Kenya Revenue Authority VS Oxygen 8 East Africa Limited And Brian Waluchio

(Being an Appeal against the judgment of the Tax Appeals Tribunal delivered on 11^TH February, 2022 in TAT NO. 467 of 2020)

Introduction

1. The Appellant herein is a principal officer appointed under Section 13 of Kenya Revenue Authority Act, 1995.  The Kenya Revenue Authority is an agency of the Government of Kenya with the mandate to collect and receive all the tax revenues.
2. The 1^st Respondent, Messrs. Brian Nasiche Waluchio, is a male adult Kenyan and a registered taxpayer.
3. The 2^nd Respondent is a limited liability company incorporated in Kenya and is engaged in the business of betting, gaming and lotteries as provided under the Betting, Gaming and Lotteries Act.
4. The Appellant, in conjunction with the Directorate of Criminal Investigations, initiated an investigation into the tax affairs of an entity known as Keycorp Real Advisory Limited (“KRA”), a company that disguised itself as Kenya Revenue Authority, and in the circumstances rendered the 2^nd Respondent (Oxygen 8 East Africa) unable to meet its tax obligations.
5. The investigations revealed that substantial amounts of money were paid to the accounts of Keycorp Real Advisory Limited from Oxygen 8 EA Limited. Upon enquiry, Oxygen 8 EA Limited explained that the monies it remitted to Keycorp Real Advisory were payments for taxes as it was made to believe that the payments were being made to the Appellant by the 1^st Respondent, who was the 2^nd Respondent’s local Managing Director.
6. The Appellant issued demand notices and subsequently sent agency notices in a bid to recover taxes which notices did not yield any fruits. A review of the 2nd Respondent’s statements of accounts and bank statements revealed that its operations, at the material time, had rendered it incapable of meeting its tax obligations.
7. The notice listed the 1st Respondent as one of the taxpayers from whom a tax amounting to Kshs. 845, 291, 213.00 was demanded and sought to be collected.
8. The 1st Respondent averred that the notices were not served on him and that he only got to know about them through his bank’s Relationship Manager who informed him first by a phone call and subsequently via email. He further contended that he was not the subject of any audit, assessment nor a debtor to the responsible taxpayer. He maintained that even if he was a debtor to the taxpayer or holding company money as such, he could only be involved as a Payer and not a taxpayer for purposes of enforcing the agency notice.
9. Aggrieved by the demand/agency notices from the Appellant, the Respondent filed an appeal before the Tax Appeals Tribunal (TAT). The Appeal was decided in the 1st Respondent’s favour thereby triggering the filing of the instant appeal.

The Appeal

1. Through the Memorandum of Appeal dated 11th April 2022 the Appellant appealed against the Judgment of the Tax Appeals Tribunal delivered on 11th February, 2022 in TAT No. 467 of 2020 on the following grounds: -
2. THAT the Honourable Tribunal erred in law and fact in finding that the 1st Respondent being served with the Agency Notices by its’ Banker’s was not proper service under section 42(9).
3. THAT the Honorable Tribunal erred in law and fact failing to appreciate that under section 42 of the Tax Procedures Act, the 1st Respondent’s Banker was an agent of the Appellant as such, the Bank serving the 1st Respondent with the Agency Notice was proper service under section 42(9) of the Tax Procedures Act.
4. THAT the Honorable Tribunal erred in law and fact in disregarding the uncontroverted and uncontested evidence by Appellant’s sworn witness that the 1st Respondent was also sent the Agency Notice through the last known email address and that was proper service under section 74 of the Tax Procedures Act.
5. THAT the Honourable Tribunal erred in law and fact in failing to take notice of the uncontroverted evidence and documents including the judgements/rulings between the 1st Respondent and 2nd Respondent which was on record, which demonstrated that the intention and effect of the arrangement of the 1st Respondent rendered the 2nd Respondent unable to satisfy its tax liability.
6. THAT the Honorable Tribunal erred in law and in ignoring the bank statement of the 2nd Respondent which showed that it was indeed unable to meet the tax obligation following the diversion of the taxes to a third party disguising itself as “KRA”.
7. THAT the Honorable Tribunal erred in law and fact in failing to appreciate the sworn evidence and documents that the 1st Respondent being the Chief Executive Officer of the 2nd Respondent had diverted funds meant for tax payment to an organization known as Keycorp Real Advisory (KRA) disguising itself as Kenya Revenue Authority (KRA) hence he become liable under section 18(1) of the Tax Procedures Act.
8. THAT the Honorable Tribunal erred in law and fact in failing to appreciate that the fact that the 1st Respondent aided in the scheme to divert taxes to a third party was enough to prove the 1st Respondent’s culpability under Section 18 of the TPA.
9. THAT the Honorable Tribunal erred in law and fact in disregarding the evidence by Mary Mumbi and Leah Keith Shane that it was only the Chief Executive Officer who was aware of the arrangement and handled the tax issues personally and further that the other directors notified the Kenya Revenue Authority and Directorate of Criminal Investigation when they learnt of the arrangement.
10. THAT the Honorable Tribunal erred in law and fact failing to appreciate that it was only the 1st Respondent who was in charge of the local subsidiary and not the Co-director, who is in-charge of the foreign Head office as such only the person who entered into the arrangement to divert taxes to Keycorp Real advisory was liable and not the other directors or other officers of the 2nd Respondent.
11. THAT the Tribunal erred in law and fact in failing to appreciate that the 1st Respondent did not adduce any evidence at the Tribunal to controvert the evidence of the Appellant.
12. THAT the Honorable Tribunal erred in law and fact erred in failing to appreciate the decision to demand the Taxes owed by the 2nd Respondent from the 1st Respondent was properly made in compliance with Section 18 of the Tax Procedures Act.
13. The 1st Respondent responded to the grounds of appeal in its Statement of Facts wherein it reiterated the genesis of the case and the outcome of the appeal before the TAT.
14. The Appeal was canvassed by way of written submissions as follows: -

