[2024] KETAT 100 (KLR)

Nestle Kenya Ltd v Commissioner of Customs and Border Control (Tax Appeal 1240 of 2022) [2024] KETAT 100 (KLR) (2 February 2024) (Judgment)

Neutral citation: [2024] KETAT 100 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 1240 of 2022

RM Mutuma, Chair, EN Njeru, M Makau, BK Terer & W Ongeti, Members

February 2, 2024

Between

Nestle Kenya Ltd

Appellant

and

Commissioner of Customs and Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company duly incorporated under the Companies Act of the laws of Kenya and its principal business activity is the importation, manufacture and distribution of cereals, beverages and infant food.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya revenue Authority Act, 1995. 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 & 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. The dispute giving rise to the appeal herein arose out of the Respondent’s decision contained in its letter dated 9th September 2022 confirming the tariff classification of the Appellant’s imported coffee mate ® coffee creamer to be 2106. 90. 99 as opposed to the Appellant’s declared tariff of 2106. 90. 20.

4. The Appellant made an application for review of the Respondent’s classification decision, and requested the Respondent to withdraw the tariff ruling issued on 15th June 2022 and consequent assessment.

5. The Respondent issued its review decision on 9th September 2022, in which it revoked the Tariff Ruling which classified coffee-mate coffee creamer under tariff code 2106. 90. 20, and reclassified the product under tariff code 2106. 90. 99.

6. Dissatisfied with Respondent’s said decision, the Appellant lodged its Notice of Appeal on 7th October 2022.

The Appeal 7. The Appellant filed its Memorandum of Appeal on 21st October 2022 and set out the following grounds of appeal;i.The Respondent erred by issuing the objection decision without confirming, through a laboratory analysis, the composition of the product thus contravening the provisions of Section 229 (4) of the East African Community Customs Management Act, 2004 (EACCMA).ii.That the Respondent failed to carry out proper laboratory analysis of the product against which the Tariff Rulings dated 9th September 2022, and 15th June 2022 were issued.iii.That the confirmed decision was issued based on inadequate consideration of additional information adduced by the Appellant to support the issues in contention.iv.That the Appellant was in full compliance with tax provisions, particularly under the Common External Tariff classification of goods declared for customs tax purposes.v.That the Respondent erred in law by disregarding the world Customs Organization (WCO) Explanatory Notes on Tariff Heading 2106 which provides guidance on classification of goods at the tariff subheading level.vi.That the Respondent erred in law and fact by determining that the product, coffee mate ®coffee creamer, is a preparation classifiable under HS code 2106. 90. 00, whereas the product is classifiable under 2106. 90. 20 under the General Interpretative Rules, Customs External Tariff and the WCO Explanatory Notes.vii.That the Respondent erred in fact and failed to consider the explanations and evidence adduced by the Appellant in support of facts peculiar to this case, thereby confirming the assessment.viii.That the Respondent erred in fact by failing to consider the use of the product in the manufacturing of beverages as explained by the Appellant in its application for review dated 14th July 2022. ix.That the Appellant failed to consider the proper classification of coffee mate ® coffee creamer under 2106. 90. 20 based on the use of the product as described in the common external tariff.x.That the Respondent failed to consider binding tariff rulings issued by other jurisdictions relating to the same product, such tariff rulings being of persuasive nature.

8. By reason of the grounds aforesaid, the Appellant prayed that the Respondent’s review decision dated 9th September 2022 be set aside, the declared tariff be declared as correct, and the Appeal herein be allowed with costs.

The Appellant’s Case 9. The Appellant has set out its case on its:-a.Statement of Facts dated and filed on 21st October 2022 together with the annexed documents thereto;b.The witness statement of Betty Waithera Ngare dated and signed on the 12th April 2023 and filed on the same date, which was adopted as her evidence in chief on oath on the 28th September, 2023. c.The witness statement of Lesedi Lekame dated and signed on 12th April 2023 and filed on the same, which was adopted as his evidence in chief on oath on the 28th September, 2023d.Written submissions filed on 16th October 2023.

