Fintech Edge Company Ltd v Kenya Bureau of Standards & another (Tribunal Appeal E006 of 2025) [2026] KEST 1 (KLR) (17 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE STANDARDS TRIBUNAL AT NAIROBI** **TRIBUNAL APPEAL NO. STA/E006 OF 2025** **BETWEEN** **FINTECH EDGE COMPANY LIMITED …………………………….………APPELLANT** **AND** **KENYA BUREAU OF STANDARDS …………………………………1ST RESPONDENT** **NATIONAL CEREALS AND PRODUCE BOARD…………..…..2ND RESPONDENT** **JUDGMENT** 1. **BACKGROUND AND PLEADINGS** 1. The Appellant is in respect to the Statement of Appeal dated 3rd September 2025. 2. The Appellant is a trader specializing in the sale of fertilizer. 3. We begin by stating that this is a novel issue that has come before the tribunal and looking at the submissions and authorities by the Partes and going by our own research, which was limited to the period of writing this judgment, we note that the matter has not been considered by superior courts in Kenya. 4. The Respondent is a statutory body established under Section 3 of the Standards Act Cap.496 Laws of Kenya tasked with inspection and retesting. 5. This appeal was triggered by the actions of the Respondent of seizing the Appellants goods. This was by a letter dated and issued on 4th March 2025, Seizure Notice 31712, ordering the destruction of 27, 518 bags of fertilizer belonging to the Appellant. 6. Further to the Seizure Notice, the 2nd Respondent issued a Notice of Destruction, dated 14th March 2025, outlining the fact that he government had directed that the 27, 518 bags seized Sulphate of Ammonia fertilizer in NCPB stores would be destroyed as per the Seizure Notice issued. They also directed the Appellant that they would bear costs of the destruction. 7. The 2nd Respondent dis not outline who the government was, but it is safe to say that they were acting on instructions from the 1st Respondent. 8. The 1st Respondent filed a Statement of Reply dated3rd day of September 2025. 9. The Appellant further filed a Replying Affidavit dated 3rd April 2026 and further relied entirely upon their Affidavit dated 29th October 2025. 10. The contents will be considered in the analysis of the issues as framed by the Tribunal. 11. Parties filed submissions. 12. The Appellant’ submissions dated 3rd June 2026, while the 1st Respondents are dated 10th June 2026. 13. The Appellant filed rejoinder Submissions dated 15th June 2026. 2. **ISSUES** 1. The Tribunal framed the following issues for determination: 1. Whether the Tribunal should direct a fresh composite retest by the Respondent and an independent accredited laboratory, in the presence of the Appellant, with the results filed within a Tribunal-set timetable; and release forthwith is compliance is confirmed? 2. Whether the Tribunal should set aside the Seizure Notice No. 31712 dated 4th March 2025? 3. Whether the Tribunal should order the release of the Consignment to the Appellant? 4. Whether the Tribunal should award costs? 1. **ANALYSIS** * 1. **Whether the Tribunal should direct a fresh composite retest by the Respondent and an independent accredited laboratory, in the presence of the Appellant, with the results filed within a Tribunal-set timetable; and release forthwith is compliance is confirmed?** 2. The Tribunal found this to be the central issue to be determined, which determination will have a bearing on the other three issues. 3. On this issue, the question to be answered by the Tribunal is whether expired goods can be re-tested to confirm whether they meet the conformity test and be released to be market? 4. The Tribunal notes that this appeal raises a novel issue, which has not been dealt with by the Tribunal before, being, “whether goods labeled by the manufacturer as expired, may be subject to a re-test, which re-test may result to the goods being conforming goods liable to be re-introduced to the market. 5. Tied to this, is whether the traders may self-regulate on matters touching on expired goods or goods which are past their shelf life, to the exclusion of the Regulator. 6. It will lend itself to a cross-section of local and international legislation, codes of conduct and industry best practices and articles, as persuasive, taking into account the hierarchy of laws prescribed under the Judicature Act. We rely on the case of [AMI & 2 others v Attorney General & 6 others [2026] KEHC 6906 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6906/eng%402026-05-20). 7. We have perused parties’ pleadings and submissions and find that two words recur- “expiry date” and “shelf life”. 8. At the onset, it may seem that the two words may be used interchangeably, but we find that they are distinct and the distinction will be important in deciding the issue at hand. 9. A reading from an article by Crop Life Technical Monograph, No 17,” *Guidelines for Specifying and Managing Shelf Life and Expiry Date of Crop Protection Products*, <https://share.google/U4nu8sAYfWU2ezzEJ> states that: “*It is important to carefully distinguish two technical terms which often are used in the same context: (Shelf Life (period of time) and Expiry Date (point in time).