The Appellant’s Submissions

1. The Appellant faulted the Tribunal for failing to find that it was justified in demanding the taxes from the 1^st Respondent upon finding that he had paid large sums of money from the 2^nd Respondent’s accounts to Keycorp Real Advisory Limited “KRA”, a company that had disguised itself as Kenya Revenue Authority. The Appellant’s case was that it tendered uncontroverted evidence to show the role that the 1^st Respondent played in transferring the money to “KRA” his capacity as the 2^nd Respondent’s Chief Executive Officer in charge of the day to day operations of the 2^nd Respondent.
2. It was submitted that the Tribunal erred by finding that penal/criminal liability should be shared when the evidence before it showed that the only person who entered into the arrangement was the 1^st Respondent. CEO. For this argument, the Appellant cited the provisions of 18 (1) of the Tax Procedures Act (TPA) which provides that liability for tax is only against the person(s) who entered into the arrangement and not every director or senior official of the company while sub section 2 thereof excludes the person(s) who were not aware of the scheme and did not derive any benefit from it.
3. On whether the 1^st Respondent derived a benefit from the arrangement, it was submitted that the Tribunal’s finding that the 1^st Respondent diverted the funds but did not derive financial benefit is ridiculous as it is equivalent to saying that someone stole but ask that another person to prove that they benefited from the theft when the stealing itself is a benefit. The Appellant contended that the fact that it established that the funds were diverted to a third party was sufficient proof of benefit by the 1^st Respondent.
4. The Appellant noted that the 1^st Respondent did not tender any evidence before the TAT to counter the witness statements that he oversaw the remittance of purported tax to two companies, namely; Beachman and Keycorp and that the same was well documented. It was further, the Appellant’s case that the 1^st Respondent did not deny that he was facing criminal charges over the said remittances and only pleaded that he was yet to be convicted thus forming the basis for invoking Section 18 of the TPA.
5. It was submitted that having willingly participated in the arrangement which was between him and the company disguising itself as ‘KRA’ to which he channeled the funds meant for the payment of actual taxes to the Appellant, the 1^st Respondent gained a financial advantage from this transaction.
6. The Appellant asserted that it correctly issued the 1^st Respondent with the agency notices under section 42 as read with section 18 of the Tax Procedures Act and sought orders that the instant appeal be allowed with costs.