10. The Appellant stated that in a tariff ruling dated 15th June 2022, the Respondent made a ruling on its imported product, Coffee Mate® Coffee Creamer (hereinafter described as the product). In the said ruling, the Respondent determined the declared tariff HS code 2101. 12. 00 on Entry Number 22EMKIM400412702 was the correct tariff classification code applicable for the Coffee Mate ® Coffee Creamer based on the available information.

11. The Appellant stated that part of the ruling read:-“…the product is specified to be a non-dairy creamer containing ingredients of coffee creamer, which include among others sodium caseinate, or acid casein (milk protein) and coffee mate intended for use as an ingredient in the preparation of beverages ……heading 2101 covers the classification of extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea, mate; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof ……based on the above information coffee mate ® coffee creamer is therefore considered to be a preparation based on coffee extract (caffeine), of a kind used in preparation of beverages, classified in EAC/CET HS Code 2101. 12. 00. ”

12. The Appellant stated that following a dispute over the tariff code on Entry Number 22EMKIM400412702, the Respondent flagged the following imported shipments carrying identical products;a.Entry No. 22EMKIM400696484 dated 18th May, 2022,b.Entry No. 22EMKIM400797407 dated 13th June, 2022.

13. The Appellant stated that subsequently it requested for the Respondent to release the products and take a sample of the products for tariff determination in line with the provisions of Section 136 of EACCMA .

14. The Appellant on 14th July 2022, made an application for review of the Respondent tariff decision dated 15th June 2022 classifying its product under tariff code 2101. 12. 00, as opposed to 2106. 90. 20.

15. The Appellant further stated that the Respondent in a letter dated 9th September 2022, revoked its tariff decision dated 15th June 2022 classifying its product under tariff 2101. 12. 00 for; “preparations with a basis of extracts, essences or concentrates or with a basis of coffee,” and issued a new tariff decision classifying the said product under tariff code 2106. 90 .99 for; “other food preparations not elsewhere specified or included” following application GIR 1 & 6.

16. The Appellant being dissatisfied with the said review decision appealed against the whole of the decision.

17. The Appellant at the hearing called two witnesses in support of its case being, Betty Waithera Ngare and Lesedi Lekame.

18. The Appellant stated that the Coffee Mate ® name was derived from the joiner of the name coffee with the term mate, which meant a “friend or companion” since the creamer was to be used together with a coffee beverage. It stated that the creamer not the same as the “mate”, a bitter infusion of leaves of a South American shrub which is high in caffeine, as stated by the Respondent in its decision dated 9th September 2023. The assertion by the Respondent was therefore erroneous, the Appellant further stated.

19. The Appellant further stated that the physical attributes and characteristics relating to its product, a non-dairy creamer that is lactose and cholesterol free makes the coffee beverage richer, smoother and creamier and is white in colour. Any product mixed with coffee would not have a white colour. The coffee mate imported by the Appellant is white in colour and does not contains caffeine.

20. The Appellant also stated that its product is a flavored, non-dairy, coffee or tea whitener imported in bags and containing the following ingredients; glucose syrup, hydrogenated vegetable oil (palm kernel), buffer salts, sodium caseinate, anticaking agent, emulsifiers, sodium chloride, flavours and moisture.

21. The Appellant also averred that the Kenya Bureau of Standards carried out a laboratory test on the imported product and determined that the same does not contain caffeine.

22. The Appellant further averred that the Respondent prior to making its tariff classification did not subject the said product to laboratory tests to ascertain and confirm the pre-requisite for classification of the product as not containing caffeine and used as a preparation for the manufacture of beverages.

23. The Appellant also stated that Coffee Mate ® Coffee Creamer is imported in bags and used in the manufacture of beverages, specifically NESCAFE ®3 in 1 and EVERYDADY ®Tea flavors, and is not resold in the market as finished products.

24. The Appellant annexed a process flow for the manufacture of NESCAFE ® 3 IN 1, a coffee beverage made up of sugar, coffee and coffee mate creamer.

