[2025] KETAT 176 (KLR)

Mutava v Commissioner of Customs and Border Control (Tax Appeal E825 of 2024) [2025] KETAT 176 (KLR) (21 March 2025) (Judgment)

Neutral citation: [2025] KETAT 176 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E825 of 2024

CA Muga, Chair, BK Terer, EN Njeru, E Ng'ang'a & SS Ololchike, Members

March 21, 2025

Between

Catherine Ngina Mutava

Appellant

and

Commissioner of Customs and Border Control

Respondent

Judgment

Background 1. The Appellant is a Kenyan citizen and registered for tax obligations.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws (hereinafter “the Act”). Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. On 13th June 2024, the Appellant in possession of a tax exemption certificate made an application for tax exemption in regards to importation of a used Toyota Harrier Hybrid followed by a physical interview on 28th June 2024.

4. The application was rejected by the Respondent which in its letter dated 1st July 2024 stated that the Appellant’s disability failed to meet the legal criteria for exemption.

5. On 5th July 2024, the Appellant filed an application for review against the Respondent’s decision but was similarly rebuffed by the Respondent through a letter dated 22nd July 2024.

6. Aggrieved by the Respondent’s review decision dated 22nd July 2024, the Appellant filed its notice of appeal dated 25th July 2024 on 26th July 2024 at the Tribunal.

The Appeal 7. The Appeal was predicated upon following grounds as outlined in the Memorandum of Appeal dated 25th July 2024 and filed on 26th July 2024 on:i.That the Respondent erred in law and in fact by denying the Appellant an exemption to import a motor vehicle contrary to Paragraph 8 of the 5th Schedule of the East African Community Customs and Management Act, 2004 (hereinafter “EACCMA”).ii.The Respondent erred in fact and in law by failing to provide the reasons in arriving at its decision as required under Article 47 of the Constitution of Kenya, 2010 (hereinafter “the Constitution”) and Section 4 of the Fair Administrative Action Act, CAP 7L of the Laws of Kenya (hereinafter “FAAA”).iii.The Respondent erred in fact and in law in assuming powers to grant or deny the exemption provided under Paragraph 8 of the 5th Schedule of the EACCMA;iv.The Respondent erred in fact and in law by enacting and applying an internal process that violates the rules of natural justice as well as FAAA.v.That the Respondent erred in law and in fact by infringing on the Appellant’s right to legitimate expectation in denying the Appellant’s exemption despite having a valid tax exemption certificate.

Appellant’s Case 8. The Appellant’s case was premised on her Statement of Facts were dated 25th July 2024 and filed on 26th July 2024 together with the testimonies of the Appellant and Prof Erastus Amayo admitted as evidence in chief on 29th January 2025.

9. The Appellant stated that pursuant to Paragraph 8 of the 5th Schedule to the EACCMA, she made an application for tax exemption on importation of a used motor vehicle since she was in possession of a tax exemption certificate but the same was rejected by the Respondent.

10. The Appellant elaborated and detailed the grounds as set out in Memorandum of Appeal as follows:

The Respondent erred in law and in fact by denying the Appellant an exemption to import a motor vehicle contrary to Paragraph 8 of the 5th Schedule of the EACCMA. 11. It was the Appellant’s case that despite holding an income tax exemption certificate, the Respondent rejected her application for exemption on importation of a motor vehicle yet Paragraph 8 of the 5th Schedule to the EACCMA provides as follows:“Disability, blind and physically handicapped persons materials, articles, vehicles, and equipment, including one motor vehicle, which:a.Are specially designed for use by disabled or physically handicapped persons…”

12. The Appellant stated that the cited paragraph clearly indicates that exemption encompasses individuals who are disabled, blind, and physically handicapped. The Appellant further asserted that the term “disability” is not defined within EACCMA but under the Persons With Disabilities Act, CAP 133 of the Laws of Kenya (hereinafter “PWDA”) as follows;“Disability means a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic, environmental participation.”

13. According to the Appellant, the law’s reference to “specially designed” did not restrict the exemption to physically modified vehicles alone and that the Respondent’s narrow interpretation failed to align with the spirit and intent of the law since paragraph 8 explicitly separates categories of disabled, blind, and physically handicapped persons, suggesting that exemption applies broadly to individuals with any form of disability, regardless of whether their vehicle is modified.

