[2023] KETAT 314 (KLR)

Kenya Cuttings Limited v Commissioner of Legal and Board Coordination (Appeal 666 of 2022) [2023] KETAT 314 (KLR) (Commercial and Tax) (19 May 2023) (Judgment)

Neutral citation: [2023] KETAT 314 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Appeal 666 of 2022

RM Mutuma, Chair, RO Oluoch, D.K Ngala & EK Cheluget, Members

May 19, 2023

Between

Kenya Cuttings Limited

Appellant

and

Commissioner Of Legal And Board Coordination

Respondent

Judgment

1. The Appellant is a limited liability company duly incorporated under the Companies Act of the Laws of Kenya, whose principal business is the production of ornamental plant cuttings for export.

2. The Respondent is a principal officer appointed pursuant to Section 13 of the Kenya Revenue Authority Act, Cap 469 of the Laws of Kenya, and is charged with the responsibility of among others the assessment, collection, receipting and accounting for all the tax revenue and is mandated to administer and enforce the statutes set out under the Schedule to the said Act.

3. The Appellant is appointed by Syngenta Seeds B.V, a non-resident company incorporated in the Netherlands as a non-exclusive toll producer to produce unrooted and rooted cuttings of flower varieties.

4. The Appellant had accumulated excess input tax owing to making of exported supplies taxable at the rate of zero percent. In accordance with Section 17(5) of the VATAct, the Appellant lodged VAT refund claims with the Respondent for the tax period January 2014 to March 2017 amounting to Kshs 119,867,060.

5. The Respondent thereafter rejected these refund claims vide its letter dated 5th September 2017.

6. The Appellant being dissatisfied with that decision lodged a notice of objection on 21st December 2017.

7. The Respondent vide an email dated 24th May 2021 wrote to the Appellant indicating that it had already issued its objection decision.

8. The Appellant pursuant to the recommendations of the Respondent in an email dated 24th May 2021, lodged a Notice of Appeal on 23rd June 2022.

The Appeal 9. The Appellant filed its Memorandum of Appeal dated 23rd June 2022 and set out the following grounds of appeal;i.That the Appellant had lodged a notice of objection with the Respondent.ii.That the Respondent erred in law and fact by failing to notify the Appellant that its notice of objection was invalid for being lodged out of time.iii.That the Appellant had a valid reasonable cause for failing to lodge its notice of objection within the legally stipulated timelines.iv.That the Appellant did not delay in lodging its application for extension of time.v.That the Respondent will not suffer any undue prejudice if the Appellant’s application for extension of time is allowed.

The Appellant’s Case 10. The Appellant’s case is premised on its Statement of Facts filed on the 23rd June, 2022 and the written Submissions dated and filed on 13th January, 2023.

11. The Appellant stated that the Respondent rejected the Appellant’s application for refund claims vide a letter dated 5th September 2017, and then the Appellant enlisted the services of its tax advisors to respond to the Respondent’s rejection of the refund application. The Appellant’s then tax advisor lodged a notice of objection in response to the Respondent rejection letter on 21st December 2017 beyond the thirty days provided for under Section 51(2) of the TPA.

12. The Appellant stated that it was not correct for the Respondent to allege in its email of 24th May 2021 that there was no pending notice of objection on the rejected refund claims, as the Appellant had lodged a notice of objection dated 21st December 2017.

13. The Appellant buttressed that view with the decision in the case of Republic of Kenya v Kenya Revenue Authority Ex parte M-Kopa Ltd [2018] eKLR, where it was stated;-“In my view since there is no format for making an objection, what is required is the substance rather than the form.”

14. The Appellant therefore stated that the upshot of the foregoing, is that the letter of 21st December 2021, albeit being lodged out of time was still valid in substance as it clearly revealed the grounds of objection, the amendments required to be made to correct the decision, and the reasons for the amendment as required by Section 51 (3) of the TPA.

15. The Appellant submitted that the validity of the notice of objection should be based on the substance rather than the form and therefore its notice of objection met all the requirements stipulated under Section 51(3) of the TPA.

16. The Appellant further stated that the Respondent issued its response to it vide a letter dated 16th January 2018 responding to the merits of the refund application lodged by the Appellant. The Appellant contended that the said letter did not inform the Appellant that the notice of objection by its then tax advisors had been lodged out of time.

17. The Appellant further contended that in the event a notice of objection lodged by a taxpayer is deemed to be invalid, the Commissioner has a mandatory statutory obligation to immediately notify the taxpayer of the invalidity of the notice of objection under Section 51(4) of the TPA. The Appellant asserted that the Section is couched in mandatory terms.

