[2025] KEST 2 (KLR)

Kel Chemicals Limited v Kenya Bureau of Standards (Tribunal Appeal E005 of 2024) [2025] KEST 2 (KLR) (28 March 2025) (Judgment)

Neutral citation: [2025] KEST 2 (KLR)

Republic of Kenya

In the Standards Tribunal

Tribunal Appeal E005 of 2024

GM Mburu, Chair, MS Makhandia, P Mungai, E Langat & A Ong’injo, Members

March 28, 2025

Between

Kel Chemicals Limited

Appellant

and

Kenya Bureau of Standards

Respondent

Judgment

Introduction 1. The Appellant is a limited liability Company licensed to carry on Business within the Republic of Kenya. The Appellant principle business activity is manufacturing of various chemical products including fertilizer in Kenya.

2. The Respondent is a body corporate established under Section 3 of the Standards Act, Cap 496 of the Laws of Kenya (Standards Act) whose functions among others include promoting standardization industry in Kenya.

3. The Appellant filed this Appeal dated 16th April 2024 seeking the following reliefsa.The setting aside of the Decision issued by the Respondent on 27th March 2024; andb.Costs of this Appeal be provided for.

4. The Respondent filed its response on 3rd August 2023 in which it opposed the Appellant’s Appeal and a Supplementary Affidavit dated 1st August 2024.

Appellant’s Case 5. The Appellant case is that it received a Local Purchase Order, dated 1st February 2024 from MEMS Distributors Limited (hereinafter distributors) for the supply of NPK 10: 26:10 fertilizer and initiated production. It intended to produce 50,000 bags thereof.

6. The Appellant states that as required, it sent samples of approximately 100 Kgs of NPK 10: 26:10 to the Respondent as s test batch for approval.

7. The Respondent thereafter visited the Appellants plant for purposes of collecting samples for testing. Upon testing the samples were approved by the Respondent and a Certificate of Analysis (CoA) issued dated 12th January 2024.

8. The Appellant upon receiving a positive feedback from the Respondent supplied to them a second batch and simultaneously made an application for a Standardization Mark permit.

9. The Respondent issued to the Appellant Standardization Mark Number 72446.

10. It was further the Appellants case that the Respondent had earlier been issued Standardization Mark Number 44789 and 44463 for manufacture of NPK 10: 17:0 and NPK 9: 16:6 respectively.

11. Armed with the permits, the Appellants produced and successfully supplied to the distributors 50, 0000 bags of NPK 10: 26:10.

12. The distributor made another order for 50,000 bags of the said NPK 10: 26:10 but the Appellant could only manage to manufacture 19,000 bags, when the manufacture of fake fertilizer reports surfaced on the media.

13. The Appellants state that they were falsely accused of supplying fake fertilizer and this prompted them to submit to the Respondent the following samples of NPK fertilizer on 15th March 2024: NPK 10: 26:10; NPK 10: 17:0; and NPK 9: 16:6.

14. This act was done by the Appellant to absolve themselves of the accusations by requiring the Respondent to retest and verify the claims levelled in the media.

15. The Appellant also contends that the Respondent did not get back to them and this prompted them to submit samples to KEPHIS Analytical Chemistry Laboratory on 21st March 2025.

16. The Appellants promptly received feedback from KEPHIS Analytical Chemistry Laboratory on 3rd April 2024.

17. On 22nd March 2024, the Appellant, proceeded to carry out inspections on the Appellants plant in Thika ad issued a seizure notifications after completely disregarding the request for analysis.

18. The Respondent thereafter issued a decision suspending the Standardization Mark Permit Numbers 722446, 44463 and 44789 on 27th March 2024.

19. It is this decision that the Appellants challenge before this Tribunal.

20. The Appellant attached the schedule of documents appearing on page 1 and 2 of their List and Bundle of documents dated 16th April 2024.

21. The Appellant faults the Respondent in the manner in which it proceeded to suspend the Standardization Permits.

22. That it was contrary to the right to fair administrative action guaranteed under Article 47 of the Constitution and Section 4 of the Fair Administrative Actions Act.

23. They are also dissatisfied that the Respondents disregard to the parallel analysis carried out by KEPHIS Analytical Chemistry Laboratory on 21st March 2025.

24. The Appellant relied on the decision of this Tribunal in the case of Getranke Afrique Limited v Kenya Bureau of Standards (Tribunal Appeal E004 of 2023) [2023] KEST 1346 (KLR) (30 June 2023) (Judgment).

