[2023] KEHC 24908 (KLR)

Highchem Marketing Limited v Director of Criminal Investigation & 3 others (Constitutional Petition 103 of 2021) [2023] KEHC 24908 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24908 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition 103 of 2021

OA Sewe, J

November 2, 2023

IN THE MATTER OF ARTICLES 22(1), 23(1), (3) (a) & (f) AND 165 (3) (b), (d) (ii), (6) & (7) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 35(1) (a) & (b), 40(1) & 47(1) & (2) OF THE CONSTITUTION AND IN THE MATTER OF ALLEGED VIOLATION SECTION 4(1) OF THE ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF ALLEGED VIOLATION OF SECTION 4(1) & (3) AND SECTION 5(1) (d) OF THE ACCESS TO INFORMATION ACT, 2016 AND IN THE MATTER OF CONSIGNMENT OF DICALCIUM PHOSPHATE, CUSTOM ENTRY NO. 2018 ICD 321117 BELONGING TO HIGHCHEM MARKETING LTD

Between

Highchem Marketing Limited

Petitioner

and

The Director Of Criminal Investigation

1st Respondent

Kenya Bureau Of Standards

2nd Respondent

Kenya Ports Authority

3rd Respondent

Kenya Revenue Authority

4th Respondent

Judgment

[1]The petitioner is a limited liability company incorporated in Kenya under the Companies Act, 2015. It has its registered office in Nairobi within the Republic of Kenya and is said to be engaged in the business of supplying human pharmaceuticals, hospital consumables and diagnostic technologies, veterinary produces, among others. The brief facts of the case are that, in the course of its business, the petitioner imported a consignment of Dicalcium Phosphate, a livestock dietary supplement used to address calcium and phosphorous deficiencies in animals.

[2]The petitioner averred that the consignment arrived at the Port of Mombasa on 22nd July 2018 having obtained all the relevant documents for importation save for a Certificate of Compliance from the 2nd respondent, Kenya Bureau of Standards (KEBS), for purposes of clearing the consignment. By its letter dated 13th August 2018, the 2nd respondent rejected the consignment; and upon receipt of the letter, the petitioner applied for review, contending that the 2nd respondent did not use the correct standard applicable to Kenya. At paragraphs 8, 9 and 10 of the Petition, the petitioner averred that, upon re-sampling and re-testing the consignment using KEBS Standard KS 2577:2015, the same was found to be compliant and was approved for release. The earlier letter dated 13th August 2018 was accordingly withdrawn.

[3]It was further the assertion of the petitioner that, upon clearance by the 2nd respondent, it sought the release of the consignment but was informed by customs officials that the consignment required further clearance from the Director of Criminal Investigation, the 1st respondent herein. It added that its efforts to obtain clearance from the 1st respondent yielded no fruits; hence its decision to file this Petition. Thus, the Petitioner averred that the actions of the respondents, both by deed and default, contravened its fundamental rights to property, information and fair administrative action. It is noteworthy that, initially, the 1st respondent was the sole respondent in the Petition.

[4]By way of reliefs, the petitioner prayed for the following orders:(a)A declaration that the 1st respondent breached its fundamental right to property as enshrined in Article 40 of the Constitution by failing to clear its consignment of Diclacium Phosphate per Customs Entry No. 208 ICD 321117 for release.(b)A declaration that the 1st respondent breached the petitioner’s fundamental right to information as enshrined in Article 35 of the Constitution by failing to give any reason for not clearing its consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117. (c)A declaration that the 1st respondent breached the petitioner’s fundamental right to fair administrative action as enshrined in Article 47 of the Constitution by failing to clear consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117 for release, and by failing to give any reasons or to communicate with the petitioner over the matter.(d)An order of mandamus compelling the 1st respondent to issue clearance to enable the consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117 to be released to the petitioner.(e)An award of general damages for breach of fundmental rights.(f)An award of special damages in the sum of USD 14,038. 96 and Kshs. 657,294 as particularized in paragraph 16 of the Petition.(g)Any other order the Court deems just and fit.(h)An order that costs of the Petition be borne by the respondents.