25. The Appellant stated that Coffee Mate ® is also used in the manufacture of EVERYDAY ®Tea, and also annexed the production process flow, explaining that the dry ingredients added in the first step are sugar, filled milk, coffee mate ®, instant black tea, vitamin pre-mix, ferric pyrophosphate and zinc sulphate.

26. The Appellant averred that coffee mate ® is in contrast with Nestle Alegria Creamer which is imported as a finished product under HS Code 2106. 90. 99, and is not subjected to any further processing but is sold into the trade for use in the Nestle coffee/tea vending machines.

27. The Appellant contended that based on the foregoing facts, and following the classification rules, the correct tariff classification for its product is therefore 2106. 90. 20, and not 2106. 90. 99 as contended by the Respondent.

28. The Appellant submitted that the determination of the applicable tariff code should be in accordance with the General Rules for the Interpretation of the Harmonized System, and stated that the following GIRs are applicable;a.General Interpretative Rule 1 (GIR 1), which provides –“The titles of sections, chapters, and sub-chapters are provided for ease of reference only, for legal purposes, classification shall be determined according the terms of the headings and any relative section or chapter Notes …”. The Appellant asserted that Coffee Mate ® creamer is categorized under Chapter 21, “Miscellaneous edible preparations “under Section (iv) of the 2017 version of the CET as amended by the various East African Community Legal Notices, “prepared foodstuffs; beverages, spirits and vinegar; and manufactured tobacco substitutes”, and therefore GIR1 has been used to classify this product by the terms of chapter 21, i.e. “miscellaneous edible preparations.”b.General Interpretative Rule 6 (GIR 6), which provides;“For legal purposes, the classification of goods in the sub-headings of a heading shall be determined according to the terms of these subheadings and any related sub-heading Notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of tis rule the relative section and chapter notes also apply, unless the context otherwise requires.”

29. The Appellant stated that GIR6 should be used to classify the goods to sub-heading level, and provided an analysis of the provisions of possible chapters, tariff headings and sub-headings considered, as well as the rationale followed in determining the most appropriate tariff heading for the classification of Coffee mate ® creamer following ruling out the previous subheadings as stated hereinbelow;“Tariff heading 2101 provides for, extracts, essences and concentrates of coffee, tea or mate; roasted chicory and other roasted coffee substitutes, and extracts of essences and concentrates thereof.”

30. The Appellant further averred that its product, the coffee creamer, by ingredient composition does not include any coffee or caffeine, hence it is not classifiable under the foregoing sub-heading, under the heading 2101, as the product has to have a coffee basis to be classifiable thereunder. The Coffee Mate ® does not have any coffee hence does not fall under the definition of the tariff heading 2101.

31. The Appellant further submitted that the other headings under the Chapter 21 are as follows: -a.Tariff heading 2102, which provides for yeasts (active or inactive); other single cell micro-organisms dead but not including vaccines; prepared baking powders. It stated that Coffee Mate ® does not fall under this heading.b.Tariff heading 2103, which provides for sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard.The Coffee Mate ® does not fall under this heading.c.Tariff heading 2104, which provides for soups and broths and preparations therefor; homogenized composite food preparations.The Coffee Mate ® does not fall under this heading.d.Tariff heading 2105, which provides for ice cream and other edible ice, whether or not containing cocoa.The Coffee Mate ® does not fall under tis heading.

32. The Appellant submitted that based on the foregoing consideration of previous Tariff Headings under Chapter 21, and various other Sections of the HS as considered under GIR 1, it was clear that its product, the Coffee Mate ® creamer is classifiable under Tariff Heading 2106, which provides for food preparations not elsewhere specified or included. It submitted a WCO Explanatory Note to confirm classification under 2106. 90.

33. The Appellant also submitted that based on the use of the product in the manufacture of NESCAFE® 3 IN 1 and EVERYDAY ® Tea, the correct classification of its product would be HS Code 2106. 90. 20. i.e. – preparations of a kind used in manufacturing of beverages and food in line with the EAC/CET.