18. The Appellant further stated that the Respondent has never written informing it of the defect in its notice of objection. Further the Appellant stated that it was only made aware of its obligation to file a new notice of objection with the Respondent when its appeal before the Tribunal was dismissed in April 2022, being four years later.

19. It was also the submission of the Appellant that it was against the tenets of the right to fair administrative action enshrined in the Constitution of Kenya, for the Respondent to have dismissed its notice of objection without notifying the Appellant in line with Section 51(4) of the TPA.

20. The Appellant buttressed its submission with the citation in the case of Samura Engineering Ltd & others v Kenya Revenue Authority Nairobi HC Petition No. 54 of 2011 [2012] eKLR, where Justice D. Majanja held as follows:-“I wish to emphasize that Kenya Revenue Authority as the state agency charged with the collection of taxes is bound by the provisions of the Bill of Rights to the fullest extent in the manner in which it administers the laws concerning the collection of taxes. The values contained in article 10 must at all times permeate its functions and activities which it is mandated to carry out by statute.”

21. The Appellant submitted that in light of the foregoing, the Respondent acted in a manner that is procedurally unfair and in contravention of the law and prays that the Tribunal finds the Respondent’s failure to immediately notify it that its notice of objection was lodged out of time was unlawful.

22. The Appellant also submitted that it has a valid reasonable cause for failing to lodge its notice of objection within the statutory timeline.

23. It averred that in a bid to resolve the issue regarding the Respondent’s rejection of the said claims, it appointed a tax advisor at the time of lodging its VAT refund claims and subsequent engagements with the Respondent.

24. The Appellant also stated that it inadvertently failed to comply with the statutory timelines of lodging a notice of objection as provided for under Section 51(2) of the TPAbecause its then tax advisors delayed lodging the notice of objection within the given statutory timelines.

25. The Appellant submitted that since there was a delay by then tax advisors in lodging the notice of objection, the mistake by the tax advisors falls within the ground of “reasonable cause” as provided for under Section 51(7)a of the TPA. It submitted that the failure to properly lodge the notice of objection constituted a mistake on its tax advisors’ part which mistake has cost the Appellant dearly.

26. The Appellant relied on the High Court decision of Commissioner of Income Tax v Local Productions (K) Ltd [2021] eKLR where the Applicant argued that failure of its counsel on record to file a Notice of Appeal on time should not be visited on him as that was a valid reason.

27. The Appellant further relied on the case of Phillip Keipto Chemwolo & Anor v Augustine Kubende [1986] eKLR. The Appellant submitted that in light of the Court position on this matter there are triable issues in the case of the Appellant, and the Respondent should have considered the reasonable cause of mistake and admit the notice of objection out of time, so that the matter could be canvassed on merits. The Appellant prayed that the Tribunal finds its application for extension of time to have merit and have the Respondent review its notice of objection on merit.

28. The Appellant further submitted that it did not delay in lodging its application for extension of time to lodge its notice of objection as provided for under Section 51(7)b of the TPA.

29. The Appellant stated that in the Respondent’s letter dated 10th May 2022, the Respondent contends that there was undue delay on the Appellant’s part as it made its application for extension of time four years and seven months later after the tax decision was made on 5th September 2017. The Appellant contended that in view of this reason, it had a valid objection in place, and it was the Respondent’s obligation as per Section 51(4) of the TPAto immediately inform it of any defect to the notice of objection.

30. The Appellant stated that the Respondent’s notification via email dated 24th May 2021 does not comply with the requirements of Section 51(4) of the TPAas this notification was not made immediately but more than three years after the Appellant submitted its objection vide the letter dated 21st December 2017.

31. The Appellant stated that having noted that the TPAdoes not define what constitutes “unreasonable delay”, submitted that the period of delay in restarting a legal process ought to be considered from the date a person was made aware of their obligation to restart the process and this only happened when the Tribunal made its decision on 14th April 2022.

32. The Appellant stated that after receipt of the notice of objection, the Respondent did not at any time raise any issue regarding its validity. The Respondent proceeded to engage with the Appellant for a period of three years before raising the issue in its submissions before the Tribunal. The Appellant contended that it had not been advised before lodging its appeal in the Tribunal that its notice of objection had been lodged out of time as required by Section 51(4) of the TPA. That the Appellant was only made aware of its obligation to file the application for extension of time on 14th April 2022 when the Tribunal delivered its judgement. The Appellant therefore contends that there has not been any inordinate delay on its part in exercising this right.

33. The Appellant submitted that in determining what amounts to a delay, the court in the case of Ebby Minayo Munyasia v Shadrack Macharia Mwangi & Anor [2020] eKLR, stated that;-“The Court will determine the issue of delay on a case by case basis whereby a day or two may be considered as inordinate delay while 5 or so years may be considered otherwise. These depends on the circumstances of the case and whether sufficient explanation is given to convince the court.’’

34. It was the Appellant’s submission that with consideration to the foregoing, that in this case, the Tribunal having rendered its judgement on 14th April 2022, there has been no unreasonable delay by the Appellant in restarting the legal process by seeking to properly filing its notice of objection within 30 days.

35. The Appellant therefore prayed that Tribunal finds that the Appellant did not delay its application for extension of time and therefore the Respondent should allow it to lodge its notice of objection out of time and determine the same on merit.

36. The Appellant further submitted that the Respondent will not suffer any undue prejudice if the Appellant’s application for extension of time is allowed, its sole inconvenience is the determination of the Appellant’s notice of objection on merit which is within its mandate as provided in law.

37. On the converse, the Appellant contends that it stands to suffer greater prejudice if the application is not allowed as it will have lost the opportunity to ventilate its Appeal. The Appellant in buttressing its case cited the decision in Palace Investment Ltd & Anor v Peninah Achieng Oyugi & 5 others[2012] eKLR

38. The Appellant submitted that keeping in mind the court’s holding in the above cited case, its objection against the Respondent’s decision to reject the refunds has merit and therefore a decision to lock out the Appellant unheard on the basis of a technicality would be very unjust and detrimental to it. It compared this to the Respondent’s burden which is simply determining the Appellant’s notice of objection on merit.

39. In view of its submissions aforesaid the Appellant prayed that the Tribunal allows this Appeal and finds its application for extension of time meritorious and have the Respondent review the Appellant’s notice objection on its merits.

The Respondent’s Case 40. The Respondent has set out its response to the Appellant’s case on its Statement of Facts filed on 22nd July 2022 and the Written Submissions filed on 1st December 2022.

41. The Respondent stated that the Appellant had accumulated excess VAT arising from export of taxable supplies which are subject to VAT at the rate of zero percent. The Appellant lodged VAT refund claims with the Respondent for the period January 2014 to March 2017 amounting to Kshs 119,867,060. 00

42. The Respondent rejected the Appellant’s refund application vide a letter dated 5th September 2017 citing toll production agreement between the Appellant and Syngenta. The Respondent stated in the said letter that the Appellant was an agent of Syngenta and is reimbursed for all costs that it incurs in the production of the flower cuttings plus a 5 % mark-up, and thus the reason for the rejection of the VAT refund claim.

43. In rejecting the application for VAT refund, the Respondent noted that the Appellant was reimbursed for all costs that it incurs in the production of the flower cuttings plus a mark-up and therefore it is not entitled to a refund claim. Further, the Respondent relied on Section 13(5) of the VATAct which states that it is only the principal who may deduct input VAT not an agent on behalf of a principal.

44. The Respondent also states that there existed glaring mis-directions in the VAT returns of the Appellant where import entries were declared as export entries, as well as variances between values of some export entries in the VAT returns as compared to the export customs values declared on exportation.

45. The Respondent states that the Appellant wrote several correspondences seeking clarification on reasons for rejecting the claims, however all the correspondences were beyond the objection timelines and the Appellant did not ask for admission of a late objection neither did it mention nor qualify objections.

46. The Respondent states that the Appellant thereafter filed an appeal No. 378 of 2021 Kenya Cuttings Ltd v Commissioner of Domestic Taxes, of which a judgement was delivered on 14th April 2022, with a finding that;a.The Notice of Objection by the Appellant was not valid in law and fact,b.The Appellant was at liberty to seek an extension of time to lodge a Notice of Objection if deemed necessary.

47. The Respondent also states that thereafter the Appellant based on the said judgement made an application on 26th April 2022 to be allowed to object as per Section 51(7) of the TPA.

48. The Respondent states that upon considering the objection, it issued an Objection decision dated 10th May 2022 denying the Appellant’s application to file a late objection for failure to give reasonable cause for the delay.

49. The Respondent also stated that the Appellant filed a Notice of Appeal against the decision of the Commissioner confirming the VAT assessment of Kshs 119,867,060. 00 on the 23rd June 2022.