[5]The Petition was supported by the affidavit of the Operations Manager of the petitioner, Mr. Nelson Gacuiri, sworn on 12th October 2021 and the documents annexed thereto. The documents included the two letters aforementioned as well as the import documents for the subject consignment.

[6]The petitioner filed an Amended Petition on 4th March 2022 with the leave of the Court to implead the Kenya Bureau of Standards (KEBS) as the 2nd respondent, Kenya Ports Authority (KPA) as the 3rd respondent and Kenya Revenue Authority (KRA) as the 4th respondent. The petitioner also introduced additional details at paragraphs 2A, 2B, 2C and 9A in connection with the 2nd, 3rd and 4th respondents. Also affected by the amendments were paragraphs 5, 10 and 12 of the Petition with a view of setting out the petitioner’s cause of action against the additional respondents. Prayers [e] and [f] were also refined such that the prayer for special damages under paragraph [f] was pleaded in the alternative to the prayer for mandamus to compel the respondents to release the subject consignment.

[7]In response to the Petition, the 1st respondent relied on the Replying Affidavit sworn by No. 75494 Sgt. Raymond Mwahanga, an investigating officer in the Directorate of Criminal Investigations attached to the Inland Container Deport, Nairobi (ICDN). He averred that, on the 20th November 2018, the 1st respondent received a complaint from Nelson Gacuiri of Highchem Marketing Limited (the petitioner) in connection with the two conflicting reports issued by the 2nd respondent. Thereupon, the 1st respondent instructed the DCIO, Kilindini, to conduct investigations into the complaint.

[8]In the meantime, the DCI, ICDN recorded statements from 8 witnesses, three of whom were laboratory technicians of the 2nd respondent who conducted the laboratory tests to explain the discrepancies between the two reports. It was thus averred by Sgt. Mwahanga that at the completion of the investigations, the possibility of any corrupt activities in the issuance of the conflicting reports was ruled out and a recommendation made for the consignment to be released to the petitioner through the multiagency committee. The investigation file was compiled and forwarded to the FCIO Rail/Port Police. Sgt. Mwahanga further averred that re-testing was conducted by the 2nd respondent for the comfort of all parties; after which the 4th respondent was advised to release the consignment through a multi-agency team as advised by the 1st respondent.

[9]In the 2nd respondent’s Replying Affidavit sworn by Birgen Rono on 12th May 2022, emphasis was placed on the mandate of the 2nd respondent to safeguard the right of consumers to goods of reasonable quality as well as the protection of the health, safety and economic interests of consumers. Thus, the 2nd respondent averred that it is its duty to inspect goods for the purpose of ensuring conforming with the set standards; and that in the discharge of that duty, it inspected the subject consignment against KS Codex Stan 193:2015, Codex General Standard Specification for contaminants and toxins in food and feeds. It was further averred that the test revealed non-compliance with the standards in the lead parameter. Consequently, on the 13th August 2018, the 2nd respondent wrote to the petitioner and notified it of the test results as well as the decision to have the consignment destroyed.

[10]The 2nd respondent further deposed that the petitioner promptly appealed the decision, following which a re-test was conducted to confirm compliance, which turned out positive. Accordingly, the Court was urged by the 2nd respondent to strike out the Petition for having been filed in abuse of the court process in so far as the petitioner is seeking orders against the 2nd respondent after clearance by the 2nd respondent of the subject consignment.