34. The Appellant submitted that the purpose or use of a product is very critical in the determination of its tariff classification.

35. To buttress its case, the Appellant relied on the case of TAT 832 of 2021 Suntory Beverage and Food Kenya Ltd vs. Commissioner of Customs and Border Control, where it was stated:-“It was not in dispute that the Appellant was in the business of manufacture and sale of beverages. The EAC/CET reserves a tariff line for preparations for manufacture of beverages- and therefore applies intended use as a criterion for classification of food preparations. It was the view of the Tribunal that the Respondent ought to have first considered the purpose or use of the product before arriving at its decision.”

36. The Appellant also submitted that subheading 2106. 90. 99 is a residual tariff that contains food preparations that are not classifiable under 2106. 90. 20. and are neither food supplements (2106. 90. 91), nor mineral premix used in fortification (2106. 90. 92), thus inapplicable in this case, which leaves the correct classification as 2106. 90,20.

37. The Appellant also submitted that the Respondent’s tariff decisions were arbitrary and unreasonable, and thus contrary to the Appellant’s right to fair administrative action.

38. The Appellant relied on the case of Keroche Industries Limited vs. Kenya Revenue Authority & 5 others [2007] eKLR, where it was held that the communication of varying positions regarding a similar issue by KRA was negligent, arbitrary, unreasonable, hence contrary to the principles of fair administrative action and the tax decision was quashed. The Court held:-“All the three audits came up with different figures over the same period. it is clear to the court that, in the entire decision-making process, the Respondents have acted with incredible negligence, arbitrariness, irrationality, and in disregard of the applicable law and their powers. The irrationality and unreasonableness in the varying figures are quite evident.”

Appellant’s Prayers 39. The Appellant prayed that the Tribunal;a.Sets aside the Respondent’s review decision dated 9th September 2022;b.Affirms the correct classification of its product, Coffee Mate ® Coffee Creamer as tariff code 2106. 90. 20; andc.Allows the Appeal herein with costs.

The Respondent’s Case 40. The Respondent has set out its case on its;a.Statement of Facts dated 20th November 2022 and filed on 22nd November 2022, together with documents annexed thereto; andb.Written Submissions dated and filed on 24th October 2023.

41. The Respondent stated that the Appellant imported Coffee Mate Creamer under import Entry Number 22EMKIM400412702 and classified the same under the EAC/CET tariff HS code 2106. 90. 20. It further stated that the said consignment having been partially verified, the quantities and value were found to be satisfactory, but re-classification of the imported product was requested from the release point as per valuation and tariff submission form date 7th April 2022.

42. The Respondent also stated that the samples were availed from the consignment and the Respondent’s Inspection and Testing Center (I&TC) carried out further testing and analysis on the same.

43. The Respondent stated that subsequently as a result of the said laboratory analysis it communicated a tariff decision to the Appellant vide its letter dated 15th June 2022 classifying the Appellant’s imported product in tariff HS Code 2101. 12. 00.

44. It further stated that the Appellant requested for consideration of a new tariff classification on the same products vide a letter dated 14th July 2022.

45. The Respondent further stated that it issued a response on 9th September 2022 and classified the subject imported product under tariff HS Code 2106. 90. 99.

46. The Respondent also stated that the laboratory analysis carried out on the sample of the product confirmed the product to be a food preparation containing glucose syrup, hydrogenated vegetable oil (palm kernel), buffer salts, sodium caseinate, anti-caking agent, emulsifiers, sodium chloride and flavours and that the samples tested have no caffeine content.

47. The Respondent also stated that the Appellant ‘s product is ready to use without any value addition and the Appellant confirmed that failure to use it on as is basis is a business decision made by the Appellant.

48. The Respondent further stated that Heading 21. 06 covers the classification of food preparations not elsewhere specified or included.

49. The Respondent stated that based on the foregoing information, it concluded that the Coffee Mate Creamer is classifiable under HS Code 2106. 90. 99.

50. The Respondent submitted that it relied on Section 4 (1) (a) of EACCMA, the CET and Explanatory Notes- General Interpretation Rules 1 – 6, and the WCO classification on similar products.