The 1^st Respondent’s Submissions

1. The 1^st Respondent highlighted the issues for determination to be firstly; what constitutes an enforceable Agency Notice under the Tax Procedure Act, 2015 and secondly; whether taxes due from a body corporate can be recovered from its directors.
2. The 1^st Respondent submitted that since it was not disputed that he was not a taxpayer, the Appellant could not have issued him with a notice pursuant to Section 42 of the Tax Procedure Act, 2015.
3. The 1st Respondent submitted that he was tax compliant as his Tax Compliance Certificate had not been withdrawn. He added that even assuming that there were any taxes due from him, the Appellant was still obligated to comply with the law that requires it to assess, audit, make a decision on tax liability and inform him of such a decision before embarking on enforcement proceedings such as the issuance of an Agency Notice.
4. It was submitted that Agency Notice was issued against the 2nd Respondent as a primary taxpayer liable for the subject tax as a juristic person with a corporate legal personality separate from those who compose it. The 1st Respondent argued that even if he was a director and a shareholder therein, the notice could not hold in law.
5. It was submitted that the veil of a corporation cannot be merely lifted as against the shareholders/directors unless a firm allegation of fraud is presented and proved. For this argument, reference was made to the decision by the Tax Appeals Tribunal in Mohamed Aden Daudi vs. The Commissioner of Domestic Taxes, Appeal No. 77 of 2016 cited in Corporate Insurance Co. Ltd vs. Savemax Insurance Brokers Ltd & Another HCCC No. 125 of 2002, where it was held thus: -

\"The veil of incorporation is not to be lifted merely because the company has no asset or it is unable to pay its debtors and is thus insolvent. In such a situation, the law provides for remedies other than the directors of the company being saddled with debts of the company.\" Jumped gun

1. It was the 1st Respondent’s case that Section 18 of the TPA only applies where there is fraud or a scheme to defeat current or future tax liability, a fact which was not established before the Tribunal as there is no conviction against him.

The 2^nd Respondent’s Submissions

1. The 2nd Respondent supported the appeal and submitted that the 1st Respondent was at all material times its tax representative within the meaning of section 15 (l)(b) of the TPA.
2. It was submitted that the Tribunal therefore erred in finding that the Appellant should not have issued the Agency Notice to the 1st Respondent to honour the 2nd Respondent\'s tax obligations as the said notice was issued in accordance with sections 15(1)(b), 18, 42 (2), 42(9) and 74 (l)(c) of the Tax Procedure Act, 2015. It was the 2nd Respondent’s case that there was overwhelming and uncontroverted evidence from the 2nd Respondent’s officials and the Appellant’s investigators to show that the 1st Respondent at all material times was the CEO of the 2nd Respondent. Reference was made to section 15 of the TPA which expressly provides that where the tax payer is a company as defined under section 3 of the same Act, the person responsible for tax remittance is the chief executive officer, managing director, company secretary, treasurer, trustee or a resident director or similar officer of the company acting or purporting to act in such a position.
3. The 2^nd Respondent argued that the instant case calls for lifting of the corporate veil. Reference was made to the case of Ukwala Supermarket vs. Jaideep Shah & another [2022] eKLR where it was held that fraud is one of the grounds on which the Courts have lifted the corporate veil. In the said case the Court held as follows: -

\"19. In general, therefore, Courts in Kenya will only allow for the piercing of the corporate veil when two requirements are met:

1. First, the company is a mere instrumentality or alter ego of the shareholder or director in question such that there is such unity of interest and ownership that one is inseparable from the other; and
2. Second, the facts must be such that adherence to the fiction of separate entity would, under the circumstances, sanction a fraud or promote injustice.\"
3. It was further submitted that Courts will also lift the corporate veil in matters involving taxation such as tax avoidance and tax evasion as was noted in Vihiga Farmers Co. Ltd vs. Nathan Indombelo [2018] eKLR where it was held that: -

\"The case of Mugenyi & Company Advocates vs. The Attorney General [1999] 2 EA 199 following Palmers Company Law Vol. 1 (22 ed) gave a list of 10 instances in which the veil of corporate personality may be lifted and these are:-

1.    ...

2.    ...

3.    In certain matters relating to taxation 4\" [Emphasis added]

1. The 2nd Respondent further argued that based on the strength of the above Court Precedents, the Tribunal erred in law and in fact when it found that the 1st Respondent\'s fraudulent actions did not warrant lifting of the corporate veil in order to find the 1st Respondent liable for the 2nd Respondent\'s tax liability. The 2nd Respondent further submitted that the Tribunal also erred in finding that the 1st Respondent did not derive any financial benefit from the arrangement with Bachmann and KeyCorp.
2. The 2nd Respondent therefore urged Court to lift the corporate veil and find the 1st Respondent personally liable for the 2nd Respondent\'s tax arrears.
3. On the issue of service of the Agency Notice on the 1^st Respondent, the 2^nd Respondent submitted that Section 42 of the TPA grants the Appellant power to collect tax from a taxpayer when it falls due and the taxpayer has failed to pay. The 2^nd Respondent added that the section specifically gives to the Commissioner power to enforce the tax collection against the agent of the tax payer; through issuance of an agency notice and further, that the section requires the Commissioner to serve the tax payer with a copy of the agency notice at the time of serving the agent.

Analysis and Determination

1. I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issues for determination are whether the Tribunal erred in in finding that the 1st Respondent was not liable for the taxes owed by the 2nd Respondent; and in finding that there was no proper service of the Agency Notices upon the 1st Respondent.

Liability for Taxes

1. The Appellant’s case was that the investigations it conducted alongside the Directorate of Criminal Investigations revealed that the 1^st Respondent, in his capacity as the 2^nd Respondent’s CEO, oversaw the diversion of money meant for the payment of taxes to a third party thus rendering the 2^nd Respondent incapable of meeting its tax liability. The Appellant averred that the 1^st Respondent and others not before the Court are currently facing different criminal charges over the said diversion of taxes.
2. It was the Appellant’s case that its decision to hold the 1^st Respondent liable and to demand the Taxes owed by the 2nd Respondent from him was justified as it was made in compliance with Section 18 of the Tax Procedures Act which stipulates as follows: -
3. Subject to subsection (2), where an arrangement has been entered into by any director, general manager, company secretary, or other senior officer or controlling member of the company with the intention or effect of rendering a company unable to satisfy a current or future tax liability under a tax law, every person who was a director or controlling member of the company when the arrangement was entered into shall be jointly and severally liable for the tax liability of the company.
4. A director, general manager, company secretary, or other senior officer or controlling member of a company shall not be liable under subsection (l) for the tax liability of the company if that director, general manager company secretary, or other senior officer or controlling member did not derive a financial or other benefit from the arrangement. [Emphasis added]
5. The Appellant relied on the decision in Kenya Revenue Authority vs. Republic (Exparte Fintel Limited) NRB CA Civil Appeal No 311 of 2013 [2019] eKLR cited with approval the case of Inland Revenue Commissioners vs. Duke of Westminster [1936] A.C. 1; [1] 19 TC 490 for the argument that Section 18 of the TPA should be interpreted to give it a fair and reasonable construction. In the said case, Lord Atkinson elucidated the rule of construing tax laws as follows: -

“It is well established that one is bound, in construing Revenue Acts, to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of a statute must be adhered to, and that so-called equitable constructions of them are not permissible.”

1. As I have already noted in this judgment, the 2nd Respondent concurred with the Appellant’s argument on the liability of the 1^st Respondent to honour the 2nd Respondent\'s tax obligations. The 2^nd Respondent averred that overwhelming and uncontroverted evidence had been presented to show that not only was the 1st Respondent at all material times the 2nd Respondent’s CEO but that he diverted funds meant for the payment of taxes to a third party. For this argument, the 2nd Respondent relied on the provisions of section 15(1)(b) of the Tax Procedure Act which provides that:

\"A person is the tax representative of another person for the purposes of this Act or a tax law, in the case of a company within paragraph (a) of the definition in section 3, if that person is the chief executive officer, managing director, company secretary, treasurer, trustee or a resident director or similar officer of the company acting or purporting to act in such a position\"

1. The 1st Respondent, on his part, submitted that since it was not disputed that he was tax compliant and not the taxpayer, the Appellant could not have issued him with a notice pursuant to Section 42 of the Tax Procedure Act.
2. In its judgment wherein the 1^st Respondent’s appeal was allowed, the Tribunal faulted the Appellant for issuing the agency notice on the 1^st Respondent under Section 18 (1) as read with Section 42 of the Tax Procedures Act for the 2^nd Respondent’s tax liability. The Tribunal rendered itself as follows: -

“48. In the appeal before us, the Respondent has sought to impute the tax liability of the company to one of its directors, the Appellant herein, on the basis that the Appellant entered into an arrangement with Keycorp Advisory Limited, which in turn had the effect of rendering the company unable to pay its tax liability, hence the reason for the issuance of the agency notices on the Appellant. In the Tribunal’s humble view, it does not think it is sufficient to only aver that the Appellant herein entered into the arrangement which had the effect of rendering the company unable to pay its taxes. It will be a selective reading of the Act to purport that on account of Section 18 (1) of the TPA alone that the Appellant is liable to the taxes of the company. Section 18 (1) of the TPA subjects the test it establishes to subsection (2) clearly indicating that Section 18 (1) alone as the Respondent would have us believe, is not a sufficient basis for imputing liability.

