[2023] KEST 1372 (KLR)

Trina Kenya Limited v Kenya Bureau of Standards (Tribunal Appeal E002 of 2023) [2023] KEST 1372 (KLR) (28 April 2023) (Judgment)

Neutral citation: [2023] KEST 1372 (KLR)

Republic of Kenya

In the Standards Tribunal

Tribunal Appeal E002 of 2023

GM Mburu, Chair, MS Makhandia & P Mungai, Members

April 28, 2023

Between

Trina Kenya Limited

Appellant

and

Kenya Bureau Of Standards

Respondent

Judgment

1The Appellant Trina Kenya Limited is a company duly registered in Kenya under Registration No. PVT-6LUB9VB in accordance with the Companies Act.

2The Respondent is a statutory body established under Section 3 of the Standards Act Cap.496 Laws of Kenya tasked with inter alia collection of Standards Levy for manufacturers under Section 3 of the Standard Levy Order of 1990 and Section 8 of the same Standard Levy Order of 1990.

3The genesis of the dispute is a demand letter dated 3/1/2023 sent by the Respondent to the Appellant demanding payment of Ksh.5,172,319. 53 being the accrued amount of Standards Levy and penalty owed from 2019-2022. On receipt of this demand letter, the Appellant then proceeded to file an appeal to the Tribunal vide their statement of appeal dated 16/1/2023, filed on 17/1/2023. The Appellant contends that there is no lawful basis for the alleged levy and penalties accrued, demanded by the Respondent as they are not manufacturers under Section 2 of the Standards Act.

4In their statement of response, the Respondent avers that the Appellant is a manufacturer under Section 2 of the Standards Act Cap.496 Laws of Kenya that defines the term manufacturer to mean produce, process, treat, install, test, operate and use.

5Further, the Respondent avers that the Appellant main business entails “Technical consulting in the field of photovoltaic technologies, environmental technologies, and new energy resources, wholesales, import and export and commission agency of photovoltaic equipment and its spare parts, as well as provision of relevant systemic services.”, comprise manufacturing. The respondent contends that the Appellant has not paid the Standards Levy over the years and under Section 8 of the Standards Levy Order, the Respondent has powers to recover any unpaid sums under the Order as civil debt.

6The respondent also contends that the Appellant did not contest the demand or seek clarification thereby failing to exhaust available remedies before invoking the jurisdiction of the Tribunal.

7The issues for determination in this Tribunal are as follows:i.Is the appeal properly filed before this Tribunalii.Is the Appellant a manufacturer as per Section 2 of the Standards Actiii.If yes to (ii), is the amount demanded properly computediv.Should the appellant be compelled to pay Ksh.5,172,319. 53v.Who should bear the cost of this appeal.

8On the first issue, the Respondent contends that the Appellant failed to uphold the doctrine of exhaustion by moving directly to the Tribunal without first seeking the mechanism of resolution and responding to the demand letter issued. Without belaboring this issue, the Tribunal is guided by Section 10B of the Standards Act:10B(5) Standards Levy Order (5) any person aggrieved by an act or decision under Standards Levy Order may appeal in writing to the Tribunal.

9The provision does not give any proviso that other methods of dispute resolution have to be exhausted. It gives the aggrieved party the leeway to move the Tribunal as the first port of call in any dispute of this nature. Therefore, this dispute is properly before the Tribunal. (ii)Is the Appellant a manufacturer under Section 2 of Standards Act Cap.496:

10Section 2 of the Standards Act provides that:“manufacturer” includes produce, process treat, install, test, operate and use.

11The appellant assertion is that it engages in consulting services and does not engage in any manufacturing activities. It attached and marked appendix 2 a demonstration of the company’s core activity on E-Citizen. It is indicated on the E-Citizen document that the Appellant is in the business conducting technical consulting and services in the field of photovoltaic technologies, environmental technology and new energy resources, wholesale, import and export and commission agency of photovoltaic equipment and its spare parts as well as provision of systematic services.

12The Respondent also contended that the Appellant’s business entailed transportation of ready mix concrete and genesets, small scale civil works, concrete pumping works and telecommunications infrastructure installations, to which the Appellant response is that it is untrue and notably the Respondent did not refer to this averment in their submissions.

13On reviewing the documents filed by the Appellant, this Tribunal has not found any admission of carrying out the business indicated by the respondent. We are at a loss as to where this came from. It is quite unfounded. We can only rely on what the parties have presented before the Tribunal in deciding on whether the Appellant is a manufacturer or not as per Section 2 of the Standards Act.

14The Appellant avers that it deals in consulting services and has produced the annex from E-Citizen as evidence.

15The respondent did not produce any evidence whatsoever, no document whatsoever was produced in support of their contention.

16As in Section 109 of the evidence Act Cap.80 Laws of Kenya, the burden of proof is on the Respondent to prove that the Appellant is indeed a manufacturer under Section 2 of the Standards Act.

17The said Section 109 talks about the proof of a particular fact.

18The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

19The Respondent has not met the threshold prescribed by Section 109 evidence Act Cap.180.

20The Respondent in his submission sought to introduce new information obtained from KRA which was not in the pleadings and therefore, could not be entertained by this Tribunal.

21In view of the above, this Tribunal finds that the Appellant renders consulting services and is not a manufacturer as per Section 2 of the Standards Act.vi.The impact of finding that the appellant is not a manufacturer addresses issues number (iii) and (v). The appellant should not be compelled to pay Ksh.5,172,319. 53.

22This Tribunal hereby finds for the appellant, the respondent has no grounds to demand Ksh.5,172,319. 53 from the appellant.

23Each party to bear its own costs. The Standards Act that does not give this Tribunal power to award cost.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF APRIL, 2023GLADYS MUTHONI MBURU - (CHAIRPERSON).............................MOSES SANDE MAKHANDIA - (MEMBER).............................PETER MUNGAI - (MEMBER)Delivered in the presence of:.................for Appellant..................for Respondent.