[11]In its response to the Amended Petition dated 1st April 2022, the 3rd respondent denied the averments of the petitioner to the effect that its right to information was contravened. According to the 3rd respondent, there are no records to show that the petitioner asked for information of any kind from it. The 3rd respondent also denied having contravened the petitioner’s right to property or its right to fair administrative action. Accordingly, at paragraph 5 of its response, the 3rd respondent explained that in execution of its mandate, there is a release process that all the parties concerned are required to follow, thus:The Petitioner is expected to engage their shipping line to release the delivery order electronically through Electronic Data Interchange (EDI). The Petitioner is then required to engage Kenya Bureau of Standards (KEBS) the 2nd Respondent herein and other Government agencies for clearance. Once cleared, Kenya Revenue Authority (KRA) the 4th Respondent herein being at the tail end of the process, then releases the cargo electronically. Once releases have been submitted by the shipping line and Kenya Revenue Authority (KRA), the client submits Pick UP Order to the 3rd Respondent’s KWATOS WEB-IP platform. The Pick UP Order is automatically interfaced therefore it connects on the 3rd Respondent’s Online Platform as workflow where billing is generated. The Petitioner is then expected to access the invoice through the online platform and render incurred payments due to the 3rd Respondent.”

[12]It was further the contention of the 3rd respondent that, in respect of the subject consignment, no electronic delivery order, no customs release and no pickup order had been generated on its electronic platform; and that without these documents, the 3rd respondent has continued to discharge its mandate as a warehouseman and has been storing the consignment awaiting the generation of the release documents. The 3rd respondent further averred that it is a separate and independent entity from the 4th respondent; and therefore the petitioner’s assertion that it paid all monies due to it to the 4th respondent is ill-informed and misguided. At paragraph 16 of its response, the 3rd respondent averred that, as at 1st April 2022, the petitioner owed it USD 59,845 for its services; and that additional storage charges have been accruing at the rate of USD 45 per day until the time of collection of cargo.

[13]Accordingly, the 3rd respondent averred that no fundamental right of the petitioner has been violated by it; and that its only interest in the petition is the payment of the statutory charges owed to it for its services. It therefore added that upon such payment, it will immediately release the cargo to the petitioner or as directed by the Court. Thus, the 3rd respondent prayed for the dismissal of the Amended Petition terming it frivolous and misconceived.

[14]On behalf of the 4th respondent, reliance was placed on the Replying Affidavit sworn by Lucy Nganga on 13th May 2022 and a further Affidavit, sworn by Yvonne Odera on 20th April 2023. In addition to setting out the mandate its mandate, the 4th respondent pointed out that the petitioner expressly admitted, at Paragraph 11 of its Further Affidavit that the subject consignment did not have the required Certificate of Clearance; which is a primary document for cargo release in the KENTRADE system. The 4th respondent further averred that it was aware that, vide a letter dated 13th August 2018, the 2nd respondent duly advised the petitioner that the consignment in question failed to comply with the required standards and as such was to be re-shipped back to the country of origin within 30 days or be destroyed.

[15]In the premises, the 4th respondent denied the petitioner’s assertion that it was not given reasons why its consignment could not be released. The 4th respondent further denied that it breached the petitioner’s constitutional rights and added that it would not only be a serious dereliction of duty but also a crime for it to release the subject consignment that has been found to be toxic by the 2nd respondent to the petitioner for use by unsuspecting members of the public. In conclusion therefore, the 4th respondent averred that the remedies sought and the entire Petition as amended are wholly unmerited and ought to be dismissed with costs to the 4th respondent.

[16]The Amended Petition was canvassed by way of written submissions which were highlighted by counsel on 10th May 2023. The petitioner’s written submissions dated 8th June 2022 set out in what way its constitutional rights under Articles 35, 40 and 47 have been violated by the respondents. The petitioner relied on Reuben Njuguna Gachukia & Another v Inspector General of the National Police Service & 4 Others[2019] eKLR, Edward Akong’o Oyugi & 2 Others v Attorney General [2019] eKLR in urging the Court to find that it is entitled to the reliefs prayed for in its Amended Petition.