50. In its submissions, the Respondent submits that the Appellant did not lodge a notice of objection as per Section 51 (2) of the TPAwithin 30 days and should be put to strict proof of the allegation. That the Section provides as follows;-“A taxpayer who disputes a tax decision may lodge a Notice of Objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision.”

51. The Respondent also avers that the Appellant did not lodge a proper objection as provided for under Section 51(1) of the TPA. Further that the Appellant was on 24th May 2021 advised by the Respondent to file a late objection as per Section 51(6) of the TPAbut failed to do so.

52. The Respondent submits that the Appellant failed to demonstrate that it had valid reasons as to why it failed to lodge the said notice of objection within thirty days. The Respondent further avers that the Appellant’s objection was beyond the objection timelines and advised the Appellant to request admission of a late objection, which it failed to do despite several communication to meet the threshold of a valid objection and or seek extension of time to lodge an objection.

53. The Respondent further avers that the Appellant took 4 years and 7 months to lodge an application under Section 51(7) of TPAfrom the time the decision was issued.

54. It was the submission of the Respondent that the delay by the Appellant in failing to lodge an objection was unreasonable and as such, the Appellant should not be allowed to abuse statutory timelines set out in the law. Further, the Respondent reiterates that it acted within the law and even extended an olive branch to the Appellant, but the Appellant failed to take up the opportunity.

55. The Respondent submits that the Appellant is undeserving of the prayers sought due to the reasons aforesaid, and prayed that the Tribunal dismisses the Appeal and upholds the objection decision.

Issues for Determination 56. The Tribunal having carefully reviewed the pleadings and submissions made by the parties is of the considered view that the Appeal herein crystalizes into one issue for determination;i.Whether the Respondent was justified in rejecting the Appellant’s application for extension of time to file its Notice of Objection out of time.

Analysis and Determination 57. The Appeal herein is founded on the TAT No. 378 of 2021 Kenya Cuttings Ltd -vs- Commissioner of Domestic Taxes, in which a judgement was delivered on 14th April 2022, with a finding that;a.The Notice of Objection by the Appellant was not valid in law and fact.b.The Appellant was at liberty to seek extension of time to lodge a Notice of Objection if deemed necessary.

58. The Appellant thereafter based on the said judgement made an application on 26th April 2022 to be allowed to lodge a notice of objection under Section 51(7) of the TPA, upon which the Respondent issued an objection decision dated 10th May 2022 denying the Appellant ‘s application to file a late objection for failure to give sufficient reasons.

59. The Tribunal has taken note of the Respondent’s submission that the Appellant failed to provide any supporting documents in support of its application for extension of time. Section 51(7) of TPAprovides as follows:-“The Commissioner may allow an application for the extension of time to file a notice of objection if –a.The taxpayer was prevented from lodging the notice of objection within the period specified in subsection (2) because of an absence from Kenya, sickness or other reasonable cause.b.The taxpayer did not unreasonably delay in lodging the notice of objection.”

60. Section 51(2) of the TPAprovides as follows with regard to lodging notice of objection:-“A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision.”

61. The Respondent made a submission that the burden of proof lies on the Appellant to show cause why it should be granted leave to file objection out of time. Further the Respondent submitted that Section 51 (7) of the TPA, provides that an extension of time is an indulgence requested from the Commissioner by the taxpayer, and as such the Appellant is not entitled to an extension as a matter of course. It has no reasonable or legitimate expectation of receiving one. The only reasonable or legitimate expectation is that the discretion by the Commissioner in considering such an application to extend time will be exercised in accordance with the principles of what is fair and reasonable.

62. The Respondent also asserted that in such circumstances, it is incumbent on the taxpayer and / or Appellant in this case in applying for an extension of time to provide the Respondent with a full, honest, and acceptable explanation of the reasons for the delay. That the Appellant cannot expect the discretion to be exercised in its favour as a defaulter, unless it provides an explanation for the default or failure to lodge an objection within the stipulated timelines.

63. The Respondent averred that the Appellant lodged a notice of objection and failed to provide documents supporting its reason for delay and supporting its objection. The Appellant was aware that failure to provide reasons and supporting documents for the late objection, would result in the application not being allowed. The Respondent averred that it adequately communicated to the Appellant on the requirement to submit any and all relevant documents to the Respondent.

64. The Respondent also averred that it reached its decision fairly, and the decision was procedurally fair as it complied with the requirements of Section 4(3) of the Fair Administrative Actions Act.

65. To buttress its submission the Respondent cited the case of Income Tax Appeal No. 31 of 2017 Commissioner of Domestic Taxes v Mayfair Insurance Company Limited [2017] eKLR where the court held as follows:-“…one of the reasons stated under the Rule is that the Court may extend time where there is reasonable cause for the delay. Effectively, the court ‘s powers and discretion to extend time is unlimited. Time, in other words, is not to be extended as a matter of right. Each case is to be viewed sui generis and on its own circumstances and facts. The starting point is that the applicant ought to advance sufficient and reasonable grounds for any delay on its part.”

66. The Respondent in summing up states that its decision was communicated to the Appellant and the reasons for the said decision were also communicated. That the Appellant was given a reasonable opportunity for hearing. The Appellant was also informed that it had a right of appeal at this Tribunal which is why the Appellant approached the Tribunal and as such the decision was fair.

67. The Respondent also asserted that not all income earned by the Appellant was declared and hence the variances were brought to charge. The TPAempowers the Respondent to carry out assessments based on available information.

68. To buttress its submission the Respondent relied on the Tribunal Appeal case of Kenya Cuttings Ltd v Commissioner of Domestic Taxes TAT No. 378 of 2021, where this Tribunal stated that,“… no evidence has been adduced by the Appellant to extricate itself from the Respondent’s assertions regarding absence of a valid objection in line with Section 51(2) of the TPA”.

69. The Tribunal is therefore satisfied that the Appellant failed to provide any supporting documentation and reasons to support its application to lodge its objection out of time.

70. On its part, the Appellant stated that it had a valid and reasonable cause for failing to lodge its notice of objection within the stipulated statutory timeline.

71. The Appellant averred that at the time of lodging of its VAT refund claims and subsequent engagements with the Respondent in a bid to resolve the issue regarding the Respondent’s rejection of the said claims, the Appellant appointed a tax advisor.

72. The Appellant averred that it inadvertently failed to comply with the timelines of lodging a notice of objection as provided by Section 51(2) of the TPAbecause its then tax advisors delayed in lodging g the notice of objection within the statutory timelines.

73. The Appellant further averred that the delay by its then tax advisors in lodging the notice of objection coupled with the failure to advise it on the available remedy for seeking an extension of time to file the notice of objection amounted to a breach of professional duty of care and thus submitted that breach of professional duty of care by a professional services firm, fall within the ground of “other reasonable cause” as provided under Section 51(7) (a) of the TPA. The Appellant further stated that its tax advisors owed it a duty of care and diligence and should have advised it on the applicable timelines as well as the procedural requirements where one is late in the filing of the notice of objection. It stated that the failure to advise the Appellant constituted a mistake on its tax advisor’s part, and costly to the Appellant.

74. The Appellant buttressed its submissions by relying on the case of Commissioner of Income Taxes v Local Productions (K) Ltd [2021] eKLR, where the Court stated;-“In my view, the words” other reasonable cause” under Rule 4 of the Rules refers and connotes all and any reason which the court will find reasonable, and not necessarily physical impediment as contended by the Respondent. In this regard, I reject the invitation that mistake of counsel is not a ground for extension of time under rule 4 as contended by the Respondent”

75. The Appellant also relied on the case of Phillip Keipto Chemwono & Anor v Augustine Kubende [1998] eKLR and submitted that given the fact that there are triable issues in the present Appeal, the Respondent ought to consider the reasonable cause of mistake and admit the notice of objection filed out of time.

76. The Appellant lastly submitted that the Respondent will not suffer any undue prejudice if the application for extension of time to lodge a notice of objection out of time is allowed by the Tribunal, the Respondent’s only inconvenience being the determination of the Appellant’s notice of objection application on merit which is within its mandate as provided by the relevant law. That however, the Appellant will stand to suffer prejudice if the Appeal herein is not allowed.

77. It is quite clear to this Tribunal that the Appellant lays the blame for its inability to lodge a notice of objection with the Respondent within the stipulated period, and its failure to seek an extension of time to file its notice of objection on its appointed tax advisor.

78. The Appellant has averred that it inadvertently failed to comply with the timelines of lodging the notice of objection as provided for under Section 51(2) of the TPA because its tax advisors delayed in lodging the notice of objection within the required timelines and also did not advise it of the need to make an application to extend the time with the Commissioner, but instead filed an appeal with this Tribunal which was found defective.