1. It might to be apparent to the Commissioner, but placing reliance on Section

18 (1) alone has undesirable, and legal untenable effect in company law. Arguing that the Appellant should bear the tax burden of the company because the arrangement it entered into had the effect of the rendering the company unable to pay its taxes liability, literally means that the Respondent wishes to lift the corporate veil. It cannot be enough ground to lift the corporate veil; that a transaction entered into by a director had the effect of rendering the company unable to pay its taxes. Company directors have time and again entered into arrangements that have had the effect of rendering a company insolvent. Yet nobody comes for those directors’ necks unless it is proven that the arrangements they made rendered the company unable to pay its taxes.

1. From where the Tribunal sits, the requirement of ‘entering into an arrangement with the effect of rendering the company unable render its tax liability’ must be coupled with proof that the accused director derived either financial or some other benefit from the arrangement. In the Appeal before us, albeit both the Respondent and the Interested Party have alluded to the appellant benefiting from the arrangement, no such evidence has been placed before the Tribunal. Therefore, the Tribunal cannot verify the authenticity of these allegations that the Appellant derived some sort of benefit from the arrangement with Keycorp Advisory Limited.
2. The Interested Party herein made the submission that that ‘the Tribunal may inquire as to why the Respondent is pursuing the Appellant as opposed to the Interested Party and the Appellant’s co-director. Whereas the Appellant submits that the Respondent is lazy and has settled on the Appellant as a scapegoat, the Interested Party maintained that the Appellant’s co-directors have demonstrated to the Respondent that they should be disqualified from liability based on Section 18 (1) of the Act because they did not derive any benefit from the arrangement in writing and notified the authorities when they became aware of its existence. Additionally, the co-director was not involved in the management of the company.’
3. The Tribunal’s response to the submission by the Interested Party is that in the Tribunal’s view the co-director has not qualified to be liability free for the following reasons; first, the Co-director did not register his opposition to the arrangement with the company and the Commissioner. All the co-director did was report the Appellant to Directorate of Criminal Investigation after the

Respondent discovered the arrangement and the diversion of taxes by Keycorp advisory. And considering that the Section 18 (1) of the TPA imposes liability all persons who are directors and seniors of the company at the time the arrangement was entered into, the Tribunal does not see any basis upon which to exclude the co-director as well as chief finance officer being liable under Section 18 (1) of the TPA, 2016.”

1. My finding is that the Tribunal made an exhaustive and well-balanced analysis of the dispute before it and arrived at a determination which, to my mind, indicates that the Appellant jumped the gun when picking out the 1^st Respondent as the only liable party when there were other officers and directors within the 2^nd Respondent company who may have played a role in the diversion of the funds that were allegedly intended to be for the payment of taxes due to the Appellant.
2. The 2^nd Respondent argued that its tax obligations remained unmet as a result of the 1^st Respondent’s fraudulent arrangement with Bachmann and Keycorp. The Appellant and the 2^nd Respondent alluded to the fact that the 1^st Respondent is facing active court proceedings in the nature of fraud following the alleged diversion of money meant for the 2^nd Respondent’s taxes. My finding is that an allegation of fraud is a matter that must not only be specifically pleaded but must also be proved. In the instant case, it is noteworthy that the particulars of the alleged criminal proceedings were not availed before this court. Be that as it may and even assuming that the 1^st Respondent is indeed facing the said criminal charges, I am of the view that he is not solely liable for the alleged diverted funds in the absence of a conviction for the said criminal charges. This court is of the view that it would have been prudent for the Appellant to await the outcome of the criminal proceedings before issuing the Agency Notice on the party found to have been culpable for the diversion of the funds earmarked for the payment of the taxes due.
3. The 2^nd Respondent also urged this court to lift the corporate veil and find that the 1^st Respondent is personally liable for the 2^nd Respondent’s tax arrears. Lifting of the corporate veil refers to the legal procedure where courts disregard the separate legal personality of a company so as to hold the shareholders or directors personally liable for the company’s actions.
4. The locus classsicus case on the issue of the corporate nature of a company is the English case of Salomon & Salomon & Co. Ltd vs. Salomon [1897] A.C. 22 H.L. where the principle that a company is a separate and distinct person from its shareholders was emphatically established. It is however also trite that, out of necessity and to prevent abuse of this principle, over time, the law has developed principles allowing for lifting or “piercing” of the corporate veil. Courts therefore have the power, upon examination of the directors, where the circumstances warrant lifting the corporate veil of the Company, to order a director to personally discharge the debts of the company.
5. Halsbury’s Laws of England, 4^th Edition, Vol. 7 (1), Paragraph 90 states as follows regarding the circumstances under which the corporate veil may be lifted : -