[17]In its written submissions dated 21st September 2021, the 1st respondent proposed a single issue for determination; namely, whether the 1st respondent violated the petitioner’s constitutional rights. It pointed out that, ordinarily, it is not involved in the customs clearance; and that its role in this matter was limited to the investigations it carried out pursuant to its mandate. The 1st respondent further submitted that since there was justifiable cause for it to carry out investigations into the two conflicting reports, no cause of action exists against it.

[18]Reliance was placed on Republic v OCS, Nairobi Central Police Station & 2 Others, Ex Parte Sixtus Gitonga Mugo [2020] eKLR and Isaac Tumunu Njunge v Director of Public Prosecutions & 2 Others [2016] eKLR for the submission that the primary duty of the police is to seek justice within the bounds of the law; and not merely to seek the prosecution of suspects. It was further submitted that failure by the police to investigate crime once reported is itself an affront to their statutory and constitutional mandate. The 1st respondent insisted that the petitioners were well aware of the reasons for the continued detention of the subject consignment; and therefore that the petitioner should not feign ignorance before the Court. Reference was made to the letter dated 23rd March 2021 by the petitioner’s advocate, to demonstrate that the petitioner was well aware of the investigations in connection with the consignment as well as the outcome of the investigations; having itself made the initial report to the 1st respondent. It added that the 1st respondent cannot be compelled to offer a conclusive response where there was none.

[19]On its part, the 2nd respondent proposed the following four issues for determination vide its written submissions dated 5th October 2022:(a)Whether the 2nd respondent has breached the petitioner’s fundamental right to property as enshrined in Article 40 of the Constitution for failing to clear Dicalcium Phosphate Customs Entry No. 208 ICD 321117 for release.(b)Whether the 2nd respondent has breached the petitioner’s fundamental right to information as enshrined in Article 35 of the Constitution by failing to give any reason for not clearing its consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117 for release to the petitioner.(c)Whether the 2nd respondent has breached the petitioner’s fundamental right to fair administrative action as enshrined in Article 47 of the Constitution by failing to clear the consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117 for release to the petitioner, and by failing to give any reasons or to communicate with the petitioner over the matter.(d)Whether the petitioner is entitled to an order of mandamus to compel the 2nd respondent to release the consignment of Dicalcium Phosphate, Customs Entry No. 2018 ICD 321117, together with an award of general damages and special damages in the sum of USD 14,038. 96 and Kshs. 657,294, respectively, as particularized in paragraph 16 of the Petition.

[20]The 2nd respondent relied on Article 46 of the Constitution and Section 4 of the Standards Act, Chapter 496 of the Laws of Kenya to underscore its mandate and the consumers’ right of access to goods of reasonable quality. It therefore reiterated its stance that it acted within the law in handling the petitioner’s consignment. The 2nd respondent relied on Republic v Kenya Bureau of Standards & 4 Others; Ex Parte United Millers Limited; Department of Health Services, Nakuru (Interested Party) [2019] eKLR in which the Court of Appeal emphasized the need for inspection and re-inspection if deemed necessary by the 2nd respondent to ensure conformity with the set standards.

[21]It was further the submission of the 2nd respondent that all the necessary information was passed on to the petitioner in a timely manner and therefore that no breach of either Article 35 or Article 47 of the Constitution was proved by the petitioner. The 2nd respondent also pointed out that, at paragraph 10 of the Amended Petition, paragraph 13 of the Further Affidavit to the Amended Petition and paragraphs 5 and 12 of the petitioner’s written submissions, the petitioner conceded that in fact the 2nd respondent cleared the subject consignment for release. Accordingly, the 2nd respondent surmised that the petitioner is not entitled to any of the reliefs prayed for in its Amended Plaint.