79. The Appellant has contended that the delay by its tax advisors falls within the ground of, “other reasonable cause” as provided for under Section 51(7) of the TPA, and that the failure to properly lodge the notice of objection constituted a mistake on its tax advisors’ part.

80. The Appellant has relied on the decision in the case of Commissioner of Income Taxes v Local Productions Ltd [2021]eKLR, where the applicant argued that failure by its counsel on record to file a notice of appeal on time should not be visited upon him as this was a valid reason. The Respondent contended that mistake of counsel does not fall within the scope of “other reasonable cause”. The court however held that in the case, mistake of counsel constituted “other reasonable cause” and a ground for extension of time. Therefore, the Appellant chose to explain the cause of the delay as “any reasonable cause” ostensibly laying the blame on the anonymous tax advisor.

81. However, the Appellant has not submitted evidence of its appointment and instructions to the said tax advisor. Since the only reason for the delay is the failure by the tax advisor to effect the Appellant‘s instructions effectively, the Appellant ought to have laid evidence of the existence of the tax advisor, and the details of their engagement. In this regard, it would have helped this Tribunal, and perhaps prior to this Appeal, the Commissioner, if the Appellant included in its bundle of documents, the details of the tax advisor (whether tax agent registered by the Commissioner or appointed tax representative, or practicing tax consultant etc.), the appointment or engagement letter, the scope and terms of the engagement, and of course a brief of the duties and responsibilities of the tax advisor towards the tax affairs of the Appellant with at least some correspondence on follow up actions exchanged between the two. It is not enough for the Appellant to lay on its laurels and then wake up to blame a faceless entity as “any reasonable cause”.

82. In view of the foregoing, it is quite obvious that the undisclosed tax advisor cannot be elevated to the level of a legal counsel as contended by the Appellant, which would have afforded it of the protection from legal blunders made by Advocates acting on behalf of their clients pursuant to legal instruction or briefs.

83. The Tribunal is of the considered view that the Appellant being a corporate entity of substantial means, would not have suffered the inability of obtaining sound legal and tax advisory services on how to deal with its tax affairs. The delay and breach of the tax advisor engaged by the Appellant, if proven, would be more appropriately handled under their engagement contract for either breach of contract or negligence for which the Appellant has recourse by way of indemnity or damages, but their omissions cannot fall within the scope of “other reasonable cause” as contemplated under Section 51(7) of the TPA.

84. Therefore, the Tribunal finds the actions of the undisclosed tax advisor, who has no proven standing under the Tax Procedures Act, or the Tax Procedures ( Tax Agents) Regulations, cannot be elevated to the grounds set out under Section 51(7)1 of the TPA, and therefore the reason given by the Appellant for failure to seek extension to lodge its notice of objection out of time cannot amount to “any other cause” and therefore cannot stand.

85. The Appellant has therefore not demonstrated that it suffered any incapacity or hardship which could have prevented it in lodging its notice of objection or from making application for extension of time to the Commissioner, or properly supporting the said application when granted an opportunity to do so by this Tribunal. The Appellant is therefore imploring this Tribunal to intervene in the exercise of the discretionary powers of the Commissioner in the refusal to allow for extension of time without giving the Tribunal a compelling reason to do so.

86. In the Court of Appeal case of Mbogo & Anor v Shah [1968]EA96, The court stated that:-“… a court of Appeal should not interfere with the exercise of discretion of a judge unless it is satisfied that the judge in exercising his discretion misdirected himself in some matter and as a result arrived at the wrong decision, or, unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice.”

87. The Tribunal having regard and due consideration of the foregoing citation, finds that the Respondent did not misdirect itself in rejecting the Appellant’s application for extension of time, as the Appellant did not provide sufficient reasons to explain the delay, and did not provide the necessary documentation and evidence to support its application.

88. In light of the foregoing this Tribunal finds that the Respondent was justified in rejecting the Appellant’s application for extension of time to file its notice objection out of time.

Final Decision 89. The upshot of the foregoing is that the Appeal lacks merit and the Tribunal accordingly proceeds to make the following Orders;a.The Appellant’s Appeal be and is hereby dismissed.b.The Respondent’s Objection decision dated 10th May 2022 be and is hereby upheld.c.Each party to bear its own costs.

90. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2023. ............................................ROBERT M. MUTUMACHAIRPERSON.............................................RODNEY O. OLUOCHMEMBER.............................................ELISHAH NJERUMEMBER.............................................DELILAH K. NGALAMEMBER.............................................EDWIN K. CHELUGETMEMBER.