 of the TPA explicitly provides for an Appeal mechanism, which the Respondent has already utilized. The proper course for challenging the judgement and Ruling would have been through an appeal to the Court of Appeal, not a fresh application before this Honourable Tribunal. It was submitted that the application herein is an attempt to bypass this procedure by re-litigating the matter before the Tribunal, which is procedurally improper.

34. The Appellant cited the case of Raila Odinga & 2 others vs. IEBC & 3 Others (2013) eKLR, were it was stated;“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter …The principle is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

35. The Appellant also cited the case of Telcom Kenya Limited vs. John Ochanda (2014) eKLR, where it was stated,“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th century.”

36. The Appellant also cited the following cases to buttress its submission;i.Chandler vs. Alberta Association of Architects (1989) 2 SCR 848. ii.Moyale Liner Bus Services vs. Gachu Ibrahim [2021] eKLR.

37. On the issue of admissibility of documents on account of prejudice as they were not considered during the Objection Decision, the Appellant submitted the application is an attempt to invite the Tribunal to revisit the issues already resolved in both the Ruling and Judgement. The documents submitted are in line with the documents highlighted in the Honourable Tribunal’s order.

38. It was further submitted that the Appellant’s failure to produce the documents during the objection stage was not an attempt to disadvantage the Respondent/Applicant. On the contrary these were documents which the Respondent was much better placed to obtain and produce to this Honourable Tribunal.

39. The Appellant prayed that for the foregoing reasons, each of which is independently sufficiently, the Applicant’s application of July 2024 be dismissed with costs on an indemnity basis to the Appellant.

Analysis and Findings 40. The Respondent/Applicant filed the Notice of Motion application herein dated 15th July 2024 seeking orders to expunge from the Tribunal’s record documents adduced by the Appellant vide its Statement of Facts dated 3rd February 2023, and further expunge the Supplementary witness statement of Esther Kinuthia dated 7th June 2023 to the extent the same refers to the impugned documents. The Applicant further sought in the alternative sought an order that the matter be referred to the Respondent to review and reconsider the Objection Decision of 21st August 2021 in light of the documents adduced by the Appellant Supplementary Statement of Facts dated 3rd February 2023.

41. The Appellant sought and was granted leave by this Tribunal to produce the additional documents, whose expungement is now sought by the Respondent. Such leave was granted, and the Tribunal took into account the Respondent’s objections that those documents were not available at the time the Objection Decision was made, and were there therefore not part of the Objection Decision subject of the Appeal. The Tribunal in allowing the application reiterated;“With the appeal still pending for substantive hearing and determination thereof there is no conceivable prejudice to be suffered by the Appellant with the Respondent being allowed to file additional documents. The Appellant remains at liberty and has an opportunity to seek to adduce any incidental evidence in the appeal and it shall be available to the Appellant during the hearing of the appeal to appropriately and substantively interrogate the relevance and admissibility of the further documents.”

42. The Tribunal has taken note that on 23rd January 2023 this Tribunal allowed the Appellant’s application for filing of further documents in the following terms;“The upshot of the foregoing is that the Tribunal finds the application to be merited and accordingly makes the following orders;i.The Appellant be and is hereby granted leave to produce additional documents.ii.The Appellant to file and serve the hereunder listed additional documents within seven (7) days of the date of delivery of the ruling:a.sample export documentation.b.copy of the letter dated 29th October 2021 addressed to the Commissioner Customs and Border Control requesting for assistance to obtain T1 entries for export through Uganda to South Sudan.c.Copies of T1 Entries.d.Copies of supporting documentation including payment receipts.iii.The Respondent is at liberty to file Supplementary Statement of Facts and/or any additional documents within Fourteen (14) days of the date of being served with the additional documents by the Appellant.iv.The appeal to proceed by way of viva voce evidence and the parties are to file and serve upon each other with their respective witness Statements within Fourteen (14) days of the date of the filing of any additional documents on the part of the Respondent.v.The matter shall be mentioned on 6th day of March 2023 for further directions on the hearing of the Appeal.vi.No order as to costs.”

43. It is also worth noting that the Applicant being dissatisfied with the aforesaid Ruling appealed against the same to the High Court reiterating the same grounds, whereon the High Court upon hearing of the Appeal dismissed the Appeal on 13th May 2024 paving way for the Appeal herein to proceed to hearing.

44. The Tribunal has also taken note that in dismissing the Applicant’s Appeal at the High Court, Justice F. Mugambi stated;“17. With the appeal still pending for substantive hearing and determination thereof there is no conceivable prejudice to be suffered by the Appellant with the Respondent being allowed to file the additional documents . The Appellant remains at liberty and has an opportunity to seek to adduce any incidental additional evidence in the appeal and it shall be available to the Appellant during the hearing of the hearing of the appeal to appropriately and substantively interrogate the relevance and admissibility of the further documents.