* ***The Shelf Life of a CPP is a property indicating the period in which a CPP is fit for use****. Any* ***shelf life statement shall be supported by appropriate stability data****.* ***The Expiry Date of a batch is a property defined for a particular batch. Setting an Expiry Date is an operational task and is done at manufacturing level at time of the batch release.*** *The period between batch release and Expiry Date cannot be longer than the Shelf Life. Note: The Shelf Life is established for a formulated product in general ((including its packaging) and applies to all its manufactured batches, whereas the Expiry Date is always related to a particular batch of a formulated product.”* 10. Elsewhere, the article defines (CPPs) as Crop Protection Products (CPPs). 11. A further reading of *Guidelines for Specifying and Managing Shelf Life and Expiry Date of Crop Protection Products*, states that: “Crop Protection Products (CPPs) are deigned to be stable and fit for use when stored according to label instructions for a defined period (shelf life). 12. On the international front, we elect to look at The FAO's International Code of Conduct for the Sustainable Use and Management of Fertilizers (2019) ("hereinafter the Fertilizer Code"). We must state categorically that while this is not legislation binding on Kenya as a Republic, remains a voluntary but internationally endorsed instrument on the subject. We rely on the case of [AMI & 2 others v Attorney General & 6 others [2026] KEHC 6906 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6906/eng%402026-05-20). 13. It states under Articles is explicit that governments should *"ensure products sold as fertilizers are clearly, legibly and accurately labelled" and that, "at minimum, labels should include: … release date of the lot or batch of fertilizer and expiry date, if appropriate."* (See Articles 7.1.7 & 7.1.7.5). 14. The Fertilizer Code places the onus of verifying quality and purity primarily on the fertilizer industry. 15. It should therefore ensure fertilizer products comply with government standards and that end-users are supplied with safe and high-quality products that have been tested by recognized standards and should verify the quality and purity of fertilizers offered for public sale. (See Articles 6.6.4 and 6.6.7). 16. The expiry date is thus, internationally as well as domestically, understood as an output of the manufacturer's (or its accredited testing chain's) quality-verification obligation, attaching to the specific lot or batch 17. This was the defence advanced by the 1st Respondent by their letter dated 12th March 2025. They stated that *“expiry date was a declaration by the manufacturer following extensive product suitability studies and provides information on how long after manufacture the product remains fit for use. It closed by stating that they did not have the mandate to alter or authorize alteration of the expiry date or to assure for products suitability beyond the declared date.”* 18. The Appellant claims that the 1st Respondent acted arbitrarily in ordering for the seizure of its goods/consignment and ordering its destruction. 19. It further alleges that the 1st Respondent in arriving at its decision of 4th March 2025, had only one consideration, being the expiry date assigned to the products, and not evidence of non-conformity which would only be availed by granting them an opportunity to re-test. 20. Locally, the first port of call is the national legislation on fertilizers, is The Fertilizers and Animal Foodstuffs Act Cap. 345**.** This piece of legislation restricts the market to fertilizer that is “approved” and that conforms to “the standard or specification prescribed by” rules made under the Act. 21. Section 3 (2) of the Fertilizers and Animal Foodstuffs Act, Cap. 345 provides that*" No person shall import, manufacture, compound, mix or sell any fertilizer or animal foodstuff … unless the fertilizer or animal foodstuff conforms to the standard or specification prescribed by such rules."* 22. The Cabinet Secretary is empowered under s. 19(1) (a), (e) and (f) to make rules prescribing "**standards of composition, efficacy, fineness and purity**," the manner of "branding, labelling, marking and sealing" of containers, and "any declaration or warranty which may be required to be made or given … the effect of any declaration made by the seller … and the existence and effect of any implied or written warranty concerning a fertilizer." 23. That rule-making power was exercised in the Fertilizers and Animal Foodstuffs (Declaration and Warranty) Rules, 1972 and the Packing of Approved Fertilizers Rules, 1972, which govern container marking and the declarations that accompany sale. Read together, s. 3(2) and s. 19(1)(a),(e),(f) establish that a date printed on a fertilizer label is part of a statutory declaration/warranty structure. 24. An expiry date is thus the manufacturer's (or importer's) representation of the batch's composition and efficacy as at the point the rules require it to be stated. 25. We shall discuss this point in detail later. 26. Section 12 of the Standards Act as amended by the Business Laws Amendment Act 2024, states that “A person who manufactures, imports, sells or exhibits a product shall…. (d), ensure that the product does not exceed its declared shelf life or expiry date”. 27. The Tribunal is also cognizant of proposed developments in the area, in terms of legislation that is in the pipeline. Although not yet passed, the obligation of traders is made clear in the impending Standards Bill 2025 which states that Under Section 48 (d) that “*A Person who manufactures, imports, stocks, distributes, sells or exhibits a product shall ensure that …… (d) the product has not exceeded its declared shelf life or expiry date.”* 28. The Tribunal notes that despite its Ruling of 27th March 2026, the Appellant has made submissions on the issue of seizure, which following the Tribunals decision, will note be considered. 29. The Appellant state that on 5th March 2025, a re-test of the consignment of 27, 518 bags of fertilizer was formally requested for through its Financiers, which request was declined by the letter dated 12th March 2025. 30. Back to legislation that binds the Appellants and the Respondents, the 1st Respondent based its action on market surveillance and issued a Report dated 7th March 2025. 31. We wish to caution ourselves and the Parties that this matter was filed in September 2025, complaining of actions that took place in March 2025. 32. A cursory perusal of the Standards (Market Surveillance) Regulations 2026 [Legal Notice 91 of 2026](https://new.kenyalaw.org/akn/ke/act/ln/2026/91/eng%402026-05-26) shows that it was passed on 12th February 2026. After the fact Guide by the principle that legislation cannot be applied retroactively, we decline to apply the provision of the Regulations to this case. 33. From the Article Guidelines for Specifying and Managing Shelf Life, they state that any claim made by the manufacturer shall be supported by studies demonstrating the stability of the product for the claimed Shelf Life Period. 34. It has been established from the previous discussion that a product shelf life is a warranty given by the manufacturer that the product will be fit up to the date indicated thereof. 35. On the other hand,***The Expiry Date of a batch is a property defined for a particular batch. Setting an Expiry Date is an operational task and is done at manufacturing level at time of the batch release.*** 36. The Appellant seems to draw the inference that the 1st Respondent based their decision on the manufacturer’s shelf life, rather that the expiry date. See paragraph 45 of the Appellant’s Submissions. 37. Given that an expiry date is properly defined for a particular batch. 38. A reading of the Article Guidelines for Specifying and managing shelf life outlines the parameters within which a products expiry date for a product batch may be set in the market channel. This it is stated, can only be done by the manufacturer or by a contract laboratory authorized by a manufacturer applying approved methods. The rider however is that the country specific regulations must allow this practice. 39. We agree with the 1st Respondent the Appellant being a trader, it did not have the prerogative to apply for a re-test for purposes of extending the shelf life of the product or the expiry date for a product bath in the market channel. 40. This prerogative was on the manufacturer, being the custodian of the information or stability data on mode of establishment of the product shelf life and whether there was any requirement and a basis to extend it, which ought to have been done, not by the Appellant, in his capacity as a trader but by the manufacturer themselves. 41. The Tribunal faults the Appellant for not drawing in the manufacturer of the goods/consignment to tender scientific evidence of the composition of the ingredients of the product. 42. The onus was on the Appellant to prove their claim. The Tribunal would have gained from technical know-how around this subject. 43. The Appellant argues that the Section 12 (1) of the Standards Act contradicts Section 14 (1) of the Act in that, in as much as Section 12 (1) places an obligation on traders to ensure that the product(s) does not exceed the shelf life or expiry date, the said obligation is not an positive order mandating the 1st Respondent to exercise its powers under Section 14 of the Act. 44. They try to draw a distinction between the powers of the 1st Respondent under Section 14 (1) and the obligation on traders under Section 12 (1) of the Standards Act, Amendment Act 2024. 45. A statute must be read as a whole, harmoniously, so that no provision is read as destroying another. Kenyan courts consistently apply this canon. [Equity Group Holdings Limited v Commissioner of Domestic Taxes [2021] KEHC 25 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/25/eng%402021-08-23) the High Court held that The dominant purpose in construing a statute was to ascertain the intention of the legislature as expressed in the statute, by considering it as a whole and in its context so that the intention, and therefore, the meaning of the statute, was primarily to be sought in the words used in the statute itself, which had to, if they were plain and unambiguous be applied as they stood. The object of all interpretations was to discover the intention of Parliament, but the intention of Parliament had to be deduced from the language used. 46. The Appellants contention that destruction must be pegged on testing and evidence based, is not supported by any authority. 47. Applying the above decision here, Section 12(1) (duty) and Section 14 (enforcement power) sit in the same section and must be read together, not as the former ousting the latter. 48. The Appellant also claims that the actions of the Respondents were arbitrary, irrational and disproportionate. 49. The events leading to the destruction notice being issued were as follows: 1. The 1st Respondent issued a Seizure Notification dated 4th March 2025. They described the goods as expired import product. 2. The 1st Respondent notified the Respondent that the goods would be destroyed within Fourteen (14) days from the date of the Notice and placed a caveat prohibiting the sale of the goods unless otherwise advised in writing. 3. The said Notice indicated the date of expiry as February 2025. 4. The 2nd Respondent thereafter issued a subsequent notice dated 14th March 2025 to the Appellant notifying them of the destruction and to advise them that they would bear the costs of destruction. 5. The Appellant through its Financiers KCB wrote to the 1st Respondent inquiring whether they could allow a re-test to ascertain the molecule stability and suitability of the fertilizer for use by farmers beyond February 2025. See the Letter dated 5th March 2025. 6. The 1st Respondents replied and declined to subject the said goods to a re-test by a letter dated 12th March 2026. 7. The parties confirm that to date the goods are still held by the 2nd Respondent pending the determination of the appeal. 8. The only grievance we see complained of by the Appellant is that the 1st Respondent did not attach results of the samples of the goods purported to be non-conforming and or expired before issuing the Notification of Seizure and intended destruction. 9. They further rely on the test results of 10th December 2025, 16th December 2025 and the Independent Test Results from KIBOS Fertilizer Limited to rebut the fact the goods were not compliant. 10. It is however clear from the pleadings that these results were issued prior or the expiry date. In as much as they show that the goods were compliant they have no bearing whatsoever with the actions taken after the expiry date. 11. The claim that the actions of the Respondents were arbitrary, irrational and disproportionate is not supported by any evidence. 50. In [Patiala Distillers Limited v Deputy County Commissioner Mathira East & another [2025] KEHC 1320 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/1320/eng%402025-02-25) It was stated that “*When an action is not explained, it is arbitrary. In the case of Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others [2021] eKLR, the court addressed the question of what constitutes arbitrariness as doth: This Court recently discussed the doctrine of arbitrariness in Nairobi High Court Constitutional Petition No. E283 of 2020 Law Society of Kenya vs. The Attorney General & Others (unreported). This is what I stated: -116.The Court of Appeal in Malindi Civil Appeal 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR made reference to the Black’s Law Dictionary 8th Edition that defined arbitrariness in the following manner: -In it connotes a decision or an action that is based on individual discretion, informed by prejudice or preference, rather than reason or facts. The High Court in Civil Suit No. 3 of 2006 Kasimu Sharifu Mohamed vs. Timbi Limited [2011] eKLR referred to Oxford Advanced Learner’s Dictionary A. S. Horby Sixth Edition Edited by Sally Wehmeiner which defines the term ‘arbitrary in the following way: -the term arbitrary in the ordinary English language means an action or decision not seeming to be based on a reason, system and sometimes, seeming unfair. The Supreme Court of China in Sharma Transport vs. Government of A. Palso (2002) 2 SCC 188 had the occasion to interrogate the meaning and import of the term ‘arbitrarily’. The Court observed as follows: -The expression ‘arbitrarily’ means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. The term ‘arbitrariness’ had earlier on been defined by the Court (Supreme Court of China) in Shrilekha Vidyarthi vs. State of U.P (1991) 1 SCC 212 when it comprehensively observed as follows;The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always. The cadre of judicial review under our constitutional dispensation is higher than administrative law. It is now hinged on Article 47 of*[*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*as a right to fair administrative action. The said Article provides as follows:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal: and(b)promote efficient administration. The right of the ex parte applicant to property and to carry out their business was likely to be affected. The products were destroyed without hearing. There were no reasons given before the action was taken. Subsequently, the products were destroyed without having the ex-parte applicant taken through a judicial process on any alleged malfeasance. A party adversely affected by administrative action, has the right to be given written reasons for the action. Under this pretext, the state’s administrative bodies only act within their mandate and not more, and for whatever is done outside the mandate, judicial review is the corrective measure. In Daniel Ingida Aluvaala and another vs Council of Legal Education & Another,[ Pet No. 254 of 2017] I observed that:-“Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decisions to be allowed to stand, it must be demonstrated that the decision is grounded on law.