[22]In the 3rd respondent’s written submissions dated 31st March 2023, emphasis was laid on the fact that, nowhere in the Amended Petition did the petitioner allege any breach of duty by it. Thus the 3rd respondent relied on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, among other authorities, in urging the Court to find that the Amended Petition does not meet the threshold set in Anarita Karimi Njeru. The 3rd respondent added that, as a creature of statute, it can only exercise the powers specifically conferred on it by the establishing statute, which is essentially cargo handling, in terms of offloading, warehousing and delivery to the respective consignees, once cleared by the relevant interveners. It was therefore the assertion of the 3rd respondent that it is the last point of contact after clearance, which is largely an online process. Thus, the 3rd respondent prayed for the dismissal of the Amended Petition.

[23]I have given due consideration to the Petition as amended, the responses thereto, as well as the written submissions filed by learned counsel on behalf of the parties. The background facts are largely not in dispute and were well recapitulated in the written submissions filed herein. Thus, there is no dispute that in the year 2018, the petitioner imported a consignment of Dicalcium Phosphate under Customs Entry No. 2018 ICD 321117. The consignment was moved to the 3rd respondents Inland Container Depot at Nairobi awaiting clearance and release. Such clearance involved testing by the 2nd respondent to ensure conformity with standards whereupon the petitioner would be issued with a Certificate of Compliance.

[24]There is further no dispute that when the cargo was first tested by the 2nd respondent using the KS Codex Stan 193:2015, high traces of lead and arsenic were noted; and it was consequently directed by the 2nd respondent that the cargo be re-shipped to the country of origin within a specified period, failing which the same would be destroyed. The petitioner sought a review of the decision; and when the same was done using the KS standard, the consignment was found compliant. On account of the two conflicting reports, the 4th respondent declined to clear the goods and caused the matter to be reported to the 1st respondent for investigations. The investigations yielded no criminal culpability and therefore the 1st respondent recommended the release of the goods along with a third test for the comfort of all the interveners. However, by the time the petitioner moved the Court vide this suit, the consignment was yet to be released; and the gist of the Petition as amended is that the respondents violated its constitutional rights as enshrined in Articles 35, 40 and 47 of the Constitution.

[25]In the premises, the issues for determination are:(a)Whether the Petitioner’s rights under Articles 35, 40 and 47 of the Constitution have been breached or violated.(b)Whether an order of mandamus ought to issue compelling the release of the subject consignment.(c)Whether the petitioner is entitled to general and special damages as claimed and in what quantum.

A. On whether the Petitioner’s rights under Articles 35, 40 and 47 of the Constitution have been breached or violated: [26]Article 35 of the Constitution states:(1)Every citizen has the right of access to—(a)information held by the State; and(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.(2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person.(3)The State shall publish and publicise any important information affecting the nation.

[27]Under Section 4 of the Access to Information Act, every person has the right to access information unless such a right has been limited under Section 6 of the Act. Section 4 provides:(1)Subject to this Act and any other written law, every citizen has the right of access to information held by—(a)the State; and(b)another person and where that information is required for the exercise or protection of any right or fundamental freedom.(2)Subject to this Act, every citizen's right to access information is not affected by—(a)any reason the person gives for seeking access; or(b)the public entity's belief as to what are the person's reasons for seeking access.(3)Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.(4)This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. (5)Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

[28]It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. The Act under Section 5 requires that a public entity should facilitate access to information held by it provided that the information is sought in accordance with the procedures set out in Section 8, which requires that the request for information be in writing with sufficient details and particulars to enable the public officer to ascertain what information is being sought. The information should also be provided without any delay.

