[2024] KETAT 607 (KLR)

Opiyo v Commissioner of Domestic Taxes (Appeal 889 of 2022) [2024] KETAT 607 (KLR) (19 April 2024) (Judgment)

Neutral citation: [2024] KETAT 607 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 889 of 2022

CA Muga, Chair, BK Terer, D.K Ngala, GA Kashindi & SS Ololchike, Members

April 19, 2024

Between

Francis Edward Omondi Opiyo

Appellant

and

Commissioner Of Domestic Taxes

Respondent

Judgment

1. The Appellant is a male adult residing and working in Nairobi.

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

3. The Appellant was issued with income tax additional assessment for Kshs 15,116,587. 60 on 15th March, 2022 being principal tax, penalties and interest. The assessment was for the years of income 2016 to 2019.

4. The Appellant objected through i-Tax on the same day, 15th March, 2022.

5. The Respondent issued an objection decision on 13th May, 2022 confirming the assessment of Kshs 15,116,587. 60.

6. Aggrieved by the Respondent’s decision, the Appellant applied to file his Appeal out of time through Miscellaneous Application Number 218 of 2022. Leave to file out of time was granted to the Appellant on 12th August, 2022. Accordingly, the Appellant filed his Notice of Appeal dated 24th August, 2022 on 25th August 2022.

THE APPEAL 7. The Appeal is premised on following grounds of Appeal as outlined in his Memorandum of Appeal dated 24th August, 2022 and filed on 25th August, 2022:(a)That the Respondent erred in law and fact in asserting that it had been given inadequate documents by the Appellant herein, whereas the Appellant had supplied the Respondent with evidence of his employment contract indicating his status which qualified him to enjoy privileges under the Privileges and Immunities Act CAP 179 of Kenya’s Laws (hereinafter ‘Privileges Act’) that provides for exemption from taxes to certain organizations or persons.(b)That the Respondent erred in law and fact in finding that tax exemptions applies to only non-resident persons when there is overwhelming documentary evidence under the convention on Privileges and Immunities of the United Nations (1946) to which the Republic of Kenya is a party, Section 18(b) of the convention which provides that United Nations officials both internationally and locally recruited are exempt from taxation on the salaries and emoluments paid to them by the United Nations.(c)That the Respondent erred in law and fact in finding that the exemption from taxes to persons relates to diplomatic and consular relations only which the Appellant is not, when the Basic Agreement signed between the Government of Kenya and World Food Programme(the Appellant’s employer) made on 15th January 2002 Article X Section 19(d) provides that the officials of World Food Programme are exempted from taxation in respect to salaries, emoluments and indemnities paid to them by World Food Programme with regard to their services with World Food Programme.(d)That the Respondent erred in requiring the Appellant to provide a copy of Host Country Agreement between UNDP and Kenya together with annexures showing the officials/staff exempt from tax or an Order/Gazette Notice by the Minister specifying the persons exempt as per Section 9(2) (iii) of the Privileges Act knowing very well it is the duty of the Respondent to carryout compliance and not the taxpayer’s. The control and enforcement of the immunities and privileges of United Nations officials as dictated by protocol lies with the Ministry of Foreign Affairs of the Republic of Kenya and there are no powers vested on the Appellant to force the other party to declare the same.(e)That the Respondent misconstrued the statement of earnings and employment contract supplied and erred in arriving at an assessment of Kshs 10,368,294. 00. The assessments were not done in accordance with Section 29(2) of the Tax Procedure Act (hereinafter ‘TPA”) and so they are not valid.(f)That the Respondent erred in not considering the submitted tax returns and the tax compliance certificates issued for the years 2016 to 2022 provided by the Appellant as proof of declaration of income and had return receipts generated from the Respondent’s system with a valid pin number.(g)That the Respondent confirmed the notice of assessment without due regard to all records, explanations and information provided by the Appellant thereby failing to appreciate all issues presented by the Appellant before confirming the assessment(h)That the Respondent erred in making a finding that the Appellant was not exempt from tax or is not entitled to privileges and immunities under the Privileges Act without basis and evidence.(i)That the Respondent erred in law by asserting that the employment income from United Nations World Food Programme was subjected to taxation hence came to a wrong finding of tax payable in the sum of Kshs 10,368,294. 00 which assessment is erroneous, unjustified and without any basis.(j)That the Respondent erred in basing their assessment on blanket and unjustified allegations.(k)That the Respondent erred in not considering the documents availed to them hence came to a wrong finding.