“Notwithstanding the effect of a company’s incorporation, in some cases the court will ‘pierce the corporate veil’ in order to enable it to do justice by treating a particular company, for the purpose of the litigation before it, as identical with the person or persons who control that company. This will be done not only where there is fraud or improper conduct but in all cases where the character of the company, or the nature of the persons who control it, is a relevant feature. In such case the court will go behind the mere status of the company as a separate legal entity distinct from its shareholders, and will consider who are the persons, as shareholders or even as agents, directing and controlling the activities of the company. However, where this is not the position, even though an individual’s connection with a company may cause a transaction with that company to be subjected to strict scrutiny, the corporate veil will not be pierced”.

1. In the case of Multichoice Kenya Ltd vs. Mainkam Ltd & Anor. [2013] eKLR, Mabeya J. held as follows: -

“I agree that directors are generally not personally liable on contracts purporting to bind their company. If the directors have authority to make a contract, then only the company is liable on it. To my mind, there is no doubt that ever since famous case of Salomon v Salomon [1897] A.C. 22 Courts have applied the principle of corporate personality strictly. But exceptions to the principle have also been made where it is too flagrantly opposed to justice or convenience. Other instances include when a fraudulent and improper design by scheming directors or shareholders is imputed. In such exceptional cases, the law either goes behind the corporate personality to the individual members or regards the subsidiary and its holding company as one entity.”

1. It is therefore evident that in a case such as the instant one, the corporate veil will only be lifted where it is demonstrated that the actions of the directors or shareholders smacks of bad faith and that the corporate veil is being used as a mask to fraudulently shield such directors or shareholders from execution of the decree. The veil may therefore be pierced where it appears that the business of the company has for instance been carried on with intent to defraud creditors of any other person or for any fraudulent purpose. Only where justice of the case demands should the corporate veil be disregarded and lifted.
2. The proper procedure to be adopted by a party seeking to lift the corporate veil is to first and foremost file a case or an application in court outlining the reasons for the lifting of the corporate veil. In the said case, the court will be required to first summon such directors to appear in Court to be orally examined as to whether it has any and/or what property and/or means of satisfying the debt. The directors may in the process also be called upon to produce any books of accounts or documents, for purposes of scrutiny. It is during this process that the Court may then determine whether the directors are guilty of bad faith, or wilful acts meant to avoid settlement of the decree/debts or even outright fraud. Should the existence of such circumstances be established, then the Court may go ahead to lift the corporate veil and hold the directors or shareholders personally liable to settle the debt.
3. In this instant case, it is not in dispute that the matter before the court is a tax appeal arising out of a decision by the Tribunal on the validity of an Agency Notice and the liability of the 1^st Respondent for the debts of the 2^nd Respondent. It is instructive to note that not only is there no formal application for the lifting of the corporate veil but that the 2^nd Respondents have not been summoned for oral examination on the financial status of the company. I find that it is not in the place of this court to deal with the issue of lifting of the corporate veil in this appeal.
4. Having found that the Tribunal arrived at the correct verdict on the issue of the 1^st Respondent’s personal liability for the 2^nd Respondent’s taxes, I find that the issue of the validity of the Agency Notice issued to the 1^st Respondent is moot.
5. For the reasons that I have stated in this judgment, I find that the instant appeal is not merited and I therefore dismiss it with no orders as to costs.
6. Orders accordingly.

Judgment dated, signed and delivered virtually via Microsoft Teams this 3^rd day of October 2024.

In the Presence of: -

Mwalo for the 1^st Respondent

Nkarichia for B. Agwenyi for the 2^nd Respondent

Ms. Almadi for Ochieng for the Appellant

C/A – Anita