14. The Appellant averred that she was in possession of a letter recommending her driver’s license change to Class F which specifies the need for an automatic car with power steering to accommodate her disability and that such features could indeed be considered a special design to meet her needs. The Appellant asserted that the imported vehicle need not require further modification to meet her needs and this did not disqualify her from protection under EACCMA.

The Respondent erred in fact and in law by failing to provide the reasons in arriving at its decision as required under Article 47 of the Constitution and Section 4 of the FAAA. 15. According to the Appellant, the Respondent violated her Constitutional rights as enshrined in Article 47 of the Constitution and as required by Section 4 of FAAA as it never availed reasons for arriving at the impugned decision but merely stated that the Appellant failed to meet the legal requirements as provided for under Paragraph 8 of the 5th Schedule of EACCMA. The Appellant buttressed its position by relaying on the case of Joseph Muriithi Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes that taxpayers have constitutional rights to be given reasons for tax decision.

The Respondent erred in law and in fact by infringing the Appellant’s right to legitimate expectation in denying the Appellant’s exemption despite having a valid tax exemption. 16. It was the Appellant’s case that the Respondent not only acted in bad faith by rejecting the exemption application but breached the principle of legitimate expectation which was created by the Respondent when it issued the Appellant with a valid tax exemption certificate and went on to reiterate the Supreme Court holding in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014]eKLR that a public body creates a legitimate expectation based on the following principles;“a)There must be an express, clear and unambiguous promise given by a public authority .b)The expectation is reasonablec)The representation is lawfuld)The legitimate expectation is not against clear provisions of the law or the constitution.”(iv)The Respondent erred in law and in fact by discriminating against the Appellant based on her disability, resulting in an unfair treatment and a violation of her Constitutional rights in accordance with Articles 27,28 and 54 of the Constitution.

17. The Appellant held that it was discriminatory for the Respondent to hold that her disability failed to meet the criteria for exemption under Paragraph 8 of the 5th Schedule to EACCMA yet the cited pieces of legislation allowed persons living with disability to be exempt from paying taxes a stance the Appellant stated was in contravention to Article 27 of the Constitution.

The Respondent erred in fact and in law by enacting and applying an internal process that violates rules of natural justice as well as FAAA. 18. According to the Appellant, the internal process of the Respondent requiring exemption application be sought once a car has been purchased and being shipped to the country was unreasonable and procedurally unfair and was a violation of her rights as required by FAAA as it prejudiced applicants forcing them to make significant financial commitments without assurance of approval thereby denying them a fair hearing while creating an unjust administrative environment.

Appellant’s Prayers 19. The Appellant’s made the following prayers to the Tribunal:a.That the Appeal be allowed with costs;b.That the Respondent's Review decision dated 22nd July 2024 be set aside;c.That the Appellant’s application for exemption be granted;d.That the Respondent be ordered to pay the demurrage charges borne by the Appellant;e.That the Tribunal be at liberty to make any such orders as it deems fit and necessary in the circumstances.

Respondent’s Case 20. The Respondent replied to the Appeal through its Statement of Facts dated and filed on 19th August 2024 and also relied on the testimony of its witness, Ms. Pauline Araka, whose witness statement was adopted as evidence in chief during the hearing on 29th January, 2025.

21. The Respondent conceded that the Appellant was in possession of a valid income tax exemption certificate due to her disability that extends income tax exemption for an amount not exceeding the first Ksh 150,000. 00 per month for a period of five years from 1st January 2021 to 31st December 2025. It was the Respondent’s assertion that the exemption was only applicable to income tax and not any other tax and income tax was not one of the taxes in issue in this instant case therefore, there was no legitimate expectation that had been created in the instant matter through the issuance of the income tax exemption.

22. The Respondent stated that “disability” as defined under Section 2 of the PWDA meant that it was not only physical but also sensory and mental that however, the definition section was not the exemption section as it does not even refer to any exemption. In further controverting the Appellant’s assertions, the Respondent relied on the following provisions of Section 35(3) and 42 of the PWDA on exemptions:“Materials, articles and equipment, including motor vehicles, that are modified or designed for the use of persons with disabilities shall be exempt from import duty, value added tax, demurrage charges, port charges and any other government levy which in any way increase their cost to the disadvantage pf persons with disabilities. 42. Exemptions and deductions-general requirements(1)The following apply with respect to exemptions and deductions described in subsection (2)-(a)no person is eligible for an exemption or deduction unless the exemption or deduction has been recommended by the Council and approved by the appropriate government authority;(2)The exemptions and deductions referred to in subsection (1) are the exemptions and deductions under-(a)section 12(b)section 16(c)section 36(1) and(e)section 40….”

23. The Respondent held that the inclusion of the words “modified or designed” under Section 35(3) of PWDA as well as “specially designed” under Paragraph 39(1) of Section A of Part 1 of the VAT Act and paragraph 8 of the 5th Schedule of the EACCMA meant that neither exemptions are automatic nor applying for tax exemption a mere formality.

24. It was the Respondent’s assertion that the cited legislation was to be read differently from Paragraph 4 of Part A of the Second Schedule of the Excise Duty Act, CAP 472 of the Laws of Kenya (hereinafter “EDA”) which reads “One motor vehicle for use by persons with disability” which provides every person with disability with an automatic exemption without requiring a motor vehicle to be specially designed. The Respondent was obstinate that PWDA, EACCMA and Value Added Tax Act , CAP 476 of the Laws of Kenya (hereinafter “VAT Act”) expressly require a motor vehicle to be specially designed for persons with disability to enjoy the exemption; whereas Section 42 of PWDA require exemption to be approved by relevant government body which in this case was the Respondent.

25. The Respondent held that the medical report submitted by the Appellant had contradictory information since on one had it read that the Appellant had “a history of myasthenia gravis since 2003 which resulted in weakness making her unable to walk” whereas on the other hand stated that “…her mobility was normal and did not require supportive/assistive devices nor mobility aid…” That whereas taxpayers might be registered for disability, the taxing statutes are interpreted strictly.

26. That contrary to Appellant’s assertion, the Respondent’s decision of 1st July 2024 rejected the Appellant’s application on the basis of the nature of disability whereas the 22nd July 2024 decision rejected the Appellant’s application as it failed to meet the legal criteria for exemption and was issued after considering the Appellant’s application for review.

27. The Respondent held that legislation in place allow exemption of duty for motor vehicle that is specifically designed for use by a disabled or physically handicapped person who require a motor vehicle to be modified to suit their respective disabilities which in turn means a rise in costs of the vehicle and that this was what the PWD Act sought to cure through tax exemption, and that is why exemption is limited to vehicles that are modified and designed specifically for use by persons with disabilities and the physically handicapped.

28. It was the Respondent’s assertion that the Appellant did not meet the set requirements and that contrary to Appellant’s assertions, she was involved at every stage in the process. That it was the Appellant who failed to prove the Respondent’s review decision as incorrect as couched under Section 30 of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”) .

Respondent’s Prayer 29. The Respondent sought the following reliefs:i.That the Tribunal dismiss the Appeal with costs for want of merit.ii.That the Tribunal upholds the Respondent’s review decision dated 22nd July 2024.

Parties’ Written Submissions 30. Both Parties complied with the Tribunal’s directions having filed their written submissions on 12th February 2025.

31. In their written submissions dated and filed on 12th February 2025, the Appellant submitted on three issues as follows;

Whether the Respondent erred in law and in fact by denying the Appellant an exemption to import a motor vehicle contrary to Paragraph 8 of the 5th Schedule to the EACCMA. 32. The Appellant submitted that it was not disputed that she was a person living with disability as evidenced by the evidence obtained from Government agencies acknowledging the same and even her driving license was proof of this fact. Further, that in recognition of her disability, the Respondent had issued the Appellant with a tax exemption certificate on the basis of her disability which was the basis upon which she sought the Respondent’s import exemption in respect to her motor vehicle as guided by the requirements outlined in the Respondent’s own website.

33. It was the Appellant’s case that in rejecting her application, the Respondent based its decision on extraneous factors contrary to the law alleging that her disability did not meet legal criteria for exemption without providing tangible grounds yet the Appellant was complying with requirements set out in the Respondent’s own website.

34. That whereas the Respondent held that imported vehicles must be specially designed or modified to qualify for exemption, the Appellant was adamant that the decision to deny her application was based on incorrect interpretation of the law as set out in Paragraph 8 of the 5th Schedule to the EACCMA which she asserted was deliberately broad in language as it was difficult or impossible to specify all disabilities without discriminating against other disabilities.

35. Further, that the wording in EACCMA and VAT Act does not provide a definition of the words “specially or modified” in respect to motor vehicles, thus voiding the Respondent’s assertion that vehicles must be of particular designs which is erroneous and contrary to Paragraph 8 of the 5th Schedule to the EACCMA. That such ambiguity by the Respondent would lead to procedural unfairness and abuse yet the Court in the case of Inland Revenue v Scottish Central Electric Company[1931] 15 TC 761 held as follows:“Even though taxation is acceptable and even essential in democratic societies, taxation laws that have the effect of depriving citizens of their property by imposing pecuniary burdens resulting also in penal consequences must be interpreted with great caution. In this respect, it is paramount that their provisions must be express and clear so as to leave no room for ambiguity… any ambiguity in such a law must be resolved in favor of the taxpayer and not the Public Revenue Authorities which are responsible for their implementation.”

36. The Appellant submitted that the Respondent not only failed to produce any contradictory motor vehicle inspection report but equally, their witness testimony admitted that no medical examination was done on the Appellant apart from physical observation which was not only improper but was not based on any known legal provisions. The Appellant cited the High Court of Madras in Angappan vs The Secretary to the Government of Tamil Nadu WP(MD). 1480/2023 where it was held that motor vehicle tax exemptions for disabled persons should not be conditional on the vehicle being driven by the disabled person themselves. The court clarified that the vehicle should be used by the person for whom it is adapted, but it does not necessarily have to be driven by them.

37. The Appellant asserted that it was not the place Respondent to legislate “legal criteria” to process exemptions as the law under EACCMA, VAT and Excise Duty was complete and require no legal interpretation provided the Appellant was disabled. Further, that the Respondent did not avail an inspection report showing how the motor vehicle did not have modifications or specially designed to suit the Appellant’s disability despite the Appellant availing herself for interview at the Respondent’s offices and the Appellant being entitled to enjoy reliefs as captured under the EACCMA, EDA and the VAT Act.

38. The Appellant asserted that Section 248B of the EACCMA enjoins the Respondent not to promote any customs procedures, measures or practices that are discriminatory to persons on grounds of gender, age or disabilities therefore the Respondent’s decision was void for lack of reasons as couched under Section 229(4) of the EACCMA and as obligated under Section 49 of the Tax Procedures Act, CAP 469B of the Laws of Kenya ( hereinafter “TPA”), the FAAA and the Constitution.

39. The Appellant relied on the following case law to buttress her position; Joseph Muriithi Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes (2023) KEHC 19357 KLR

The National Assembly & Speaker of the National Assembly v Okiya Omtata & 55 Others Civil Appeal No. E003 of 2023

Local Productions Kenya Limited v Commissioner of Domestic Taxes in TAT Appeal No. 50 of 2017

Whether the Respondent infringed the Appellant’s right to legitimate expectation in denying the Appellant’s exemption despite having a valid certificate. 40. The Appellant submitted that despite holding a valid tax exemption certificate, the Respondent acted in bad faith and breached the principle of legitimate expectation by denying the Appellant’s exemption application whereas the application was reasonable and the exemption certificate clear and unambiguous. That her expectation was lawful in line with paragraph 8 of the 5th Schedule to the EACCMA and Article 54 of the Constitution that require administrative bodies to act in good faith and adhere to the binding promises made to taxpayers.

