[2023] KETAT 1007 (KLR)

Positive Packaging Limited v Commissioner of Customs & Border Control (Tax Appeal 342 of 2022) [2023] KETAT 1007 (KLR) (6 October 2023) (Judgment)

Neutral citation: [2023] KETAT 1007 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 342 of 2022

Grace Mukuha, Chair, G Ogaga, E Komolo, Jephthah Njagi & T Vikiru, Members

October 6, 2023

Between

Positive Packaging Limited

Appellant

and

Commissioner Of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a company incorporated in Kenya. The Appellant's principal activity is manufacturing of corrugated cartons.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, and KRAis charged with the responsibility of among others, assessment, collection, accounting and the general administration of tax revenue on behalf of the Government of Kenya.

3. The dispute arose as a result of a Post Clearance Audit (desk review), of the imports by the Appellant covering the period July 2016 to August 2021.

4. According to the Respondent, the audit revealed a short levy of taxes as a result of the application of a duty rate of 10% instead of 25%.

5. Vide a demand notice dated 31st August 2021, the Respondent demanded for the short levied taxes from the Appellant whose liability was said to be Kshs. 4,570,500. 00.

6. In the letter, the Respondent informed the Appellant that the classification of its import of White Kraftliner was misclassified.

7. On 30th September 2021, the Appellant objected to the demand notice and applied for review of the decision pursuant to Section 229 of EACCMA.

8. The Respondent issued a review decision on 29th October 2021.

9. Vide a letter dated 29th January 2022, the Appellant requested for more time from the Respondent to assess the demand notice and appeal against the decision.

10. Vide a letter dated 10th February 2022, the Respondent wrote to the Appellant informing it that the taxes were confirmed by the review decision made on 29th October 2021 and would continue to accrue interest.

11. Aggrieved by the decision of the Respondent, the Appellant filed the Appeal on 4th April 2022 after seeking and getting the leave of the Tribunal to file the appeal out of time.