18. In seeking to balance between the need to ensure that the Tribunal has all the material before it to render a just determination of the issues on the one hand and the need for expeditious determination of the appeal as well as provide safeguards to ensure that no prejudice is suffered by the appellant, this court aligns itself with the determination by the Tribunal. I am of the view that the Tribunal exercised its jurisdiction judiciously in allowing the application by the Appellant.”

45. The foregoing portrays a recap of the circumstances under which the Appellant adduced the impugned additional documents, which are now subject of this application. The substantive appeal was due for hearing fixed for a mention to fix a hearing date when the Applicant filed this application on the basis that it had interrogated the additional documents adduced by the Appellant, and concluded that they were inadmissible since they were not adduced at the objection review stage and were therefore not part of the Objection Decision subject of the pending Appeal.

46. In regard to the Appellant’s preliminary objection on the basis of jurisdiction, this Tribunal has duly considered the issues raised by the Appellant and its submissions thereto, and is satisfied that the Tribunal is vested with the requisite jurisdiction to hear and determine the application herein at this interlocutory stage.

47. The Tribunal also having considered the arguments for and against the application herein, and having reviewed the filings and annexures thereto, is on the considered view that the stratum of the grounds and reasons forming the basis of the application herein are a rehash of the same grounds and reasons which formed the basis of opposing to the Appellant’s application for leave to adduce additional documents, as well as the basis of its appeal in the High Court. The core issues remain unchanged, that the additional documents were not submitted during the decision-making process for the objection decision thus prejudicing the Applicant/ Respondent or that the documents are inadmissible and irrelevant because they were not availed at the first instance during the objection review process.

48. The Tribunal is satisfied that the issue of whether the Appellant should not be allowed from relying on the additional documents as the same were not produced at the objection review stage and or alleged prejudice occasioned thereby making them inadmissible or irrelevant, have been settled with finality. By operation of the doctrine of issue estoppel, the Applicant is precluded from challenging them whether by way of the July 2024 application. This principle has been well enunciated in the case of George Kamau Kimani & 4 others vs. The County Government of Trans Nzoia & Anor [2016] eKLR;“…a party is precluded from contending the contrary of any precise point which having once already been distinctly put in issue, has been solemnly and with certainty been determined against him.”

49. Instructively in the Tribunal’s Ruling of 23rd January 2023 in allowing the Appellant leave to adduce further documents, it was stated that;“with the Appellant allowed to file the additional documents. The Respondent herein remains at liberty and has an opportunity to seek to adduce any incidental additional evidence in the appeal and it shall be available to the Respondent during the hearing of the appeal to appropriately and substantively interrogate the relevancy and admissibility of further documents.”

50. The High Court judgement reiterated the same. This Tribunal is satisfied that the import of the words “during the hearing of the Appeal” underscores the fact that the interrogation for admissibility and relevance is to be undertaken at the hearing of the Appeal, and not at any other forum.

51. Having keenly reviewed the substance and filings on record before this Tribunal, it is not lost on the Tribunal that the Applicant’s Notice of Motion application of July 2024 seeks a reversal of the very orders sanctioning, with equal liberty to the Respondent/Applicant, the Appellant’s production of additional documents as specified in the January 2023 Ruling. The Applicant appealed the said ruling in the High Court unsuccessfully. It seeks expunging of those court order sanctioned documents instead of proceeding to exercise its liberty at the hearing of the Appeal. The Tribunal is therefore of the considered view that this is an abuse of the due judicial process, which is not allowable.

52. The Tribunal’s position as relates to the Applicant’s application is that the same is tantamount to inviting the Tribunal to sit on an appeal of its decision and that of the High Court.

53. For the foregoing reasons, the Tribunal finds and holds that the Applicant’s Notice of Motion application dated 15th July 2024 is devoid of merit, and is an abuse of the judicial process.

54. Consequently, the Notice of Motion application fails and is accordingly dismissed.

Disposition 55. The upshot of the foregoing is that the Tribunal finds that the application dated 15th July 2024 is not merited and makes the following orders;a.That the application dated 15th July 2024 be and is hereby dismissed.b.The Appeal shall be mentioned on 22nd October 2024 for directions on the hearing.c.No orders as to costs.

56. It i s so ordered.

DATED AND DELIVERED AT NAIROBI THIS 11THDAY OF OCTOBER 2024ROBERT M. MUTUMA - CHAIRPERSONMUTISO MAKAU - MEMBERJEPHTHAH NJAGI - MEMBERDELILAH K. NGALA - MEMBERDR. TOMOTHY B. VIKIRU - MEMBER