APPELLANT’S CASE 8. The Appellant averred in his Statement of Facts dated 24th August, 2022 and filed on the 25th August, 2022 that upon receipt of the Respondent’s demand, he objected to it and informed the Respondent that he was an official of the United Nations and was exempted from income tax on salaries and emoluments paid to him with regard to his services with the World Food Programme.

9. He stated that he informed his employer through the UN Country Management team about the assessment and was advised that the matter would be handled through the Ministry of Foreign Affairs as is the norm.

10. The Appellant stated that the Respondent requested for documents such as Host County Agreement between UNDP and Kenya, Annexures showing officials/staff exempt from tax, or/Gazette Notice by Minister specifying the persons exempt from tax. The Appellant averred that he had no powers as a taxpayer to provide the requested documents as protocol dictates all correspondence between his employer and the Respondent ought to be done through the Ministry of Foreign Affairs.

11. The Appellant stated that his employer, United Nations World Food Programme wrote to the Ministry of Foreign Affairs requesting for their assistance with regards to the matters of taxation in relation to UN officials. He stated further that the Ministry through the Chief Protocol officer undertook to communicate with the Respondent on the position of tax exemption on salaries of UN officials as per the Basic Agreement signed between the Government of Kenya and the World Food Programme on 15th January 2002.

12. The Appellant asserted that despite the foregoing, the Respondent issued its objection decision and went ahead to issue agency notices to the Appellant’s bankers. He therefore argued that the Respondent’s decision was erroneous since the objection notice given to the Respondent was valid and it met the threshold set by Section 51(3) of the TPA.

Appellant’s Prayers 13. The Appellant prayed that the Tribunal allows the Appeal and annuls or varies the Respondent’s decision in such manner as is just and reasonable.

RESPONDENT’S CASE 14. The Respondent’s Statement of Facts dated and filed on 23rd September 2022 sought to address the Appellant’s grounds of Appeal by establishing whether the assessment and its decision should be upheld.

15. In response to ground (a) of the Appeal, the Respondent averred that it had requested for the Host Country Agreement between UNDP and Kenya together with annexures showing the officials/staff exempt from tax, and Gazette Notice by the Minister specifying the persons exempt as per Section 9(2) (iii) of the Privileges Act. However, these were not provided by the Appellant.

16. In response to ground (b), the Respondent averred that Paragraph 20 of the First Schedule to the Income Tax Act, CAP 470 of Kenya’s Laws (hereinafter ‘ITA’) provides for exemption from tax to non-resident persons who receive emoluments paid out of foreign sources in respect to duties performed in Kenya in connection with a technical assistance or other agreement for development services or purpose to which the Government is a party or to a person who is resident solely for the purposes of performing those duties, and where the agreement provides for the exemption. It averred that the Appellant is a resident person in Kenya.

17. In response to ground (c), the Respondent asserted that the Privileges Act, that provides for exemptions from taxes to certain organizations or persons relates to diplomatic and consular relations and there was no evidence indicating the Appellant’s status or qualification to enjoy the said privileges.

18. In response to ground (d) the Respondent stated that it did not error in requesting for the documents stated under paragraph 15 above and therefore could not conclusively confirm whether the Appellant was exempted from payment of income taxes.

19. The Respondent maintained that it did not misconstrue the statement of earnings and the employment contract supplied which revealed that the Appellant recorded an income of about Kshs 907, 754. 33 monthly. It stated that it used this amount and the period of employment as was indicated in the contract to establish the period and assessment and the tax due.

20. The Respondent averred that the submitted tax returns showed under declaration of income and that income from UNDP was not declared despite having received payments for discharging his duties. It averred further that it considered all records and information provided by the Appellant. However, the Appellant failed to provide the additional information requested for and therefore the assessment was confirmed.

21. The Respondent averred that it issued its objection decision within the statutory timelines as the Appellant’s objection was lodged on 15th March, 2022 and its decision issued on 13th May, 2022.

22. The Respondent maintained that the decision to arrive at the confirmed assessments was justified and was in conformity with the law under Section 3 of the ITA, Paragraphs 1, 2, and 27 of the First Schedule to the ITA, Sections 9 and 12 and the First and Fourth Schedule of the Privileges Act. It averred that contrary to the Appellant’s averments; its decision and assessment was rendered in accordance with the law.