[29]Accordingly, in Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another [2016] eKLR, it was held: -270. Article 35(1)(a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information. Where therefore a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings. I also endorse the definition of public bodies to include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quasi-non-governmental organisations, judicial bodies, and private bodies which carry out public functions…”

30. Likewise, in Nairobi Law Monthly company Limited v Kenya Electricity Generating Company & 2 others [2013]eKLR, it was held:34. The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to‘publish and publicise any important information affecting the nation’, but also to provide open access to such specific information as people may require from the State.35. A third consideration is the nature and form of information that should be availed by the State, and the extent to which information should be disclosed…However, there are certain international standards which offer a guide on the nature of the information to be provided, and the extent to which disclosure should go…”

31. In the same vein, in Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (Civ) (16 June 2023) (Judgment), the Supreme Court stated:…whereas information held by the State ought to be freely shared except in exceptional circumstances, such information should flow from the custodian of such information to the recipients in a manner recognised under the law…”

[32]In the present case, the petitioner has not presented any evidence to show that they requested for any information in writing from any of the respondents or that access was declined. What is clear is that the petitioner wrote several letters to the 1st respondent, including the letters dated the 23rd September 2020, 23rd October 2020 and 23rd March 2021 (marked Annexure 8(a to c) of the petitioner’s initial affidavit) asking for the release of the consignment. In response, the 1st respondent indicated that, after conducting their investigations they left the issue of release to the 3rd and 4th Respondents. The set of documents annexed to the 1st respondent’s Replying Affidavit marked Annexures “MM4”, MM5” and “MM6” confirm the respondent’s assertions in this connection. In fact, the recommendation of the 1st respondent as at 2nd March 2019 was that:…the consignment held by KEBS and KRA be released through the multi-agency committee.”

[33]That the petitioner was all along aware of the investigations is evident at paragraphs 2 and 3 of the 1st respondent’s Replying Affidavit, sworn by Sgt. Mwahanga. He deposed that, in fact, the complaint was made on 20th November 2018 by Nelson Gacuiri on behalf of the petitioner. Reference was further made to the petitioner’s letters to the 1st respondent, ending with the letter dated 23rd March 2021 in which the petitioner made reference to the subject investigations. In the premises, it is anomalous for the petitioner to claim that its right of access to information was violated. Indeed, Section 48 of the National Police Service Act provides as follows with regard to access to information:Subject to Article 244 of the Constitution and any other law enacted pursuant to Article 35 of the Constitution, a limitation of a right shall be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and shall be limited only for purposes of ensuring-(a)the protection of classified information;(b)the maintenance and preservation of national security;(c)the security and safety of officers in the Service;(d)the independence and integrity of the Service; and(f)the enjoyment of the rights and fundamental freedoms by any individual, does not prejudice the rights and fundamental freedoms of others.

[34]In the premises, I am not convinced that the Petitioner has proved any violation of its right of access to information by any of the respondents in the manner envisaged by Article 35 of the Constitution, and I so find.

[35]Regarding the right to property Article 40 of the Constitution provides that:(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property —(a)of any description; and(b)in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person—(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or(b)to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).(3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—(i)requires prompt payment in full, of just compensation to the person; and(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.(4)Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.(5)The State shall support, promote and protect the intellectual property rights of the people of Kenya.(6)The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

[36]From a plain reading and construction of the above provision of the Constitution, it is manifest that the circumstances contemplated thereby are entirely different from the situation in which the petitioner finds himself. The evidence presented herein is that the petitioner has so far obtained clearance from the 2nd Respondent but is yet to process the consignment for clearance by the 3rd respondent and 4th respondent. According to the 4th respondent no online clearance documents have been presented to it in respect of the consignment. The 3rd respondent likewise maintained that once the other interveners have cleared the consignment, it would have no reason to hold onto the property after settlement of its charges. Hence, since the respondents were all acting in furtherance of their statutory mandate, it cannot be said that a violation of the petitioner’s right to property under Article 40 of the Constitution has been proved herein in connection with the subject consignment.

[37]The petitioner further claimed that its right to fair administrative action under Article 47 of the Constitution was infringed. That Article simply states that:(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.

[38]As is plain by now, it was at its instance that the 1st respondent commenced investigations in connection with the consignment. The 1st respondent has further shown that upon completion of investigations it compiled a report that included its recommendation for the release of the consignment through the multi-agency committee; and that it was not its responsibility to release the goods. The 2nd respondent was exonerated from blame in so far as the release of the goods is concerned. As for the 3rd and 4th respondents, they are still awaiting clearance of the goods in the system, including payment of their charges/taxes, to effect the release. Clearly therefore, the petitioner did not present sufficient evidence to indicate exactly what administrative action was expected and from which respondent. It is also not lost on the Court that the last paragraph of the 2nd clearance letter from the 2nd respondent dated 14th November 2018 (Annexure 6(a) at page 46 of the Petition) that the petitioner heavily relied on is in respect of fertilizer as opposed to animal feeds.

[39]Although the 1st respondent made reference to a multi-agency committee, it is not altogether evident who the convener of the committee is or who are its members. Hence, no evidence was adduced by the petitioner to demonstrate that it sought the intervention of the said committee or otherwise sought for information in that regard from any of the respondents. In the circumstances, granted the explanations offered by the 2nd and 3rd respondents for the continued detention of the subject consignment, it is my finding that no violation of Article 47 of the Constitution has not been demonstrated.

B. Whether an order of mandamus can issue compelling the release of the consignment: [40]The Court of Appeal in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, held:The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”

[41]From the responses of the 3rd and 4th Respondents, it is evident that the petitioner has not fully complied with the statutory requirements for the release of their goods. Under those circumstances an order of mandamus would not lie.

C. Whether general and special damages can issue: [42]Turning now to the petitioner’s prayer for compensation, which is a remedy provided for under Article 23(3) of the Constitution, it is the duty of the Court to determine whether, in the particular circumstances of this case, an award of general damages is an appropriate relief. In Minister of Health & Others v Treatment Action Campaign & Others (2002) 5 LRC 216 at page 249 it was held:..appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the court may even have to fashion new remedies to secure the protection and enforcement of these all important rights...the courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if need be to achieve this goal."

[43]Accordingly, in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal held:…It seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case.As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. (Emphasis supplied) The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration...”

[44]Similarly, in the South African case of Mvumvu v Minister for Transport [2011] ZACC which has been cited locally in numerous decisions, the court stated as follows:…in determining a suitable remedy, the courts are obliged to take into account not only the interests of the parties, whose rights are violated, but also the interests of good government, these compelling interests need to be carefully weighed”.In addition this was also crystalized in the matter of the Residents of Industry House & 8 others vs Minister of Police & 9 others (2021) ZACC at 37;“The court observed that once the appropriate relief is established it becomes unnecessary to award assessment of damages as an additional remedy where the object of the damages is not to compensate the claimants of the loss they have suffered but to uphold the Constitution. It is not fair to burden the public purse with financial reliability where there are alternative remedies that can sufficiently achieve that purpose. To do otherwise will effectively amount to punishing the taxpayers for conduct for which they bear no responsibility given the many pressing demands on the fiscus, it is not appropriate to use scarce resources to pay damages to individuals for purpose of enforcing rights conferred on the general public where there are other effective methods of upholding the Constitution.”

[45]In the subject Petition, this court has determined that no breach and/or violation of constitutional rights has been proved by the petitioner. And, although petitioner has, in the alternative, sought for special damages in the sum of USD 14,048/96 and Kshs. 657, 294 for loss and damage suffered, it is trite law that special damages must not only be specifically pleaded but also strictly proved. (See the Court of Appeal decision Hahn v. Singh, Civil Appeal No. 42 of 1983). To prove loss, the petitioner has annexed proof of payment, cost of the container, KEBS inspection charges, Customs and duties, local shipping line charges and deposit on the container. It is, however, noteworthy that the petitioner has not exhausted all the procedures for release of the consignment. I consequently find this aspect of the claim to be premature in the circumstance.

[46]In the result, the Amended Petition filed herein on 4th March 2022 lacks merit and it is hereby dismissed. Each party to bear their own costs of the Petition.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF NOVEMBER 2023. OLGA SEWEJUDGE