* [*The constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*has thus embedded into our legal system a transformative development of administrative justice, which not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies but also entrenches the right to fair administrative action in the Bill of Rights. In Judicial Service Commission vs. Mbalu Mutava & Another {2015} eKLR the Court of Appeal held that:“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.” The importance of fair administrative action as a Constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1 at paragraphs 135-136 as follows with regard to similar provisions on just administrative action in Section 33 of the South African Constitution:-“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”As a derivative of Article 47 of*[*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*, Section 7(2) of the*[*Fair Administrative Action Act*](https://kenyalaw.org/akn/ke/act/2015/4)*, 2015 provides for grounds of Judicial Review, which include bias, procedural impropriety, ulterior motive, failure to consider relevant matters, abuse of discretion, unreasonableness, violation of legitimate expectation or abuse of power. The indefinite, sudden, and unreasonable conduct of the Respondents in seizing the Applicant’s goods thus was an attempt to place the life of the Applicant as a company upon the rack, instigated by the Respondents who could choose only what is the Respondents’ desire; to achieve motives other than justice by keeping the Applicant out of trade ad infinitum. This court will intervene where it is demonstrated that the administrative acts of the Respondents have caused the Applicant and other citizens at large to live or operate their businesses at the mercy of state authorities.”* 51. The 1st Respondent stated in their letter dated 4th March 2025 that the goods had expired. 52. In their response to the Appellant’s Financier, they informed them that “Section 9 (2) prohibited the manufacture or sale of any commodity, method or procedure to which the relevant specification or code of practice relates unless it complies with that specification or code of practice. The Standard KS EAS 911:2024 Ammonium Sulphate (Sulphate of Ammonium) provides manufacturing and expiring dates are mandatory requirements. 53. We interpret this to mean that by the fact of the goods had expired, they automatically failed to comply with the Standard KS EAS 911:2024 Ammonium Sulphate (Sulphate of Ammonium). 54. They further explained their reason to be that expiry date us a declaration by the manufacturer following extensive product suitability studies and provides information on how long after manufacture the product remains fit for use. It closed by stating that they did not have the mandate to alter or authorize alteration of the expiry date or to assure for products suitability beyond the declared date. 55. Therefore, not further tests were required 56. The 1st Respondent issued the Seizure Notice in accordance to Section 14 (1) (h). 57. The the Notification of Destruction was issued as per Section 14 A. 1 (a) and (b). They further ordered the Appellant to bear the costs as per Section 14 A. (2), and granted them Fourteen (14) Days as per Section 14 A. (3). 58. Despite filing the Appeal out of time, in September after the Notice of Seizure and Notice of Destruction had been issued in March 2025, the goods had not been destroyed. 59. We therefore do not find that the acts were arbitrary, 60. The upshot is that we find that we decline to direct a fresh composite retest by the Respondent. 61. Following that decision, we are unable to grant the subsequent prayers that the said re-test be done by an independent accredited laboratory, in the presence of the Appellant, with the results filed within a Tribunal-set timetable; and release forthwith is compliance is confirmed. 62. The decision further renders issues 2 and 3 moot. 63. On the issue of costs, each party is ordered to bear their own costs. 2. **DISPOSITION** 3. The Statement of appeal dated dated 3rd September 2025 is dismissed in its entirety. 4. Each party to bear their own costs. **Dated and delivered at Nairobi this 17TH day of JULY, 2026** Moses Sande Makhandia (Acting Chairperson) ….…………………………............................................ Peter Mungai (Member) ………………………………............................................ Evans Lagat (Member) ………………………………………………………. Adrian Opiyo Ong’injo (Member) …..………………………............................................ Delivered in the presence of: 1. Mr. Ms…………………………………Advocate for Appellant. 2. Mr./Ms………………………………Advocate for Respondent.