25. The Appellants prays that the Appeal be allowed with costs.

RESPONDENT’S CASE. 26. The Respondent filed its Statement of Response dated 14th June 2024 and Supplementary Affidavit, sworn by Mr. John Kabue dated 1st August 2024.

27. They are in agreement that the Appellants applied for and obtained the Standardization marks as pleaded.

28. The Respondent states that at the time the Certificate of Analysis was issued on 12th January 2024, the Appellants were compliant.

29. It is also their case that other than issuing Standardization mark permit, the Applicant was required to sign a Certification Agreement-Scheme for Supervision and Control, with the Respondent as a tool to ensure the quality of products is upheld and consistently remains compliant with the relevant standard in accordance with Section 10(5) of the Standards Act. They further state that the Agreement mandated the Respondent to respond to specific complaints lodged with it and visit the Applicant/Appellant’s premises where non-compliance with the Standards Act is reasonably suspected.

30. The Respondent justifies their actions on the mandate given to them under Sections 4 and 10 of the Standards Act, as well as Section 3. 3 and 3. 4 of the Scheme for Supervision and Control entered into between the Appellant and the Respondent. (Annexed as the Respondent’s Exhibit 2).

31. The Respondents drew samples from the Appellants products, subjected them to the test and which products failed the test and took action by the letter dated 27th March 2024 annexed as Exhibit 8.

32. The Respondents in stating that the test result issued by their counterparts KEPHIS Analytical Chemistry Laboratory on 21st March 2025 do not bind them, or are not relevant in this case point out the circumstances under which the samples were drawn and supplied for testing are different.

33. That as regards the samples tested by KEPHIS Analytical Chemistry Laboratory, the Appellant admits that they chose and submitted the samples on their own, whereas the sample tested by the Respondent were drawn from fertilizer bags seized from the Appellant’s factory.

34. They reiterate that they followed due process in suspending the Appellant’s permits for failing the respective tests.

35. They pray for the appeal to be dismissed with costs.

Issues For Determination 36. This Honourable Tribunal identified the following three issues for determination;i.Whether the Respondent has the mandate to suspend a Standardization Mark and whether it was done fairly?ii.What is the implication of a conflicting result from another body in this case KEPHIS Analytical Chemistry Laboratory vis- a- vis KEBS results.iii.Who should bear the cost of this Appeal?

37. The Appellant filed Submissions dated 5th December 2024.

38. The Respondent did not file submissions as of the date of writing of this judgment.

ANALYSIS Whether the Respondent has mandate to suspend a Standardization Mark and whether it was done fairly? 39. The Appellants fault the manner in which the Standardization permit marks were suspended.

40. It is common ground that the Appellant was until 27th March 2024 the holder of the Standardization Mark Permit Numbers 722446, 44463 and 44789 issued to them upon making an application.

41. The Standards Act Cap 496 Laws of Kenya (hereinafter the Act), establishes the Respondent and outlines its functions, management and control.

42. The Respondent is mandated under Section 4 (1) (a) (b) and (c) of the Standards Act (hereinafter the Act) to:a.promote standardization in industry and commerce;b.to make arrangements or provide facilities for the examination and testing of commodities and any material or substance from or with which and the manner in which they may be manufactured, produced, processed or treated;c.to control, in accordance with the provisions of this Act, the use of standardization marks.

43. The Applicant made an application for Three (3) Standardization Permit Marks under Section 10 of the Act.

44. Section 10 (5) of the Act provides that “a permit issued under this section may be issued subject to conditions to be specified therein which conditions may be varied from time to time, and any person to whom it is issued shall comply with those conditions”.

45. Other than the statutory obligations under the Act, the issuance of the Standardization Permits, the Respondent entered into an agreement for the monitoring and control to ensure the conditions attached to the permits were adhered to.

46. The Respondent in their pleadings stated on oath that the Respondent signed a Certification Agreement-Scheme for Supervision and Control which document acts as a tool to ensure the quality of products is upheld and consistently remains compliant with the relevant standard in accordance with Section 10(5) of the Standards Act.

47. They further state that the Agreement mandates that Respondent to respond to specific complaints lodged with it and visit the Applicant/Appellant’s premises where non-compliance with the Standards Act is reasonably suspected. (Annexed as the Respondent’s Exhibit 2).