Respondent’s Prayers 23. The Respondent prayed that the Tribunal would: -a.Dismiss the Appeal.b.Uphold its assessments and decision dated 13th May, 2022.

PARTIES’ SUBMISSIONS 24. The Appellant filed his written submissions dated 17th March, 2023 on 24th March 2023 whilst the Respondent filed its written submissions on 10th March, 2023.

25. The Appellant analysed the two issues for determination that he identified his submissions as outlined herein under:(a)Whether the Appellant was qualified for tax exemption as a UN official.

26. The Appellant submitted that he was qualified to enjoy the privileges and immunities that came as a result of his status of a National Professional Officer employed under a fixed-term contract under the UN World Food Programme. He further submitted that the Convention on Privileges and Immunities of the United Nations (1940) to which the Republic of Kenya acceded to without reservations in 1965 and is now a party to states under Section 18(b) as follows:“…United Nations officials are exempt from taxation on the salaries and emoluments paid to them by the United Nations.”

27. It was the Appellant’s submission that for purposes of Section 18 of the Convention, a definition of the term officials was established by the United Nations General Assembly (GA) in Resolution 76 (1) of 7th December 1946 which approved the granting of the Privileges and Immunities referred to in Article V and VII of the convention:“to all members of the staff of the United Nations, with the exemption of those who are recruited locally and are assigned to hourly rates…”

27. He therefore submitted that from the definition given above, the Appellant who is a locally recruited staff under a fixed term contract enjoys the status of an “official” as he is not assigned hourly rates. Hence, he is entitled to privileges and immunities inherent to his status which include exemption to taxation.

28. The Appellant submitted that the following Sections of the Headquarters Agreement between United Nations and the Republic of Kenya (1975) provide for the exempts and the category of UN officials eligible. Section 28(d) (e) provides as follows:“…United Nations officials are exempt from taxation in respect of salaries, emoluments, indemnities and pension paid to them for services past or present or in connection with their services with the United Nations.United Nations officials are exempt from any form of taxation on income derived by them from sources outside the Republic of Kenya.Section 28 (o)“…Locally recruited officials shall enjoy privileges and immunities provided in the Convention on Privileges and Immunities of the United Nations.Section 1(6) defines official to include“All members of staff-exempt those who are locally recruited and assigned to hourly rates.”

29. The Appellant submitted that United Nations officials who are Kenyan officials are required to file their tax returns. However, as to salaries, emoluments indemnities and pension paid to them for services past or present or in connection with their services with the United Nations or income derived by them from sources outside the Republic of Kenya, they are to declare nil returns.

30. The Appellant submitted that the 1975 Headquarters Agreement between UNEP and Republic of Kenya pursuant to the note verbale dated 16th July 2006 and 18th December 2007 and a letter dated 22nd March 1979 from the Kenyan Ministry of Foreign Affairs is applicable mutatis mutandis to UNON, UN-Habitat, UN organizations, Specialized Agencies, Funds and Programmes which have signed up for the Host Country Relations services with UNON. He submitted further that the Basic Agreement signed between Republic of Kenya and World Food Programme on 15th January 2002 Article X Section 19(a) states that:“….officials of World Food Programme are exempted from taxation in respect to salaries, emoluments and indemnities paid them by World Food Programme with regard to their services with the World Food Programme.”

31. In view of the above stated provisions the Appellant asserted that he filed his returns with the Respondent from the year 2016 to 2022 as is required and holds valid clearance certificates for each of those years. It was his submission therefore that a contract signed and concluded between two parties as has been clearly demonstrated by the various Agreements between the Republic of Kenya and United Nations should not be re-written even by a Court of law without the express authority of the parties.

32. The Appellant asserted that he has demonstrated that he is an official of United Nations and provided the Respondent with his Employment Contract which indicates that he is a UN official who has been employed under a fixed term contract and that the term “official” has also been clearly explained in United Nations General Assembly (GA) in Resolution 76(1) of 7th December 1946.

33. The Appellant therefore urged the Tribunal to enforce the intentions of the parties in the various contracts on the exemption of taxation on officials of World Food Programme in respect to salaries, emoluments and indemnities paid to them as a result of their services to World Food Programme.

34. The Appellant relied on the case of Mansin vs Inland Revenue Commissioner (1971) AC 739;“The words are to be given their ordinary meanings. They are not to be given some other meaning simply because their object is to frustrate legitimate tax avoidance devices”The Appellant therefore submitted that in the event that the law provides a clear definition of a term as in the case of “official”, the Respondent has no power to cause an ambiguity that injures the taxpayer.(b)Whether the Commissioner misconstrued the statement of earnings and employment contract supplied and erred in arriving at an assessment of 10,368,294. 00.