The Appeal 12. The Appeal is premised on the following grounds sTated in the Memorandum of Appeal dated 28th March 2022 and filed on 4th April 2022:-i.That there is no law which imposed a duty rate of 25% on paper and paperboard products in the period between July 2016 and 31st August 2021 in view of the fact that:-a.No Gazette Notice has ever been published by the East African Community imposing a rate of 25% on paper and paperboard products imported under H.S. Code 4804. 19. 90 since 20th June 2014. b.The mandate of the Respondent under Section 5 of the Kenya Revenue Authority Act is confined solely to administering and enforcing tax legislations set out in the First Schedule to the said Kenya Revenue Authority Act, and not any other law which is not set out therein.ii.That even if it were to be said arguendo that some law exists which imposed a duty rate of 25% on paper and paperboard products imported under H.S. Code 4804. 19. 90 as aforesaid (which is denied); and even if it were to be said arguendo that the Respondent is lawfully entitled to administer and enforce such law (which is also denied); it would still be illegal and unconstitutional for the Respondent to make and/or enforce compliance with the impugned decision or to issue the impugned demand notice on the following grounds:a.The Appellant was issued with a PVoC KEBS exemption certificate (hereinafter, “Exemption Certificate’), which Exemption Certificate was used at the time of the imporTation, wherein white Kraft liner of 130-150 GSM were issued a tariff of 10% rather than the 25% used in the assessment.b.It is the Respondent (and not the Appellant nor its clearing agents), who actually applied the duty rate of 10% on all paper and paperboard products imported into the Country under H.S. Code 4804. 19. 90 between 2nd August 2018 and 27th January 2022 by feeding into their Tradex System (otherwise known as Simba system), the duty rate of 10% as the mandatory duty rate that all importers of paper and paperboard products under its code 4804. 19. 90 had to pay before they could get their goods cleared as the system was configured by the Respondent to automatically pick the duty rate of 10% once the H.S. Code 4804. 19. 90 was keyed in. Consequently, the Respondent cannot found a cause of action as against the Appellants from their own actions.c.It is the Respondent (and not the Appellant nor their clearing agents,) who instructed their customs and valuation officers tasked with the responsibility of verifying and approving the correctness of import duty charged and paid with respect to paper and paperboard product imported under H.S. Code 4804. 19. 90 to insist on payment of duty at the rate of 10% before such goods could be allowed to leave the port of entry.d.It is the Respondent (and not the Appellant nor its clearing agents), who released the Appellant’s imports upon satisfaction that the taxes so computed were verified as correct.e.The impugned decision as well as the impugned demand notice violates the Appellant's right to fair administrative action, right to property, the right to access justice and the right to protection of law.f.The Appellant had a legitimate expecTation that the Respondent would not labour to put in place such expensive and tamper-proof infrastructural technological, administrative, surveillance and monitoring systems as were necessary for purposes of inducing, encouraging and coercing the Appellant into paying customs duty at the mandatory rate of 10% for all paper and paperboard products imported under H.S. Code 4804. 19. 90 only to subsequently change their mind and punish the Appellant for having paid duty at the rate of 10% and not 25% (which the Appellants could not have done even if they wanted at the time because the Simba System would not permit them so to do).g.It is unconstitutional, illegal, unfair, irrational, capricious, in bad faith and abuse of office for the Respondent to encourage, induce and coerce the Appellant into paying duty at the rate of 10% for goods which the Respondent knew - or ought to have known - were meant to be sold out to third parties, only for them to subsequently demand that the Appellant pays duty at 25% long after the goods were refined and used up by the third party purchasers at which point in time the Appellant cannot recover the uplifted duty from the third party purchasers of the finished products.h.The Respondent is institutionally bound by and cannot resile from its previous interpreTation of the effect of the purported deletion of Paragraph 2 of Legal Notice No. EAC/69/2018, which interpreTation informed its decision to configure the Simba System to pick import duty for paper and paperboard products imported under H.S. Code 4804. 19. 90 at the rate of 10%.i.The Appellant’s liability to tax cannot be made wholly dependent on the personal idiosyncrasies of the individual occupants of the office of the Commissioner of Customs and Border Control as the Respondent seems to opine. Consequently, the fact that the Respondent holds different views with regards to the effect of the purported deletion of Paragraph 2 of Legal Notice No. EAC/69/2018 from a previous holder of the same office should have no effect whatsoever on the Appellant's tax liabilities.j.Section 135 of the East African Community Customs Management Act (EACCMA) was intended to deal only with situations where the tax paid is less than what the Respondent honestly, sincerely and for good reasons, believed to be due and payable at the time, and not - as is the case herein - where the tax paid is what the Respondent honestly, sincerely and for good reasons believed to be payable at the time, save for the fact that a different occupant of the same office subsequently holds the view that the previous occupant of the same office should have collected more tax, than he did.k.The Respondent has been guilty of inordinate delay in carrying out the post clearance audit.l.The Respondent's decision to initiate a post-clearance audit and to issue the impugned notice was actuated by malice, bad faith and improper motive.m.By initiating a post clearance audit as aforesaid and issuing the impugned demand notice, the Respondent acted unreasonably and took into account improper considerations while at the same time failed to take into account proper considerations.n.The Respondent having issued tax compliance certificates to the Appellant is estopped from changing its position and now averring as against the Appellant that they have outstanding taxes.

Appellant’s Case 13. The Appellant’s case is also premised on the Appellant’s STatement of Facts dated 28th March 2022 and filed on 4th April 2022 together with the documents attached thereto.

14. The Appellant averred that by a Gazette Notice No: EAC/21/2014 dated 20th June, 2014 the Council reduced the tariff rate for paper and paper board products imported under H.S code 4804. 19. 90 (which was previously set on the maximum rate of 25% to the middle rate of 10%).

15. That on 30th June 2017 the Council, vide Legal Notice No: EAC/85/2017 renewed and modified the East African Community Common External Tariff to model it along the lines of the 2017 version of the Harmonized Community Description and Coding System version 2012 of the World Customs Organization (WCO). That the purpose of that review was merely to harmonize the commodity description and coding system of the EAC CET with that of the 2012 version of the WCO CET. That no tariff rate was reviewed . That the revised EAC CET was christened the 2017 version of the EAC CET.

16. That being conversant with the foregoing, and influenced thereby, the Respondent configured their Tradex system (otherwise known as Simba System), to collect duty under H.S Code 4804. 19. 90 fed by the Respondent into the Simba system with the result that any person wishing to import any goods under H.S Code 4804. 19. 90 would simply enter the H.S Code into the system whereupon both the duty rate as well as the total tax payable would be given by the Simba System itself in the form of Form C17B Customs Entry.

17. That after the desk audit conducted August in 2021, the Appellant was consequently served with a demand notice requiring it to pay a sum of Kshs. 4,570,500. 00 (principal tax of Kshs. 3,379,227. 75, VAT due of Kshs. 165,095. 66, and interest of Kshs. 1,191,263. 00) within Thirty (30) days from the date of the said demand notice.

18. That on 24th February 2022, the Respondent moved to enforce the sums claimed in the demand notice by writing to the Appellant's banker, l&M Bank Limited, through an agency notice.

19. That the Appellant imported White Kraftliner paper between July 2016 to December 2020 and the same was classified under H.S Code 4804. 19. 90 under PVoC KEBS exemption certificate which was used at the time of the imporTation, wherein white Kraftliner of 130-150 gsm were issued a tariff of 10% rather than the 25% used in the assessment.

20. That in these circumstances, it would be dishonest, callous, malicious and in extreme bad faith for the Respondent to allege that the rate of 10% was not the correct rate for H.S Code 4804. 19. 90; nor to accuse any clearing agent or importer of applying the wrong rate since the rate of 10% was actually applied by the Respondent who fed it into its Simba System rather than by clearing agents who merely keyed in other details of the goods being cleared, leaving it entirely to the Simba System to give the applicable duty rate as well as the total duty payable.

21. That the Appellant responded to the demand notice by issuing a notice of objection dated 30th September 2021, wherein the Appellant reiterated that the applicable tariff was 10% and not the 25% as alleged by the Respondent.

22. The Appellant did not receive an objection decision from the Respondent until 25th January 2022 when it received a notice of enforcement. In the intervening period, the Appellant deemed that the notice of objection dated 30th September 2021 had been allowed pursuant to Section 51 (11) of the Tax Procedures Act.

23. That the Appellant sought, and was granted leave to file this Appeal out of time by the Tribunal.

Appellant’s Prayers. 24. The Appellant prays that the Tribunal:-a.Allows the Appeal,b.Annuls the impugned decision as well as the impugned demand notice.c.Awards the costs of the Appeal to the Appellant.

Respondent’s Case 25. The Respondent’s case is premised on the hereunder filed documents:-a.The Respondent’s STatement of Facts dated 27th April 2022 and filed on the same date.b.The Respondent’s written submissions dated and filed on 14th February 2023.

26. The Respondent averred that the dispute arose from a desk review of imports covering the period July 2016 to August 2021.

27. That the Respondent's review revealed a short levy of taxes as a result of the application of a duty rate of 10% instead of 25%.

28. That consequently, the Respondent demanded for the short levied taxes from the Appellant whose liability was Kshs. 4,570,500. 00 vide a tax demand dated 31st August, 2021 pursuant to sections 235, 236 and 135 of EACCMA.

29. That upon receipt of the demand of additional taxes, the Appellant applied for the Commissioner's review pursuant to Section 229 of the East Africa Community Customs Management Act 2004.

30. That on 29th October, 2021 and 8th November, 2021 the Respondent emailed the review decision to the Appellant wherein the Appellant was informed that according to the EAC CET Heading 48. 05 covers classification of multi-ply papers and paper board obtained by pressing together two or more layers of moist pulps of which at least one has characteristics different from the other.

31. That the difference may arise from the nature of pulps used, method of production (chemical or mechanical), or degree of processing (unbleached, bleached or colored). Consequently, White Top Kraftliner is considered to be uncoated multi­ply papers classified as per their grammage of tariff subheading 4805. 91/92.

32. That a further follow up email was done by the Respondent on 8th December, 2021 urging the Appellant to respond to the review decision to avoid enforcement measures. That regrettably, the letter elicited no response.

33. That vide a letter dated 29th January, 2022 the Appellant through its purported tax agents requested for additional time to lodge an appeal.

34. The Respondent responded to the tax agent's letter vide a letter dated 10th February, 2022 advising the Appellant that the amount of taxes confirmed by the review decision of 29th October 2021 continued to accrue interest.

35. The Respondent submitted that Kenya operates a self-assessment and self-declaration regime whereby, the taxpayer makes declarations and pays taxes on the items that they import themselves or through their agents. That this creates a legitimate expecTation that the taxpayer will self-declare and pay the correct taxes in accordance with the provisions of the law.

36. That however, in the event that the taxpayer defaults in this expecTation, the law under Sections 135, 235, 236 & 249 of the EACCMA, 2004 allows the Commissioner, within five years of imporTation, to assess and demand for the short-levied taxes.

37. That the assessment was made within the five-year window provided for by the law and therefore no legitimate expecTation on the taxpayer was breached.

38. That Sections 235 and 236 gives the Respondent powers to call for documents and conduct a Post Clearance Audit (PCA) on the import and export operations of a taxpayer within a period of five years from the date of imporTation or exporTation.

39. That where the PCA reveals that taxes were short levied, or erroneously refunded, Section 135 and 249(1) of EACCMA empowers the Respondent to recover any such amount short levied or erroneously refunded with interest at 2% per month for the period the taxes remain unpaid.

40. That Section 229 provides for application for review by any person affected by the decision or omission of the Commissioner on matters relating to Customs and provides the legal timelines to be observed.

41. That Section 230 (1) provides that a person dissatisfied with the Commissioner's decision after application for review under Section 229 may appeal to a Tax Appeals Tribunal established in accordance with Section 231 of EACCMA.

42. That Section 120 of theEACCMA provides for payment of import duty at the rate in force at the time when the goods liable to such duty are entered for home consumption. That consequently, in carrying out the Post clearance Audit, the Respondent only raised demand on the Appellant based on the rate in force for the period under review.

43. In response to paragraph 1 of the Memorandum of Appeal and paragraphs 14 of the Appellant's STatement of Facts, the Respondent sTated as follows:-a.That the law adjusting the import duty rate from 10% to 25% was operational at the time the Appellant was importing its products. The Respondent sTated that the East African Community Secretariat had published the EAC Gazette Notices on the EAC website adjusting the excise duty rate from 10% to 25% on paper and paper related products.b.The Respondent sTated that the notices were available to the public. That these notices usually highlight changes effected by the Council of Ministers to the East African Community Customs Management Act, 2004 and the East African Community Common External Tariff (CET).c.The Respondent sTated that the EAC Gazettes usually indicate the date the legal notices come into effect hence the Appellant's claim that there was no law that imposed a rate of 25% on paper and paperboard is not correct.d.That it is therefore not illegal for the Respondent to seek to implement the law by calling for short levied duties from the Appellant.e.That the Respondent's Simba system platform is administrative in nature and any issues arising therein are subject to the provisions of the law in existence. That this means that any configuration of the system cannot be made contrary to the law nor read or interpreted in a manner contrary to the law.f.That Post Clearance Audit is provided for in law and is parallel to the provisions and procedures on import, declaration and payment of duty.g.That in order to faciliTate cross border trade, sections 235 and 236 of the EACCMAhave endowed the Respondent with the powers to carry out Post Clearance Audits in order to ensure that goods are efficiently cleared from the port of entry and the time taken while in Customs custody is significantly reduced and to enable traders to dispose off their goods promptly upon their arrival in the country. That therefore, the purpose of such audits is to verify the accuracy and authenticity of declarations and covers a trader's commercial data, business systems, records and books.h.That post clearance audit of the Appellant was carried out within the sTatutory timelines and did not infringe on any of the Appellant's rights.i.That there is no legitimate expecTation arising from the Appellant's payment of duty at the incorrect rate.

44. The Respondent sTated that although the Customs system had not reflected the correct rate as per the provisions of Gazette EAC Notice resulting in short-levying of taxes, the published legal notice had adjusted the duty rate of items imported under tariff 4805. 91 and 4805. 92 depending on grammage from 10% to 25%. That the change in law preceded the change in the SIMBA system and at all times both the Appellant and the Respondent were to be guided by the provisions of the law.

45. The Respondent submitted that there is no dispute as to what was imported. The point of departure is the rate applicable to the imported goods.

46. That the EAC Gazette Notices were on the EAC website adjusting the rate from 10% to 25% on paper and paper related products.

47. That once the above sTated East African Gazette Notices were published, they became public law contrary to the assertions made by the Appellant in its Memorandum of Appeal.

48. That the Kenyan tax regime is based on self-declaration and thus the Respondent carries out post clearance to verify the accuracy of declarations in the entries for imported goods. That Section 236 of the EACCMAstipulates as follows:-“236. The Commissioner shall have the powers to-a.verify the accuracy of the entry of goods or documents through examination of books, records, computer stored information, business systems and all relevant customs documents, commercial documents and other data related to the goods;b.question any person involved directly or indirectly in the business, or any person in the possession of documents and data relevant to the goods or entry;c.inspect the premises of the owner of the goods or any other place of the person directly or indirectly involved in the operations; andd.examine the goods where possible for the goods to be produced"

49. The Respondent submitted that Section 135 of EACCMAempowers it to demand short levied taxes and provides as follows:-“(1)Where any duty has been short levied or erroneously refunded, then the person who should have paid the amount short levied or to whom the refund has erroneously been made shall. on demand by the proper officer pay the amount short levied or repay the amount erroneously as the case may be; and any such amount may be recovered as if it were duty to which the goods in relation to which the amount was short levied or erroneously refunded as the case may be, were liable.(2)Where a demand is made for any amount pursuant to sub-section (1), the amount shall be deemed to be due from the person liable to pay it on the date on which the demand note is served upon him or her, and if payment is not made within thirty days of the date of such service. or such further period as the Commissioner may allow, a -further duty of a sum equal to five percent of the amount demanded shall be due and payable by that person by way of a penalty and a subsequent penalty of two percent for each month in which he or she defaults.(3)The proper officer shall not make any demand after five years from the date of the short levy or erroneous refund, as the case may be, unless the short levy or erroneous refund had been caused by fraud on the part of the person who should have paid the amount short levied or to whom the refund was erroneously made, as the case may be.”

50. The Respondent submitted that it therefore acted within its mandate in carrying out the re-assessment pursuant to Section 236 of the EACCMAand issuing a demand notice pursuant to Section 136 of the same law. That its decision to initiate the post clearance audit was therefore not actuated by malice, bad faith or improper motive as alleged by the Appellant.

51. The Respondent submitted that the Appellant’s argument that the Respondent's demand notice violated the Appellant's right to fair administrative action, right to property and the right to access justice and right to protection of the law was baseless.

52. The Respondent submitted that theConstitution of Kenya, 2010 provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. That Clause 3 thereof provides that Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration.

53. That the demand was valid and issued within the sTatutory timelines specified in section 135(3) of the EACCMA.

54. The Respondent relied on the following cases:-a.Communications Commissions of Kenya & 5 others vs Royal Media Se1+vices Ltd and 5 others, (2014) eKLR.b.Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR.

Respondent’s Prayers. 55. The Respondent prayed that the Tribunal:-a.Dismisses the Appeal.b.Awards the Respondent the costs of the Appeal.

Issues For Determination. 56. After perusing the pleadings and documenTation produced before it, the Tribunal is of the view that the following are the issues for determination:-a.Whether the Respondent erred in reclassifying the Appellant’s product.b.Whether the rate of duty for the imports under H.S Code 4804. 19. 90 is 25% or 10%.

Analysis And Findings 57. Having identified the issues that call for its determination, the Tribunal proceeded to analyse them as hereunder.

Whether The Respondent Erred In Reclassifying The Appellant’s Products. 58. The Tribunal notes that the Appellant imported kraftliner under HS code 4804. 19. 90. The Respondent conducted a Post Clearance Audit and reclassified the product under HS Codes 4805. 91. 00 and 4805. 92. 00.

59. The Respondent did not indicate to the Tribunal the basis on which they reclassified the Appellant’s Kraftliner paper from HS Code 4804 to 4805.

60. The Appellant submitted it was issued with Kenya Bureau of Standards exemption certificate (which it provided to the Tribunal), serial number 2000778 which indicated the HS Code for its Kraftliner paper as 4804. 19. 90.

61. Whereas the Appellant classified the goods under Heading 4804, the Respondent on the other hand reclassified the same under Heading 4805. Heading 48. 04 describes the products as:-“Uncoated kraft paper and paperboard in rolls or sheets, other than that of heading 48. 02 or 48. 03 – kraftliner”Heading 48. 05 describes the products as;“Other uncoated paper and paperboard in rolls or sheets, not further worked or processed than as specified in Note 3 to this chapter - Fluting paper”

62. The Appellant indicates that it imported “kraftliner” while the Respondent seems to suggest that what was imported was “fluting paper”.

63. The product in dispute was imported into the country in 2020. This means that the applicable East African Community Common External Tariff to be applied was the 2017 version.

64. The Tribunal has looked at the East African Community Common External Tariff 2017 version. From the subheading notes above the Appellant’s product kraftliner paper was specifically classified under 48. 04, kraftliner and not 48. 05.

65. Rule 1 of the General Rules for classification of Goods under EACCET guides how to determine classification of goods. It provides as follows:-“The titles of sections, chapters and sub-chapters are provided for ease of reference only, for legal purposes, classification shall be determined according to the terms of the headings and any relative section or Chapter Notes and provided such headings or Notes do not otherwise require, according to the following provisions.”

66. It is clear from the above provision that the Sections and Chapter Notes are paramount as they are the first consideration in determining classification. This means that goods are to be classified under the heading in which they appear unless it is not possible to classify them according to GIR 1.

67. The Tribunal recently handled a similar dispute in Tat 511 of 2022, East African Packaging industries Limited Vs Commissioner of Customs & Border Control where the Tribunal at paragraph 61 held as follows:-“A reading of the above notes clearly sTate that Kraftliner are excluded from Heading 4805. In the absence of any plausible justification from the Respondent to classify the Appellant’s products under this heading, the Respondent’s criteria is therefore not ideal.”

68. The Tribunal reiterates it decision in the above matter and therefore holds and finds that the Respondent erred in reclassifying the Appellant’s product under review from HS code 4804. 19. 90 to HS Code 4805. 91. 00 and 4805. 92. 00.

Whether The Rate Of Duty For The Imports Under H.s Codes 4804. 19. 90 Is 25% Or 10%. 69. In this Appeal, the Appellant averred that there has never been any law that changed the duty rate of imports under H.S. Code 4804. 19. 90 from 10% to 25% since 20th June 2014.

70. The Respondent on the other hand submitted that the 2012 Version of the East African Community CET provides the rate of paper and paperboard products imported under H.S. Code 4804. 19. 90 at 25% and following subsequent deletions of various Legal Notices that changed the rate from 25% to 10%, they reverted to the 2012 version which charges the rate of the products at 25%.

71. The Tribunal has looked at the EAC Gazette Notice Vol. AT 1-No-8; Legal Notice EAC/21/2014 dated 20th June 2014 with an effective date from 1st July 2014.

72. The Tribunal notes that the Legal Notice decreased the duty rate from 25% to 10% on the following HS codes among others:-4804. 19. 904805. 91. 004805. 92. 00

73. The East African Community Common External Tariff (EACCET) 2017 version and the EACCET 2022 version both indicate that the duty rate to be applied for the three HS codes is 10%.

74. Although the Respondent submitted that there were Gazette Notices that changed the duty rate from 10% to 25% during the period 2016 to 2021, that evidence was not presented to the Tribunal.

75. The Tribunal is of the view that if indeed there were any changes to the tariff for the various tariff codes for paper and paper products, these should have been reflected in the 2017 version of the EAC CET.

76. The Tribunal reiterates its finding that there was no valid Gazette Notice between 2014 and 2021 that adjusted duty rate from 10% to 25% on paper and paper related products in the following matters:-a.Tat No 389 of 2022; Amstel Trading Limited Vs Commissioner of Customs & Border Control.b.Tat No 391 of 2022; Cents Traders Vs Commissioner of Customs & Border Control.c.Tat No 790 of 2022;Patricia Wanjiru Mwangi Vs Commissioner of Customs & Border Control.d.Tat No 387 of 2022; Sojpar Limited Vs Commissioner of Customs & Border Control.

77. The Tribunal will not depart from its holding in the above matters.

Final Decision 78. The upshot of the foregoing is that the Appeal is meritorious and the Tribunal consequently makes the following orders;-a.The Appeal be and is hereby allowed;b.The Respondent’s review decision dated 29th October 2021 be and is hereby set aside.c.Each party to bear its own costs.

79. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER 2023GRACE MUKUHA.............CHAIRPERSONGLORIA OGAGA.........................MEMBERDR. ERICK KOMOLO................ MEMBERJEPHTHAH NJAGI......................MEMBERTIMOTHY VIKIRU.....................MEMBER