48. The said Agreement states under Clause 3. 3 that ... “the Certification body shall determine the frequency of factory inspections and tests necessary for effective monitoring of the product performance. Surveillance inspection shall be undertaken and samples may be drawn. The Client shall supply samples of the product free of charge whenever required for testing by the Product Certification body”.

49. Further, under Clause 3. 4, under the heading Monitoring and Testing…. “The client shall ensure monitoring and testing using in-house or external testing facilities during the whole time of manufacture. The monitoring and testing shall be manned by competent and qualified personnel” (Emphasis ours).

50. The Appellant did not contradict this evidence as we note said agreement was filed in their Schedule of Documents.

51. The consequence of non-compliance with Section 10 is outlined in Section 10 (8) 8 (where the offender shall be guilty of an offence) and 10 A (1) (which allows the Respondent to cancel and suspend the Standardization Mark).

52. The Appellant further challenge the mandate and manner of testing as conducted by the Respondent.

53. It has already been established that the Appellant allowed the Respondents to visit and inspect their premises in accordance to the Certification agreement and was further bound by statutory obligations.

54. To determine whether the acts of the Respondent were fair, the question to be answered is does the Respondent have the power to seize and test and if so, at what frequency?

55. Further, out of the allegation that the Respondent disregarded the samples provide by the Appellant on 15th March 2024, when reports surfaced in the media of an entity producing fake fertilizer, and the allegation that the raid and seizure conducted was an afterthought, it is imperative to interrogate the action taken by the Respondent upon receiving the sample and the turnaround time.

56. The Appellant in their Statement of Appeal dated 26th April 2024 stated that the Respondent had previously issued a Positive Certificate of Analysis on 12th January 2024 and it is on this basis that the Respondent proceeded to issue Standardization Mark Number 72446, based on samples provided to them and some collected by the Respondent themselves.

57. The Appellants further stated that to avert the negative media reports surrounding their operations, they on their own free will submitted samples to to the Respondent for testing.

58. It was their opinion that the Respondent disregarded the said samples and proceeded with a different course of action which led them to file the instant appeal.

59. They allege that the Respondent instead of being content with what they had supplied, moved to inspect and seize samples from their plant in Thika.

60. Section 14 (1) (g) of the Standards Act provides that the powers of the Respondent inspectors include among others to seize and detain, for the purpose of testing, any goods in respect of which the Respondent has reasonable cause to believe that an offence has been committed. (Emphasis ours).

61. The burden of proof in such cases is that of reasonable cause, which the Respondent had, following the reports of the presence of fake fertilizer in the market and correspondence from senior government officials. See the Letter dated 20th March 2024 from the Principal Secretary State Department of Agriculture, Item 12 in the Appellants Schedule of documents.

62. The Respondent was not bound to sit and wait for the Appellant to submit samples as they had the power to seize from the Appellant.

63. We take judicial notice of the process under which the Appellant was subjected to when conducting the test which led to the issuance of the Certificate of Analysis of 12th January 2024.

64. They admit in their Submissions dated 5th December 2024 and Schedule of Documents dated 16th April 2024 that in the events leading to the issuance of the Certificate of Analysis dated 12th January 2024, other than submitting samples, the Respondents inspected their plant, and took samples form fertilizer bags.

65. We also caution that allowing the Appellant or any other person to present samples unsupervised may lead to the unintended risk of the Appellant cherry picking samples with a view of obtaining a favourable result.

66. We agree with the Respondents that the circumstances under which samples were taken to KEPHIS Laboratory were different.

67. The consequences of non-compliance are outlined under Section 9 (4) of the Standards Act provides that any person who contravenes the provisions of an order under subsection (2) shall be guilty of an offence. Subsection 2 provides that no person shall manufacture or sell 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.

68. The import of Section 14 (1) (g) read together with Section 9 (2) and (4) is that the Respondent has a legal duty to ensure that products being sold in Kenya were compliant with applicable standards.

69. In our considered view, the Respondent has been empowered to seize goods on suspicion that such goods are not compliant with applicable standards regardless of whether such goods had been subjected to previous test and approved by them.

70. The previously issued positive Certificate of Analysis dated 12th January 2024 does not absolve the Appellant nor does it bar the Respondent from collecting samples for re-testing.

71. Based on the Kenyan Standard KS EA 912:2019 Fertilizers-Nitrogen, phosphorus and Potassium (NPK) Compound-Specification annexed by the Respondent as Exhibit 1, the Respondent tested the fertilizer and he test reports showed non- compliance of the Appellants products for the following parameters:a.Kel Green NPK (10:26:10) under sample reference number BS202410238 showed non-compliance in Moisture Content, Nitrogen, Phosphorus, Copper and Managanese.b.Kel Gold NPK (9:16:6) under sample reference number BS202410240 showed non-compliance in Moisture Content, Nitrogen, Phosphorus, Copper and Managanese.c.Kel Green NPK (10:17:10) under sample reference number BS202410234 showed non-compliance in Moisture Content, Nitrogen, Phosphorus, Copper and Managanese.

72. The Appellants do not challenge these results in their Statement of Appeal. Neither have they made an application or re-testing.

73. The Results of the test are undisturbed and therefore remain as the true record of the test.

74. The powers given by the Act and Regulations give the Respondent unfettered powers to re-test products in ensuring compliance with standardization marks under Section 4 (1) and Section 10 (5) of the Standards Act.

75. Both parties agree that the Appellant submitted samples on 15th March 2024.

76. The Appellant state that on 21st March 2024, being Seven (7) days later, they thought that the Respondents would not take any action and proceeded to submit samples to another laboratory (KEPHIS).

77. This fact has been left to mere speculation in the absence of correspondence from the Respondents stating that they would not act on the process set in motion by the Appellants of 15th March 2024.

78. That notwithstanding, the Respondent was not bound to act on the samples issued by the Appellant as the law allowed them to inspect, seize and take the samples under a controlled condition.

79. The Respondents on the other hand sprung into action on 22nd March 2024 by carrying out an inspection and seizure at the Appellants plant in Thika.

80. This was One (1) day after the Appellant allegedly submitted its own sample for testing by KEPHIS.

81. The Respondent by 27th March 2024 had concluded the testing and took an administrative action of suspending the Standardization Marks by a letter of even date.

82. The whole exercise took a record Twelve ( 12) days. There was not inordinate delay.

83. On the other hand, the return on the sample issued for an independent application for analysis by the Appellant to KEPHIS was received on 3rd April 2024, days after the Appellant had known the fate of the independent test conducted by the Respondent.

84. Neither did the Appellant show that any of their correspondence went unanswered

85. The Letter dated 27th March 2024 marked as Exhibit 8 was unequivocal. It set out the result of the inspection which impugned not only the sample fertilizer but the mode of document retention, inadequate and or inappropriate storage as outlined in paragraph 2 of the Letter.

86. The said Letter gave reasons for suspension of the marks and notified them of the right to appeal.

87. The Respondent retain the duty to promote standardization and commerce in Kenya and by extension, protect consumers from substandard products.

88. This being a public interest matter and given the scale, they had to swing into action swiftly and arrest the situation.

89. We therefore do not agree with the Appellant that the action by the Respondent was an afterthought.

90. Neither was it unfair and in contravention of either Article 47 of the Constitution nor Section 4 of the Fair Administrative Actions Act.

91. Lastly, no evidence was led on the actions taken by the Respondent being unlawful. Arbitrary, unreasonable and wholly unreasonable as pleaded.

92. The Appellant relied on a report issued by the KEPHIS Analytical Chemistry Laboratory to state that they were compliant and that the suspension of their standardization marks were unfair.

93. We do not find any legal provision mandating any other government body and no direction was given by the Appellant in this vein.

94. In sum, we therefore find that it was within the Respondent’s mandate to test the goods, and suspend the standardization marks once they were found to be non- compliant.

What is the implication of a conflicting result from another body in this case ministry of works vis- a- vis kebs results ? 95. As stated elsewhere in this Judgement, the Respondent is the only government body mandated under the Standards Act to test and sample goods in the country.

96. It follows that any other tests done outside the provisions of the Standards Act cannot override the test results by the Respondent.

97. We therefore find for the Respondent on this issue.

Who should bear the cost of this appeal? 98. In view of the foregoing we dismiss Appeal with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MARCH 2025GLADYS MUTHONI MBURU(CHAIRPERSON) ……………………..................................…MOSES SANDE MAKHANDIA(MEMBER) ………………………...................................PETER MUNGAI(MEMBER) ………………………...................................EVANS LAGAT ………………………...................................(MEMBER)ADRIAN ONG’INJO(MEMBER) ………………………...................................Delivered in the presence of:1. Ms. Faith Cherop Holding brief for Mr. Mosota For the Appellant2. Ms. Beatrice Maina For the Respondent