35. The Appellant submitted that the Respondent erred in law and fact in asserting that the employment income from United Nations World Food Programme was subject to taxation hence to a wrong finding of tax payable in sum of Kshs 10,368,294. 00 which assessment is erroneous, unjustified and without basis. Further that the Respondent confirmed the notice of assessment without due regard to all records, explanation and information provided by the Appellant thereby failing to appreciate all issues presented by the Appellant before confirming the Assessment.

36. He averred that his rights to fair administrative action were violated and that the Respondent’s decision offends Articles 10 and 47 of the Constitution of Kenya 2010 (hereinafter ‘the Constitution’).He submitted that he availed evidence to prove the exemption of taxation and that the law he cited in support of his notice of objection is within the knowledge of the Respondent. He stated that he invited the Respondent to make further investigations through the Ministry of Foreign Affairs who are the custodians of all information relating to the affairs of United Nations and the Republic of Kenya as per Section 4(3) of the TPA which provides that: -“An authorized officer shall enforce and ensure due compliance with the provisions of the law, and shall make due inquiries in relation thereto”

37. It was the Appellant’s submission that the use of the word “shall” makes it mandatory for the Respondent to make enquiries and or investigations, and that failure to make all due inquires renders any decision arising therefrom illegal, unfair and contrary to the provisions of the law.

38. The Appellant relied on the case of Ann Wanjiku Kahwai & Another vs Kenya Revenue Authority& Another (2019) eKLR where the High Court in its ruling while upholding the Respondents rights to make due enquiries under Section 4(3) of the TPA was categorical that;“There is a limit to such action, however, the moment the investigator decides to utilize the investigative material or information in such a manner that a third party is likely to be affected by it, the investigator must bring such information to the notice of the third party. This is the essence of the constitutional requirement of fair administration. So that, in this case the affected party was entitled to receive the appropriate and relevant critical information of the outcome from investigation which formed the subject matter that would affect the petitioners.”

39. The Appellant submitted in conclusion that the taxation process, even the review process, should be consultative in line with the Principles of Administration of Justice as enshrined in the Constitution and that the Respondent failed to apply the tenets of administration of justice and therefore he requested for protection from the Tribunal.

40. The Respondent’s raised two issues for determination which it analysed as set out hereunder:(a)Whether the Appellant was qualified for exemption from taxes and whether he adduced sufficient proof of exemption.

41. The Respondent submitted that in response to the Appellant’s grounds (a),(b),(c) and (d) of the Appeal, it averred that Section 9 (2)(b)(ii) of the Privileges Act sets out the privileges of certain international organizations and persons connected therewith, and that the Section provided as follows;“(2)The Minister may, by order –(b)Confer upon –(iii)Such persons employed on missions on behalf of the organization as may be so specified, to such extent as may be specified in the order, the immunities and privileges set out in Part II of the said Fourth Schedule.”

42. To Respondent submitted that Part II of the Fourth Schedule of the ITA allows the Minister to exempt and give relief to such a person employed on missions on behalf of the organization from paying taxes. It averred that in this case it requested the Appellant for the Host Country Agreement between UNDP and Kenya together with the annexures which showed that the staff and official who were exempt from taxes, or the Gazette Notice by the Minister specifying the persons exempt from paying the taxes. However, the Appellant failed to provide the requested documents and as such did not prove that he was given relief from paying taxes by the Minister. The Respondent submitted that it therefore relied on the best judgement principle as enshrined in Section 31 of the TPA a principle that was reiterated in the case of Saima Khalid vs the Commissioner for Her Majesty Revenue and Customs –Appeal No TC/2017/02292 as cited with approval in Oliver Merrick Fowler & Another vs Kenya Revenue Authority (2022) eKLR.

43. The Respondent submitted that it was the duty of the Appellant to provide sufficient documentation to prove that he was exempt from paying taxes as an employee of the United Nations as the contract of employment was not sufficient evidence. It therefore submitted that in the absence of supporting documentation, it used the available information which included the Appellant’s bank statements to assess the Appellant on the undeclared income.