51. The Respondent submitted that the application of GIRs is in a sequential manner where;GIR1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.GIR 6 states: -“For legal purposes, the classification of goods in the sub-heading of a heading shall be determined according to the terms of those sub-headings and any related sub-heading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.”

52. The Respondent also submitted that the sample of the product was tested and found to be a food preparation with spectro-chemical characteristics of coffee creamer containing caffeine, proteins, non-starch characteristics carbohydrates (maltose and dextrin) and other extractable fat (30. 20), and that it relied on the laboratory analysis results and material information in arriving at its decision.

53. The Respondent submitted that the declared tariff HS Code 2106. 90 is at variance with the ruling, and that Heading 21. 06 covers classification of food preparations not elsewhere specified or included.

54. It further submitted that Heading 21. 06 covers food preparations consisting wholly or partly of foodstuffs, used in making of beverages or food preparations for human consumption, and includes preparations consisting of mixtures of chemicals with foodstuffs for incorporation in food preparations either as ingredients or to improve some of their characteristics.

55. The Appellant also submitted that it considered explanations and evidence adduced by the Appellant in support of facts peculiar to the case.

56. It was also a submission of the Respondent that according to WCO classification opinion on non-dairy creamer; a non-dairy creamer is a milk substitute for use in hot beverages, in the form of a powder consisting of – 55 % glucose syrup ,22 % emulsified solid vegetable fat, 18 % skimmed milk powder, 3% water and 2% stabilizer.

57. The Respondent submitted that based on the foregoing, the product was considered to be a non-dairy creamer incorporated in coffee beverages classifiable under HS Code 2106. 90. 99.

Respondent’s Prayers 58. By reason of the foregoing the Respondent prayed that the Tribunal upholds its review decision dated 9th September 2022 and dismiss the Appellant’s Appeal with costs.

Issues For Determination 59. The Tribunal having carefully considered the filings and submissions made by the parties is of the considered view that the Appeal herein distils into one issue for determination;Whether the Respondent was justified in reclassifying the Appellant’s imported product under HS code 2106. 90. 99 instead of HS code 2106. 90. 20.

Analysis And Determination 60. The dispute giving rise to the Appeal herein arose out of the Respondent’s decision contained in its letter dated 9th September 2022 confirming the tariff classification of the Appellant’s imported Coffee Mate® Coffee Creamer to be HS Code 2106. 90. 99 as opposed to the Appellant’s declared tariff HS Code 2106. 90. 20.

61. The Respondent submitted that prior to classifying the Appellant’s subject product under the Tariff Code 2106. 90. 99, it subjected a sample thereof to its laboratory analysis and confirmed the same to be a food preparation containing glucose syrup, hydrogenated vegetable oil (palm kernel), buffer salts, sodium caseinate, anti-caking agent, emulsifiers, sodium chloride and flavours, and that the sample tested and analyzed was confirmed not to be containing any caffeine.

62. The Respondent also averred that the Appellant’s product was also a ready to drink product without any value addition, and the Appellant confirmed it had made a business decision not market the same as is.

63. The Respondent also averred that Heading 21. 06 covers the classification of food preparations not elsewhere specified or included, food preparations consisting wholly or partly of foodstuffs, used in making of beverages or food preparations for human consumption, and includes preparations consisting of mixtures of chemicals with foodstuffs for incorporation in food preparations either as ingredients or to improve some of their characteristics.

64. The Respondent further averred that according to the WCO classification opinion on non-dairy creamer; a non -dairy creamer is a milk substitute for use in hot beverages, in the form of a powder consisting of 55% glucose syrup, 22 % emulsified solid vegetable fat, 18 % skimmed milk powder, 3% water, and 2 % stabilizer.

65. The Respondent submitted that based on the foregoing, the product was considered to be a non-dairy creamer incorporated in coffee beverages classifiable under HS Code 2106. 90. 99.

66. On the other hand, the Appellant averred that in the determination of the tariff classification of goods, one is guided by the material and chemical make-up of the goods, the degree of its processing and its use.

67. It averred that its product Nestle Coffee Mate ® Creamer is a non-dairy coffee creamer composed of glucose syrup, palm kernel oil, buffer salts, sodium caseinate, anti-caking agent, emulsifiers, sodium chloride, flavours and moisture.

68. The Appellant also averred that it imports the product as a raw material for use in the manufacture of Nescafe ® 3 IN 1 and Everyday ® Tea through a process it described as dry mixing which transforms the individual raw materials into a finished product which is marketed as Nescafe 3 in 1 to consumers as a ready beverage.

69. The Appellant also averred that the Kenya Bureau of Standards carried out a laboratory test on the imported product and determined that it did not contain any caffeine.

70. The Appellant further averred that the product, Coffee Mate ® Coffee Creamer is imported in bags and used in the manufacture of beverages as a raw material, and is not resold in the market as a finished product.

71. The Appellant contrasted the product with another of its products, Nestle Alegria creamer, which is imported as a finished product under HS code 2106. 90. 99, and is not subjected to any further processing but is sold to the market as ready beverage for use in the coffee/tea vending machines.

72. The Appellant contended that based on the foregoing facts and pursuant to the afore stated classification Rules, the correct tariff classification for its product ought to be 2106. 90. 20 and not 2106. 90. 99 as contended by the Respondent.

73. The Tribunal takes note that based on the attributes of the product, the Appellant relied on GIR 1 and GIR 6 to determine the tariff classification of the creamer product as per the testimony of the Appellant’s witness, Betty Waithera.

74. GIR 1 states;“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 heading and any relative section or chapter notes.”

75. GIR 6 states;“For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context otherwise requires.”

76. The Appellant demonstrated that its product does not contain caffeine and is therefore not classifiable under either of the Headings; 2101; 2102;2103;2104 or 2105, because of its composition, hence its classification under Heading 2106, for: food preparations not elsewhere specified or included.

77. Sub-heading 2106. 90. 20 used by the Appellant for the subject product is provided for products of the description: ‘preparations of a kind used in the manufacturing of beverages,’ while, Sub-heading 2106. 90. 99 applied by the Respondent on the subject product is provided for products of the description: ‘other.’

78. It is not in dispute that the product Nestle Coffee Mate® Creamer is imported by the Appellant for use as a raw material in the manufacture of Nescafe ® 3 IN 1 and Everyday ® Tea which are beverages, and therefore fits the description under Subheading 2106. 90. 20 -preparations of a kind used in manufacturing of beverages and food.

79. It is also clear that Subheading 2106. 90. 99 is a residual tariff which is used in the classification of goods under the heading that are not elsewhere described in any of the subheadings at the same level in the heading, and would not be appropriate for the subject product.

80. Flowing from the foregoing, the Tribunal is satisfied that Subheadings 2106. 90. 20 and 2106. 90. 99 are not comparable, but Subheading 2106. 90. 20 offers a sufficient and appropriate description of the imported product, Coffee Mate ® Coffee Creamer.

81. Consequently, the Tribunal finds and determines that the appropriate classification for the Appellant’s imported non-dairy coffee creamer ought to be EAC/CET HS Code 2106. 90. 20.

82. In light of the foregoing, the Tribunal finds and holds that the Respondent was not justified in reclassifying the Appellant’s imported product under HS Code 2106. 90. 99, instead of HS Code 2106. 90. 20.

83. The upshot of the foregoing is that the Appeal is found to have merit and thereby succeeds.

FINAL DECISION 84. The Appeal having succeeded the Tribunal proceeds to make the following Orders:-a.The Appeal be and is hereby allowed.b.The Respondent’s review decision issued on 9th September 2022 be and is hereby set aside.c.Each party to bear its own costs.

85. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF FEBRUARY, 2024ROBERT M. MUTUMA - CHAIRPERSONELISHAH N. NJERU - MEMBERMUTISO MAKAU - MEMBERBONIFACE K. TERER - MEMBERDR WALTER J. ONGETI - MEMBER