41. The Appellant relied on the Supreme Court holding in the case of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2014] eKLR, Kenya Revenue Authority vs Export Trading Company Limited (Petition No. 20 of 2020(E021 of 2020) and Keroche Industries Limited vs Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007]KLR 240

Whether the Respondent erred in law and in fact by discriminating against the Appellant based on her disability, resulting in an unfair treatment and a violation of her Constitutional rights in accordance with Articles 27,28 and 54 of the Constitution. 42. That the Respondent discriminated against the Appellant when its stated in the review decision that the Appellant’s disability failed to meet the criteria for exemption under Paragraph 8 to the 5th Schedule of the EACCMA contrary to Article 27 of the Constitution which provides that for freedom from discrimination;“(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes full and equal enjoyment of all rights and fundamental freedoms.”

43. According to the Appellant, the Respondent erred in law and in fact by discriminating against her based on her disability, resulting in an unfair treatment and a violation of her Constitutional rights as provided for by Articles 27, 28 and 28 of the Constitution.

44. The Respondent’s written submissions dated 7th February 2025 were filed 12th February 2025 wherein the Respondent submitted on single issue as follows;

Whether the Appellant was automatically entitled to an exemption from payment of Customs duty and VAT upon importation of her motor vehicle. 45. The Respondent reiterated its position as held in its Statement of Facts, witness statement and the cross examination of the Appellant in asserting that exemption under Section 35(3) of the PWDA was meant to cushion people living with disabilities against cost escalation for motor vehicles modified of designed for use by them. However, the Appellant’s motor vehicle being automatic and not modified or designed for use by persons with disabilities meant could be imported by any person and relied on Section 42 of the PWDA Act to buttress this position.

46. The Respondent asserted that Section 35 of the PWDA Act does not automatically exempt the Appellant but is required to obtain recommendation from the National Council for Persons with Disability (hereinafter “NCPWD”) and approval by appropriate government body the implication of which is that whereas the Council recommends the exemption approval should be obtained from appropriate government body which in this instance is the Respondent. That the Respondent drew its mandate from Section 5 of the Act as read together with Part I of the 1st Schedule which includes VAT Act and the EACCMA.

47. The Respondent asserted that whereas Paragraph 8 of the 5th Schedule to the EACCMA as read with Paragraph 39(1) of Section A of Part I of the First Schedule to the VAT Act unequivocally require that for exemption to be granted, a motor vehicle to be specially designed for use by disabled, blind or physically handicapped persons, the Appellant’s motor vehicle never met the stated conditions. The only difference in the exemption law is at Paragraph 4 of Part A of the 2nd Schedule of the EDA which provides that “(4). One motor vehicle for use by persons with disability” which is not conditional but automatic.

48. It was the Respondent’s case that had the drafters of the law intended exemptions under EACCMA and VAT Act to apply automatically, the particular provisions would have been drafted without the phrases “specially designed and sole” as is the case under the EDA. The Respondent relied on the holding in the classical case of Cape Brandy Syndicate v Inland Revenue Commissioners (1920) 1 KB 64.

ISSUES FOR DETERMINATION 49. The Tribunal having carefully considered the parties’ pleadings, documentation and submissions adduced before it notes that two issues distill for its determination as follows:i.Whether the Appellant was entitled to Customs Duty and VAT exemption on the imported motor vehicle.ii.Whether the Respondent's Review decision dated 22nd July 2024 was justified.

Analysis And Findings 50. The Tribunal having established two issues for determination proceeds to analyze them as follows:

Whether the Appellant was entitled to Customs Duty and VAT exemption on the imported motor vehicle. 51. The Tribunal notes that the dispute at hand involves the importation of a motor vehicle by the Appellant whose application for exemption from Customs Duty and VAT was declined by the Respondent in a letter dated 1st July 2023 holding that the Appellant’s disability failed to meet the legal criteria for exemption. The Respondent confirmed both Customs Duty and VAT at standard rate as owing and payable from the Appellant vide a review decision dated 22nd July 2024. The Appellant issued the Respondent a bank guarantee of Ksh 1,726,767. 00 to secure the release of her motor vehicle.

52. The Tribunal notes that it was not disputed that the Appellant held a valid tax exemption certificate issued by the Respondent as well as being registered with the NCPWD, which is a government agency mandated to register persons living with disability. In addition, it was not disputed that the Appellant was in possession of a letter recommending her driver’s license change to Class F issued by the National Transport and Safety Authority (NTSA).

53. The Appellant adamantly averred that Paragraph 8 of the 5th Schedule to the EACCMA clearly exempt her from paying taxes on her imported motor vehicle and that the Respondent erred in law and in fact by enacting and applying an internal process that violated rules of natural justice as well as FAAA and was contrary to her legitimate expectation being in possession of a valid tax exemption certificate.

54. The Tribunal also notes the averment by the Respondent that the Appellant’s income tax exempted her for amounts not exceeding Ksh 150,000. 00 per month for a period of five years beginning on 1st January 2021 and was only applicable to income tax and not any other tax and income tax was not one of the taxes in issue in this instant case therefore, there was no legitimate expectation that had been created in the instant matter through the issuance of the income tax exemption.

55. The Tribunal is of the view that the contention in the instant matter is whether the Appellant’s disability can be deemed as “disability” for tax purposes specifically for tax exemption in regard to her imported motor vehicle. The Tribunal observes that Section 8 of the 5th Schedule to the EACCMA provides that;“Disabled, Blind and Physically Handicapped PersonsMaterials, articles and equipment, including one motor vehicle, which:a.are specially designed for use by disabled or physically handicapped persons or;b.are intended for educational, scientific or cultural advancement of the disabled for use of an organization approved by the Government for the purpose of this exemption:Provided that;1. the exemption in respect of the motor vehicle shall not apply to paragraph (b);2. a person shall be accorded an exemption on a motor vehicle once in every four years;3. one motor vehicle, which the Commissioner in a Partner State, is satisfied, is imported as a replacement of another motor vehicle originally imported under (2) and which has been written off due to accident, fire or theft.Provided that customs duty shall be payable at the appropriate rate if the written off motor vehicle is disposed of locally.”

56. The Tribunal observes that Paragraph 4 of Part A 2nd Schedule of the EDA provides as follows:“One motor vehicle for use by persons with disability.”

57. The Tribunal notes that the Black’s Law Dictionary defines “disability” as a permanent or total mental or physical impairment that prevents a person from functioning normally. Further, the Tribunal notes that the Appellant’s witness statement Prof. Erastus O. Amayo, who has been attending to the Appellant since her diagnosis in the year 2003 stated his medical opinion regarding the nature of the Appellant’s disability and recommended that the Appellant’s motor vehicle be “Power-assisted steering to reduce the physical effort needed for maneuvering the vehicle in addition to being Automatic transmission which eliminates the need for clutch operation, which is strenuous for her lower limb muscles.”

58. The Tribunal notes that the Respondent’s witness indicated in her written testimony that the Appellant had stated as follows:“medical report submitted indicated her mobility was normal, self-care was okay and did not require supportive/assistive devices nor mobility aid…”.

59. The Tribunal’s observes that the expert medical opinion of Prof Erastus O. Amayo was neither challenged nor contradicted by the Respondent and accordingly, the Tribunal finds that the medical opinion Prof Erastus O. Amayo, holds sway as conclusive on the factual medical position that the Appellant was indeed living with a disability. As regards the statement by the Appellant that “her mobility was normal , selfcare was okay and that she did not require supportive/assistive devices nor mobility aid” the Tribunal is of the view that the Respondent took the statement by the Appellant out of context in that the statement merely confirms to the Tribunal that the disability of the Appellant is not debilitating and she is managing her disability which Prof Erastus Amayo had already diagnosed.

60. The view of the Tribunal is that the statement which the Respondent alluded to is not evidence that the Appellant is not disabled. Section 109 of the Evidence Act, CAP 80 of the Laws, provides as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

61. The Tribunal notes that the principles of taxation and tax law envision a fair and equitable tax regime that does not discriminate amongst taxpayers. The Tribunal is of the view that because of the spirit of promoting equity in the application of tax principles and law, taxpayers living with disability /disabilities are granted tax reliefs due to the limited accessibility that they have to the goods and services in the market which can assist them in living with disabilities. The view of the Tribunal is that the granting of exemption from tax is predicated on the proof of disability.

62. The Tribunal notes the Respondent’s assertions that the imported vehicle was not “modified or specially designed” for use by a person living with disability. The Respondent’s averments remained mere assertions as there was no accompanying motor vehicle inspection report that would have dispelled the Appellant’s assertion and accompanying medical opinion on the need for the specific vehicle she imported and not any other. In any case the Respondent ought to have outlined, at the very least, the list of the special features that the Appellant’s motor vehicle ought to have had for it to qualify as being specially designed. The Tribunal is of the view that in this regard, reliance can be placed on the recommendations of Prof. Erastus O Amayo, a medical expert, on the special features that a motor vehicle should have that would make it suitable for use by the Appellant. The Tribunal reiterates the Court holding in Kenya Revenue Authority v Man Diesel & Turbo Se, Kenya [2021] eKLR (Nairobi High Court Income Tax Appeal No. E125 of 2020) that;“32. The shifting of the burden of proof in tax disputes flows from the presumption of correctness which attaches to the Commissioner's assessments or determinations of deficiency. [10] The commissioner's determinations of tax deficiencies are presumptively correct. Although the presumption created by the above provisions is not evidence in itself, the presumption remains until the taxpayer produces competent and relevant evidence to support his position.[11] If the taxpayer comes forward with such evidence, the presumption vanishes and the case must be decided upon the evidence presented, with the burden of proof on the taxpayer.”

63. Accordingly, the Tribunal having sighted the unchallenged copies of Appellant’s valid tax exemption certificate, certificate of registration with the NCPWD, drivers license class F and the Doctor’s expert opinion finds that the Appellant was entitled to Customs Duty and VAT exemption on her imported motor vehicle.

Whether the Respondent's Review decision dated 22nd July 2024 was justified. 64. The Tribunal notes that the Respondent’s decision dated 22nd July 2024 held that the Appellant’s application for exemption did not meet the legal criteria pursuant to the provisions of EACCMA, EDA and VAT Act.

65. The Tribunal also notes the Appellant’s assertion that the Respondent’s internal administrative process violate rules of natural justice by forcing applicants to make significant financial commitments without assurance of approval thereby denying them a fair hearing while creating an unjust administrative environment was neither challenged nor the requirements for the same adduced before the Tribunal. The Respondent did not attempt to demonstrate the requirements for importation of a motor vehicle by a person living with disability. It is the firm view of the Tribunal that internal administrative processes if found to be unjust can be amended.

66. The Tribunal was also not afforded cogent reasons why the Respondent failed to deem availed certificates from other government agencies as being relevant in explaining the Appellant’s position regarding her disability. Apart from the evidentiary documentation adduced by the Appellant, the Respondent did not demonstrate to the Tribunal which other relevant document or documents would have been sufficient to aid it in arriving at a different decision. It was not in vain that the court in Judicial Review 2 of 2016 Silver Chain Limited vs Commissioner Income Tax & 3 others (2016) eKLR held as follows:“Although the respondents are empowered by the law to assess what a taxpayer ought to pay, it is prudent that while undertaking such an exercise, the taxpayer be given an opportunity to explain its position”

67. The Tribunal notes that the Respondent sought to impose Customs Duty and VAT against the Appellant on her imported motor vehicle stating that her disability failed to meet the legal criteria for exemption and further that the imported motor vehicle was not specially designed. The Tribunal observes that in Republic -vs- KRA (exparte J. Mohamed) Civil Application Number 312 of 2011 the Court held as follows:“Whereas this Court is not entitled to question the merits of the decision of the taxing authority, that authority must exercise its powers fairly and there ought to be a best exercise of such powers. A taxing Authority is not entitled to pluck a figure from the air and impose it upon a taxpayer without some rational basis for arriving at that figure and not another figure. Such an action be would be arbitrary, capricious and in bad faith. It would be an unreasonable exercise of power and discretion and that would justify the Court intervening.”

68. From the foregoing analysis, the Tribunal is convinced that the Respondent’s review decision dated 22nd July 2024 was unjustified in the circumstances.

Final Decision 69. The upshot of the foregoing is that the Appeal herein is meritorious 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 22nd July 2024 be and is hereby set aside.c.The Respondent to release the Appellant’s bank guarantee of Ksh 1,726,767. 00 within fourteen (14) days from the date of delivery of this Judgement.d.Each party to bear its own costs.

70. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 21ST DAY OF MARCH, 2025. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER