https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1648

Panalpina Airflo Ltd v Commissioner of Domestic Taxes (Civil Appeal E434 of 2021) [2026] KECA 1648 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1648 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E434 of 2021 DK Musinga, P Lilan & JO Okello, JJA July 31, 2026 Between Panalpina Airflo Limited Appellant and The Commissioner of Domestic Taxes Respondent (Being an appeal from the Judgment and Order of the High Court at Nairobi (Mativo, J.) (as he then was) delivered on 17th January 2020 in JR No. 99 of 2018) Judgment 1.This appeal arises from the judgment of the High Court at Nairobi (Mativo, J.) (as he then was) delivered on 17ᵗʰ January 2020 in Judicial Review Application No. 99 of 2018 by which the learned judge dismissed, with costs, the appellant's Notice of Motion dated 9ᵗʰ March 2018, as amended on 30ᵗʰ July 2018. Through the Motion, the appellant principally sought orders of mandamus compelling the respondent to process and pay VAT refunds amounting to Kshs. 168,630,037, together with declaratory and prohibitory reliefs arising from the respondent's alleged failure to process, determine and pay the claims for refund within the timelines prescribed under the Tax Procedures Act. 2.A summary of the relevant facts is that the appellant is a Kenyan company engaged in the provision of freight handling and logistics services within the horticultural export industry. It is a subsidiary of Panalpina Airflo BV, a company incorporated in the Netherlands, which appointed the appellant as its sole and exclusive agent in Kenya to handle horticultural produce destined for export. In that capacity, the appellant received produce from Kenyan growers and undertook documentation, cold room handling, vacuum cooling, x-ray security screening, palletization and other export logistics services before dispatching the consignments to overseas markets. The appellant maintained that although those services were physically performed in Kenya, they were supplied to, and ultimately consumed by, its parent company outside Kenya and, therefore, qualified as exported services attracting VAT at the zero rate under section 7 as read together with paragraph 1 of Part A of the second Schedule of the VAT Act. 3.The dispute culminating in this appeal arose when the respondent declined to refund VAT claimed by the appellant on the basis that the services did not qualify as exported services. The appellant maintained that, by virtue of section 17(5) of the Value Added Tax Act, it was entitled to a refund where its input VAT exceeded its output VAT by reason of making zero rated supplies. It stated that between July 2011 and May 2017 it lodged numerous VAT refund claims arising from the export of services and that, for several years, the respondent accepted its position by approving and paying refund claims amounting to approximately Kshs. 20,408,102/=. It therefore contended that the respondent had, without any change in the law or in the nature of the services rendered, abruptly departed from its previous practice. 4.According to the appellant, that change in position first manifested itself when the respondent rejected refund claims relating to May, June and July 2014 and April, May, June and October 2015 amounting to Kshs. 12,617,369/= on the ground that the supplies were not zero rated. It challenged those decisions by lodging notices of objection dated 25ᵗʰ May 2016, which were received by the respondent on 27ᵗʰ May 2016. The appellant contended that because the respondent failed to determine the objections within the sixty days prescribed under section 51(11) of the Tax Procedures Act, the objections stood allowed by operation of law, thereby entitling it to payment of the disputed refunds. 5.The appellant further complained that the rejected claims represented only part of the dispute. It asserted that refund claims relating to August 2014, January and March 2015 and June to October 2016, amounting to approximately Kshs. 17.8 million had already been audited on 17ᵗʰ October 2016 and 3ʳᵈ February 2017 but remained undetermined long after completion of those audits. It also maintained that additional refund claims amounting to Kshs. 138,217,189.91 had neither been audited nor determined. According to the appellant, the respondent's prolonged failure to process and determine those claims violated the Tax Procedures Act, the Fair Administrative Action Act, the Public Service (Values and Principles) Act and Article 47 of the Constitution, frustrated its legitimate expectation arising from the respondent's previous approval of similar claims, and occasioned substantial prejudice to its business. 6.On that basis, the appellant instituted the judicial review proceedings seeking, principally, orders compelling payment of VAT refunds amounting to Kshs. 168,630,037 or, in the alternative, orders directing the respondent to determine the outstanding refund claims and complete the requisite audits. It also sought declarations that its notices of objection had been allowed by operation of law together with orders prohibiting the respondent from disallowing or adjusting the disputed refund claims. 7.Prior to instituting the judicial review proceedings, the appellant had challenged the Commissioner's objection decisions before the Tax Appeals Tribunal in Tax Appeal No. 115 of 2016, which was consolidated with Tax Appeal Nos. 148 and 149 of 2016. In a judgment delivered on 9ᵗʰ March 2018, the Tribunal dismissed the consolidated appeals, holding that the appellant's handling, cold storage, vacuum cooling, security screening and documentation services were performed and consumed in Kenya before the horticultural produce left the country and, therefore, did not constitute exported services within the meaning of section 2 of the Value Added Tax Act. Consequently, the Tribunal upheld the respondent's rejection of the appellant's VAT refund claims. Aggrieved by that determination, the appellant lodged High Court Income Tax Appeal No. 5 of 2018. In a judgment delivered on 31ˢᵗ May 2019, the High Court (Okwany, J.) allowed the appeal, set aside the Tribunal's decision and held that the services qualified as exported services since the ultimate consumers were outside Kenya, with the result that the appellant was entitled to the VAT refunds claimed. 8.The respondent opposed the judicial review application through a Preliminary Objection dated 21ˢᵗ September 2018 and a Replying Affidavit sworn by Geoffrey Korir, an officer appointed under section 13 of the Kenya Revenue Authority Act. In the Preliminary Objection, it contended that the appellant had already invoked the statutory dispute resolution mechanism by challenging the Commissioner's decision before the Tax Appeals Tribunal and thereafter filing High Court Income Tax Appeal No. 5 of 2018. It therefore maintained that the judicial review proceedings involved substantially the same parties and subject matter, offended the doctrine of sub judice, constituted an abuse of the court process, and fell outside the jurisdiction of the High Court. 9.In his Replying Affidavit, Geoffrey Korir deposed that the appellant merely acted as a link between Kenyan horticultural producers and its parent company by receiving, storing, cooling, screening, documenting and preparing produce for export before handing it over to airlines. He maintained that those services were performed and consumed entirely within Kenya and therefore did not qualify as exported services under sections 7 and 8 of the Value Added Tax Act. According to the respondent, the decisive consideration was the place where the services were used or consumed, rather than the location of the contractual recipient. It therefore maintained that the refund claims had properly been rejected because the services attracted VAT at the standard rate. 10.The respondent further denied acting unlawfully or unreasonably in delaying determination of the outstanding refund claims. It contended that once the appellant invoked the statutory dispute resolution mechanism before the Tax Appeals Tribunal, it became prudent to await the Tribunal's determination before taking further administrative action on the disputed claims. In its view, the appellant's complaints concerning the rejection of the refund claims, the alleged delay in determining the outstanding claims, and the interpretation of the Value Added Tax Act, all formed part of a single tax dispute that fell to be resolved through the statutory dispute resolution framework established under the tax legislation, rather than by way of judicial review. 11.The trial court, having considered the pleadings, the affidavit evidence and the rival submissions, identified four issues for determination, namely: whether the application was sub judice; whether it constituted an abuse of the court process; whether it was res judicata; and whether it offended the doctrine of exhaustion of the statutory dispute resolution mechanism. 12.On sub judice, he observed that before instituting the judicial review proceedings, the appellant had unsuccessfully challenged the respondent's rejection of its VAT refund claims before the Tax Appeals Tribunal and had thereafter lodged High Court Income Tax Appeal No. 5 of 2018 against the Tribunal's decision. The judicial review proceedings were filed while that appeal was still pending. Upon examining section 6 of the Civil Procedure Act and key authorities on the doctrine of lis pendens, the learned judge held that in determining whether a matter is sub judice, the decisive consideration is not the form of the proceedings or the reliefs sought, but whether the matters in issue were directly and substantially the same. He found that both the appeal and the judicial review proceedings revolved around the appellant's entitlement to VAT refunds arising from the characterization of its services as exported services under the Value Added Tax Act. In his view, granting the reliefs sought in the judicial review application would effectively determine the same dispute that had already been placed before the Tax Appeals Tribunal and the High Court in the tax appeal. He consequently held that the application was sub judice. 13.As to whether the proceedings amounted to an abuse of the court process, the learned judge reiterated that courts possess an inherent jurisdiction to prevent misuse of their processes and observed that abuse arises, inter alia, where a litigant pursues multiple proceedings involving the same parties, the same subject matter and substantially the same issues. He held that although the appellant had framed the matter as one for judicial review, the substance of the dispute remained identical to that pending before this Court under the statutory tax dispute resolution framework. In his assessment, the appellant was pursuing parallel proceedings capable of yielding conflicting decisions from courts of concurrent jurisdiction, thereby engaging in impermissible forum shopping. On that basis, he concluded that the application constituted an abuse of the court process. 14.Turning to the doctrine of res judicata, the learned judge noted that by the time the matter was heard, the High Court had already delivered judgment in High Court Income Tax Appeal No. 5 of 2018, a decision which was already subject of an appeal pending before this Court. He held that the issues raised in the judicial review proceedings had substantially been determined in the tax appeal and that the appellant could not avoid the application of the doctrine merely by recasting the dispute as one founded on judicial review grounds or alleged violations of Article 47 of the Constitution. In his view, all the factual and legal questions concerning the respondent's rejection of the VAT refund claims either had been, or could properly have been, canvassed in the appeal pending before this Court. He therefore found that the judicial review proceedings were barred by the doctrine of res judicata. 15.Finally, the learned judge considered whether the application offended the doctrine of exhaustion of statutory remedies. He examined the framework established under the Tax Procedures Act, the Tax Appeals Tribunal Act and section 9 of the Fair Administrative Action Act, and emphasized that disputes arising from tax decisions must, in the first instance, be pursued through the statutory appellate mechanism, unless exceptional circumstances are demonstrated. He found that the respondent's decision rejecting the VAT refund claims constituted an appealable tax decision for which Parliament had provided a comprehensive dispute resolution mechanism culminating in an appeal to this Court. The learned judge further held that the appellant had neither demonstrated exceptional circumstances warranting exemption from the exhaustion requirement nor made a formal application for such exemption under section 9(4) of the Fair Administrative Action Act. He rejected the appellant's contention that invoking Article 47 of the Constitution and the Fair Administrative Action Act transformed the dispute into one amenable to judicial review, holding instead that the application remained, in substance, a tax dispute falling squarely within the statutory dispute resolution framework. He consequently held that the proceedings offended the doctrine of exhaustion and were incompetent. 16.Having reached those conclusions, the learned judge found that the judicial review application was sub judice, constituted an abuse of the court process, was res judicata and offended the doctrine of exhaustion. He therefore declined to consider the merits of the appellant's claim regarding the VAT refunds and dismissed the amended Notice of Motion with costs to the respondent. 17.Being aggrieved and dissatisfied with the decision of the High Court, the appellant lodged this appeal. Although the appellant has advanced twenty-two grounds of appeal in its Memorandum of Appeal dated 6ᵗʰ August 2021, those grounds may conveniently be condensed into eight broad complaints.In summary, the appellant contends that the learned judge erred in law and in fact by holding that the judicial review proceedings were sub judice, constituted an abuse of the court process, were res judicata and offended the doctrine of exhaustion; misconstruing the nature, scope and subject matter of the judicial review proceedings by conflating them with High Court Income Tax Appeal No. 5 of 2018 and thereby failing to appreciate that the judicial review proceedings raised distinct public law issues concerning the respondent's statutory and constitutional obligations, which neither arose nor could properly have been determined in the statutory appeal; and consequently declining jurisdiction and failing to determine the application on its merits. 18.The appellant further faults the learned judge for failing to find that the respondent was under statutory and constitutional obligations to determine the appellant's notices of objection and VAT refund applications within the timelines prescribed under sections 47 and 51 of the Tax Procedures Act; failing to hold that the respondent's omission to render objection decisions and determine the refund applications within the prescribed periods violated the Tax Procedures Act and entitled the appellant to the reliefs sought; failing to find that the respondent's conduct violated Article 47 of the Constitution, the Fair Administrative Action Act, the Public Service (Values and Principles) Act and the rules of natural justice; failing to uphold the appellant's legitimate expectation arising from the respondent's previous approval of similar VAT refund claims; and ultimately declining to grant the judicial review remedies sought notwithstanding the respondent's alleged unlawful, unreasonable and procedurally unfair conduct. 19.At the hearing of this appeal, learned counsel, Mr. Amoko, appeared for the appellant, while the respondent was represented by learned counsel, Mr. Chabala. Both counsel highlighted their respective client’s written submissions. 20.Highlighting the appellant's written submissions dated 21st March 2022, Mr. Amoko submitted that the appeal principally concerns the legality of the respondent's administrative inaction in failing to determine and process the appellant's VAT refund claims within the timelines prescribed by the Tax Procedures Act. Counsel asserted at the outset that the learned judge, by dismissing the judicial review proceedings without considering their merits, effectively sanctioned administrative inaction by the respondent and denied the appellant an effective remedy against prolonged statutory default. According to counsel, whereas the respondent was under a statutory duty to determine the appellant's refund applications and objections within the prescribed timelines, it deliberately failed to do so, thereby frustrating the appellant's statutory entitlement to VAT refunds and insulating its own unlawful conduct from judicial scrutiny. Counsel maintained that, at the very least, the appellant was entitled to have its refund applications processed and determined within the time stipulated by law and, on the facts presented before the High Court, the refunds ought to have been granted. 21.Counsel maintained that the respondent's failure to make decisions on the appellant's refund applications distinguished the present dispute from the statutory tax appeal that had previously been determined. In his view, there was no appealable decision capable of engaging the jurisdiction of the Tax Appeals Tribunal in relation to the impugned refund claims. Consequently, judicial review under the Fair Administrative Action Act constituted the only available mechanism through which the appellant could vindicate its rights arising from the respondent's administrative inaction. Counsel emphasized that the proceedings before the High Court were directed at undecided VAT refund applications relating to periods that had not formed part of the proceedings before either the Tax Appeals Tribunal or the High Court in Income Tax Appeal No. 5 of 2018. 22.Counsel also outlined the factual background leading to the dispute. He submitted that the appellant was a wholly owned subsidiary of Panalpina Airflo BV, a company incorporated in the Netherlands, which appointed the appellant as its exclusive agent in Kenya vide an agency agreement dated 1st January 2015 to provide export logistics services. Those services comprised x-ray screening of flowers, vacuum cooling, cold room packing and storage, and preparation of export documentation for horticultural produce destined for European markets. According to counsel, the appellant provided those services exclusively to its parent company pursuant to an agency agreement and had no contractual relationship whatsoever with Kenyan flower growers. Counsel therefore disapproved the respondent's portrayal of the appellant as an intermediary between local growers and overseas markets, describing that characterization as inaccurate and unsupported by the contractual arrangements governing the parties' relationship. 23.Counsel further submitted that, between July 2010 and November 2017, the appellant accumulated excess input VAT arising from the provision of zero-rated export services, and consistently lodged refund applications in accordance with the Value Added Tax Act and the Tax Procedures Act. He pointed out that the respondent had, over several years, approved VAT refunds amounting to approximately Kshs. 20,408,102/= on the basis that the appellant's services constituted exported services. However, despite there being no change, either in the governing law, or in the nature of the services rendered, the respondent subsequently rejected refund claims relating to May, June and July 2014 and April, May, June and October 2015 amounting to Kshs. 12,617,369/= on the sole ground that the supplies were not zero rated. Counsel contended that the respondent offered no explanation for its abrupt departure from its earlier position, notwithstanding that the services remained identical throughout the relevant period. 24.Counsel submitted that the appellant promptly lodged objections against those rejection decisions in accordance with section 51 of the Tax Procedures Act and furnished all the supporting documentation required by the respondent. Nevertheless, the respondent failed to render objection decisions within the mandatory sixty-day period prescribed under section 51(11) of the Act. Instead, it merely informed the appellant that it was awaiting the outcome of proceedings before the Tax Appeals Tribunal. Counsel asserted that the law conferred no power upon the respondent to suspend or defer its statutory obligations pending other proceedings, and that its continued inaction despite repeated reminders from the appellant's tax advisers constituted one of the principal grievances forming the basis of the judicial review proceedings. 25.Counsel further reiterated that the respondent's statutory default extended beyond the rejected refund claims. He identified two additional categories of refund applications that remained unresolved. The first comprised refund claims amounting to Kshs. 17,795,481/= which had been subjected to tax audits but remained undetermined long after completion of those audits. The second consisted of refund claims amounting to Kshs. 138,217,189.91 which, despite having been lodged over several years, had neither been audited nor determined by the respondent. Counsel emphasized that, taken together, the judicial review proceedings concerned VAT refund claims exceeding Kshs. 168 million which had remained in administrative limbo for periods extending up to seven years through the respondent's continued failure either to determine or process them in accordance with the law. 26.Against that factual background, counsel submitted that the learned judge fell into error by declining to consider the merits of the judicial review application and instead determining it exclusively on preliminary jurisdictional objections. According to counsel, the respondent's prolonged failure to discharge statutory duties imposed by the Tax Procedures Act presented classic public law questions concerning the legality of administrative action and the availability of judicial review remedies. Those questions, he maintained, could not properly be defeated merely because separate statutory proceedings existed in relation to different VAT refund decisions. 27.Counsel next addressed the learned judge's conclusion that the judicial review proceedings were barred by the doctrines of sub judice and res judicata. He submitted that, although the learned judge correctly identified the general principles governing those doctrines, he erred in their application by failing to appreciate the fundamentally different factual matrix, causes of action and issues presented in the judicial review proceedings as compared to Income Tax Appeal No. 5 of 2018. According to counsel, the statutory appeal was confined to the correctness of the Tax Appeals Tribunal's determination upholding the respondent's objection decisions relating to specified refund periods, whereas the judicial review proceedings challenged the respondent's separate and continuing failure to determine objections and refund applications within the timelines prescribed by statute, together with the legality of that administrative inaction. Counsel therefore maintained that the two proceedings were incapable of merger because they sought to vindicate different legal rights and involved distinct causes of action. 28.Relying on sections 6 and 7 of the Civil Procedure Act, counsel submitted that the doctrines of sub judice and res judicata, collectively described as forms of claim preclusion, are founded upon the public policy that litigation must come to an end. He cited the Supreme Court decision in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR as the authoritative exposition of those principles in the context of public law litigation. Counsel contended that while the learned judge correctly stated the governing principles, he failed to apply them to the facts before him because he overlooked that the judicial review proceedings were founded upon public law breaches, which neither arose nor could have arisen in the statutory appeal. 29.Counsel emphasized that Income Tax Appeal No. 5 of 2018 was, by virtue of section 56 of the Tax Procedures Act and section 32 of the Tax Appeals Tribunal Act, confined to questions of law arising from the Tribunal's decision and to the material that had been placed before the Tribunal. Consequently, issues concerning the respondent's subsequent failure to determine refund claims falling outside the Tribunal proceedings, the legality of that inaction, and the alleged violations of Article 47 of the Constitution, the Fair Administrative Action Act and the Tax Procedures Act could neither have been raised nor determined in the statutory appeal. Counsel therefore contended that the respondent had failed to explain, and the learned judge had failed to address, how those distinct public law claims could be said to have been determined, or be capable of determination within the statutory appeal. 30.Counsel further asserted that, even if there existed one issue common to both proceedings, namely, whether the appellant's services constituted exported services for VAT purposes, the learned judge nonetheless invoked the wrong doctrine. He submitted that the applicable doctrine was not res judicata or cause of action estoppel, but the narrower doctrine of issue estoppel, which precludes the reopening of a specific issue necessarily determined in earlier proceedings without extinguishing a different cause of action. In support of that distinction, counsel relied upon Arnold v National Westminster Bank Plc [1991] 2 AC 93, 104-106 where Lord Keith explained the distinction between cause of action estoppel and issue estoppel, the latter operating only in relation to issues of fact or law necessarily determined in earlier proceedings while permitting a subsequent action founded upon a different cause of action. 31.Applying that principle, counsel submitted that Okwany, J., in Income Tax Appeal No. 5 of 2018, had conclusively determined that the appellant's services constituted exported services attracting VAT at zero rate. That finding, he contended, formed a necessary ingredient of the appellant's public law claims and, by operation of issue estoppel, bound both the respondent and the High Court in the judicial review proceedings for so long as that judgment remained undisturbed. Counsel therefore maintained that it was not open to the respondent to invite the learned judge to revisit the characterization of the appellant's services in the judicial review proceedings, save through a competent appeal against the judgment of Okwany, J., which the respondent had already indicated it intended to pursue. 32.Counsel submitted that the doctrine of issue estoppel is firmly entrenched in Kenyan jurisprudence notwithstanding that it is less frequently invoked than res judicata. In that regard, he relied upon this Court's decision in Trade Bank Limited v L.Z. Engineering Construction Limited [2000] 1 EA 266, which recognised issue estoppel as resting upon the same public policy considerations as res judicata. He also cited the decision of the Ontario Court of Appeal in McIntosh v Parent, 1924 CanLII 401 (ON CA), (1924) 4 DLR 420, for the proposition that where a question of fact or law has been distinctly put in issue and finally determined by a court of competent jurisdiction, that determination is conclusive between the parties in subsequent proceedings, even where the subsequent proceedings arise from a different cause of action. According to counsel, once Okwany, J. determined that the appellant's services were exported services, that issue could not lawfully be reopened in the judicial review proceedings. 33.Counsel therefore reiterated that the learned judge erred by treating the judicial review proceedings as though they merely repackaged the statutory appeal. According to counsel, properly analysed, the two proceedings involved different causes of action, different statutory rights and different reliefs. The only issue common to both had already been conclusively determined in the appellant's favour and was governed by the doctrine of issue estoppel. He maintained that consequently, neither the doctrine of sub judice nor that of res judicata justified the dismissal of the judicial review proceedings. 34.Regarding the learned judge's finding that the judicial review proceedings constituted an abuse of the court process because the appellant had an alternative statutory remedy under the Tax Procedures Act, it was submitted that the learned judge approached the question from the wrong perspective by assuming that the mere existence of a statutory appeal automatically precluded judicial review. According to counsel, the proper inquiry was whether the statutory mechanism provided an effective and efficacious remedy for the particular public law grievances raised by the appellant. He maintained that the proceedings before the High Court concerned the respondent's prolonged administrative inaction and failure to discharge mandatory statutory duties in relation to numerous VAT refund claims, matters which neither the Tax Appeals Tribunal nor the statutory appellate process was capable of addressing. Consequently, the learned judge was said to have erred in concluding that the availability of the statutory tax appeal rendered judicial review unavailable. 35.Counsel submitted that section 9 of the Fair Administrative Action Act does not impose an inflexible bar to judicial review whenever an alternative remedy exists. Rather, courts are required to examine whether that remedy is convenient, beneficial and effective in the particular circumstances of each case. In support of that argument, counsel relied on Republic v Kenya Revenue Authority Ex parte M-Kopa Kenya Limited [2018] eKLR, where Odunga, J. (as he then was), held that once the Commissioner fails to render an objection decision within the sixty-day period prescribed under section 51(11) of the Tax Procedures Act, the objection is deemed to have been allowed by operation of law. Consequently, there is no adverse decision capable of being appealed, and the question of an alternative statutory remedy does not arise. Counsel submitted that the learned judge failed to consider or distinguish that authority, notwithstanding that it had been specifically cited before him. Counsel also relied upon Louis Dreyfus Company (K) Limited v Kenya Revenue Authority [2021] eKLR, where the High Court held that a court ought not to decline jurisdiction where the statutory dispute resolution mechanism has been rendered ineffective by the Commissioner's action or inaction. Counsel emphasized the court's holding that the respondent's failure to respond to the taxpayer's refund application and objection denied the taxpayer a tax decision capable of being challenged before the Tax Appeals Tribunal, thereby justifying recourse to judicial review. He submitted that the appellant's case fell squarely within that principle since many of its refund claims and objections had never been determined, leaving it without an appealable decision. 36.Counsel further relied upon this Court's decision in Kenya Revenue Authority v Universal Corporation Limited [2020] eKLR, where the Court upheld the High Court's exercise of judicial review jurisdiction notwithstanding the availability of a statutory appellate mechanism. Counsel submitted that the Court affirmed that, where the complaint concerns the legality of the Commissioner's administrative process rather than the substantive tax liability, judicial review may constitute the more convenient, effective, beneficial and appropriate remedy. In the circumstances of that case, the Court rejected the Commissioner's challenge to the High Court's jurisdiction, holding that the Tribunal process was an inadequate avenue for redressing the respondent's grievances. Counsel contended that the decision reaffirmed that proceedings founded on public law complaints are not rendered an abuse of the court process merely because a statutory remedy exists, and faulted the learned judge for failing to consider or apply that binding authority. 37.Counsel maintained that the respondent's conduct illustrated precisely why judicial review intervention was necessary. He contended that the respondent selectively processed some refund claims while rejecting others, and simply failed to determine a substantial number of claims, some of which had already been audited. Equally, although the respondent asserted that it was awaiting the outcome of proceedings before the Tax Appeals Tribunal, the majority of the outstanding refund claims had been lodged long before those proceedings commenced and were therefore incapable of being affected by them. Counsel further pointed out that the respondent never communicated to the appellant that the pending Tribunal proceedings constituted the reason for withholding determination of the majority of the refund claims. According to counsel, those inconsistencies demonstrated that the respondent's explanation lacked both factual and legal foundation. 38.It was also submitted that, having exhausted every practical avenue available to secure determination of the refund claims, including repeated correspondence through its tax advisers, the appellant was left with no effective remedy other than judicial review. Counsel therefore contended that the learned judge erred in characterizing the proceedings as an abuse of the court process when, in reality, they represented the only available mechanism for compelling the respondent to perform statutory duties which it had persistently declined to discharge. 39.Turning to the merits of the application, counsel submitted that, having wrongly declined jurisdiction, the learned judge failed to determine whether the appellant had established entitlement to the judicial review remedies sought. Counsel contended that the respondent had offered no satisfactory answer to the appellant's substantive case and that, had the learned judge considered the merits, he could only have concluded that the respondent had acted in breach of its statutory and constitutional obligations. Counsel accordingly adopted and reiterated, in summary, the submissions advanced before the High Court on the effect of the respondent's failure to determine the appellant's objections and refund claims within the prescribed statutory timelines; the legality of the respondent's conduct under the Value Added Tax Act and the Tax Procedures Act; the irrationality and unreasonableness of the respondent's actions; the frustration of the appellant's legitimate expectation; and the appellant's entitlement to the judicial review reliefs sought. 40.Counsel submitted that the respondent's failure to render objection decisions within the sixty days prescribed under section 51(11) of the Tax Procedures Act had a clear statutory consequence. By operation of that provision, the appellant's objections stood allowed once the statutory period expired without an objection decision, leaving the respondent with no discretion to revisit or reject them thereafter. In support of that proposition, counsel relied on Republic v Kenya Revenue Authority Ex Parte M-Kopa Kenya Limited (supra), where it was held that once the Commissioner fails to determine an objection within the prescribed period, the objection is deemed allowed and there remains no basis for requiring a taxpayer to pursue an appeal. Counsel also relied on Vivo Energy Kenya Limited v Commissioner of Customs & Border Control, Kenya Revenue Authority & another [2020] eKLR, where Korir, J. (as he then was) affirmed the mandatory nature of section 51(11), and on Republic v Commissioner of Domestic Taxes Ex Parte Fleur Investments Limited [2020] eKLR, in which Mativo, J. (as he then was) similarly held that the Commissioner's failure to determine an objection within the statutory period resulted in the objection being allowed by operation of law. Counsel contended that those decisions consistently recognised that the statutory consequence under section 51(11) is automatic and that the appellant, being in an identical position, was entitled to the same relief. 41.Counsel further submitted that the respondent equally violated section 47(3) of the Tax Procedures Act by failing to determine the appellant's refund applications relating to the second and third clusters within the prescribed ninety days. Although the Act does not expressly stipulate the consequence of non-compliance with that provision, counsel asserted that the Court ought to construe the statute purposively and harmoniously so as to avoid rendering the statutory timelines meaningless. He submitted that, just as section 51(11) attaches consequences to failure to determine objections, section 47(3) should likewise be interpreted as requiring effective judicial intervention where the Commissioner fails to determine refund claims within the prescribed period. According to counsel, any contrary interpretation would permit the respondent to disregard mandatory statutory obligations with impunity and would undermine both the purpose of the Tax Procedures Act and the constitutional guarantee of fair administrative action. 42.In advancing that argument, counsel invoked Articles 22, 23, 47, 165(3)(d) and 258 of the Constitution, together with section 11 of the Fair Administrative Action Act, submitting that the High Court bears the constitutional responsibility of granting effective remedies against unlawful administrative conduct. He further relied on the principles discussed in Fordham's Judicial Review Handbook (5th ed.) on the supervisory role of the courts in ensuring that public authorities comply with statutory duties. Counsel also referred to R v Horseferry Road Magistrates' Court, Ex Parte Bennett [1993] UKHL 10, [1993] 3 ALL ER 138, for the proposition that judicial review exists to prevent executive conduct that threatens the rule of law, and to M v Home Office [1993] UKHL 5, [1993] 3 WLR 43, [1993] 3 ALL ER 53, where the House of Lords emphasized that the executive is bound to obey the law and cannot treat compliance with judicial or statutory obligations as a matter of discretion. Counsel submitted that permitting the respondent to ignore mandatory statutory timelines without consequence would undermine those fundamental constitutional principles. 43.Addressing the substantive legality of the respondent's decision to reject the refund claims, counsel submitted that the respondent's interpretation of exported services was contrary to both domestic and international authorities. He contended that the consistent line of authorities beginning with F.H. Services Limited v Commissioner of Domestic Taxes, Appeal No. 6 of 2012, and culminating in Republic v Kenya Revenue Authority & another Ex Parte Fontana Limited [2014] eKLR, together with the OECD International VAT/GST Guidelines, establishes that exported services are determined by reference to the place of consumption in accordance with the destination principle. Since the appellant rendered services exclusively to its parent company, Panalpina Airflo BV, situated in the Netherlands, counsel maintained that the services were consumed outside Kenya and therefore qualified as exported services attracting VAT at zero rate. Counsel further submitted that the judgment of Okwany, J. in High Court Income Tax Appeal No. 5 of 2018 affirmed that position and had displaced the only contrary authority in that line of jurisprudence. 44.Counsel further submitted that the respondent's prolonged failure to determine the refund applications and objections was not only unlawful but also irrational, unreasonable and procedurally unfair. He contended that despite repeated demands and the completion of audits in respect of several claims, the respondent deliberately failed to discharge mandatory statutory duties, thereby frustrating the appellant's legitimate expectation that similar claims would be processed consistently with the respondent's previous approvals. According to counsel, the respondent's conduct violated Article 47 of the Constitution, section 4 of the Fair Administrative Action Act and the standards of lawful administrative action applicable to public authorities. 45.In conclusion, counsel submitted that the appellant had established every prerequisite for the grant of judicial review relief. He therefore urged the Court to allow the appeal, set aside the judgment of the High Court, and substitute it with orders allowing the amended Notice of Motion with the costs. 46.On his part, Mr. Chabala opposed the appeal and urged the Court to uphold the judgment of the High Court. Highlighting the respondent's written submissions dated 23rd June 2023, counsel submitted that the learned judge properly held that the judicial review proceedings were sub judice and or res judicata, offended the doctrine of exhaustion of statutory dispute resolution mechanisms, and constituted an abuse of the court process. He identified those as the three issues arising for determination in the appeal. 47.Addressing the first issue, counsel submitted that the judicial review proceedings were commenced on 6th March 2018 during the pendency of High Court Income Tax Appeal No. 5 of 2018, which arose from the decision of the Tax Appeals Tribunal. Referring to sections 5 and 6 of the Civil Procedure Act, counsel contended that the object of the doctrine of sub judice is to prevent courts of concurrent jurisdiction from simultaneously entertaining parallel proceedings involving the same cause of action, subject matter and relief. According to counsel, the doctrine is intended to avoid multiplicity of suits, inconsistent decisions and unnecessary expenditure of judicial time and resources. 48.Counsel submitted that the test for the applicability of section 6 of the Civil Procedure Act is whether a final determination in the earlier proceedings would operate as res judicata in the subsequent proceedings. In that regard, he asserted that it is immaterial that a subsequent suit seeks additional or differently framed reliefs, provided that the matter in controversy remains substantially the same. Reliance was placed on the Uganda case of Nyanza Garage v Attorney General, HCCS No. 450 of 1993 where the court observed, inter alia, that, in the interests of both litigants and the administration of justice, multiplicity of suits over the same subject matter ought to be avoided because it increases costs, clogs the judicial system and creates unnecessary backlogs. 49.Counsel further identified the essential ingredients of the doctrine of sub judice as the existence of two or more suits; identity of the matters directly and substantially in issue; identity of the parties litigating under the same title; and pendency of the earlier proceedings before a court competent to grant the relief sought. He maintained that those requirements were fully satisfied in the present case because both the judicial review proceedings and Income Tax Appeal No. 5 of 2018 arose from the respondent's refusal to grant the appellant's VAT refund claims and involved substantially the same parties and issues. 50.In support of that submission, learned counsel relied on Thiba Min Hydro Company Limited v Josphat Karu Ndwiga [2013] eKLR, where the court held that the doctrine of sub judice depends upon the substance of the dispute rather than the procedural form in which it is presented. Counsel also cited In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR, in which the Supreme Court held that the term "matter" refers to the subject matter for determination rather than the form of the proceedings. It was therefore submitted that the appellant could not avoid the application of the doctrine merely by instituting judicial review proceedings while substantially the same dispute remained pending before another court. 51.Turning to the doctrine of res judicata, counsel submitted that section 7 of the Civil Procedure Act bars a court from trying a suit or issue that has already been directly and substantially determined in a former suit between the same parties, or parties litigating under the same title, before a court of competent jurisdiction. According to counsel, the object of the doctrine is to bar multiplicity of suits and guarantee finality in litigation by rendering conclusive a final judgment between the same parties on the same issues. He further outlined the conditions necessary for the doctrine to apply, namely, that the matter directly and substantially in issue must have been directly and substantially in issue in the former suit; the former suit must have been between the same parties or parties claiming under them; the parties must have litigated under the same title; the former suit must have been determined by a court of competent jurisdiction; and the matter in issue must have been heard and finally determined. 52.In support of that submission, counsel relied on Gurbachan Singh Kalsi v Yowani Ekori [1958] EA 450, where the Court held that, once a matter becomes the subject of litigation before a court of competent jurisdiction, the parties are required to bring forward their entire case and, save in exceptional circumstances, cannot subsequently reopen the same subject of litigation by raising matters which, with reasonable diligence, ought to have been advanced in the earlier proceedings. The doctrine, it was submitted, extends not only to issues actually determined but also to every point that properly belonged to the earlier litigation and could have been raised at that time. 53.Applying those principles, learned counsel submitted that the mere addition or omission of parties, or the reframing of a dispute as a judicial review application or constitutional claim, does not, without more, render the doctrine of res judicata inapplicable. According to counsel, the judicial review proceedings were founded on issues that had already been determined by the High Court and were pending determination before this Court in the appeal. It was therefore contended that the proceedings constituted an abuse of the court process and that, regardless of the outcome of the pending appeal, the doctrine of res judicata would continue to operate in relation to those issues. 54.As regards the doctrine of exhaustion of statutory remedies, counsel submitted that the procedure for instituting judicial review proceedings is governed by section 9 of the Fair Administrative Action Act. Referring to subsections (2), (3) and (4) thereof, he contended that the provisions are couched in mandatory terms and require a party aggrieved by an administrative action to first exhaust all available statutory and internal dispute resolution mechanisms before invoking the jurisdiction of the High Court. It was submitted that the appellant's application offended section 9(2) because it approached the High Court before exhausting the appellate mechanism provided under the tax statutes and, consequently, the proceedings were premature. 55.In support of that proposition, counsel relied on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, where this Court held that where a dispute resolution mechanism exists outside the courts, it ought to be exhausted before the jurisdiction of the courts is invoked, and that courts should be fora of last resort rather than the first port of call. He also cited In the Matter of the Mui Coal Basin Local Community [2015] eKLR, in which the High Court stated that Article 159 of the Constitution embodies a constitutional preference for specialized statutory dispute resolution mechanisms, and requires courts to respect the principle of fitting disputes to the most appropriate forum. It was therefore submitted that the appellant ought to have pursued the statutory appellate process established under the tax legislation before seeking judicial review. 56.Counsel further submitted that section 9(4) of the Fair Administrative Action Act permits exemption from the exhaustion requirement only where exceptional circumstances are demonstrated and the applicant formally seeks such exemption. He contended that in the present case, no argument had been advanced that the appellate mechanism under section 52(1) of the Tax Procedures Act was inadequate or ineffective. Equally, no basis had been laid for construing the statutory provisions restrictively so as to preserve the court's jurisdiction despite the existence of an alternative remedy. Accordingly, it was contended that the appellant had failed to establish the exceptional circumstances contemplated under section 9(4), with the result that the application offended section 9(2) of the Act and was liable to dismissal. 57.On whether the proceedings constituted an abuse of the court process, counsel referred to the Black's Law Dictionary and submitted that abuse of process encompasses the improper use of court procedures in a manner that is contrary to good order and fairness. Reliance was placed on Agnes Muthoni Nyanjui & 2 Others v Annah Nyambura Kioi & 3 Others [2015] eKLR, where the High Court identified, among other examples of abuse of process, the institution of multiple proceedings over the same subject matter against the same parties, the commencement of simultaneous proceedings in different courts, and the use of different procedures to enforce the same right. It was submitted that the appellant's judicial review application exhibited those characteristics because it raised issues that were already pending before the High Court in Income Tax Appeal No. 5 of 2018, thereby creating parallel proceedings and exposing courts of concurrent jurisdiction to the risk of rendering conflicting decisions. 58.In conclusion, counsel maintained that the appellant had failed to demonstrate any exceptional circumstances warranting the grant of judicial review remedies after disregarding the statutory dispute resolution process established by Parliament. He further submitted that disputes involving the technical interpretation of tax legislation and computation of tax liability are best determined by the Tax Appeals Tribunal which possesses the requisite expertise to resolve such matters. Since the appellant neither followed that statutory route nor explained why it had elected to bypass the appellate body established under the Act, counsel urged the Court to dismiss the appeal with costs and affirm the judgment of the High Court. 59.This being a first appeal, it is incumbent upon this Court to reconsider and re-evaluate the entire record and draw its own independent conclusions, while bearing in mind that, unlike the trial court, it neither saw nor heard the witnesses testify. Although the proceedings giving rise to this appeal were determined on affidavit evidence, that obligation remains undiminished. Accordingly, we have to carefully consider the pleadings, the affidavit evidence, the applicable statutory framework, the rival submissions, the impugned judgment and the authorities cited in order to determine whether the learned judge's conclusions were supported by the evidence and the applicable law. See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 60.We have carefully reconsidered and re-evaluated the record of appeal, the impugned judgment, the memorandum of appeal, the parties' pleadings, the affidavit evidence, the rival submissions and the applicable law. From our evaluation, the following issues crystallize for determination: whether the learned judge erred in holding that the judicial review proceedings were sub judice; whether the proceedings were barred by the doctrine of res judicata; whether the learned judge correctly found that the proceedings constituted an abuse of the court process; whether he properly applied the doctrine of exhaustion of statutory remedies; whether the judicial review proceedings raised distinct public law questions capable of determination independently of the statutory tax appeal; and, depending on the resolution of those issues, whether the learned judge ought to have proceeded to determine the merits of the amended Notice of Motion, and whether the appellant is entitled to the reliefs sought. 61.As regards the first issue, which is, whether the judicial review proceedings were barred by the doctrine of sub judice, the learned judge found that at the time the proceedings were instituted, High Court Income Tax Appeal No. 5 of 2018 arising from the decision of the Tax Appeals Tribunal was pending between the same parties. The learned judge observed that both proceedings revolved around the appellant's entitlement to VAT refunds and that allowing them to proceed concurrently would offend the provisions of section 6 of the Civil Procedure Act. 62.Section 6 of the Civil Procedure Act provides that:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 63.The rationale underlying the doctrine is to prevent multiplicity of proceedings over the same subject matter, avoid the risk of conflicting decisions by courts of concurrent jurisdiction, and preserve the orderly administration of justice. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR observed thus:“The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 64.There is no dispute that when the judicial review proceedings were commenced on 6ᵗʰ March 2018, the appellant had already challenged the respondent's objection decisions before the Tax Appeals Tribunal, whose decision was delivered on 9th March 2018. It is equally common ground that the appellant thereafter lodged High Court Income Tax Appeal No. 5 of 2018 challenging the Tribunal's determination. The question, however, is whether the issues raised in those proceedings were directly and substantially the same as those presented in the judicial review application. 65.Upon a careful reappraisal of the record, we are persuaded, with respect, that the learned judge approached the issue from unduly broad standpoint. The statutory appeal before the Tax Appeals Tribunal, and subsequently before the High Court, was confined to the propriety of the respondent's objection decisions rejecting specific VAT refund claims on the ground that the services rendered by the appellant did not constitute exported services within the meaning of the Value Added Tax Act. Before the Tribunal, the principal issue was whether those services qualified as exported services under the said Act. In resolving that issue, the Tribunal directed its attention to the place of consumption of the services and concluded that the appellant's pre-shipment services were consumed in Kenya by the exporters of the horticultural produce and therefore attracted VAT at the standard rate. That conclusion formed the gravamen of High Court Income Tax Appeal No. 5 of 2018, in which Okwany, J. similarly identified the main issue for determination as whether the services rendered by the appellant could properly be regarded as exported services within the meaning of section 2 of the Value Added Tax Act. The statutory appeal was therefore concerned exclusively with the correctness of the respondent's interpretation and application of the provisions of the Value Added Tax Act to the appellant's services. 66.The judicial review proceedings, on the other hand, extended beyond the correctness of the respondent's interpretation of the Value Added Tax Act. The amended Notice of Motion challenged, inter alia, the respondent's alleged failure to comply with the mandatory timelines prescribed under sections 47 and 51 of the Tax Procedures Act; sought declarations that the appellant's objections stood allowed by operation of section 51(11); complained of prolonged failure to determine numerous refund claims and to undertake audits within the statutory period; alleged violations of Article 47 of the Constitution and the Fair Administrative Action Act; and sought orders of mandamus compelling the respondent to discharge statutory duties which, according to the appellant, had remained unperformed. Those complaints related not merely to the legality of the objection decisions themselves, but also to the lawfulness of the respondent's administrative conduct in processing the appellant's refund claims. 67.That distinction is, in our view, significant. In Kenya Revenue Authority v Universal Corporation Limited (supra), this Court reiterated that judicial review is principally concerned with the legality of the decision-making process rather than the merits of the impugned decision or the vindication of private rights. Its purpose is to ensure that public authorities act lawfully, fairly, reasonably and in accordance with the powers conferred upon them by law. The Court further observed that judicial review remains available, in appropriate cases, notwithstanding the existence of alternative remedies, provided that the dispute raises questions of public law warranting the Court's supervisory intervention. A statutory appeal, by contrast, is directed at examining the correctness of the impugned decision on its merits. Against this backdrop, it is our view that while the two jurisdictions may, in certain instances, overlap, they are neither synonymous nor invariably coextensive. It follows, therefore, that the mere existence of a statutory right of appeal does not, without more, render every public law challenge to administrative action sub judice or otherwise deprive the High Court of its supervisory jurisdiction. 68.We also note that not all the refund claims forming the subject of the judicial review proceedings had crystallized into objection decisions capable of being appealed to the Tax Appeals Tribunal. The record shows that while certain claims had been rejected and were the subject of the statutory appeal, numerous others were said to have remained undetermined, despite the expiry of the statutory timelines, while others had allegedly not even been audited. Those claims could not readily have formed part of the appeal before the Tribunal because, absent objection decisions, there was no appealable determination in respect of them. To that extent, the judicial review proceedings raised questions that were neither before the Tribunal nor before the High Court in Income Tax Appeal No. 5 of 2018. 69.In our view, therefore, while there undoubtedly existed an overlap between the two proceedings in so far as they both touched on the appellant's entitlement to VAT refunds arising from the characterization of its services, it cannot be said that the matters in issue were entirely identical. In our view, the learned judge did not undertake the necessary inquiry to distinguish those issues that were properly the subject of the statutory appeal from those relating to the respondent's alleged administrative inaction and compliance with the mandatory timelines prescribed under the Tax Procedures Act. By treating the existence of the statutory appeal as dispositive of the entire judicial review application, the learned judge undoubtedly failed to appreciate that the application raised distinct questions of public law which required separate consideration. 70.Our finding that the learned judge erred in his application of the doctrine of sub judice is not, however, dispositive of the appeal. The respondent had also urged, and the learned judge accepted, that the judicial review proceedings were barred by the doctrine of res judicata and constituted an abuse of the court process. We now turn to consider whether those doctrines were properly invoked in the circumstances of this case. 71.Section 7 of the Civil Procedure Act codifies the doctrine of res judicata. It bars a court from trying a suit or issue that has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, where the issue has been heard and finally determined by a court of competent jurisdiction. The doctrine is founded on the public policy that litigation must come to an end, and that parties should not be vexed twice over the same cause. In John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (supra), the Supreme Court observed thus:“…the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively…” 72.It is apparent from the record that High Court Income Tax Appeal No. 5 of 2018 was determined by Okwany, J. on 31st May 2019, several months before the impugned judgment was delivered on 17th January 2020. The learned judge appears to have proceeded on the footing that, by reason of that determination, the judicial review proceedings had become res judicata. With respect, we are unable to agree with that conclusion. 73.First, the judicial review proceedings had been instituted on 6th March 2018, long before the High Court determined Income Tax Appeal No. 5 of 2018 on 31st May 2019. Whether proceedings are incompetent for being sub judice is ordinarily determined with reference to the circumstances obtaining at the time of their institution. Equally, the doctrine of res judicata presupposes the existence of a prior final determination. At the time the judicial review application was filed, there was no prior judgment capable of operating as res judicata. The learned judge appears to have relied upon a judgment delivered after the institution of the proceedings to retrospectively deprive the court of jurisdiction. In our view, that approach conflated the distinct doctrines of sub judice and res judicata. 74.Secondly, even assuming that the subsequent judgment in High Court Income Tax Appeal No. 5 of 2018 was capable of affecting the pending judicial review proceedings, it remained incumbent upon the learned judge to undertake a careful comparison of the two proceedings by examining the pleadings, the issues for determination, the reliefs sought and the findings made in each, so as to ascertain whether the matters directly and substantially in issue were indeed identical. As the Supreme Court observed in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 Others (supra), whenever the plea of res judicata is raised, the court must examine the decision relied upon, the entire pleadings and record in the earlier proceedings, as well as the subsequent proceedings, in order to determine whether the issues are the same, whether the parties are the same or litigate under the same title, and whether the earlier decision was rendered by a court of competent jurisdiction. See also Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR. It follows, therefore, that a mere assertion that the two proceedings arise from the same transaction or factual background does not, without more, suffice to sustain the plea of res judicata. 75.From our perusal of the impugned judgment, it is not apparent that the learned judge undertook the requisite comparative exercise or, if he did, that he undertook it in the manner contemplated by the law. As already observed, the statutory appeal was concerned with the legality of the respondent's objection decisions rejecting specified VAT refund claims on the basis that the appellant's services were not exported services. In contrast, the judicial review proceedings also sought declarations that objections had been deemed allowed by operation of section 51(11) of the Tax Procedures Act, challenged the respondent's failure to determine numerous refund claims within the statutory timelines prescribed under section 47 of that Act, and alleged violations of Article 47 of the Constitution and the Fair Administrative Action Act arising from prolonged administrative inaction. Whether those complaints were ultimately meritorious is a different question. The point is that they were not identical to the issues determined in the statutory appeal. 76.We are equally unable to agree with the respondent's contention that the mere reframing of the dispute as one for judicial review necessarily rendered the proceedings an abuse of the court process. Abuse of the court process is a flexible doctrine whose application depends on the particular facts and circumstances of each case. As this Court observed in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, it encompasses the misuse of judicial procedures in a manner that is frivolous, vexatious, oppressive or otherwise inconsistent with the proper administration of justice. The categories of abuse are not closed, and the court must examine the purpose for which the proceedings have been instituted and whether they amount to an improper invocation of the court's process. It follows that the mere existence of parallel proceedings does not, without more, constitute an abuse of process. The determinative inquiry is whether the proceedings seek to relitigate the same issues, or whether, notwithstanding a common factual background, they pursue distinct legal rights and remedies. 77.In the present case, although the judicial review proceedings undoubtedly overlapped with the statutory appeal in relation to the respondent's characterization of the appellant's services, they also sought to enforce statutory duties relating to the timely processing of refund claims and objection decisions. Those complaints were founded on the respondent's alleged failure to comply with the mandatory provisions of the Tax Procedures Act and its constitutional obligation to accord the appellant administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. In the circumstances, we are not persuaded that the pursuit of those public law remedies, without more, amounted to an abuse of the court process. 78.The above notwithstanding, we should not be understood to suggest that every prayer contained in the amended Notice of Motion properly fell within the province of judicial review. Some of the reliefs sought, particularly those seeking orders compelling the respondent to remit specific VAT refund amounts premised on the characterization of the appellant's services as exported services plainly overlapped with issues that had already been committed to the statutory appellate process. To that extent, those prayers were not without jurisdictional impediments. The learned judge, however, did not distinguish between the prayers that invited the court to determine the substantive tax dispute and those directed at compelling the respondent to discharge its statutory obligations in relation to the processing and determination of the appellant's refund claims. Instead, he treated the application in its entirety as jurisdictionally barred. With respect, that approach was erroneous. 79.Having reached that conclusion, we now turn to the question whether the learned judge correctly held that the appellant had failed to exhaust the statutory dispute resolution mechanism established under the Tax Procedures Act. That issue, in our view, lies at the heart of this appeal because unlike sub judice and res judicata, the doctrine of exhaustion concerns the proper allocation of jurisdiction between the courts and specialized statutory tribunals. 80.The doctrine of exhaustion is now firmly embedded in our jurisprudence. It is codified in section 9 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya which provides as follows:“ 1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. 2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. 3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1). 4).Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.” [Emphasis added] 81.The rationale underpinning the doctrine was succinctly stated by this Court in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others (supra), where it observed that, where a dispute resolution mechanism exists outside the courts, it is imperative that the same be exhausted before the jurisdiction of the courts is invoked. The Court underscored that courts are fora of last resort and not the first port of call, and that the doctrine serves to postpone judicial intervention in order to afford parties the opportunity to diligently pursue the dispute resolution mechanisms established by law, consistent with the dictates of Article 159 of the Constitution. See also Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR. 82.The learned judge relied heavily upon the doctrine of exhaustion in declining jurisdiction. With respect, however, the inquiry ought not to have ended with the mere existence of an alternative statutory remedy. Section 9 of the Fair Administrative Action Act does not impose an inflexible rule. Rather, it requires the court to consider whether the particular grievance presented is one that the alternative forum is competent to determine, and whether the remedy provided by that forum is adequate and effective in the circumstances of the case. It is only after undertaking that inquiry that the court can determine whether the applicant ought to be relegated to the statutory process. Indeed, the court in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR held thus:“ 37.Our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute. It is also settled that the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.” 83.The foregoing distinction assumes particular significance in the present appeal. It is evident from the record that the appellant's grievances did not all emanate from objection decisions amenable to the appellate jurisdiction of the Tax Appeals Tribunal. While some refund claims culminated in objection decisions and became the subject of Tax Appeals Tribunal Appeal No. 115 of 2016, others were alleged to have remained pending without determination notwithstanding the lapse of the statutory timelines stipulated under sections 47 and 51 of the Tax Procedures Act. In relation to those claims, the appellant's complaint was directed, not at the merits of any decision made by the respondent, but at the respondent's alleged failure to make any decision at all in discharge of its statutory obligations. 84.In our view, that distinction is pivotal. Whereas the Tax Appeals Tribunal exercises an appellate jurisdiction founded upon an appealable decision of the Commissioner, the appellant's complaint, in so far as the undetermined refund claims were concerned, was directed at the absence of any decision at all. In the absence of an objection decision capable of being challenged before the Tribunal, the statutory appellate mechanism could not readily provide a remedy for the respondent's alleged failure to discharge its statutory obligations under the Tax Procedures Act. To that extent, the appellant's grievance properly invoked the High Court's supervisory jurisdiction to examine the legality of the respondent's administrative inaction. 85.This Court confronted a comparable question in Kenya Revenue Authority v Universal Corporation Limited (supra). While acknowledging that the East African Community Customs Management Act established a statutory appellate mechanism, the Court held that the existence of such a mechanism did not, without more, oust the High Court's judicial review jurisdiction. It emphasized that judicial review is a distinct and special supervisory jurisdiction concerned with the legality of the decision-making process rather than the merits of the impugned decision. The Court further observed that, in determining whether a party should be relegated to an alternative statutory forum, the court must consider whether that forum is capable of granting the relief sought and whether it is suitable, convenient and effective in resolving the particular grievance before it. 86.The Court accordingly concluded that, although the statutory appellate mechanism remained available, the tribunal established under the statute had no jurisdiction to entertain judicial review proceedings or grant the public law remedies sought. It therefore affirmed that judicial review remains available in appropriate cases notwithstanding the existence of an alternative statutory remedy, particularly where the complaint concerns the legality of administrative action and the statutory forum is incapable of providing an effective remedy. 87.We find that reasoning particularly instructive. The appellant's amended Notice of Motion sought, among other reliefs, orders compelling the respondent to determine pending refund claims, undertake the requisite statutory audits and comply with the mandatory timelines prescribed under the Tax Procedures Act. Those grievances were directed at the respondent's alleged failure to discharge statutory duties and the legality of its administrative inaction, rather than the substantive correctness of its interpretation of the Value Added Tax Act. Whether those complaints ultimately merited the grant of judicial review relief is beside the point. What is material is that they raised distinct public law questions which the learned judge was required to examine before declining jurisdiction on the sole basis that an alternative statutory remedy existed. 88.We are cognizant of the respondent's submission that the appellant neither sought nor obtained exemption under section 9(4) of the Fair Administrative Action Act. While that omission is a relevant consideration, it is not, in the circumstances of this case, determinative. Ordinarily, an applicant seeking to depart from the statutory dispute resolution process ought to invoke section 9(4) and establish the exceptional circumstances justifying such departure. However, and in our view, where the pleadings reveal that the complaint is directed at alleged continuing administrative inaction and the failure of a public authority to discharge statutory obligations, and where the alternative forum is incapable of granting an effective remedy, the court is enjoined to examine the substance rather than the form of the dispute, particularly where the right to fair administrative action under Article 47 of the Constitution is invoked. 89.That conclusion, however, should not be understood as sanctioning recourse to judicial review in respect of every aspect of the dispute. While the appellant was entitled to invite the High Court to interrogate the respondent's alleged administrative inaction and failure to discharge its statutory obligations, it could not, under the guise of judicial review, circumvent the statutory appellate process in relation to matters falling squarely within its remit. A careful reading of the amended Notice of Motion reveals that several of the substantive prayers sought orders compelling the respondent to pay specific VAT refunds amounting to Kshs. 168,630,037/=. Those prayers rested on a determination that the appellant's services constituted exported services attracting VAT at the zero rate, an issue that had already formed the subject of the proceedings before the Tax Appeals Tribunal and the subsequent statutory appeal to the High Court. 90.It follows that, in so far as the appellant sought to establish its substantive entitlement to the disputed VAT refunds by inviting the High Court to pronounce upon the proper interpretation of the Value Added Tax Act, the dispute properly belonged within the statutory appellate framework established under the Tax Procedures Act. Judicial review could not be invoked to secure, by way of an order of mandamus or otherwise, what was in substance a determination on the merits of the respondent's tax decisions. 91.To that extent, therefore, the learned judge was correct in holding that the High Court could not employ its judicial review jurisdiction to usurp the appellate mandate expressly conferred upon the Tax Appeals Tribunal and the appellate courts under the Tax Procedures Act. However, he fell into error by failing to distinguish those prayers directed at the merits of the respondent's tax decisions from those complaining of the respondent's alleged failure to perform statutory duties within the timelines prescribed by sections 47 and 51 of the Tax Procedures Act. Those categories of relief were conceptually and jurisdictionally distinct and, accordingly, called for separate consideration. 92.In our view, the learned judge's failure to undertake that distinction led him to treat the amended Notice of Motion as presenting a single, indivisible dispute, whereas it raised both private law questions concerning the appellant's substantive tax liability, and public law questions concerning the legality of the respondent's administrative conduct. The existence of the former did not, without more, extinguish the court's supervisory jurisdiction in respect of the latter. 93.Consequently, and although we agree with the learned judge that the High Court could not, through judicial review, determine the appellant's substantive entitlement to the disputed VAT refunds or pronounce itself on whether the appellant’s services constituted exported services within the meaning of the Value Added Tax Act, we respectfully disagree with his conclusion that the existence of the statutory appellate process wholly deprived the court of jurisdiction to entertain the appellant's complaints regarding the respondent's alleged failure to discharge its statutory duties under sections 47 and 51 of the Tax Procedures Act and the alleged infringement of the right to fair administrative action guaranteed under Article 47 of the Constitution. It is those complaints that we now proceed to consider. 94.Before turning to the merits of the appellant's complaints regarding the respondent's alleged administrative inaction, it is necessary to consider whether the reliefs sought in the amended Notice of Motion were amenable to judicial review. The learned judge did not address that question, having upheld the preliminary objections. Having reached a different conclusion in that regard, it falls upon us, as the first appellate court, to determine whether the appellant established a proper basis for the grant of the judicial review reliefs sought. 95.It is common ground that the appellant sought, among other reliefs, declarations that its notices of objection stood allowed by operation of section 51(11) of the Tax Procedures Act; orders of mandamus compelling the respondent to determine outstanding refund claims, undertake audits in respect of claims that had not been processed and, ultimately, remit VAT refunds amounting to Kshs. 168,630,037/=. The appellant also alleged that the respondent had acted in breach of sections 47 and 51 of the Tax Procedures Act, Article 47 of the Constitution and the Fair Administrative Action Act by failing to determine the refund claims within the prescribed statutory timelines. 96.The Tax Procedures Act imposes specific obligations upon the Commissioner in the administration of tax laws. Section 47 obliges the Commissioner to consider refund applications and communicate a decision within the prescribed period, while section 51 establishes the procedure for objections and provides, under subsection (11), that where the Commissioner fails to make an objection decision within sixty days after receiving a valid notice of objection, the objection shall be deemed to be allowed. Those provisions are couched in mandatory language and were enacted to ensure certainty, accountability and expedition in tax administration. 97.The appellant's primary complaint was that, despite lodging notices of objection, the respondent failed to render objection decisions within the statutory period. It further asserted that several refund claims remained pending for prolonged periods, despite audits having been completed, while others had neither been audited nor determined. The respondent did not dispute that some delay occurred. Rather, it explained through its officer, one Geoffrey Korir, that it considered it prudent to await the outcome of the proceedings before the Tax Appeals Tribunal before making further administrative decisions on the outstanding refund claims. 98.With respect, we are unable to accept that explanation. Neither the Tax Procedures Act nor the Value Added Tax Act confers upon the Commissioner the power to suspend or defer the discharge of statutory obligations merely because related proceedings are pending before the Tax Appeals Tribunal or the courts. It is trite that a public authority, being a creature of the Constitution and/or statute, may exercise only those powers lawfully conferred upon it. Accordingly, where Parliament has prescribed mandatory timelines for the performance of statutory duties, those timelines cannot be varied, suspended or rendered nugatory by administrative expediency or by the Commissioner's unilateral decision to await the outcome of collateral proceedings. Any contrary approach would amount to the Commissioner arrogating unto himself a power which Parliament deliberately withheld. 99.Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. That constitutional guarantee is given effect by the Fair Administrative Action Act which imposes corresponding obligations upon public bodies. The Commissioner of Domestic Taxes, being a public authority exercising statutory powers, is bound by those constitutional and statutory requirements. Delay in the performance of statutory duties, particularly where no lawful justification exists, is capable of attracting judicial review intervention. 100.The foregoing notwithstanding, it does not follow that the appellant was entitled to the orders of mandamus sought. An order of mandamus issues to compel the performance of a public duty that is clear, specific and presently due. It does not issue to direct a public authority on the manner in which it should exercise a statutory discretion, nor can it compel the payment of a disputed sum where the existence of the legal entitlement remains contested. 101.In the present case, the appellant sought an order compelling payment of Kshs. 168,630,037/=. That prayer presupposed that all the refund claims were lawfully payable and that the appellant's services qualified as exported services attracting VAT at zero rate. In our view, those questions lay at the heart of the substantive tax dispute and had already been considered by the Tax Appeals Tribunal and, subsequently, by the High Court in Income Tax Appeal No. 5 of 2018. Whether those decisions were correct is not a matter capable of determination through judicial review proceedings. Mandamus cannot be employed to bypass the statutory appellate process or to convert a contested tax claim into an immediately enforceable public duty. 102.A different consideration arises, however, in relation to those prayers directed at compelling the respondent to discharge statutory obligations that had allegedly remained unperformed. If indeed refund applications remained undetermined beyond the statutory timelines, or if objections stood unanswered contrary to section 51(11) of the Tax Procedures Act, those complaints disclosed arguable public law questions properly falling within the supervisory jurisdiction of the High Court. The learned judge therefore ought to have examined, on the evidence before him, whether the statutory conditions for the grant of mandamus had been established in respect of those specific duties rather than declining jurisdiction over the application as a whole. 103.The record further shows that the amended Notice of Motion sought alternative reliefs. The appellant did not merely seek payment of the disputed refunds. It also sought orders compelling the respondent to determine pending refund claims and undertake statutory audits in respect of claims that had not been processed. Those alternative prayers were directed at enforcing statutory duties rather than determining the merits of the tax dispute itself. In our view, they deserved separate consideration because their determination did not necessarily require the court to pronounce itself as to whether the appellant's services constituted exported services under the Value Added Tax Act. 104.The learned judge's failure to distinguish between those categories of relief ultimately led him into error. By treating every prayer in the amended Notice of Motion as inseparable from the substantive tax dispute, the learned judge overlooked the appellant's independent complaint that the respondent had failed to perform statutory duties imposed by the Tax Procedures Act. While judicial review could not properly be invoked to determine the appellant's substantive entitlement to the VAT refunds, it remained available to ensure that the respondent discharged the procedural obligations imposed upon it by law in a manner consistent with Article 47 of the Constitution and the Fair Administrative Action Act. That distinction was, in our respectful view, fundamental to the proper disposition of the application. 105.Upon our own evaluation of the record, we are satisfied that the appeal succeeds only to a limited extent. We agree with the learned judge that the High Court, sitting as a judicial review court, could not properly determine the substantive question whether the appellant's services constituted exported services attracting VAT at the zero rate or, on that basis, compel the respondent to remit the aggregate sum of Kshs. 168,630,037/=. That issue had already been ventilated before the Tax Appeals Tribunal and formed the subject of the statutory appeal to the High Court. It was therefore one that fell within the appellate framework established under the Tax Procedures Act and was not amenable to determination through judicial review proceedings. 106.We part company with the learned judge, however, in his treatment of the appellant's complaints relating to the respondent's alleged failure to perform statutory duties imposed under sections 47 and 51 of the Tax Procedures Act. Those complaints did not call upon the court to determine the correctness of the respondent's interpretation of the Value Added Tax Act. Rather, they raised the distinct question whether the respondent had complied with the mandatory statutory obligations governing the processing of refund applications and objections. Those issues were capable of determination independently of the substantive tax dispute and, in our view, ought to have been examined on their merits. 107.Having found that the learned judge erred in declining jurisdiction in respect of the appellant's complaints concerning the respondent's alleged administrative inaction, it does not, without more, follow that the appellant is entitled to the reliefs sought. As the first appellate court, we are enjoined, where the record permits, to determine the issues that the learned judge ought to have determined rather than remit the matter for reconsideration. It therefore falls upon us to examine whether the material placed before the High Court established a proper basis for the grant of the declaratory reliefs and the orders of mandamus sought in the amended Notice of Motion. 108.The appellant's principal contention was that its notices of objection dated 25th May 2016 stood allowed by operation of section 51(11) of the Tax Procedures Act, the respondent having failed to render objection decisions within the mandatory period of sixty days prescribed by that provision. The respondent did not dispute that the notices of objection had been lodged. Its explanation was that, since the appellant had already invoked the jurisdiction of the Tax Appeals Tribunal in respect of related refund claims, it considered it prudent to defer the determination of the outstanding objections pending the Tribunal's decision. 109.Whether that explanation was legally sustainable depends upon the proper construction of section 51(11) of the Tax Procedures Act. That provision stipulates in mandatory terms that where the Commissioner fails to make an objection decision within sixty days from receipt of a valid notice of objection, the objection shall be deemed to be allowed. The use of the word "shall" ordinarily denote a mandatory obligation, unless the statutory context suggests otherwise. More importantly, the subsection expressly prescribes the legal consequence of non-compliance, namely, that the objection is deemed allowed by operation of law. 110.This Court has consistently emphasized that where Parliament has prescribed both a mandatory timeline for the performance of a statutory duty and the legal consequence attendant upon non-compliance, no person or body, including the Commissioner and the courts themselves, is at liberty to disregard, vary or dilute that statutory command. The timelines enacted under the Tax Procedures Act are intended to promote certainty, predictability and accountability in tax administration while protecting taxpayers against prolonged administrative inaction. They equally ensure that the Commissioner discharges the statutory functions entrusted to him expeditiously, efficiently and in a manner consistent with the dictates of Article 47 of the Constitution. 111.The above notwithstanding, the appellant's case encounters a separate difficulty. While considerable reliance was placed on section 51(11) of the Tax Procedures Act, the material placed before the High Court did not, in our view, conclusively establish that the statutory conditions necessary to trigger the operation of that provision had been satisfied in respect of each of the disputed refund claims. In particular, the court was not invited to determine whether each notice of objection satisfied the statutory requirements of a valid objection; the precise date on which each notice was received by the respondent; whether the respondent had requested further information pursuant to the Act and, if so, the legal effect of such request; or whether the running of the statutory sixty- day period had been suspended, interrupted or otherwise affected by subsequent events. Those are factual matters of considerable significance which were not comprehensively investigated or determined, the application having been disposed of on the preliminary objections. 112.We express similar views in regard to the appellant's complaint that numerous refund applications remained undetermined contrary to section 47 of the Tax Procedures Act. While the record demonstrates that several refund claims had remained pending for considerable periods and that audits had been undertaken in respect of some of them, it does not sufficiently establish the factual basis upon which this Court could, in the exercise of its appellate jurisdiction, grant the far- reaching declaratory and mandatory orders sought without the benefit of findings by the High Court on those contested issues. 113.In the circumstances, and although we have found that the learned judge erred in declining to consider those aspects of the application directed at the respondent's alleged administrative inaction, we are not persuaded that the record enables this Court to substitute the orders sought in the amended Notice of Motion. The appropriate course is to remit those aspects of the application to the High Court for determination on their merits. In our view, such an approach preserves the statutory appellate process in relation to the substantive tax dispute, while ensuring that the appellant's complaints concerning compliance with sections 47 and 51 of the Tax Procedures Act receive the judicial consideration they deserve. 114.In the end, this appeal partially succeeds. The judgment of the High Court dated 17th January 2020 is hereby set aside to the extent that it held that the appellant's amended Notice of Motion was, in its entirety, barred by the doctrines of sub judice, res judicata, exhaustion of statutory remedies and abuse of the court process. It is substituted with an order that the prayers seeking a determination of the appellant's substantive entitlement to the disputed VAT refunds are incompetent and stand dismissed. The remaining prayers relating to the respondent's alleged failure to perform its statutory duties under sections 47 and 51 of the Tax Procedures Act and the alleged infringement of the appellant's rights under Article 47 of the Constitution and the Fair Administrative Action Act are remitted to the High Court for hearing and determination on priority basis. 115.In view of the partial success of the appeal and the nature of the issues involved, we direct that each party bears its own costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.D. K. MUSINGA………………………… JUDGE OF APPEAL PAUL LILAN………………………… JUDGE OF APPEALDR. J.O. OKELLO……………………….. JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR