[2023] KETAT 537 (KLR)

West Media Limited v Commissioner of Domestic Taxes (Tax Appeal 850 of 2021) [2023] KETAT 537 (KLR) (1 September 2023) (Judgment)

Neutral citation: [2023] KETAT 537 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 850 of 2021

E.N Wafula, Chair, Cynthia B. Mayaka, Grace Mukuha, Jephthah Njagi & AK Kiprotich, Members

September 1, 2023

Between

West Media Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and whose core activity is broadcast media from and for the Western Kenya region, North Rift and the rest of Kenya.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, 1995. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5 (2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 & 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. The dispute in this Appeal arose when the Respondent made an assessment of the Appellant’s tax affairs for the period January to December 2015 for income tax, March & April 2018 for VAT and September 2021 for PAYE, where the Respondent issued the Appellant with an Assessment Order on income tax dated 3rd June 2021.

4. The Appellant disputed the Respondent’s findings and lodged its notice of objection to the assessment dated 2nd July 2021.

5. The Respondent upon consideration of the Appellant’s objection to the assessment, confirmed the additional assessment on 19th November 2021 and issued an objection decision dated 25th November 2021.

6. The Appellant being aggrieved by the objection decision issued by the Respondent, lodged its Notice of Appeal dated the 16th December 2021 and filed on the same date.

The Appeal 7. The Appellant’s Memorandum of Appeal dated and filed on the 24th December 2021 is premised on the following grounds, that;a.The Respondent erred in fact and law in arriving at the decision on the basis that the Appellant failed to provide documentary proof of the purchases and wages paid as claimed in the accounts and notwithstanding the fact that the Appellant did furnish documentary proof bolstered with sworn unchallenged corroborative evidence.b.The Respondent erred in fact and law in not considering and making a lawful decision and without having given any reason to displace the documentary proof, sworn evidence and other material corroborative circumstantial evidence of the Appellant and the Respondent’s decision was capricious, arbitrary and abstract and the Appellant’s objections override.c.The Appellant’s expenses for the earnings of the declared income that the Respondent disallowed and the subject of the decision of the Respondent of 25th November 2021 met the requirements of Section 15 (1) of the Income Tax Act in the year 2015 and the decision of the Respondent is therefore oppressive, unreasonable and without any basis in law.d.The Respondent erred in fact and in law in what constitutes proof of the expenses incurred for the earning of the declared income for the year 2015 in disallowing the purchases and wages expenses in contest.e.The decision is at large and does not meet the statutory and judicially accepted thresholds of a decision.f.The Appellants representatives held meetings and rendered explanations and had diverse telephone deliberations to the issues raised by the Respondent and these were not considered in the decision.g.The decision was made outside the statutory time frame.h.The decision on VAT objections is inchoate, obscure, bearing no reason and distinction as to what was partially accepted and what not and what constituted incomplete records that could not cover the inputs claimed.i.The decision on VAT is incomprehensible and incongruent with the assessment and is arbitrary and not predicated on the true state of facts and material inputs and outputs.j.The Respondent obfuscated the ingredients of the basis of its assessment the subject of the Appellant’s objection and unlawfully refused and declined to render clarification sought by the Appellant and in an enterprise to entrap and negate the Appellant’s right to a fair hearing and the decision is erroneous.k.The Respondent’s decision is an afterthought concocted to justify a pre- determined position, a confirmation of the assessment having been made on 19th November 2021 and the reasons rendered thereafter on 25th November 2021. Reasons are statutorily condition precedent for a Confirmation of Assessment to follow not the reverse.l.The decision is bereft of transparency, consistency and efficiency in the administration of tax law and it is imprinted with breach of the due process and material violations of the law as incumbent upon the Respondent’s in decision making.m.The decision was arrived at in breach of the Constitution, the Tax Procedures Act, the Fair Administrative Actions Act, the Income Tax Act, the Value Added Tax Act and is imprinted with arbitrariness and maladministration of tax laws and is for setting aside.n.The decision is unconstitutional, ultra vires the statutory powers of the Respondent and null and void and for setting aside.o.The Appellant challenges and appeals against the entire decision of the Respondent of 25th November 2021 and the earlier confirmed additional assessment of 19th November 2021.

Appellant’s Case 8. The Appellant’s case is premised on the herein under filed documents before the Tribunal;a.The Appellant’s Statement of Facts dated and filed on the 24th December 2021 together with the documents attached thereto.b.The Appellant’s Written Submissions dated the 7th November 2022 and filed on the same date.c.The Appellant’s list of authorities dated the 7th November 2022 and filed on the same date together with the authorities attached thereto.d.The bundle of documents dated 15th November 2022 and filed on the same date.

9. The Appellant stated that it filed its income tax returns for the financial year 2015 on 22nd February 2021 and the Appellant paid the statutory tax of Kshs. 211,642. 00.

10. The Appellant averred that the Respondent reviewed the income tax return and by a letter dated 4th March 2021, the Respondent sought justification of the issues tabulated therein and that failure to do so by the Appellant the additional assessments tabulated therein would issue. The Appellant proceeded to particularize, the same as herein under;ParticularsSubject: 2015 Year Of IncomeA review of Income tax and VAT returns for the period here above mentioned indicates the following;Sales Variations & Vat Payable

YEAR Income Tax- Company Turnover(Kshs) Total sales as Per VAT Returns (Kshs) Variance (Kshs) VAT Payable (16%)

2015 81,412,629. 00 74,520,852. 56 6,891,776. 44 1,102,684. 23

TOTAL 1,102,684. 23 Salaries & Wages Variations

YEAR Salaries as per P10 Salaries & wages Expense claimed Variance Corporation Tax payable

2015 14,451,917. 30 17,298,458. 00 2,846,540. 00 853,962. 00

TOTAL 853,962. 00 There was duplication of expenses already claimed under Local Purchases and Employment Expenses which will be disallowed.Year Expense Amount Corporation TaxPayable30%

2015 Wages for temporaryemployees 3,482,000. 00 1,044,600. 00

Courier services 86,871. 00 26,061. 30

DSTV subscriptions 99,411. 00 29,823,.30

Water & electricity 2,312,383. 00 693,714. 90

Internet broadband expenses 2,209,322. 00 662,796. 60

West tv receiver hosting-Webuye 600,000. 00 200,000. 00

Total 2,656,995. 20

11. The Appellant stated that vide the letter dated 9th March 2021, it responded to the Respondent’s letter dated 4th March 2021, to the issues therein and as material sought clarifications from the Respondent.

12. The Appellant averred that the Respondent vide the letter dated 26th April 2021 wrote to the Appellant asserting as follows;―A review of your Income tax and VAT returns for the period here above mentioned indicates the following:YEAR Salaries as per P10 Salaries & wages Expenseclaimed Variance Corporation TaxPayable(30%)

2015 14,451,917. 30 17,298,458. 00 2,846,540. 00 853,962. 00

TOTAL 853,962. 00 There was duplication of expenses already claimed under Local Purchases and Employment Expenses which will be disallowed.Year Expense Amount Corporation TaxPayable (30%)

2015 Wages for temporaryemployees 3,482,000. 00 1,044,600. 00

Courier services 86,871. 00 26,061. 30

DSTV subscriptions 99,411. 00 29,823,.30

Water & electricity 2,312,383. 00 693,714. 90

Internet broadband expenses 2,209,322. 00 662,796. 60

West tv receiver hosting -Webuye 600,000. 00 200,000. 00

Total

2,656,995. 20 Kindly justify the above position, failure to which additional assessments will be issued without further reference to you.

13. The Appellant stated that by the letter that was erroneously dated 21st April 2021 instead of 21st May 2021, but forwarded on 21st May 2021, the letter submitted justifications to the items of the 2015 Income tax that the Respondent had alleged were duplicated. The Respondent restated the clarifications it had requested.

14. That the Appellant averred that the Respondent without answering the Appellant’s justifications embodied in its letter submitted on 21st May 2021, the Respondent on 3rd June 2021 made an additional assessment of Kshs. 3,454,344. 00 to income tax against the Appellant for the year 2015.

15. That the Appellant objected to the Respondent’s additional assessment vide the notice dated 2nd July 2021.

16. That the Appellant averred that its representatives held meeting(s) with the Respondent’s representatives and had telephone discussions with the view to address the issues raised by the Respondent and further the Appellant submitted materials that were germane to the matters at issue.

17. The Appellant stated that it forwarded to the Respondent materials in support of its objection to the additional assessments on 10th September 2021.

18. That the Appellant stated that the Respondent made a request for the supply of documents from the Appellant vide the letter dated 23rd September 2021, to which the Appellant responded vide the letter dated 30th September 2021.

19. That the Appellant averred that in its letter of 30th September 2021, the Appellant provided to the Respondent, the bank statements showing the withdrawals that were used to pay workers. The Appellant further indicated in the said letter that it had already provided to the Respondent documents for electricity, Dstv subscriptions, internet/broadband, motor vehicle repairs, repairs and maintenance of marketing vehicles.

20. The Appellant averred that it was issued with a confirmation of the additional assessment for Kshs. 7,546,580. 00 on 19th November 2021.

21. The Appellant averred that the Respondent rendered its objection decision dated 25th November 2021 in respect of Income tax and VAT assessments.

22. The Appellant submitted that even though it gave all explanations and material documents and others being on the Respondent’s portal, the Respondent rendered additional assessment that had no factual and/or statutory basis. Further vide the letter dated 17th December 2021, the Respondent made a demand for the confirmed additional assessed tax of Kshs. 6,742,358. 00 from the Appellant prior to the lapse of thirty (30) days.

23. That the Appellant asserted that the Respondent confirmed the additional assessment on 19th November 2021 and thereafter rendered its decision to the Appellant’s Objection on 25th November 2021, to which action it submitted was a clear demonstration that the decision to the objection was predetermined and the Respondent was only going through farcical motions of due process as to the Appellant’s objection.

24. The Appellant submitted that it would at the hearing of the Appeal provide such further oral and documentary evidence as may be necessary.

25. The Appellant submitted that the material evidentiary outputs placed before the Respondent, the existing record on the portal, the explanations rendered, the context of the business carried out and its locus and all facts considered could not result in the decision reached by the Respondent and the Tribunal ought to interfere in the premises and set aside the confirmed additional assessment of the Respondent of 19th November 2021 and the reasons thereat of 25th November 2021.

26. The Appellant submitted that in its view there were three (3) issues for consideration namely;a.Whether the Appellant’s objection was allowed by operation of law.b.Whether there are explainable variations between the claimed salary expense and the salary in P10 Form for the year of income, 2015. c.Whether there was duplication of expenses already claimed under Local Purchases and Employment Expenses.

27. The Appellant proceeded to argue the issues as follows;

a. Whether the Appellant’s objection was allowed by operation of law 28. The Appellant submitted that it raised the objection on 2nd July 2021 against the assessment made on 3rd June 2021, while the Respondent made its decision on the objection on 25th November 2021, which period the Appellant submitted was four (4) months and 23 days, after lodging the objection, instead of the stipulated sixty (60) days.

29. The Appellant submitted that Section 51 (11) of the Tax Procedures Act, 2015, as it existed in 2021 having been amended by Finance Act, 2019, provided as follows:"The Commissioner shall make the objection decision within sixty days from the date of receipt of—a.the notice of objection; orb.any further information the Commissioner may require from the taxpayer, failure to which the objection shall be deemed to be allowed."

30. The Appellant contented that the notice of objection having been lodged on 2nd July 2021, the Respondent had up to 2nd September 2021 to render its objection decision. That there being no objection decision, the Appellant’s objection stood allowed by operation of law.

31. The Appellant asserted that there was no objection to be determined beyond the 2nd September 2022 and that the Respondent did not have any jurisdiction to determine the objection.

32. The Appellant submitted that the purported Respondent’s letter dated 23rd September 2021, requesting further documents, was meant to take advantage of Section 51 (11) (b) of the Tax Procedures Act and was a futile attempt by the Respondent to steal a match on the Appellant. That further the purported aforementioned letter dated 23rd September 2021 was unnecessary as there was no objection to be determined, the objection having been allowed on 2nd September 2021 by operation of law.

33. That it was the Appellant’s submission that, it is trite law that parties cannot consent to confer jurisdiction on a court and in the same way, the Appellant could not by responding to superfluous and meaningless request for ―further documents‖ confer jurisdiction on the Respondent to determine a non-existent objection.

34. The Appellant submitted that the Respondent did not make the decision within sixty (60) days of lodging the notice of objection, and if the Respondent intended to lawfully and properly take advantage of Section 51 (11) (b) of the Tax Procedures Act, 2015, the Respondent should have requested for further information before the lapse of the initial sixty (60) days from the date of lodging the objection.

35. The Appellant avowed that, it is trite law that when interpreting statutes, Court’s should eschew interpretations that would lead to absurd, unworkable or impractical, anomalous or illogical or artificial results.

36. Further the Appellant contented that any interpretation of Section 51 (11) (b) of the Tax Procedures Act, 2015 to the effect that the Respondent could request for further information even after sixty (60) days had lapsed from the day of lodging the notice of objection led to absurd result which is unsustainable in law. That after the lapse of sixty (60) days from the date of lodging the notice of objection, the objection stood allowed and there was no objection that could form the basis of the request for further documents.

37. That the Appellant affirmed that the Commissioner purported to make the decision after one hundred and forty-three (143) days. That therefore, the Appellant’s objection stood in accordance with Section 51 (11) of the Tax Procedures Act, 2015 to the extent that the erroneous allegations of any VAT due, variance in salary expense and duplication of expenses for the year 2015.

38. The Appellant submitted that the Respondent’s attempted enforcement of the assessment the subject of the allowed objection amounts to flagrant violation of the law, acting unconstitutionally and ultra vires the Tax Procedures Act, 2015.

39. It was the Appellant’s assertion that Section 51 (11) is mandatory in nature which then renders the Respondent’s objection decision made on 25th November 2021 a nullity by operation of law, which stood allowed after the lapse of sixty (60) days of 2nd July 2022.

b. Whether there are explainable variations between the claimed salary expense and the salary in P10 Form for the year of income, 2015 40. The Appellant submitted that Section 15 (1) of the Income Tax Act provides as follows:―For the purpose of ascertaining the total income of any person for a year of of this Act, be deducted all expenditure incurred in such year of income which is expenditure wholly and exclusively incurred by him in the production of that income, and where under section 27 of this Act any income of an accounting period ending on some day other than the last day of such year of income is, for the purpose of ascertaining total income for any year of income, taken to be income for any year of income, then such expenditure incurred during such period shall be treated as having been incurred during such year of income.

41. The Appellant averred that in the year of income 2015, it incurred salary expenses in the production of income for that year 2015 in the sum of Kshs. 17,298,458. 00. That the Respondent alleged that during a review of the Appellant’s income tax returns, it noted that salaries paid by the Appellant, according to the P10 Form were Kshs. 14,451,917. 00, thereby leading to a variation of Kshs. 2,846,540. 00.

42. That the P10 Form is used in filing the monthly PAYE returns for all employees in respect of which employment income tax is payable. In 2015, the employment income tax slabs, as enacted in the Third Schedule, Head B of the Income Tax Act (Revised, 2012) were as follows:On the first Shs. ................... 121,968 10%On the next Shs. .................. 114,912 15%On the next Shs. .................. 114,912 20%On the next Shs. .................. 114,912 25%On all income over Shs. ....... 466,704 30%

43. The Appellant submitted that the foregoing meant that an employee had to earn Kshs. 121,968. 00 annually (Kshs. 10,164. 00 monthly) to be subjected to tax. That it also meant that an employee had to earn a monthly salary of Kshs. 10,164. 00 to be subjected to tax and such salary would then be reflected in the P10 Forms. Further, an employee who earned less than Kshs. 10,164. 00 was not subject to tax and their salary could not be reflected in the P10 Forms.

44. The Appellant stated that Section 2 of the Income Tax Act existing in 2015 defined Management or professional fee to mean;―any payment made to any person, other than a payment made to an employee by his employer, as consideration for any managerial, technical, agency, contractual, professional or consultancy services however calculated. ―

45. Further, the Third Schedule, Head B, paragraph 5(f)(i) of the Income Tax Act (Revised, 2012) provided that;―the resident withholding tax rates shall be in respect of management or professional fee or training fee, other than contractual fee, the aggregate value of which is twenty-four thousand shillings in a month or more, five per cent of the gross amount payable.‖

46. That it was the Appellant’s explaination, of the difference between the salary expense claimed and the salaries submitted in the P10 form as having been caused by the salaries of temporary staff which were below the PAYE tax brackets and consultancies which were below Kshs. 20,000. 00.

47. The Appellant asserted that it had provided contracts of those paid and schedules for payment of wages of temporary staff at pages 23 - 44 and 163 and 165 of the record, whose pay was below the taxable employment income of Kshs. 10,164. 00 in 2015. The total pay to the temporary in the year 2015 was well over Kshs. 3,000,000. 00 as discernible from the schedules provided.

48. The Appellant further averred that it provided in its bank statements, showing withdrawals by its administration managers of the monies used to pay the salaries of temporary staff whose salaries were below the Kshs. 10,164. 00 threshold and consultants whose pay was below Kshs. 24,000. 00.

49. The Appellant stated that its administration managers, swore affidavits to confirm that they ordinarily withdrew money from the Appellant’s KCB Bank account and they would receive money from Nairobi to pay the salaries of the temporary staff and consultants in the said schedules in cash or via Mpesa.

50. The Appellant stated that the total of the wages of the temporary accounts for the variance between the claimed salaries and wages and the salaries per P10 Form as set out by the Respondent at page 11 of the record.

51. The Appellant contented that the Respondent is Constitutionally and statutorily mandated in administering tax laws under the Income Tax Act, the Value Added Tax Act not to purport to impose the criminal law standard of proof of beyond reasonable doubt in its evaluation of evidentiary material placed before it by a taxpayer like the Appellant. That on what legal premises did the Respondent disregard the evidence delivered on oath by Affidavits of the Appellant’s staff as to the payments of temporary staff and/or consultants. The Appellant submitted that it could only be courtesy of capriciousness and the Respondent having predetermined notions and in an endeavour to derive tax where none is due. That the law on standard of proof in the interpretation of taxation under the tax laws of Kenya is settled. Without negativing the Affidavit of the Appellant, the Respondent could not justify why it insisted on confirming its alleged claim of variation between salary expenses in returns and the salary in P10 Forms that is without any lawful foundation.

c. Whether there was duplication of expenses already claimed under Local Purchases and Employment Expenses 52. The Appellant submitted that the Respondent alleged that there was duplication of expenses already claimed and proceeded to assess corporation tax as below:Year Expense Amount Corporation Tax Payable (30%)

2015 Wages for temporary employees 3,482,000. 00 1,044,600. 00

Courier services 86,871. 00 26,061. 30

DSTV subscriptions 99,411. 00 29,823,.30

Water & electricity 2,312,383. 00 693,714. 90

Internet broadband expenses 2,209,322. 00 662,796. 60

West tv receiver hosting - Webuye 600,000. 00 200,000. 00

Total 2,656,995. 20

53. The Appellant averred that the Respondent did avail the particulars of the alleged duplication. In fact, the Appellant asserted that in its letter dated 9th March 2021, requested the Respondent to provide the particulars of the alleged duplication by indicating the duplication was between what and what.

54. That the Appellant submitted that it was incumbent upon the Respondent to supply the Appellant with further and better particulars of the duplicated items to enable the Appellant to respond.

55. The Appellant stated that, it is an elementary principle of law that he who alleges must prove. That Section 107 of the Evidence Act provides as follows:i.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.ii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

56. Further, the Appellant asserted that, it is trite law that a person has the burden of proving facts that are peculiarly within their knowledge as provided under Section 112 of the Evidence Act which provides as follows:―In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him."

57. The Appellant submitted that the allegation of duplication was peculiarly within the knowledge of the Respondent who failed to supply the particulars of the duplication to the Appellant to comprehensively respond.

58. That the Appellant wondered how it was to answer the query of duplication without the particulars of duplication being set out in black and white.

59. The Appellant submitted that it is trite law that in civil proceedings, a case against a party must be set out lucidly, logically, precisely and intelligibly to inform the party of the case which they have to meet and fairly and reasonably respond to.

60. That the Appellant averred that in its letter dated 2nd July 2021, denied duplication of any expenses and protested about the Respondent’s action of raising the tax assessment despite having failed to avail the clarifications sought. That in fact, there could not be duplication of expense accounts with VAT returns which are under Value Added Tax Act and income tax which is under the Income Tax Act and being two distinct statutes that operate on different principles and Tax and accounting assumptions.

61. The Appellant asserted that the Respondent’s action of failing to provide clarifications sought and proceeding to raise the assessment amounted to an unfair administrative action contrary to Article 47 of the Constitution of Kenya.

62. The Appellant stated that Section 4 (3) (a) of the Fair Administrative Action Act, 2015 provides that:―where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision– prior and adequate notice of the nature and reasons for the proposed administrative action.‖

63. The Appellant stated that the Respondent did not clarify which items were duplicated and, therefore, denied the Appellant the right to comprehensively respond and thereby violated the Appellant’s inalienable and non-derogable right to fair hearing. That in fact, the Appellant supplied to the Respondent evidence of the claimed expenses as follows:a.Internet and broadband expenses at pages 52 - 134 of the record.b.Motor vehicle expenses and repairs and maintenance of marketing vehicles at pages 135 - 160 of the record.

64. The Appellant asserted that the Respondent did not provide any reason why it did not consider the documents supplied by the Appellant to rebut the allegations of duplication. In fact, its objection decision, at page 191 of the record, the Respondent did not refer to the earlier allegation of duplication.

65. That the Appellant claimed that the Respondent artificially created abstract variations, duplications in the Appellant’s expenses of salaries and wages expenses in the income tax Returns of 2015 of the Appellant so as to generate additional Corporation tax and thereby unjustly enrich itself from the muddling up purported recalibration of the Appellants clearly set out inputs for the generation of Income under Section 15 of the Income Tax Act.

66. The Appellant stated that a variance differential of salaries as per Form P10 and salaries and wages expenses claimed in the returns cannot ―ipso facto, standing alone‖ premise additional corporation tax and by the Respondent ignoring sworn evidence as to that alleged differential, variance that is uncontroverted.

67. The Appellant stated that the Respondent instead of reviewing, evaluating, examining, appreciating the alleged duplication of expenses under wages for temporary employees and employees whose pay was below the income tax PAYE threshold as constitutive of the asserted ―salaries and wages variations to salaries as per Form P10 and the salaries and wages expenses claimed‖ goes ahead to separate and thereby seeks to derive, draw the Corporation tax from the same input for generating income in 2015 by the artificial and cunning distinctions.

68. The Appellant stated the basis, the logical premise that the Respondent did not provide answer, amplify beyond bare statements of claim in additional Corporation tax is to warn itself, come clean as to why the claims it (the Respondent) makes of ―salaries and wages variations between‖ salaries as per P10 and salaries and wages expense claimed (Kshs. 17,298,458. 00) yielding a variance of Kshs. 2,846,540. 00 is not constituted from the: wages for temporary employees of Kshs 3,482,000. 00 and which were elaborately explained with documentary and Affidavit evidence of the Appellant.

69. The Appellant conjectured, how and by what legal, statutory imperative, device did the Respondent create a claim that purports that ―Employment expenses‖ are duplicated? The question is duplicated with what and where? Where were the employment expenses ―already claimed‖ for them to be duplicated? How was the Appellant to discharge a burden like that which is impractical? Answer a negative? Salaries wages cannot constitute ―local purchases‖ to be stated as duplication of expenses already claimed as purchases? It is an absurdity. (The Respondents letter at page 11 and the Appellant’s reply at page 13 all in the Appellant’s List and Bundle of Documents attest to the issue(s) as framed by the Respondent and replied to by the Appellant.

70. The Appellant stated that Income Tax Act does not obligate the Appellant to file P10 returns for wages, salaries below the statutory threshold for paying PAYE and therefore for the Respondent to purport to disallow wages, salaries paid that were below the PAYE threshold is an act of arbitrariness. The evidence of that payment was amply proved by copies of the contracts, letters, vouchers and bank drawings and statements by the Appellants employees who effected payment and sworn affidavits by the paying persons – refer to page 51 item 5 of the Appellants List and Bundle of documents.

71. The Appellant observed that the Respondent argued that the Appellant failed to ―provide documentary proof of payment‖. That this assertion ignored the mass of documentary proof laid before the Respondent of the copies of contracts of those employees, the affidavits of the two paying persons of the Appellant, the evidence of bank drawings to effect the payments the vouchers and the documents on the iTax portal of Appellant. There is no magic in proof. It is not at the whims of the Respondent. It is only by established judicially articulated principles. The Appellant’s proof of payment of wages, salaries was unrebutted, by the Respondent. Section 2 of the Tax Procedures Act defines – document as:-―includes (a) a book of account, record, paper, register, bank statement, receipts, invoice, vouchers contract o agreement, tax return, customs declaration or tax invoice; or …….‖.So what legal premise did the Respondent ignore, discard the Appellant’s documentary proof on salaries, wages below the Income Tax PAYE thresholds and which documents included contracts, bank statements, vouchers, Affidavits etc. We submit only arbitrariness, capriciousness explains the rejection, non- consideration of those material documents. The definition of document states it ―includes‖ and therefore the categories are not limited to those listed at section 2 aforesaid. The Respondent therefore erred in fact and law in purporting to gloss over, not consider the documentary proof furnished to it as to the wages salaries etc that were paid that were below the PAYE threshold and were not reflected in Form P10. To purport to compute tax on expenses incurred to generate the Income under Section 15 of the Income Tax Act that were clearly established with documentary proof is an enterprise by the Respondent to derive unjust enrichment from the Appellant.

72. The Appellant submitted that the Respondent in its decision of 25th November 2021 states thus;―objection Decision In Respect Of Income Tax And Vat AssessmentsTax Head Period Principal Penalty Interest Total

INCOME TAX Year 2015 3,454,343. 84 172,717. 21 2,208,273. 44 5,935,334. 49

VAT March 2018 606,384. 72 NIL 266,809. 28 873,994. 00

VAT April 2018 515,560. 16 NIL 221,690. 87 737,251. 03

Total 7,546,580. 00 Your grounds for objection together with additional documents and explanations have been carefully considered.The Commissioners decision as guided by Section 51 of the Tax Procedure Act 2015 is that the objection for Income Tax year 2015 is rejected and assessment confirmed by Notice sent to you on 19th November 2021. You failed to provide Documentary proof of the purchases and wages paid as claimed in the accounts as requested.VAT objections for March and April 2018 were partially accepted as records availed which were incomplete to cover inputs claimed.Tax confirmed now stands as follows;Tax Head Period Principal Penalty Interest Total

INCOME TAX Year 2015 3,454,343. 84 172,717. 21 2,308,273. 44 5,935,334. 49

VAT March 2018 432,898. 91 21,644. 94 186,146. 53 640,690. 38

VAT April 2018 88,909. 14 4,445,46 37,341. 84 130,696. 44

TOTAL 6,706,722. 00 Please arrange to pay the liability long overdue.‖

73. The Appellant stated that the Respondent’s aforesaid decision is what is the subtraction of the Appeal before this Honourable Tribunal. It speaks for itself. Extraneous reasons material cannot be purveyed by the Respondent that are not intrinsic in the decision aforesaid as is attempted in the Statement of Facts of the case by the Respondent. This Tribunal is not adjudicating a new decision constructed by the Respondent in its Statement of Facts. This is an Appeal on the decision reproduced hereinabove. Nothing can be imported into it after the event, its being rendered to give it credence and retrospective validity when it is a one sentence decision that documentary proof not furnished.

74. It was the Appellant’s assertion that it was incontestable that the Respondent by its letter dated 4th March 2021 stated that the subject of review of the Appellant was of the Appellant’s Income Tax and VAT returns of the 2015 Year of Income (Refer to page 11 of the Appellants List of and Bundle of Documents): That was the trail of review as embodied in the Appellant’s letters of 9th March 2021, (page 13), 21st April 2021 (page 21), 2nd July 2021(page 48, 1st September 2021 (page 51) and 30th September 2021 all in response to the Respondent and where the Notice dated 2nd July 2021 by the Appellant was to the Corporation Tax Additional Assessment for Year 2015 of Income Tax Kshs. 3,454,343. 84 and the Notice of Assessment being No. KRA B 202110560273 dated 3rd June 2021.

75. That the Appellant was mystified and queried, from where did the Respondent unleash, unveil in its decision of 25th November 2021 the ―VAT March 2018‖ and ―April 2018‖. Indeed, in the Respondent’s said decision, its is clear at paragraph 1 that the objections to VAT of March 2018 and April 2018 was made by the Appellant by letter dated 4th May 2020. So why would a decision to an objection made on 4th May 2020 be lumped with a decision on an objection made on 2nd July 2021. The VAT objection of 4th May 2020 ought to have been decided within 60 days of that date that is by 4th July 2020. Why is it being rendered on 25th November 2021 more that one year later.

76. The Appellant stated that the Respondent perpetuates a gross act of incorrect administration of Section 15 of the Income Tax act in ascertaining the income for Year 2015 by superimposing juxtaposing the Value Added Tax Act in interpreting the Income Tax Act when the two Acts are enacted for distinct objectives. That by importing false assumptions, premises, matrixes, theoretical abstractions in the Interpretation of the Income Tax Act that are devoid of substantive derivations factual, documentary reality on the Appellant’s iTax Portal and tendered documents the Respondent spews out fictional so-called variations and then proceeds to compute Corporation Tax on the same and thereby seek to unjustly enrich itself from the Appellant.

77. The Appellant submitted that it was the Respondent who was guilty of seeking to duplicate so called variations on the same expenditure heads through disguise of misclassifications so as to arrive at additional Corporation tax. That Article 10 of the Constitution of Kenya 2010 is imperative on the Respondent as it applies or interprets the tax laws (in this case the Income Tax Act and where necessary the Value Added Tax Act) and the national values and principles that are material are the rule of law, integrity, transparency, accountability. That when the Respondent fails to consider the substance of the issues itself-generated by its review of the Appellant’s income tax for Year 2015 and just makes bare statements like ―salaries as per P10‖ and ―Salaries & Wages expenses claimed‖ variance should lead to Corporate Tax on the variance and in the same breadth create a separate head christened wages ―employment expenses‖ duplicated ―as already claimed under Local Purchases. That the Respondent’s impartial consideration of all the materials before furnished by the Appellant and on its iTax portal would have led to an inexorably right decision that there is no basis for additional Corporation tax based on salaries & wages variations constructed on P10 and also on alleged duplication of expenses already claimed under Local Purchases. That expenses are constructed on quicksand by the Respondent mixing and muddling the Income Tax Act and the Value Added Tax Act and thereby rendering inoperable and redundant the operative Section 15 of the Income Tax Act.

a) Whether the Appellant’s right to fair hearing and Fair administrative action was infringed 78. The Appellant asserted the Respondent denied the Appellant its right to a fair hearing because the initial allegations did not form the basis of the Respondent’s objection decision.

79. The Appellant stated that while the initial allegation, at page 11 of the record, referred to VAT for the year, 2015, the objection decision at page 191 of the record refers to VAT for March - April 2018. Further, whereas the initial allegations at page 11 of the record related to duplication of expenses, the objection decision does not refer to duplication at all. That this calls into question the basis of the Respondent’s decision.

80. The Appellant queried of the Respondent, how did the Respondent’s review of income tax returns of the financial year 2015 as embodied in its letter dated 4th March 2021 as set out in that letter mutate in the objection decision of 25th November 2021 which clearly states – ―The Commissioners decision as guided by Section 51 of the Tax Procedures Act 2015 is that the objection for Income Tax Year, 2015 is rejected and Assessment confirm by Notice sent to you on 19th November 2021…‖ to incorporate claims of ―VAT – March 2018 of Kshs. 640,690. 38‖ and VAT April 2018 of Kshs. 130,696. 55 and when the review from the outset was for the Income Tax Year 2015. That this not a clear admission of a muddled-up discharge of statutory obligations to act fairly, judiciously without starting with a case on income tax of 2015 and then arbitrarily at the end without giving a hearing to the Appellant introducing new claims of the year 2018.

81. That the Appellant stated that its right to a fair administrative action was infringed in the following respects:a.Failure to provide a clear reason for the objection decision.b.Failing to make an expeditious objection decision.c.Failing to make the decision within the statutory time frame.

82. The Appellant relied on the following statutes and case law;a.The Income Tax Act.b.The Tax Procedures Act, 2015. c.The Evidence Act.d.The Fair Administrative Action Act, 2015. e.Equity Bank Limited vs. Druce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR.f.Ekuru Aukot vs. Independent Electoral & Boundaries Commission & 3 Others [2017] eKLR.g.Equity Group Holdings Limited v Commissioner of Domestic Taxes (Civil Appeal E069 & E025 of 2020) [2021] KEHC 25 (KLR) (Commercial and Tax) (23 August 2021) (Judgement).h.Macfoy vs. United African Co. Ltd [1961] 2 ALL ER 1169. i.Vivo Energy Kenya Limited vs. Commissioner of Customs & Border Control, Kenya Revenue Authority & another [2020] eKLR.j.Kenya Revenue Authority vs. Maluki Kitili Mwendwa [2021] eKLR.k.Dakianga Distributors (K) Ltd vs. Kenya Seed Company Limited [2015] eKLR. Appellant’s Prayers

83. Following the arguments made the Appellant hereinabove, the Appellant made the following prayers, to;a.Set aside the decision of the Respondent embodied in its letter dated 25th November 2021;b.Declare that the Confirmation of Assessment dated 19th November 2021 is null and void and is set aside accordingly.c.Make such further or other Order(s) that are just and appropriate.d.The Respondent do bear the costs of this Appeal.

Respondent’s Case 84. The Respondent’s case is premised on the herein under filed documents before the Tribunal;a.The Respondent’s Statement of Facts dated and filed on the 17th January 2022 together with the documents attached thereto.b.The Appellant’s Written Submissions dated the 4th January 2023 and filed on the same date.

85. The Respondent stated that the Appellant has Income Tax Company, VAT and PAYE obligations with effect from 7th December 2004, 18th August 2006 and 1st February 2007, respectively.

86. The Respondent averred that it conducted a return review and noted that the Appellant had not filed income tax returns for 2015 and notified the Appellant to file the said returns.

87. The Respondent stated that the Appellant filed its returns for income tax for the year 2015 through iTax. Upon review, the Respondent noted duplication of expenses in the income tax returns submitted and the wages paid to temporary employees were not accounted for.

88. The Respondent averred that it raised additional income tax assessment by disallowing part of other expenses (11,514,479. 47) in part I of the profit and loss account as duplication of expenses already claimed as purchases.

89. The Respondent averred that the expenses amounting to Kshs. 11,514. 581. 00 claimed in the profit and loss account as other expenses of Kshs. 25,115,558. 00 had also been claimed as part of purchases which was a duplication of expenses claimed and the same were disallowed and assessed to tax.

90. The Respondent contended that the Appellant further filed PAYE returns but declared wages for temporary employees of Kshs. 3,482,000. 00 as expenses, which was disallowed from other expenses claimed as it was not declared in the Appellant’s P10 returns and the Appellant failed to provide documentary proof of payment.

91. The Respondent stated that the Appellant objected to the assessment on 2nd July 2021 on grounds that there was no duplication of expenses. Further it was the Respondent’s contention that the Appellant was requested to submit a breakdown and documentary proof of the purchases that had been declared in the income tax return, to which the Appellant provided some invoices and documents relating to VAA assessments for March and April 2018.

92. That the Respondent stated that it noted that the Appellant had on 22nd February 2021 submitted self-assessment income tax returns for the year 2015 where it claimed purchases of Kshs. 22,760,021. 00. Further, the Respondent noted that the purchases claimed in VAT returns from January to December in the same period was Kshs. 20,502,379. 24 and that the Appellant had filed NIL returns in January.

93. The Respondent stated that the purchases declared in VAT returns (Kshs. 20,502,379. 24) were compared to the amount of Kshs. 22,760. 021. 00 claimed as income tax purchases and the variance was brought to tax. Further the Appellant failed to provide documentary proof of the purchases claimed in its profit and loss account which therefore could not be verified.

94. The Respondent asserted that part of other expenses claimed amounting to Kshs. 25,115,558. 00 was already claimed in purchases and therefore the same was disallowed.

95. The Respondent submitted that it proceeded to confirm it assessment through its letter dated 25th November 2021 since the Appellant failed to provide supporting documentation to support its expenses and failed to demonstrate that there was no duplication.

96. The Respondent asserted that the issues that recommend themselves for determination are;a.Whether the Respondent disallowed legitimate purchases and there was no duplication;b.Whether the objection decision was time barred;

97. The Respondent proceeded to deduce the issues for determination as follows.

a) Whether the Respondent disallowed legitimate purchases and there was no duplication; 98. The Respondent stated that the Appellant duplicated some expenses by claiming the same as purchases. That the Appellant failed to avail its purchases documents, ledgers or invoices for verification in support of its objection contrary to Section 51 (3) of the Tax Procedures Act.

99. The Respondent further stated that the Appellant failed to provide proof of payment of casual wages amounting to Kshs.3,482,000. 00 and only availed a list of names and amounts purportedly paid but the list was not signed by recipients. The Respondent stated that the sworn affidavit by the person paying wages is not sufficient proof of payment.

100. The Respondent submitted that the Appellant failed to provide a breakdown or analysis of the purchases that had been declared in its income tax return (P & L) for verification and comparison with items already claimed in the expenses.

101. Further the Respondent asserted that on the VAA assessment for April 2018, the Appellant had claimed Kshs. 515,561. 01 as deductible input tax for purchases of Kshs. 3,222,256. 33 from Apex Steel. That the amount was disallowed, after examination of invoices and proof of payment as it was noted that the Appellant had lumped all the invoices to one supplier. The Respondent stated that it verified all invoices and partially allowed deductible input tax amounting to Kshs. 426,650. 86.

102. The Respondent further contended on the VAA assessment for March 2018, the Appellant had claimed Kshs. 606,385. 66 from a purchase of Kshs. 3,789,910. 36 by Pan African Group which was disallowed on analysis of the documents provided. The Respondent noted that the Appellant had lumped up all the invoices to one supplier. The Respondent stated that it verified all the invoices and partially allowed deductible input tax amounting to Kshs. 173,486. 75.

103. The Respondent asserted that the Appellant lumped up all the sales invoices creating an inconsistency. Further the Respondent stated that the Appellant failed to avail all the relevant invoices to support the purchases and these un-availed invoices were disallowed. It was the Respondent’s assertion that all supported invoices were allowed.

b) Whether the objection decision was time barred; 104. The Respondent averred that there were correspondences between the Respondent and Appellant, and that which is not disputed by the Appellant. That the last documentation from the Appellant was submitted on the 30th September 2021 (fact confirmed by the Appellant) and the objection decision was rendered on 25th November 2021.

105. The Respondent submitted that the Appellant asserted that the objection decision was out of time since the request for documents was purportedly made on 23rd September 2021 which was after the lapse of 60 days after lodging of the objection on 2nd July 2021. The Respondent stated that the assertion was inaccurate for the following reasons:-a.At paragraph 8 of the Appellant’s submissions, the Appellant confirms that there were engagements through meetings and telephone discussions between the parties after the objections had been lodged. That this is also pleaded in the Appeal.b.The Appellant at paragraph 9 of its submissions also confirmed that it forwarded documents to the Respondent on 1st September 2021. c.At paragraph 10 of its submissions, the Appellant further confirmed that additional documents that were requested for by the Respondent on 23rd September 2021 were supplied on 30th September 2021 and the objection decision was rendered on 25th November 2021.

106. The Respondent stated that the issue before the Tribunal is not whether the employees who were paid wages met PAYE threshold under the Income Tax Act, but whether the Appellant provided proof of payment of wages which were claimed as expenses. That an affidavit by employees of the Appellant cannot be evidence of payment. That either the payments were made through the bank and should be reflected in the bank statements or cheques were issued or if cash payments were made, these employees signed a document showing that they were paid wages. That none of these documents were provided by the Appellant and therefore the expenses were unsupported by evidence and were rightly disallowed by the Respondent.

107. The Respondent argued that the Appellant had in its submissions introduced issues that had not been pleaded and the Tribunal could not delve into them since pleading form basis of the dispute by the parties.

108. That the Respondent asserted that objection decision issued was in conformity with the stipulated timelines under Section 51 (11) (b) of the Tax Procedures Act.

109. That the Respondent stated that the allegations of the Appellant as laid out in its Memorandum of Appeal and Statement of Facts, unless where in agreement by the Respondent, are unfounded in law and not supported by evidence.

110. The Respondent further stated that the Appellant had failed to discharge its burden of proof under the Tax Procedures Act and the Tax Appeals Tribunal Act.

111. The Respondent in fortifying its case relied on the case law of Dakianga Distributors (K) Ltd vs. Kenya Seed Company Limited [2015] eKLR. Respondent’s Prayers

112. Pursuant to the arguments and submissions advanced herein above, the Respondent prayed for this Tribunal, that;a.The Appeal be dismissed with costs.b.The Respondent’s objection decision dated 25th November 2021 be upheld, andc.The Appellant to pay the assessed taxes together with interests and penalties.

Issues For Determination 113. The Tribunal upon the careful consideration of the Statements of Facts and submissions made by the parties, respectively, was of the view that the issues that recommend themselves for its determination are;a.Whether the Respondent’s objection decision dated 25th November 2021 was validly made.b.Whether the Respondent was justified in its assessment and subsequent demands for Income Tax for 2015 and VAT for March & April 2018.

Analysis And Determination 114. The Tribunal having established the issues for its determination proceeds to analyse the same as herein under;

a. Whether the Respondent’s objection decision dated 25th November 2021 was validly made. 115. The Appeal before the Tribunal is premised on the Appellant’s dissatisfaction with the Respondent’s objection decision made on the 25th November 2021.

116. It was the Appellant’s contention that the Respondent raised an additional assessment vide the letter dated 3rd June 2021 of Kshs. 3. 454,344. 00 to which the Appellant lodged its objection on 2nd July 2021.

117. The Tribunal observed from the Appellant’s Statement of Facts that the Appellant submitted additional material to the Respondent, the letter forwarding the additional information and documentation is dated 1st September 2021.

118. Further the Tribunal observed, as was asserted by the Appellant, that the said correspondence dated 1st September 2021 was delivered to the Respondent by the Appellant via email on the 10th September 2021.

119. The Appellant further stated that the Respondent vide the correspondence dated 23rd September 2021 requested for documents that were listed therein and which documents were supplied on the 30th September 2021 by the Appellant.

120. The Tribunal took note that from the respective Statements of Fact by the parties to this Appeal, there is no dispute to the following facts;a.The assessment for additional tax was issued to the Appellant on 3rd June 2021. b.The notice of objection was filed with the Respondent on 2nd July 2021. c.That the Appellant’s forwarding letter of further documents was dated 1st September 2021 and delivered on 10th September 2021. d.That the Respondent requested for additional documents on 23rd September 2021. e.That the Appellant supplied the information and/or documents on 30th September 2021, and which was the Appellant’s last communication in the matter to the Respondent.f.That the Respondent issued a confirmation of the assessment on 19th November 2021. g.That the Appellant was issued with an objection decision on 25th November 2021.

121. The Appellant submitted that the Respondent issued a confirmation of the additional assessment on 19th November 2021 and thereafter, on 25th November 2021 the Respondent issued its objection decision, sequence of the events whereof the Appellant took issue with and stated that the same amounted to premeditation on part of the Respondent.

122. The Tribunal upon perusal noted that the Appellant forwarded additional material to the Respondent, the correspondence forwarding the information and/or documents was dated 1st September 2021, however, the correspondence did not bear any stamp of having been received by the Respondent on that date. The Tribunal further, noted the additional material was forwarded to the Respondent as indicated by the Appellant on the 10th September 2021 vide two (2) emails which were send at 11:30 am and 11:35 am, which emails the Tribunal had an occasion to peruse.

123. It was the Appellant’s argument that Respondent’s objection decision was made outside the timelines provided by law, however the Respondent’s argued that there were correspondences with the Appellant and the last correspondence by the Appellant was delivered on the 30th September 2021, subsequently the objection decision was delivered 25th November 2021. Further, the Respondent placed reliance on the contents at paragraph 9 of the Appellant’s submissions that indicated that the bundle was forwarded on 1st September 2021, the Appellant invited the Tribunal to refer to pages 51 to 165 of its bundle of documents. The Tribunal notes that at page 51 was the letter dated 1st November 2021 (the forwarding letter) and further on page 161 was an extract of the two (2) emails forwarding the documents referred to herein above on 10th September 2021.

124. The Tribunal notes that Section 51 (11) of the TPA, as was amended by the Finance Act 2019, between the periods 7th November 2019 and 30th June 2022 and which period governed this matter, provided that;―The Commissioner shall make the objection decision within sixty days from the date of receipt of—a.the notice of objection; orb.any further information the Commissioner may require from the taxpayer, failure to which the objection shall be deemed to be allowed.‖

125. The Tribunal further notes from the above analysis as read together with Section 51 (11) (b) of the TPA, the last date in accordance with the law to deliver the objection decision was the 1st September 2021.

126. It appears to the Tribunal that the Respondent’s argument was that a further sixty (60) days was afforded by the Appellant’s action of submitting further documents on the 1st September 2021, which is the bone of contention as the Appellant asserts that it submitted the documents on the 10th September 2021. The evidence placed before the Tribunal is to the effect that the Appellant submitted the further documents/information to Respondent on 10th September 2021.

127. The Appellant argued that beyond the 2nd September 2021, there cannot be a valid objection decision, as the objection would have been deemed allowed by dint of the operation of the law.

128. The Tribunal observes that Respondent other than placing reliance on the contents of paragraph 9 of the Appellant’s submissions, which was in direct contradiction of paragraph 10 of the Appellant’s Statement of Facts as well as item number 9 of the Appellant’s list of documents, the Respondent being the recipient of the said documents did not place any material to confirm that indeed the documents were supplied and/or furnished on the 1st September 2021 and in which case time would have began running afresh for a further sixty (60) days in accordance with Section 51 (11) (b) of the TPA.

129. The Tribunal upon review of the documentation and material placed before it is persuaded that the said additional documents were forwarded and/or vide the letter dated 1st September 2021 on the 10th September 2021 and not on the 1st September 2021 as submitted by the Respondent.

130. It is the Tribunal’s position that Section 51 (11) (b) of the TPA is crafted in mandatory terms and for any request for and/or supply of information by any party ought to be made within the sixty (60) day period, failure whereof the objection is deemed to have been allowed.

131. The Tribunal is guided by the decision in Republic vs. Kenya Revenue Authority Ex Parte M-Kopa Kenya Limited [2018] eKLR, where the High Court observed that;―Accordingly, the Respondent was required to make a decision in respect thereof within sixty (60) days under section 51 (11) of the said Act. As the Respondent defaulted in making a termination thereon within the prescribed time, the said objection was deemed to have been allowed.As the law deems the objection to have been allowed, there is no reason why the applicant should have appealed. In the premises the question of existence of an alternative remedy does not arise in the circumstances.‖

132. It therefore follows that, any valid objection decision by the Respondent could not have been rendered beyond the sixty (60) days period which under the circumstances lapsed on the 1st September 2021.

133. Consequently, it is the Tribunal’s position that the objection decision of 25th November 2021 was delivered beyond the sixty (60) days period contrary to the provisions of Section 51 (11) (b) of the TPA as it existed then, and the objection decision as rendered was not validly and properly issued and is time barred.

b) Whether the Respondent was justified in its assessment and subsequent demands for Income Tax for 2015 and VAT for March & April 2018. 134. The Tribunal having established and held that the Appellant’s objection was allowed by operation of the law as there was no objection decision rendered within the sixty (60) days, all other issues for determination in this Appeal have been rendered moot.

135. The Tribunal’s finds and holds that the Appeal herein is merited.

Final Decision 136. The upshot of the foregoing is that the Appeal is merited and the Tribunal accordingly proceeds to makes the following Orders; -a.The Appeal be and is hereby allowed.b.The Respondent’s objection decision rendered on 25th November 2021 be and is hereby set aside.c.Each party shall bear its own costs.

137. It is so ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 1ST DAY OF SEPTEMBER 2023. ERIC NYONGESA WAFULACHAIRMANCYNTHIA B. MAYAKAMEMBERGRACE MUKUHAMEMBERJEPHTHAH NJAGI KIPROTICHMEMBERABRAHAM K.MEMBER