44. The Respondent placed reliance on paragraph 27 of the First Schedule of the ITA which provides for exemption from tax to non-resident persons who receive emoluments payable out of foreign sources in respect of duties performed in Kenya. These duties are in connection with a technical assistance or other agreement for development services or purpose to which the Government is a party or to a person who is resident solely for the purposes of performing those duties.

45. The Respondent submitted that the Act is clear as it only provides for exemption from taxes where one is non-resident or where one is a resident strictly for purposes of performing those duties. It argued therefore that the Appellant does not qualify for exemption since he is a resident person in Kenya.

46. The Respondent reiterated and asserted that pursuant to the Privileges Act, exemption from taxes applies to certain organizations or persons who relate to diplomatic and consular relations. It asserted further that the Appellant failed to provide sufficient evidence indicating his status and qualification to enjoy the said privilege.(b)Whether the assessment was issued pursuant to the law.

47. The Respondent submitted that contrary to the Appellant’s contention that the Respondent misconstrued the statement of earnings and employment contract, it averred that the statement of earnings as well as the employment contract were not misconstrued as a review of these documents established that the Appellant received a monthly income of Kshs 907,754. 32 which he failed to declare, despite having received the same as payment for discharging his duties. It argued therefore that it could not place reliance on the tax returns and tax compliance certificates submitted by the Appellant as the same was an under declaration of income.

47. The Respondent asserted that it was guided by Section 3 of the Income Tax Act which stipulates who is eligible to be charged under the Act as well as reliance on Section 56(1) of the TPA which places the burden of proof on the taxpayer to prove a tax decision is incorrect. It submitted that the Appellant was required to provide all requisite documents as required by law to discharge his burden of proving that the assessments as issued by the Respondent was incorrect or excessive. It maintained therefore that assessments were issued pursuant to the law and it is on the Appellant to prove to the contrary.

48. To buttress its arguments, the Respondent relied on the following casesi.Saima Khalid vs The Commissioner for Her Majesty’s Revenue and Customs Appeal No.TC/2017/02292. ii.Republic vs Kenya Revenue Authority, Proto Energy Limited (Ex-parte) (Judicial Review Application E023 OF 2021. iii.Commissioner of Domestic Services vs Galaxy Tools Limited (2021) eKLR.iv.PZ Cussons East Africa Limited vs Kenya Revenue Authority (2013) eKLR.

ISSUES FOR DETERMINATION 49. The Tribunal has considered the parties’ pleadings, documentation availed and the Written submissions and is of the view that this Appeal crystalizes into two issues for determination.a.Whether the Appellant qualifies for tax exemption.(b)Whether the demanded tax is due and payable.

ANALYSIS AND FINDINGS 50. Having identified the two issues for determination, the Tribunal will proceed to analyse them as herein under:a.Whether the Appellant qualifies for tax exemption.

51. The Tribunal notes the Appellant’s submission that he was qualified to enjoy the privileges and immunities that came as a result of his status of a National Professional officer employed under a fixed –term contract under the UN World Food Programme and cited Section 18(b) of the Convention on Privileges and Immunities of the United Nations which states:-…. “United Nations officials are exempt from taxation on the salaries and emoluments paid to them by the United Nations”.

52. The Tribunal notes the Respondent’s averment that Section 9(2) (b) (iii) of the Privileges Act sets out the privileges of certain International organizations and persons connected therewith and that Part II of the Fourth Schedule of the ITA allows the Minister to exempt and give relief to such a person employed on missions on behalf of the organization from paying taxes.

53. The Tribunal further notes the Appellant’s submission that he provided his employment contract to prove that he was a UN official on fixed – term contract. However, the Respondent averred that it used the same employment contract to calculate and demand for tax from the Appellant.

54. The Tribunal notes that whereas Section 18(b) Article V of the Convention on the Privileges and Immunities of the United Nations provides that “officials of the United Nations shall - b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations, Section 17 Article V specifies the names of officials who will be provided from time to time. The Section provides as follows:“The Secretary-General will specify the categories of officials to which the provisions of this Article and Article VII shall apply. He shall submit these categories to the General Assembly. Thereafter these categories shall be communicated to the Governments of all members. The names of the officials included in these categories shall from time to time be made known to the Governments of members.”

55. The Tribunal has neither sighted documentary evidence to indeed confirm whether the Appellant is among the named officers who are exempted from tax nor has it had the benefit of reviewing the Appellant’s employment contract to confirm the Appellant’s averment that he is an official of the United Nations.

56. Paragraph 27 Part-1 of the First Schedule of the ITA specifies the persons exempted from paying taxes for income accrued in or derived from or received in Kenya which is exempt from tax. It provides as follows:“The emoluments paid out of foreign sources in respect of duties performed in Kenya with a technical assistance or other agreement for development services or purpose to which the Government or the community is a party to any non-resident person or to a person who is resident solely for the purposes of performing those duties, in any case where the agreement provides for the exemption of such emoluments….”

57. The Tribunal also notes the provisions of Section 9(1) and (2) of the Privileges Act which provides as follows:“9. Privileges, etc., of certain international organizations and persons

connected therewith(1)This section shall apply to an organization which the Minister may, byorder, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members.(2)The Minister may, by order—(a)provide that an organization to which this section applies(hereinafter referred to as the organization) shall, to such extent asmay be specified in the order, have the immunities and privilegesset out in Part I of the Fourth Schedule to this Act, and shall alsohave the legal capacities of a body corporate;(b)confer upon—(i)any persons who are representatives (whether of governmentsor not) on any organ of the organization or are members ofany committee of the organization or of an organ thereof;(ii)such number of officers of the organization as may be specified in the order, being the holders of such high offices in the organization as may be so specified; and(iii)such persons employed on missions on behalf of the organization as may be so specified, to such extent as may be specified in the order, the immunities and privileges set out in Part II of the said Fourth Schedule;(c)confer upon such other classes of officers and servants of the organization as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the Fourth Schedule, and Part IV of the said Fourth Schedule shall have effect for the purpose of extending to the staffs of such representatives and members as are mentioned in subparagraph (i) of paragraph (b) of this subsection, and to the families of officers of the organization, any immunities and privileges conferred on the representatives, members or officers under that paragraph, except in so far as the operation of Part IV is excluded by the order conferring the immunities and privileges.”

58. Section 56(1) of the TPA places the onus of proof on the taxpayer to prove that the Respondent’s decision is incorrect. It provides as follows;“In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.”

59. The Tribunal relies on the pronouncement of Mativo J. in the case of Kenya Revenue Authority vs Maluki Kitili Mwendwa (2021) eKLR where he stated that:-“Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. That party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their “burden of proof” their claim will fail. “Burden of proof” at the Tax Court is somewhat unique. At the Tax Court a taxpayer is required to disprove an assessment by the Commissioner. In other words, a Taxpayer challenging a tax assessment will need to collect and present evidence in order to disprove the Commissioner’s position. This is the basic principle….”

60. The Tribunal notes that while it was the responsibility of the employer to deduct tax from the Appellant’s salaries, its failure to do so still means that the Appellant benefited from funds he was not entitled to. Section 3(1) and (2) of the ITA which provides as follows:“(1)Subject to, and in accordance with, this Act, a tax to be known as income tax shall be charged for each year of income upon all the income of a person, whether resident or non-resident, which accrued in or was derived from Kenya.(2)Subject to this Act, income upon which tax is chargeable under this Act is income in respect of—(a)gains or profits from—(i)any business, for whatever period of time carried on;(ii)any employment or services rendered;(iii)any right granted to any other person for use or occupation of Property……….;”

61. In view of the foregoing, the Tribunal finds that the Appellant did not qualify for tax exemption because he was unable to prove that he met the conditions set out in the Privileges Act and the ITA that enabled him to enjoy entitlement to immunity from taxation of his emoluments. Accordingly, the Appellant does not qualify for tax exemption.b.Whether the demanded tax is due and payable.

62. Having established that the Appellant does not qualify for tax exemption, it follows therefore that the tax demanded is due and payable and the Tribunal finds as much.

FINAL DECISION 63. The upshot of the above is that the Appeal is devoid of any merit and therefore fails. The Tribunal accordingly proceeds to make the following Orders:-a.The Appeal be and is hereby dismissed.b.The Respondent’s objection decision dated 13th May, 2022 be and is hereby upheld.c.Each party to bear its own costs.

64. It is so ordered

DATED and DELIVERED at NAIROBI this 19th Day of April, 2024********CHRISTINE A. MUGACHAIRPERSONBONIFACE K. TERER DELILAH K. NGALAMEMBER MEMBERSPENCER S. OLOLCHIKE GEORGE KASHINDIMEMBER MEMBERJUDGMENT APPEAL NO.889 OF 2022 - FRANCIS EDWARD OMONDI OPIYO VS. COMMISSIONER OF DOMESTIC TAXES Page 25