[2024] KETAT 1282 (KLR)

Maivit Kenya Limited v Commissioner of Customs and Border Control (Tax Appeal E590 of 2023) [2024] KETAT 1282 (KLR) (9 August 2024) (Judgment)

Neutral citation: [2024] KETAT 1282 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E590 of 2023

E.N Wafula, Chair, Cynthia B. Mayaka, RO Oluoch, AK Kiprotich & T Vikiru, Members

August 9, 2024

Between

Maivit Kenya Limited

Appellant

and

Commissioner Of Customs And Border Control

Respondent

Judgment

Background 1. The Appellant is a registered taxpayer whose principal business is the manufacture and sale of animal feed products in a bid to support the agricultural industry in the Republic of Kenya.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, and the Authority is charged with the responsibility of among others, assessment, collection, receipting and accounting for all tax revenues as an agency of the Government of Kenya, and the administration and enforcement of the statutes set out under the schedule to the Act.

3. The Respondent vide a letter dated 29th May, 2023 issued the Appellant with a demand notice amounting to Kshs. 9,222,845. 00. This demand was based on the grounds that the Appellant had instances of wrong tariff classification.

4. The Appellant filed an application for review on 23rd June, 2023.

5. The Respondent on 18th July, 2023 issued a review decision upholding the demand.

6. The Respondent issued a further review of classification on 26th July, 2023 revoking the classification of premix Belmill Layer Basemix and issuing a revised classification Hs Code 23. 90. 10.

7. The Appellant aggrieved by the Respondent‘s review decision lodged a Notice of Appeal to the Tribunal dated 30th August, 2023 and filed on 1st September, 2023.

8. After a series of meetings at the Alternative Dispute Resolution forum (ADR), the parties reached an ADR agreement and thereafter a Partial Consent was filed at the Tribunal dated 14th May, 2024 and filed on 30th April, 2024. The ADR process did not resolve the matter of classification of seven (7) products whose additional taxes amounted to Kshs. 5,888,331. 00 which is the subject of the instant Appeal.

The Appeal 9. The Appellant filed its Memorandum of Appeal on the 15th September, 2023 and set out the following grounds of Appeal;a.That the Respondent erred in law and in fact by applying a non-existent law that imposes a duty rate of 10% on premixes used in the manufacture of animal and poultry feeds.b.That the Respondent erred in law by acting ultra-vires of its Constitutional and statutory mandate by failing to enforce the clear provisions of the law and imposing a chemical component to coerce the Appellant in paying taxes.c.That the Respondent erred in law and in fact in finding that the Appellant's products fell under HS Code 2309. 90. 90, despite the fact that the products do not fit within the Heading, Sections and Explanatory Notes of the previously mentioned classification.d.That the Respondent erred in fact and in law by failing to take into account the product data sheets, to infer the correct product description and function of the Appellant’s products, which would lead to a correct classification.e.That the Respondent erred in law by failing to apply correctly the General Interpretation Rules for the Classification of Goods ("GIR"). The Respondent, specifically contravened the Rules by;-i.Failing to examine the applicability of the language used in particular the term 'premix' under sub-heading 2309. 90. 10 as with regard to the Appellant’s imports;f.That the Respondent breached the Appellant's right to legitimate expectation by declaring that one of the products subject to the appeal falls under tariff code 23. 90. 10 and at the same time seeking to enforce a tax liability on the very same product under a different tariff, 23. 90. 90. g.That further the Respondent erred in fact and in law by seeking to enforce a tax liability of Kshs. 1,478,707. 00, whose objection had succeeded by dint of the operation of the law.h.That the Respondent, by virtue of being an administrative body, failed to give due regard to the Appellant's responses and information before issuing the review decision.i.That the Respondent erred in law and in fact by levying an illegal and unconstitutional demand of Kshs. 9,222,845. 00 based on an illegality.

Appellant’s Case 10. The Appellant has set out its case based on the following documents:a.The Appellant’s Statement of Facts dated and filed on 15th September, 2023 and the Written Submissions dated 29th May, 2024 and filed on 30th May, 2024. b.The Appellant’s witness statement of Friedericke Becker dated 8th March, 2024 and filed on 28th March, 2023; admitted in evidence under oath on 15th May, 2024. c.The Appellant’s witness statement of David Murumba Mukongolo dated 2nd March, 2024 and filed on 28th March, 2023; admitted in evidence under oath on the 15th May, 2024d.The Appellant’s witness statement of Benson Otieno dated 27th February, 2024 and filed on 28th March, 2023; admitted in evidence under oath on the 15th May, 2024.

11. That on 19th July, 2022, the Respondent issued the Appellant a demand notice of Kshs. 1,478,707. 00. This demand was based on the grounds that the Appellant had instances of wrong tariff classification.

12. That the Appellant objected to the above demand through an objection dated 5th August, 2022. That the Appellant extensively explained why the particular products Mialick lactation and Mialick fattening fell under Chapter 23 as opposed to Chapter 25.

13. That in contravention of the statutory timelines, the Respondent failed to issue an objection decision to the Appellant's objection. That therefore, by dint of operation of the law, the objection succeeded.

14. That on 25th May, 2023, the Respondent issued an advance ruling for Sigma Bravo Premix where it classified it under Heading 23. 90. 90.

15. That subsequently, the Respondent issued a demand notice on 29th May, 2023, pursuant to a post clearance audit for the period 2018 to May 2023. The demanded amount of Kshs. 9,222, 845. 00 was based on the following facts:-i.The product, Miavit Egg Yolk Colorant is specified to be an organic compound with chemical properties that contains calcium carbonate as a carrier.ii.The products Sigma Bravo Premix and Belmill Layer Basemix specified to be feed preparations containing relatively significant levels of protein and crude ash, are designed to supplement basic farm produced feeds with protein content in addition to other organic/inorganic substances.iii.The products Miavit Egg Yolk Colorant were considered as a feed additive intended for egg laying hens, should be classified under tariff code 2309. 90. 90. iv.Other products: Miavit Sigma Bravo Premix, Belmill layer Basemix, Avatec 150 G, Mialick Fattening, Miaphos and Robenz 66G, ought to also be declared under 2309. 90. 90, which attracts an additional tax of 10%.

16. That aggrieved, the Appellant through its tax agents, filed an objection dated 23rd June, 2023, relying on data sheets availed. That the grounds set out were as below;a.Premix Belmill Layer Basemix contains calcium carbonate, monocalcium phosphate, sodium chloride and sodium bicarbonate which are minerals. This to the Appellant, is a premix used in poultry feed under tariff code 23. 90. 10. b.Sigma Bravo Premix contains calcium carbonate, brewers' grains, yeasts, brewers' yeast, poultry protein, liver hydrolysate (poultry), glucosamine (chitosamine), chondroitin sulphate, sodium chloride. To the Appellant, this product is a premix used as a poultry feed under tariff code 23. 90. 10c.Miaphos contains calcium, phosphorous, sodium, magnesium, copper, manganese and zinc which are vitamin additives. As this product is added to drinking water of poultry, the Appellant maintained that the same falls under tariff code 23. 90. 10. d.Egg Yolk Colorant premix contains canthaxanthin, ethyl ester and calcium carbonate which are mineral additives. The data sheet recommended that the does of the product should be 0. 1% in a complete feed of laying hens.e.Avatec 150G, Mialick fattening and Ribenz 66G contains minerals to be added to the feed.f.All the products above are added to the compound feed at levels between 0. 1%-0. 5%. Consequently, they cannot supplement the feed content in the compound.g.The products are therefore not aimed to supplement the feed.

17. That the Respondent, on 18th July 2023, issued its review decision, where it maintained that the Appellant's products highlighted above, ought to have been declared under tariff code 2309. 90. 90 'other' attracting a 10% duty, as opposed to the Appellant's declaration of 2309. 90. 10 “premixes used in the manufacture of animal and poultry feeds” which is zero rated (0 %).

18. That on 26th July, 2023, contrary to its own review decision, the Respondent through a letter referenced; 'Review of classification for premix Belmill Layer Basemix; M/S Miavit Limited' revoked the classification of premix Belmill layer Basemix from 23. 90. 90 and confirmed that the correct tariff was 23. 90. 10.

19. That the above letter confirmed that indeed the Appellant’s products are premixes that should fall under tariff code 23. 90. 10, which is the position of this Appeal.

20. That despite the Respondent formally accepting that the Appellant's products fall under tariff code 23. 90. 10, it proceeded to classify the products under tariff code 23. 90. 90, to coerce the Appellant to pay a tax of Kshs.9,222,845. 00.

21. That this Appeal is based on Chapter 23 of the East African Community Harmonised Commodity description and coding system; in particular tariff sub-heading 2309. 90. 10 and 2309. 90. 90.

22. It was the Appellant's position that its products fall under tariff code 23. 90. 10. Further, that there is no law that imposes 10% duty on premixes used in manufacturing animal and poultry feeds.

23. That Chapter 23 of the Harmonised Commodity description and coding system refers to animal feeding and a fair reading of the same expressly dictates that any premix that is used in the manufacture of animal or poultry feeds falls under tariff code 2309. 90. 10.

24. That in addition to the above, the World Customs Organization (WCO) the Harmonised Commodity Description and Coding System Explanatory Notes (2022) describes a 'premix' as below:“Compound or compositions consisting of a number of substances (sometimes called additives) the nature or proportion which vary according to the animal production required. These substances are of three types:- 1. Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health; vitamins or provitamins, amino acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.

2. Those designed to preserve the feeding stuffs (particularly fatty components) until consumption by the animal; stabilizers, anti-oxidants etc.

3. Those which serve as carriers and which may consist either one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries etc) or inorganic substances e.g. (magnestic, chalk, kaolin, salt, phosphates)The concentration of substances described in (1) above and the nature of the carrier are determined so as to ensure, in particular, homogenous dispersion and mixing of these substances in the compound feeds to which the preparations are added.Provided they are of a kind used in animal feeding, this group also include;-a)Preparations consisting of several mineral substances;”

25. That to correctly apply the above legal provisions, the Appellant submitted the chemical component and the product function to support the above classification, are detailed in the technical reports of the products, in addition to the data sheets that demonstrate in detail on; the product description, product function, chemical composition, toxicology report.

26. The Appellant affirmed that its products are essential mineral based premixes designed to be used in the preparations and/ or manufacture of complete animal feeds, which add nutritional value to complete animal feed.

27. Additionally, the Appellant averred that its products have adhered to the antibiotic content between 8- 16 % as stated above and that its products not only improve animal digestion and safeguard animal health but also in their preparations and/ or analysis include active substances and consist of several mineral substances but also act as carriers and which consist of either of one or more organic nutritive substances.

28. That all of the aforementioned products are added to the compound feed at levels between 0. 2% and 0. 5% as further emphasised in its objection and the reports provided.

29. That in response to the Respondent's position, the Appellant noted that the premise thereof was based on sample analysis, which: -a.The Respondent has not provided any report of the samples tested;b.The alleged analysis, had the following findings; -i.Miavit Egg Yolk Colorant - made it a feed additive added to complete feedii.Belmill layer basemix - a feed supplement that is a complimentary feed for pigs, poultry and ruminants.iii.Miavit Sigma Bravo Premix - specified as a feed additive.iv.Miaphos liquid miavit- a liquid complimentary feed supplement for poultry for additional temporary mineral supply.

30. That in response thereto, the Appellant vehemently opposed the above findings for the following reasons: -a.The laboratory report, which informed the above findings, has never been availed to the Appellant.b.There is no law that imposes a duty rate of 10% on premixes used in manufacturing animal and poultry feed. The mandate of the Respondent is to enforce the law, not create it.c.A reading of the law confirms that classification is primarily based on the function of the product and the chemical analysis are a secondary determinant.d.The Respondent arbitrarily imposed chemical nuances to exclude the Appellant’s products under its correct code. The said nuances are neither provided by the law, nor do they have any basis. Particularly, on Sigma Bravo Premix, the Respondent stated it has a high crude protein of 28% component and as such falls under 23. 90. 90. This is neither stated in the East Africa Harmonised Commodity description and Coding System nor the WCO Explanatory Notes in Chapter 23. e.With all due respect, it is not clear to the Appellant which products the Respondent would subject under 23. 90. 10 as clearly every product, to attract a 10% tax rate should fall under 23. 90. 90, notwithstanding the provisions of the law.f.The above arbitral imposition has attracted a highly punitive liability, whose potential could cripple the Appellant's business, which is key in the agriculture sector.

31. The Appellant requested the Tribunal to frown upon the Respondent's illegal and unconstitutional actions, which are a clear abuse of the Respondent's duty.

32. That on the grounds of illegality, the Appellant submitted that the Respondent should be estopped from enforcing a tax demand that has no legal backing.

33. That on a technical submission, the Appellant noted that the Respondent grossly misapplied itself by issuing tax demands of Mialick Lactation and Mialick Fattening, despite having not replied to the Appellant's objection dated 5th August, 2022, as stipulated by Section 51(11) of the Tax Procedures Act that clearly states as follows:“The Commissioner shall make the objection decision within sixty days from the date of receipt of-(a)the notice of objection; or(b)any further information the Commissioner may require from the taxpayer, failure to which the objection shall be deemed to be allowed.”

34. That in support of the above, the Appellant invoked the case of Eastleigh Mall Limited vs Commissioner of Investigations & Enforcement Appeal No. E0686 of 2020 where the Court held that the Respondent's failure to issue an objection decision within the stipulated 60 days meant that the objection by the Appellant had been allowed.

35. That quite surprising, on 26th July, 2023, the Respondent through its letter referenced; “Review of classification for premix Belmill Layer Basemix; M/S Miavit Limited” addressed to the Appellant stated;-a)On page 1, last paragraph “Notably, the mineral content in the product is significant however, there is a significant amount of crude protein (28%) in the product, as well as poultry protein (8%) hence there is a nutritive element to the product that can be attributed to this composition.”b)On page 3 – “Based on the above information as per GIR 1 and GIR 6 rules of classification PREMIX BELMILL LAYER BASEMIX is hereby classified in 2022 EAC/CET code 2309. 90. 10 that provides for premixes.”c)“Therefore, the tariff guidance that classified the PREMIX BELMILL LAYER BASEMIX, in 2022 EAC/CET code 2309. 90. 90 is hereby revoked.”

36. The Appellant invoked the principle of legitimate expectation and invited the Tribunal to bind the Respondent to its ruling and declare that the products are correctly declared under tariff sub-heading 2309. 90. 10.

Appellant’s Prayers 37. The Appellant prayed that:a.The Respondent's review decision dated 18th July, 2023 be set aside in its entirety;b.The Respondent's demand notice dated 29th May, 2023 be vacated; andc.The Appeal be allowed with costs to the Appellant.

Respondent’s Case 38. The Respondent’s case is premised on:a.The Respondent’s Statement of Facts dated 13th October, 2023 and filed on 16th October, 2023. b.The Respondent’s witness statement of Stella Mwangi dated 19th April, 2024 and filed on 22nd April, 2024; admitted in evidence under oath on 15th May, 2024.

39. The Respondent stated that the Appellant imported consignments of animal feed products vide Entry Numbers 23EMKIM400707272, 23EMKIM400395770 and 23EMKIM400478408. That as per the declaration, the above-mentioned products were classified under 2022 EAC/CET Code 2309. 90. 10.

40. That the reclassification of the imported products was requested from the release point and random sampling was conducted as per Valuation & Tariff submittal form dated 7th July, 2023 for Entry 23EMKIM400707272.

41. Samples of the products were availed from the consignment and the Inspection and Testing Centre (I&TC) carried out further testing and analysis on the same. That the products were classified as feed supplements under 2022 EAC/CET Code 2309. 90. 90. That this tariff 2309. 90. 90 attracts 10% Import duty whereas what the Appellant used has 0% Import duty vide tariff rulings with references KRA/C&BC/BIA/THQ/338/05 and KRA/CBC/BIA/THQ/610/083/08/2023.

42. The Respondent averred that classification of goods is done in accordance with the General Rules of Interpretation in order. The Respondent further averred that Rule 1 provides that classification shall be determined according to the terms of the Headings and any relative Section or Chapter Notes.

43. The Respondent stated that Heading 23. 09 covers the classification of preparations which improve digestion and more generally ensure that the animal makes good use of the feeds to safeguard its health: vitamins or provitamins, amino acids, antibiotics, coccidiostats, trace elements, flavorings, appetizers etc.

44. The Respondent submitted that the tariff code 2309. 90. 10 covers “Premixes used in the manufacture of animal and poultry feeds” whereas the tariff code 2309. 90. 90 covers “Preparations of a kind used in animal feeding.”

45. That the product Maivit Egg Yolk Colourant which is basically considered to be a food additive intended for egg laying hens is therefore correctly classified under tariff code 2309. 90. 90 as guided by GIR 1&6 and attracts import duty rate of 10%.

46. That the products are generally used either as feed additives or supplements for balancing farm feeds, fattening lactation and to ensure that the animals make good use of the feeds to safeguard their health.

47. That the Respondent acted fairly and within the provisions of the law as mandated under Sections 235, 236 and 135 of EACCMA, 2004.

Respondent’s prayers 48. The Respondent prayed that the Tribunal:a.Upholds and affirms the Respondent's review decision dated 6th April, 2023. b.Dismisses the Appeal with costs to the Respondent.

Issues For Determination 49. The Tribunal notes that subsequent to the filing the Appeal, the parties entered into a Partial Consent that settled the classification of some of the products under dispute.

50. The Tribunal, having considered the pleadings, evidence adduced, and submissions made by the parties as well as the Partial Consent filed, is of the considered view that the issue that crystalizes for its determination is: Whether the Respondent was justified in reclassifying the Appellant’s products.

Analysis And Determination 51. The Tribunal, having identified the issue that falls for its determination proceeds to analyse it as hereunder.

52. The dispute herein arose out of the parties’ disagreement on whether the Appellant’s imported products are generally used either as feed additives or supplements for balancing farm feeds, fattening lactation and to ensure that the animals make good use of the feeds to safeguard their health thus justifying the re-classification of the product from HS code 2309. 90. 10 to HS code 2309. 90. 90.

53. The issue in dispute is therefore hinged on whether the subject products are premixes used in the manufacture of animal feed, or additives and supplements designed to balance farm feeds, fatten animals during lactation and ensure that the animals make good use of the feeds to safeguard their health.

54. The Appellant submitted to this Tribunal that under the World Customs Organization’s General Interpretative Rules (GIRs) and the EAC/CET, the products are classifiable under HS Code 2309. 90. 10 which attracts duty at 0%, the basis being that the products are pre-mixes used in the manufacture of animal feeds. It further averred that the Respondent disregarded data sheets that it provided to prove that the imported products were premixes.

55. It is noteworthy that from the technical documents submitted by the Appellant, its products have been described as follows:a.Premix Belmill Layer Basemix contains calcium carbonate, monocalcium phosphate, sodium chloride and sodium bicarbonate which are minerals.b.Sigma Bravo Premix contains calcium carbonate, brewers' grains, yeasts, brewers' yeast, poultry protein, liver hydrolysate (for poultry), glucosamine (chitosamine), chondroitin sulphate, sodium chloride.c.Miaphos contains calcium, phosphorous, sodium, magnesium, copper, manganese and zinc which are vitamin additives. This product is added to drinking water of poultry.d.Egg Yolk Colorant premix contains canthaxanthin, ethyl ester and calcium carbonate which are mineral additives. The data sheet recommended that the dose of the product should be 0. 1% in a complete feed of laying hens.e.Avatec 150G, Mialick fattening and Ribenz 66G contains minerals to be added to the feed.

56. The Tribunal relies on the General Interpretative Rules (GIRs) in determining the applicable tariff classification of the Appellant’s product. Specifically, the Tribunal has looked at Rules 1, 2b and 3(a), to the extent that the product being classified consists of a mixture of ingredients.

57. The Rules state as follows:-

58. “1. The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:

59. 2(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.

60. 3. When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

61. (a)The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.”

62. Further, according to the EAC/CET, HS classification, Heading 2309 is set out as follows;“2309: Preparations of a kind used in animal feeding.2309. 90. 00: Dog or cat food put up for retail sale.2309. 90. 10: Premixes used in the manufacture of animal and poultry feeds.2309. 90. 90: Other.”

63. Further the Explanatory Notes to Heading 2309 define a premix as follows:“…premixes ”, are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances are of three types:(1)Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health: vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc.(2)Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal: stabilisers, anti-oxidants, etc.(3)Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates).The concentration of the substances described in (1) above and the nature of the carrier are determined so as to ensure, in particular, homogeneous dispersion and mixing of these substances in the compound feeds to which the preparations are added.” (Emphasis added)

64. The Tribunal in its analysis relied on its explanation in TAT 124 of 2021; Bidco Africa Limited vs. Commissioner of Customs and Border Control where it stated that;“65. The criteria for classifying products according to intended purpose is used to classify over 60 products copiously spread across the EAC nomenclature for example:Plasters specially calcined or finely ground for use in dentistry (Heading 25. 20)Preparations with a basis of plaster for use in dentistry (Heading 34. 07).Preparations for use on the hair (Heading 33 05).Shapes, sections, tubes and the like, prepared for use in structures, of iron or steel (Heading 73 08).The intended use is indeed one of “the terms of the headings” envisaged in GIR 1 which provides as follows;“The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions:” (Emphasis added)

65. It follows therefore that the Tribunal, in determining whether the products in question were premixes or not has reviewed the data sheets provided and the intended purpose of the products, and it notes that all the products in dispute are added to animal feeds and are supposed to be mixed in specified quantities to the animal feeds to create the complete nutritional product given to the animals. In this regard, the products in question qualify to be classified as premixes as they are not complete products that can be consumed in the form in which they are imported.

66. In the circumstances, and after considering the Chapter Notes, Explanatory Notes, product descriptions, the intended use of the product and the case law, the Tribunal determines that the product imported by the Appellant is classifiable under tariff code 2309. 90. 10

67. In view of the foregoing finding, the Tribunal holds that the Respondent erred and was thus not justified in reclassifying the Appellant’s imported products from HS Code 2309. 90. 10 to HS Code 2309. 90. 90.

Final Decision 68. The upshot of the foregoing analysis is that the Appeal is merited and the Tribunal accordingly proceeds to make the following Orders: -a.The Appeal be and is hereby allowed.b.The Respondent’s review decision dated 18th July, 2023 be and is hereby set aside.c.Each Party to bear its own costs.

69. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF AUGUST, 2024ERIC NYONGESA WAFULA - CHAIRMANCYNTHIA B. MAYAKA - MEMBERDR. RODNEY O. OLUOCH - MEMBERABRAHAM K. KIPROTICH - MEMBERDR. TIMOTHY B. VIKIRU - MEMBER