Kenya Small Scale Farmers Forum & another v Attorney General of the Republic of Kenya & 2 others (Petition E065 of 2021) [2026] KEHC 10294 (KLR) (Constitutional and Human Rights) (3 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **PETITION NO E065 OF 2021** **IN THE MATTER OF ARTICLES 2(4), 2(5) & 2(6), 7, 10, 19, 20, 21(1) & 21 (3), 22, 23, 35, 43, 93(2), 94(2) & 94(4), 118, 153(4)(a), 156 (4) & 156(6), 165(3), 258, & 259(1) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS ENSHRINED IN ARTICLES 35 AND 43 OF THE CONSTITUTION** **AND** **IN THE MATTER OF CONTRAVENTION OF SECTIONS 3, 5, 6, 7, 8 & 15 OF THE TREATY MAKING AND RATIFICATION ACT, 2012** **AND** **IN THE MATTER OF CONTRAVENTION OF SECTIONS 4, 5, 5A, 6, 7, 8 & 13 OF THE STATUTORY INSTRUMENTS ACTS, 2013** **AND** **IN THE MATTER OF CONTRAVENTION OF SECTIONS 4 & 5 OF THE ACCESS TO INFORMATION ACT, 2016** **AND** **IN THE MATTER OF CONTRAVENTION OF ARTICLES 6, 7, 8(1), 8(2), 8(3) & 8(4) OF THE TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY** **AND** **IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY CUSTOMS UNION** **AND** **IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY COMMON MARKET** **AND** **IN THE MATTER OF THE ECONOMIC PARTNERSHIP AGREEMENT BETWEEN THE REPUBLIC OF KENYA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND** **-BETWEEN-** **KENYA SMALL SCALE FARMERS FORUM ……......... 1ST PETITIONER** **ECONEWS AFRICA …………………………………….. 2ND PETITIONER** **-VERSUS-** **THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ………................................................................................... 1ST RESPONDENT** **THE CABINET SECRETARY,** **MINISTRY OF INDUSTRIALIZATION, TRADE AND ENTERPRISE DEVELOPMENT ……... 2ND RESPONDENT** **THE SPEAKER, NATIONAL ASSEMBLY ………….... 3RD RESPONDENT** **JUDGMENT** **The Background** 1. The 1st Petitioner, Kenya Small Scale Farmers Forum, describes itself as a society registered under the Societies Act, Cap 108, Laws of Kenya, with the goal of empowering small-scale farmers with capacities at all levels to enhance equal partnerships for sustainable and dignified livelihoods. Some of its specific objectives include to mobilize small scale farmers for self-organization and collective voice, create awareness on the issues affecting small scale farmers in Kenya, campaign, lobby and advocate for change of policy in favour of small-scale farmers in Kenya and to build the capacity of small-scale farmers to enable them participate effectively in policy formulation by seeking to be self-reliant and foster effective national networks that will empower them to increase their visibility. It brings this petition in the public interest. 2. The 2nd Petitioner, ECONEWS AFRICA, is a not-for-profit organization registered under the Non-Governmental Organizations Coordination Act, CAP 134, Laws of Kenya[now repealed by the Public Benefit Organisations Act]. At the heart of its objects are fighting poverty and inequality through advocating for access to trade policy and related information by the general public, promotion of good practices in trade and economic affairs in the region, promoting transparency in negotiation of trade agreements by nations in Africa and advocacy on free trade agreements. 3. The 2nd Petitioner asserts that it has already made huge impacts in advocating for open and good governance in negotiating economic agreements by states and enabling free and open exchange of information on these matters. 4. The 1st Respondent, the Attorney General, is a Constitutional office holder under Article 156 of the Constitution of Kenya, 2010 and the Principal Legal Advisor to the Government and duly authorised to represent the National Government in all disputes of this nature. 5. The 2nd Respondent, the Cabinet Secretary responsible for the Ministry of Industrialization, Trade and Enterprise Development, is a Constitutional office holder and a state officer under Article 152 of the Constitution. 6. The 3rd Respondent, the Speaker of the National Assembly, is a state officer duly established under Article 106 of the Constitution. He is responsible for steering and presiding over proceedings at the National Assembly. **The Petitioner’s case** 1. The Petition dated **28th February 2021** and amended on **17th March 2021** raises aconstitutional challenge to the signing, ratification process and public participation framework of the Economic Partnership Agreement (EPA) between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland, signed on 8th December 2020. 2. The Petitioners seek the following reliefs: - 3. ***A declaration that the Respondents violated Article 118 of the Constitution by purporting to carry out Treaty making process without adequate public participation or at all.*** 4. ***A declaration that the Respondents violated Article 35 of the Constitution by failing to provide in full information relating to the negotiations and Treaty making for the Economic Partnership Agreement under reference.*** 5. ***An order compelling the Respondents to avail the subject Agreement to the general public through translated versions in Kiswahili and local languages as recognised by Article 44 of the Constitution.*** 6. ***An order compelling the Respondents to provide simplified versions of the subject Agreement and in Kiswahili and local languages to the general public to facilitate public participation.*** 7. ***An order compelling the Respondents to carry out meaningful public participation by reaching out to the general public and stakeholders at grass root levels, and who do not easily have access to internet resources or knowledge of use of internet.*** 8. ***An order compelling the 2nd Respondent to commission meaningful regulatory impact and economic impact assessment studies into the impact of the subject Agreement on Kenya, and cause it to be published in the Kenya Gazette under Section 8 of the Statutory Instruments Act, and sections 6 and 7 of the Treaty Making and Ratification Act prior to submitting the Agreement for consideration by the 3rd Respondent.*** 9. ***An order staying further debate or consideration of the subject Agreement by the 3rd Respondent until the public participation ordered herein has been carried out.*** 10. ***An order that the Respondents jointly and severally bear the costs of the Petition.*** 11. The Petition is anchored on the grounds on the face of it and is further supported by the sworn affidavit of Davies Nyachieng’a, an economist and trade expert who is also the Program Officer in charge of Trade and Investment with the 2nd Petitioner in which he avers that following a January 2020 meeting between the former Kenyan President Uhuru Kenyatta and the UK Prime Minister Boris Johnson, the Ministry of Trade signalled negotiations for an Economic Partnership Agreement (EPA). That the text and impact of the Agreement were kept hidden from the public until the Ministry abruptly announced its signing on 8th December 2020. 12. It is averred that small-scale, rural Kenyan farmers expressed deep anxieties that heavily subsidized UK agricultural products would flood the local market and ruin their livelihoods and hence demonstrated the lack of transparency in Treaty negotiations. 13. The deponent states that there was a flawed and inadequate Public Participation since the public only learned of the ongoing parliamentary ratification process on 3rd February 2021, through miniature, easily missed newspaper advertisements which were tucked deep inside the Daily Nation. Further, that the Notices published on 3rd February 2021 were in English and directed the reader to a section of the National Assembly’s website. 14. It is deposed that the online link provided by Parliament contained an incomplete copy of the 600-page Agreement titled **“Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland”,** hereinafter referred to as ‘**the Impugned Agreement’ or ‘EPA’** omitting critical annexes being Customs Duties on Products Originating in the EAC Partner States; Annex II Customs Duties on Products Originating in the UK; Joint Statement of the Parties on the Objectives and Essential and Fundamental Elements of this Agreement; Protocol I Concerning the Definition of the Concept of “Originating Products and Methods of Administrative Cooperation; Protocol 2 on Mutual Administrative Assistance in Customs Matters; and the Memorandum of Understanding Between Kenya and the UK Concerning the Economic Partnership Agreement. 15. It is pleaded that the initial 7-days timeline granted for public feedback was grossly inadequate given the document’s extreme complexity, length and technical English. That the digital-only approach effectively locked out illiterate, semi-illiterate and rural stakeholders, resulting in only three elite individuals submitting views initially. 16. He contended on the same issue that even as an exposed trade and economic affairs expert, it was the first time he was coming across the voluminous and complex Agreement and he concluded that the time frame of only seven days granted to the public to give their views was inadequate especially in view of the fact that the notice generally would not be accessible to rural farmers and fishermen who were the critical stakeholders in matters agriculture and fishing. 17. He avers that despite Parliament later ordering a pause and fresh public participation, a subsequent notice issued on 26th February 2021 still provided an unreasonably short deadline until 5th March 2021. 18. It is their case that the Agreement has severe economic risks to Kenya because agriculture and fishing are the backbones of Kenya’s rural economy. That the impugned EPA phases out tariffs on key UK imports such as chicken, pork and maize and provides de-escalation of tariffs for these products for over 25 years. That because the UK is permitted to heavily subsidize its national producers, a capability Kenya lacks, local products will become uncompetitive, threatening to turn Kenya into a net importer. 19. The affiant deposes that the Agreement was non-compliant with legal and regional obligations, particularly that it breaches the EAC Customs Union Protocol. [EACCUP] It is stated that the Kenyan government failed to notify the East African Community (EAC) Secretary-General or give the required 90-day notice to partner states under Article 37 of the EAC Customs Union Protocol yet a similar EU-Kenya trade deal faced stiff regional resistance for similar economic threats. 20. The deponent asserts that the Ministry of Trade failed to conduct or publish a Regulatory or Economic Impact Assessment Report as required by the Treaty Making and Ratification Act and the Statutory Instruments Act. That further, despite promising in a December 2020 memorandum to roll out public sensitization campaigns on the impact and benefits of the Agreement, the Ministry failed to conduct any public engagements. 21. He swears that the Agreement, in so far as it exists only in English and available only partially on the website of the 3rd Respondent, it has not been reasonably availed to the stakeholders. That this explains why only three elites were able to submit their views in the first place. 22. In response to the Agreement, the 2nd Respondent filed a Replying Affidavit dated 7th February 2024 sworn by ALFRED OMBUDO K’OMBUDO, the Principal Secretary State Department for Trade in which he opposed the Public Participation claims under Article 118 of the Constitution and denies the assertion that Article 118 of the Constitution was breached due to a lack of public participation. He deposes that because the Economic Partnership Agreement (EPA) was presented to Parliament for ratification, it automatically enters a formal legislative process requiring public engagement at both the committee stage and during plenary sessions. 23. It is deposed that unlike other East African Community (EAC) member states, Kenya is not classified as a Least Developed Country (LDC) and so it could not benefit from the UK’s Generalized Scheme of Preferences (GSP), which is strictly reserved for LDCs. Therefore, separate negotiations were necessary. 24. He avers that Kenya strategically utilized both a regional approach, modelling negotiations after the past EAC-EU EPA text and a bilateral approach. That the bilateral timeline was accelerated due to the rapidly closing Brexit transition window and the urgent need to preserve duty-free and quota-free market access for Kenyan exports to the UK. 25. The deponent refutes claims that the EAC Secretariat was kept in the dark regarding the deal. He asserts that several correspondences were exchanged between the UK Minister of State for Trade Policy, the Cabinet Secretary Ministry of East Africa Community and Regional Development of Kenya and they actively engaged with the EAC Secretary-General and regional partner states as early as January 2020 to discuss the post-Brexit trade transition. It is intimated that a follow-up letter dated 21st July 2020 was officially copied to the EAC Secretariat and all relevant trade ministries within the partner states. 26. He further deposes that the Kenya-UK EPA does not lock out regional neighbours but instead features an open accession clause allowing other EAC member states to join whenever they are ready. 27. The affiant opposes allegations that local agricultural sectors will be destroyed by heavily subsidized UK goods. He states under the agreement’s terms, critical agricultural items central to Kenya’s export market such as cut flowers, fresh beans, fruits and vegetables retain Most Favoured Nation (MFN) tariff protections. 28. That additionally, a variety of vital developing-nation products have been entirely exempted from tariff liberalization rules under the United Kingdom Global Tariffs (UKGT) and thus urges that the Court dismisses the Petition with costs. 29. **The 3rd Respondent** also filed a Replying Affidavit **dated 22nd December 2025** sworn by SERAH KOKO M.B.S., the Deputy Clerk of the National Assembly under the authorization of the Speaker of the National Assembly. She asserts that the National Assembly acted strictly within its constitutional and statutory mandates, provided thorough democratic oversight and that the petition is both premature and legally baseless. 30. It is averred that the 3rd Respondent complied with its constitutional mandate and the law as well as public participation. It is asserted that the National Assembly discharged its duties in strict compliance with ***Article 118 of the Constitution, Section 8(1) and 8 (3) of the Treaty Making and Ratification Act*** and its own Standing Orders. 31. The deponents swears that the Departmental Committee on Trade, Industry and Cooperatives conducted extensive public participation via national newspaper notices inviting public memoranda on the EPA though an advertisement in the Daily Nation and People’s Daily on 27th February 2021 and then held 11 sittings. That key stakeholders were engaged including the Kenya Private Sector Alliance (KEPSA), Kenya Flower Council (KFC), Kenya Association of Manufacturers (KAM), Fresh Produce Exporters Association of Kenya (FPEAK), Econews Africa and various state ministries. 32. It is deposed that the Committee determined that the EPA aligns with Kenya’s legal framework and brings substantial economic advantages including market stability since it safeguards approximately Kshs. 39 billion in annual export revenues by securing duty-free, quota-free access to the UK market. Secondly that it ensures industrial safeguards since sensitive sectors such as dairy, cereals, and fisheries are protected via exclusion lists. That it allows progressive liberalization timelines over 7 to 25 years and offers up to 15 years of protection for infant industries. 33. It is asserted that the Agreement features a flexible framework, including a single-transformation rule for textiles, reducing production bottlenecks for local apparel manufacturing. Further that the Agreement also features a flexible accession mechanism, permitting future participation by other EAC partner states, thereby fostering regional cohesion. That additionally it entails a mandatory five-year review which will assess implementation and address any emerging concerns, ensuring the agreement remains responsive to Kenya’s evolving economic landscape. 34. The deponent further addresses the issues of the missing annexures where the Petitioners initially argued the process was rushed and incomplete because key annexes and protocols were omitted during the initial tabling on 18th February 2021 and states that on 25th February 2021, the temporary Deputy Speaker withdrew the motion from the Order Paper. The full text was subsequently tabled, sent back to the Committee for proper re-examination and debated a second time using a complete Addendum Report before final approval on 9th March 2021. 35. It is pleaded that prior to full ratification, a temporary, self-terminating Memorandum of Understanding signed on 8th December 2020 in London by the then Principal Secretary Amb. Johnson Weru for Kenya and Deputy Director Paul Walters for the UK was utilized as a stop-gap measure to prevent a lapse in trade preferences when the Brexit transition period ended. That this temporary MOU included a "best endeavours" clause requiring them to complete their domestic processes to bring the full EPA into force within three months by the end of March 2021. 36. The deponent notes that the Thirteenth National Assembly subsequently ratified an identical EU-Kenya EPA in 2024 using the exact same procedural framework, proving its legality and consistency with parliamentary practice. The affiant argues that the Petition is premature and improperly before the Court. That under ***Article 119 of the Constitution***, the Petitioners had a primary constitutional avenue to formally petition the National Assembly directly to resolve their grievances, which they bypassed. 37. It is further asserted that bypassing internal parliamentary remedies invites premature judicial intervention into the legislative process, violating the principle of separation of powers. 38. It is asserted that the National Assembly operated wholly within its legal mandate, conducted a process marked by exceptional scrutiny and public participation and produced a lawful and constitutional outcome. The National Assembly acting in good faith and in compliance with the Constitution, Treaty Making and Ratification Act, the National Assembly Standing Orders and other applicable laws, safeguarded public interest and upheld the rule of law during the most recent approval process as well as the impugned one before the Court. The 3rd Respondent maintains that the ratification process was a model of procedural propriety and progressive governance. It is urged that the Court dismisses the amended Petition with costs to the National Assembly. 39. The Parties took directions to canvass the Petition by way of written submissions. **The Submissions** 1. The Petitioners’ joint submissions are **dated 14th October 2024.** Counsel isolated the following issues for determination: 2. *Whether the threshold for public participation as prescribed by law was met;* 3. *Whether the Respondents adhered to the requirements of the Statutory Instruments Act on conducting a regulatory impact assessment test;* 4. *Whether the agreement was ratified in violation of the EAC treaty and other Community Laws; and* 5. *Whether the totality of the Respondents actions amount to a constitutional violation.* 6. Counsel for the Petitioners cited the High Court’s decision in ***Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR*** where the South African decision in ***Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC)*** was cited in which the issue of public participation was defined. The Mombasa High Court ***Consolidated Constitutional Petition Nos. 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & Others vs. The Attorney General & Others*** was also cited. 7. Counsel submits on the first issuethat the timeline and methods used by the National Assembly made a mockery of genuine public engagement. The case of ***Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 (Formerly Nairobi Constitutional Petition 43 of 2014) Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR*** was cited where the court espoused the nature of public participation to entail inclusivity and diversity especially on those most likely to be affected by a policy or legislation. 8. Counsel submits that the EPA was signed on 8th December 2020 and almost two months later, on 3rd February 2021, the National Assembly placed miniature notices in daily newspapers, giving the public only 8 days until 11th February to submit views. It is stated that on 25th February 2021, it was revealed that only sections of the EPA had been made public. The Speaker ordered a supplementary report, after which a new notice was published on 26th February, giving the public a mere 7 days until 5th March to critique the full text. The final treaty was ratified shortly after on 9th March 2021. 9. It is stated that the complete agreement was not provided for public scrutiny initially nor was it translated into Kiswahili despite requests, preventing those most affected from understanding it. That accordingly, this directly threatens Kenyans’ economic and social rights under ***Article 43 of the Constitution***. 10. Counsel for the Petitioners argues that the 2nd Respondent, the Cabinet Secretary herein failed to conduct mandatory regulatory and economic impact assessments as required by ***Section 8 of the Statutory Instruments Act*** and ***Sections 6 and 7 of the Treaty Making and Ratification Act***. It is submitted that no assessment reports were published in the Kenya Gazette to inform the public and relevant interest groups of the treaty’s long-term impacts. The case of ***George Ndemo Sagini v Attorney General & 3 others [2017] eKLR*** and ***British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 Others, Civil Appeal No. 112 of 2016; [2017] eKLR***, were cited in support of the elaborate process expected to be undertaken before statutory instruments are published and enacted. 11. Counsel submits on the third issue that the government of Kenya acted unlawfully by pursuing a unilateral trade deal instead of coordinating through regional institutions. It is submitted that under the EAC Customs Union and Common Market Protocols, a partner state wishing to conclude a trade agreement with a foreign country must send the proposal to the EAC Secretary General by registered mail, which initiates a mandatory 90-day comment period for other member states, followed by an EAC Council meeting as provided for under **Article 37 of the Customs Union Protocol and of the Common Market Protoco**l**.** ThatKenya failed to execute this Protocol, potentially jeopardizing regional integration and the harmonized economic policies of the EAC. 12. Counsel for the Petitioners rejects the State’s defense that Brexit deadlines and Kenya’s non- LDC (Least Developed Country) status justified bypassing these vital steps, stating that partner states cannot legally act entirely individually. Counsel refers to the ***Vienna Convention on the Law of Treatie***s, which requires state parties to be bound by the treaties they enter into and to perform them in good faith. The cases of ***Burundi Journalists Union vs. The Attorney General of Burundi, EACJ Ref. No. 7 of 2013*** and ***Christopher Ayieko & another V. The Attorney General of the Republic of Kenya & The Secretary General of the East African*** ***Community*** are cited for the proposition that the Protocol requires that other partners must be notified and given an opportunity to make input in the ratification process. 1. On the final issue, it is submitted that the cumulative actions of the state constitute a flagrant constitutional breach in that the process violated **Article 10** on national values and participation of the people), **Article 7** for failing to utilize the national language, Kiswahili, and **Article 232 (1) (f)** on transparency and timely provision of accurate information. Citing judicial precedent ***Olum v. Attorney-General (2002) eKLR,*** Counsel emphasizes that if either the purpose or the implementation effect of a statute infringes on guaranteed constitutional rights, it must be declared unconstitutional. 2. It is their submission that the Respondents failed to adhere to both the guiding principles and due procedures required for treaty ratification under Kenyan and regional community laws. They pray that the Court grants the orders sought in the amended Petition to declare the ratification unlawful. **The Respondents’ Submissions** 1. The 1st and 2nd Respondents filed their submissions **dated 15th December 2025** in which learned Counsel Mr. Thande Kuria vigorously opposed the Petition, arguing that the ratification of the Kenya-UK Economic Partnership Agreement (EPA) followed due process, violates no constitutional provisions and serves crucial national economic interests. 2. Counsel submits that public participation was conducted and they deny the Petitioners’ claim that it was absent, asserting that the EPA was systematically subjected to public involvement during its parliamentary ratification stage in accordance with the Treaty Making and Ratification Act. It is added that there was thorough scrutiny where multiple sittings and handling motions regarding proposed amendments were conducted after which Parliament formally approved the treaty’s ratification. 3. It is submitted that Parliament concluded that the EPA directly supports Kenya’s food security agenda, offers immense benefits to local farmers and insulates the national economy from losing a vital export market. Counsel for the 1st and 2nd Respondents rejects the Petitioners’ assertion that the EPA will lead to Kenyan markets being flooded with British agricultural products. 4. Further, it is submitted that through extensive consultations with the private sector and stakeholders, a designated list of sensitive products including animal and fisheries products was established. That these specific items will attract heavy import duties if imported from the UK to shield local producers. 5. Counsel alludes to an asymmetric tariff reduction and submits that, while Kenya gains immediate protection and benefits, it will only gradually phase out duties on items deemed "non-sensitive" such as machinery and pharmaceuticals, providing Kenyan businesses with cheaper industrial and agricultural inputs. 6. Counsel’s submissions also highlight the massive scale of trade protected by the formalization of the post-Brexit agreement in that, the EPA ensures market access by protecting an annual export market valued at over Kshs. 40 billion which is approximately USD 365 million. That between 2015 and 2019, Kenya’s exports to the UK averaged Kshs. 39 billion between 2015-2019, making the UK Kenya’s second most important destination market in the European region after the Netherlands. 7. Counsel also states that the EPA will ensure financial savings by securing permanent duty-free access for critical products like green beans and cut flowers. That this deal saves Kenyan exporters over Kshs. 1.5 billion (£10 million) every year in customs duties. It is further stated that British companies operating in Kenya currently employ more than 250,000 Kenyans and support frictionless trade for roughly 2,500 UK businesses exporting to Kenya annually. 8. Counsel asserts that the EPA is compatible with East African Laws and denies the allegations that the treaty undermines regional frameworks. It is argued that ***Article 37 of the EAC Customs Union Protocol*** explicitly permits Partner States to separately conclude or amend trade agreements with foreign nations, provided the terms do not conflict with the protocol. Further, that the EPA was designed to promote broader regional integration. That under Article 143 of the Agreement, the treaty remains fully open to any other EAC country wishing to submit an accession request to the EPA Council. 9. Counsel for the 1st and 2nd Respondents maintains that the EPA safely fosters structural economic transformation, enhances trade capacity and aims at poverty eradication without infringing upon the Constitution. Consequently, they urge the Court to dismiss the matter entirely on the grounds that it fails to disclose any constitutional violations. 10. The 3rd Respondent’s submissions are **dated 22nd December 2025**. Learned Counsel Ms. Sophie Otieno submits on two main issues as follows: 11. ***Whether the Petitioners have properly invoked the jurisdiction of this Court, having failed to first exhaust the alternative dispute resolution mechanism of petitioning the National Assembly under Article 119 of the Constitution (The Doctrine of Exhaustion of Remedies); and*** 12. ***Whether the National Assembly, in considering and approving the ratification of the Kenya-UK EPA, fulfilled its constitutional and statutory obligations, particularly regarding:*** ***the duty to facilitate public participation under Article 118(1)(b) of the Constitution; and the duty to conduct a meaningful and diligent scrutiny of the treaty.*** 1. Counsel submits on the court’s jurisdiction and exhaustion of remedies and states that courts have emphasized that petitioners must first exhaust internal parliamentary remedies before seeking judicial review. That the primary remedy is petitioning Parliament under ***Article 119 of the Constitution***, since the doctrine of exhaustion promotes institutional competence and separation of powers. The case of ***Gideon v. University of Eastern Africa, Baraton & 6 Others (2025) KEHC 18120 (KLR)*** which supports that judicial review is a last resort and the Court of Appeal in ***Speaker of the National Assembly v. Karume Court of Appeal No. 92 of 1992 (Nairobi)*** which underscores the importance of following prescribed procedures are cited. 2. Counsel states that the Petitioners bypassed the ***Article 119*** process, making the case premature and improperly before the Court. 3. On the second issue of Parliament’s compliance with legal and constitutional procedures, Counsel urges the Court to find that the National Assembly adhered to legal standards in scrutinizing and ratifying the EPA. It is submitted that the process involved two detailed committee examinations covering all 146 Articles and annexes and that public participation was extensive, involving advertisements, stakeholder engagement and consideration of submissions. 4. Counsel submits that the process was self-correcting where an omission regarding annexes was identified, halted and rectified with a second review. It is also stated that the process included multiple House debates, with at least three recorded sittings, culminating in approval on 9th March 2021. That accordingly, the process aligns with principles from relevant case law, emphasizing transparency, meaningful participation and thorough scrutiny. Counsel cites the case of ***Cabinet Secretary for the National Treasury and Planning & 4 others vs. Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR)***, in support. 5. Regarding public participation principles and implementation, Counsel submits that the public participation process was genuine, effective and compliant with constitutional standards. It is stated that public participation must be real, substantive and effective, not merely cosmetic as held in ***Kano & another –v- Cabinet Secretary Ministry of Interior & Co-ordination & another; Saney & 3 others (Interested Parties) [2025] KEHC 5550 (KLR).*** 6. That in line with the principles of public participation, Notices were published in two national newspapers on 3rd and 27th February 2021, inviting memoranda. Stakeholders included private sector entities, civil society, government experts and MPs. That the Committee received and considered diverse submissions, which informed deliberations and the process involved eleven sittings, detailed reports and correction of initial omissions. It is further submitted that principles such as clarity, inclusiveness, transparency and capacity to engage were all met and that the process was comprehensive, with multiple avenues for influence and effective stakeholder representation. 7. Counsel submits on adequacy of parliamentary debate and scrutiny and asserts that the parliamentary debate was thorough and sufficient, based on multiple sittings and committee reports. It is said that the EPA was discussed on at least three occasions being 18th February, 25th February and 9th March 2021 as the final debate which culminated into extensive prior scrutiny. The internal procedures and the role of committees ensured detailed examination beyond plenary debates. 8. Counsel refutes the allegation of insufficient debate in the House and emphasizes that the quality of deliberation is more important than duration and that the process aligns with legal principles that courts should not interfere with legislative procedures unless constitutional violations are evident. That further, the court’s role is limited to ensuring the process complied with constitutional and legal standards because the National Assembly’s actions are protected by constitutional principle of separation of powers as held in the ***Senate & 2 others v Council of County Governors & 8 others [2022] KESC 7 (KLR).*** 9. Counsel relies on the Supreme Court’s decision in ***Petition No. 17 of 2020 - Katiba Institute –v- Attorney General & 9 Others*** affirming that judicial review is confined to legality, not policy or substantive merits. It is reiterated that the process involved detailed scrutiny, multiple reports and corrective actions, demonstrating diligence and that the Petitioner did not adduce any evidence of irrationality, bad faith, or fundamental violations. 10. Counsel asserts that the process for ratification of treaties like the Kenya-EU EPA, using the same framework, supports the legality of the process. That consequently, the court affirms that Parliament’s internal procedures are within its constitutional rights and judicial intervention is unwarranted. 11. Counsel for the 3rd Respondent argues that the Petition is premature and an abuse of court process, asserting that the primary constitutional remedy under *Article 119* was not exhausted. Counsel urges the Court to dismiss it with costs to the 3rd Respondent. **Analysis and Determination** 1. From the rival positions, the main issues for this Court’s determination are:- 2. ***Whether the Petition is premature for failure to exhaust alternative remedies under Article 119 of the Constitution.*** 3. ***Whether the public participation conducted by the National Assembly met the requisite constitutional thresholds under Articles 10 and 118 of the Constitution.*** 4. ***Whether the failure to conduct or publish Regulatory and Economic Impact Assessments invalidates the ratification process.*** 5. ***Whether the unilateral execution of the trade agreement violates Article 37 of the East African Community Protocols, and if so, the effect on its domestic validity.*** 6. **Whether the Petition is premature for failure to exhaust alternative remedies under Article 119 of the Constitution.** 7. Article 119 of the Constitution provides as follows: - ***119. Right to petition Parliament*** ***(1) Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.*** ***(2) Parliament shall make provision for the procedure for the exercise of this right.*** 1. The doctrine of exhaustion has been discussed in several authorities. The Court of Appeal in **Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR) (30 October 2015) (Judgment)** held that: - ***“38. We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”*** 1. The 3rd Respondent submits that the Petition is premature and an abuse of process, as the Petitioners failed to exhaust the constitutional remedy of petitioning Parliament under **Article 119 of the Constitution,** which undermines institutional competence and the doctrine of separation of powers. Counsel emphasizes that Parliament conducted eleven committee sittings and multiple debates scrutinizing all 146 articles and annexes, and that notices, stakeholder engagements, and technical briefings satisfied constitutional requirements. They urge the Court to respect the doctrine of separation of powers and dismiss the Petition. 2. The exhaustion doctrine applies primarily where specialized statutory tribunals or other forums have been established with exclusive primary jurisdiction to address issues that fall within their purview. Parliament is a legislative body, not a dispute resolution tribunal. Where citizens allege that an ongoing or concluded process violates their fundamental rights and national values, they are well within their rights to seek immediate judicial review. 3. Further, as the process impugned before the Court was not a law- making process but the ratification of a treaty which brought rise to alleged constitutional violations, **Article 119** could not be applied to oust the Petitioners’ right to approach the Court under **Article 22 and 258** seeking constitutional redress. The said Articles provide as follows: - ***Article 22*** 1. ***Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.*** 2. ***In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–*** 3. ***a person acting on behalf of another person who cannot act in their own name;*** 4. ***a person acting as a member of, or in the interest of, a group or class of persons;*** 5. ***a person acting in the public interest; or*** 6. ***an association acting in the interest of one or more of its members.*** ***Article 258*** 1. ***Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.*** 2. ***In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—*** 3. ***a person acting on behalf of another person who cannot act in their own name;*** 4. ***a person acting as a member of, or in the interest of, a group or class of persons;*** 5. ***a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.*** 6. Further to the above, in **Council of Governors & 3 others v Senate & 2 others; Speakers of the 47 Counties & 3 others (Interested Parties); Katiba Institute (Amicus Curiae) (Petition 381 & 430 of 2014 (Consolidated)) [2015] KEHC 6965 (KLR) (Constitutional and Human Rights) (10 July 2015) (Judgment)** wherein the High Court comprising a 3-Judge Bench held thus: - ***“71. It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of Article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of Article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:*** ***“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.*** ***2. Parliament shall make provision for the procedure for the exercise of this right.”*** ***72. The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under Articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the Court under Article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution, or under Article 165(3)(d)(iii), to determine any matter “…relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government”?*** ***73. In our view, the answer must be in the negative. Doubtless, Article 119(i) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that Article 119 is not intended to cover situations such as is presently before this Court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment. As deposed by Mr. Charles Nyachae, the Chairman of CIC, in his affidavit sworn on 19th September 2014, the issue had been brought to the attention of Parliament through CIC’s Advisory Opinion in the month of August 2014, prior to the enactment of the CGAA. Parliament, nonetheless, appears to have disregarded the concerns raised regarding its conformity with the Constitution and proceeded to enact the legislation.*** ***74.It would therefore be, in our view, for the Court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and Articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.*** ***75.This Court appreciates that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or An Act of Parliament, that procedure should be strictly followed. Article 3(1) of the Constitution enjoins every person to respect, uphold and defend the Constitution. Similarly, Article 258(1) thereof donates the power to every person to institute court proceedings claiming that the Constitution has been contravened, or is threatened with contravention. If this Court were to shirk its constitutional duty under Article 165(3)(d), it would have failed in carrying out its mandate as the temple of justice and constitutionalism and the last frontier of the rule of law. In the circumstances, the argument that the petitioner should have approached Parliament under Article 119(1) is without merit.*** 1. The jurisdiction of this Court to determine the constitutionality of any law, treaty ratification, act, or omission by a state organ is a non-derogable mandate anchored under **Article 165(3)(d) of the Constitution.** Article 119(1), which allows a person to petition Parliament to consider matters within its authority, is an alternative civic avenue for legislative advocacy but not a dispute resolution mechanism. Parliament does not within the meaning of Article 119 possess the character of a specialized statutory tribunal. To argue that a citizen must first ask Parliament to review its own unconstitutional conduct before seeking judicial intervention turns the doctrine of separation of powers on its head. 2. Taking queue from this, in the present case, the Petitioners assert that the National Assembly has already concluded its 11 committee sittings and House debates and ratified the impugned EPA despite clear, systemic violations of public participation and language provisions. To ask the Petitioners to go back to the very House that orchestrated the impugned process in accordance with Article 119 would be an exercise in futility. The National Assembly cannot act as a judge in its own cause by demanding that complaints about its procedural unconstitutionality be litigated within its own plenary floor. 3. My finding on this issue is that the doctrine of exhaustion of remedies does not apply in this case and cannot be used to muzzle the Court or shield legislative and executive overreach. To make a contrary finding would mean that this Court has shirked its role as the final custodian of the Constitution. 4. **Whether the public participation conducted by the National Assembly met the requisite constitutional thresholds under Articles 10 and 118 of the Constitution.** 5. The Petitioners contend in their pleadings that there was inadequate public participation & transparency. They argue that the National Assembly gave the public only seven days during its first notice in February 2021 and another seven days during a subsequent notice to review a massive, technical, multi-volume document. Secondly, they assert that at the time of the public participation notice, critical annexes such as customs duties schedules and protocols on product origins were redacted or omitted, preventing meaningful review. The third issue raised is that the impugned agreement was published only in English and partially hosted on a website, excluding a majority of grass-root stakeholders who speak only Kiswahili or lack internet access and digital literacy. 6. Counsel for the Petitioners also argues in their submissions that the National Assembly’s rushed timelines which offered only eight days for initial submissions, concealed vital annexes and granted a mere seven days to critique the full text made a mockery of genuine public engagement, a failure worsened by the refusal to translate the agreement into Kiswahili, thereby threatening citizens’ economic and social rights under ***Article 43 of the Constitution***. 7. 1st and 2nd Respondents in their submissions vigorously oppose the issue of inadequate public participation, arguing that the ratification of the Kenya-UK Economic Partnership Agreement (EPA) followed due process, and asserts that extensive public participation and thorough scrutiny were conducted in line with the Treaty Making and Ratification Act. 8. The 3rd Respondent contends that public participation process was substantive and effective. The scrutiny of the Environmental Protection Act (EPA) was thorough, rigorous, and self-correcting. 9. The concept of public participation stems from the notion of sovereignty of the people under **Article 1 of the Constitution** and supremacy of the Constitution under **Article 2**. Article 1 states: ***1. Sovereignty of the people*** 1. ***All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.*** 2. ***The people may exercise their sovereign power either directly or through their democratically elected representatives.*** 3. ***Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—*** 4. ***Parliament and the legislative assemblies in the county governments;*** 5. ***the national executive and the executive structures in the county governments; and*** 6. **the Judiciary and independent tribunals.** 7. **The sovereign power of the people is exercised at—** 8. **the national level; and** 9. **the county level.** 10. **Article 10 of the Constitution** further encapsulates the participation of the people as a national value. It states as follows: - ***10. National values and principles of governance*** ***(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—*** ***(a) applies or interprets this Constitution;*** ***(b) enacts, applies or interprets any law; or*** ***(c) makes or implements public policy decisions.*** ***(2) The national values and principles of governance include—*** ***(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;*** 1. Article 118 states: *-* ***118. Public access and participation*** ***(1) Parliament shall—*** ***(a) conduct its business in an open manner, and its sittings and those of its committees shall be in public; and*** ***(b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.*** ***(2) Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.*** 1. *Article 232 provides thus: -* ***232. Values and principles of public service*** ***(1) The values and principles of public service include—*** ***(d) involvement of the people in the process of policy making;*** ***(f) transparency and provision to the public of timely, accurate information;*** 1. Finally, **Section 8 of the Treaty Ratification Act, Cap 4D** provides also for public participation as follows: - ***8. Consideration by Parliament*** ***(1) Where the Cabinet approves the ratification of a treaty, the Cabinet Secretary shall submit the treaty and a memorandum on the treaty to the Speaker of National Assembly.*** ***(2) Deleted by Act No. 18 of 2014, Sch.*** ***(3) The relevant parliamentary committee shall, during its consideration of the Treaty, ensure public participation in the ratification process in accordance with laid down parliamentary procedures.*** 1. Having set out the constitutional and statutory basis for public participation, I have also considered authorities on what public participation entails as follows: - 2. The Supreme Court in the case of **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, [2014] eKLR** held inter alia: - ***“Public participation is the cornerstone of sustainable development and it is so provided in the Constitution…[381] Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under article 34. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would both be subverted.”*** 1. The oft-cited case from the South African Constitutional court of [**Doctors for Life International v. Speaker of the National Assembly and others**](https://www.saflii.org/za/cases/ZACC/2006/11.html)**[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)** which also considered the role of the public in the law-making process held in part as follows: - ***“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.*** ***116. Therefore, our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy”*** 1. The Court of Appeal in **Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] KECA 381 (KLR)** spoke to the importance of public participation as follows: - ***“The purpose of permitting public participation in the law-making process is to afford the public the opportunity to influence the decision of the law-makers. This requires the law-makers to consider the representations made and thereafter make an informed decision. Law-makers must provide opportunities for the public to be involved in meaningful ways, to listen to their concerns, values, and preferences, and to consider these in shaping their decisions and policies. Were it to be otherwise, the duty to facilitate public participation would have no meaning.”*** 1. Further to the above, the courts have also outlined the principles that govern public participation. This is necessary in the present case because the Petitioners criticize the timelines and lack of Kiswahili translation in conducting the process of public participation. Thus, the Supreme Court in the case of **British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment)** at paragraph 96 outlined the guiding principles for public participation as follows; - ***“96. From the foregoing analysis, we would like to underscore that public participation, consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation:*** ***Guiding Principles for public participation*** 1. ***a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.*** 2. ***The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** 3. ***The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** 4. ***Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** 5. ***Public participation is not an abstract notion; it must be purposive and meaningful.*** 6. ***Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** 7. ***Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** 8. ***Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** 9. ***Components of meaningful public participation include the following:*** 10. ***clarity of the subject matter for the public to understand;*** 11. ***structures and processes (medium of engagement) of participation that are clear and simple;*** 12. ***opportunity for balanced influence from the public in general;*** 13. ***commitment to the process;*** 14. ***inclusive and effective representation;*** 15. ***integrity and transparency of the process;*** 16. ***capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”*** (See also Odunga J *(as he then was),* in[**Robert N. Gakuru & others v Governor Kiambu County & 3 others [**](https://kenyalaw.org/caselaw/cases/view/97000/)**2014] eKLR**) 1. It follows, therefore, that, public participation is one of the most fundamental avenues for which the citizens’ voices can be heard and their views concerning law, policies or treaties as in the present case can be communicated and considered. Public participation under Articles 10 and 118 of our Constitution is not a mere bureaucratic box-ticking exercise; it must be qualitative, meaningful and transparent. From the guidelines above, each case must also be construed based on its own facts and circumstances. 2. I note from the 3rd Respondent’s Replying Affidavit that the notice was advertised in two widely circulated newspaper dailies being the Daily Nation and The People Daily – on 3rd and 27th February 2021, inviting the submission of memoranda from the public. 3. I have examined the annexures to the Respondent’s Replying Affidavit and I note that the annexed excerpts of the alleged newspaper notices are incomplete, as they do not display the full page of the newspapers nor the date of publication. In the absence of these critical details, I am unable to confirm that the notice was duly advertised in the newspapers as deposed, in accordance with constitutional and statutory requirements. The Respondents therefore failed to discharge the burden of proving that genuine public participation was facilitated through proper notice. 4. Secondly, the Petitioners point out that an eight-day window for initial submissions and a seven-day window to digest a highly technical, multi-chapter trade agreement which was initially stripped of its annexes constitutes an impermissibly rushed timeline. 5. As demonstrated in the above judicial decisions, the adequacy of public participation is a question of fact depending on the complexity of the subject matter. A bilateral Economic Partnership Agreement such as the one in this Petition carrying massive structural and strategic implications for local agriculture and industry demands a higher degree of public scrutiny than ordinary legislative amendments. By failing to enclose vital annexes during the foundational phase of consultation, the Respondents deprived the public of the ability to offer informed feedback. 6. I have also considered the question of language. The Constitution at **Article 7** establishes Kiswahili as an official language of the Republic. The impugned EPA had a direct impact on small-scale farmers and local traders such as those producing green beans and flowers. The Court takes judicial notice that not all of them may be literate or have access to print and digital media. Thus, failing to provide translations of the core terms or summary sheets in Kiswahili severely restricted meaningful engagement. Although various representatives from various stakeholders were engaged, it is not established clearly that the complexity and the language barrier were overcome during the public participation process. 7. For the reasons stated above, I find that the process fell short of the robust standards contemplated by the Constitution.That notwithstanding, this Court is persuaded that although the process may not have been perfect, it was not so deficient as to amount to a constitutional violation. 8. Counsel for the 3rd Respondent asserts that Parliament strictly adhered to legal and constitutional procedures in scrutinizing and ratifying the EPA by conducting a comprehensive, self-correcting review across eleven committee sittings and multiple House debates that thoroughly examined all 146 articles and annexes. Further, Counsel emphasizes that the public participation process was genuine, inclusive and substantive, utilizing notices in two national newspapers, extensive stakeholder engagement and detailed technical briefings to meet all constitutional benchmarks. There is also no evidence of bad faith on the Respondent’s part. 9. I observe that the stakeholders engaged were Kenya National Chamber of Commerce and Industry (KNCCI); Kenya Flower Council (KFC); Kenya Association of Manufacturers (KAM); Fresh Produce Exporters Association of Kenya (FPEAK) led by Geoffrey Rimbere; and Kenya Association of Waste Recyclers. 10. From the settled authorities, the adequacy of participation is context specific. However, the Respondents failed to attach evidence of attendance registers and the Petitioners also failed to show that in the stakeholders allegedly engaged by the Respondents were inadequate enough to render the process a nullity. 11. Consequently, I find that the public participation was conducted but weakened by gaps highlighted above. 12. **Whether the failure to conduct or publish Regulatory and Economic Impact Assessments invalidates the ratification process.** 13. The Petitioners contend that the Cabinet Secretary failed to conduct or publish the mandatory regulatory and economic impact assessments required under the Statutory Instruments Act and the Treaty Making and Ratification Act. It is contended that **Article 19 of** **the Agreement** prevents Kenya from placing quantitative restrictions on UK imports, exposing local infant industries to aggressive competition from highly subsidized UK products. 14. Additionally, that **Article 20(4*)*** propagates subsidy imbalance in that, it permits the UK to continue paying subsidies to its national producers, creating an unlevel playing field for unsubsidized Kenyan farmers and fishermen. 15. The 2nd and 3rd Respondents contend that the impugned Agreement supports Kenya’s food security agenda while insulating the economy from losing a vital export market. It is asserted that to protect local producers from being flooded with British goods, a designated list of sensitive products such as animal and fisheries products will attract heavy import duties, while an asymmetric tariff reduction framework will ensure that duties on non-sensitive items are only gradually phased out to provide cheaper industrial and agricultural inputs. Furthermore, Counsel highlights that the post-Brexit agreement safeguards an annual export market valued at over Kshs. 40 billion securing permanent duty-free access for critical products like green beans and flowers, saving exporters over £10 million annually, and protecting local jobs. 16. **Section 6 of The Treaty Making and Ratification Act** provides as follows: - ***6. Values and principles in negotiating treaties*** ***(1) In negotiating treaties, the national executive or the relevant State department shall be bound by the values and principles of the Constitution; and shall take into account the regulatory impact of any proposed treaty.*** ***(2) When appointing persons to negotiate a treaty, the national executive or the relevant State department shall appoint persons who are competent to undertake such negotiations in the interest of the people of Kenya.*** 1. **Section 6 of the Statutory Instruments Act** [SIA]provides as follows: ***6. Regulatory impact statements*** ***If a proposed statutory instrument is likely to impose significant costs on the community or a part of the community, the regulation making authority shall, prior to making the statutory instrument, prepare a regulatory impact statement about the instrument.*** 1. Further, **Section 7** of the [SIA]outlines the contents of a regulatory impact assessment and **Section 8** provides for the manner in which the responsible Cabinet Secretary shall provide for a notice of impact assessment. 2. The above-mentioned sections mandate that statutory instruments and major international obligations such as the present EPA must be preceded by regulatory and economic impact assessments. This requirement is not a mere formality but a substantive safeguard designed to ensure that Parliament and the public are furnished with empirical data, cost‑benefit analyses, and structured projections before binding the nation to far‑reaching obligations. 3. The 1st and 2nd Respondents argued extensively on the substance of the economic benefits stating that the same would ensure the Kshs. 40 Billion market preservation, asymmetric tariff frameworks, and sensitive product protections, yet they failed to demonstrate that formal, empirical Impact Assessments were officially compiled and laid before the public and Parliament as required by law. 4. It is this Court’s position that good intentions and favorable economic projections as deposed by the Respondents cannot substitute for explicit statutory preconditions. By bypassing this mandatory step, the Respondents effectively insulated their claims from empirical scrutiny and frustrated the very purpose of the statutory framework, which is to ensure that decisions of such magnitude are tested against measurable data, not merely defended through narrative assurances as advanced by the Respondents in their Replying Affidavits. The failure to compile and formally publish these assessments strips the ratification process of the objective transparency and accountability principles enshrined in **Articles 10** and **118 of the Constitution**. 5. I find that compliance with these statutory preconditions is indispensable and that their omission taints the integrity of the ratification process of the EPA. 6. **Whether the unilateral execution of the trade agreement violates Article 37 of the East African Community Protocols, and if so, the effect on its domestic validity.** 7. The Petitioner’s beef with the EPA is that the Respondents failed to notify the East African Community (EAC) Secretary General of their intention to conclude an economic partnership with the United Kingdom, or allow partner states the mandatory 90 days period to give their comments, potentially disrupting regional trade relations and breaching the EAC Treaty and its Customs Union/Common Market Protocols. That the 1st and the 2nd Respondents also failed in this obligation thus exposing the entire nation to ridicule and imminently placing at risk economic livelihoods of millions of Kenyans who depend on the stability and mutual relations in the EAC to carry out their economic activities. They reject the state’s defense that Brexit deadlines or trade status justified acting individually. 8. On their part, the 1st and 2nd Respondents contend that the EPA is fully compatible with East African Community laws under **Article 37 of the EAC Customs Union Protocol** and assert that it remains open to accession by other member states. They firmly avow that urgent post-Brexit timelines necessitated prompt, independent action to prevent an immediate collapse of duty-free access to the UK market and contended that because the treaty safely fosters structural economic transformation without infringing upon the Constitution, the Court should dismiss these grounds of the Petition entirely. 9. On this issue, **Article 26 of Vienna Convention on the Law of Treaties 1969** states: ***“Pacta sunt servanda”*** ***Every treaty in force is binding upon the parties to it and must be performed by them in good faith.*** 1. Kenya being a signatory to and having ratified the Treaty for the Establishment of the East African Community (EAC) and its subsequent Customs Union Protocol, it is bound to treat external trade relations as a common regional agenda. Under the EAC Customs Union framework, partner states share a single customs territory governed by a Common External Tariff (CET). This is provided for under **Articles 2 (4) (c); 5 (d); 12; 19 and 25 of the Protocol**. There is glaring evidence that Kenya bypassed the regional mechanisms in the name of exigency and urgency as well as the timelines for Brexit. Thus, by choosing to bypass regional mechanisms, Kenya did not merely break a domestic procedural rule but directly undermined its international treaty law obligations to its neighbouring partner states. 2. I have considered the provisions of **Article 37 of the EAC Customs Union Protocol** which states: ***Article 37 – Trade arrangements with countries and organisations outside the Customs Union*** 1. ***The Partner States shall honour their commitments in respect of other multilateral and international organisations to which they belong.*** 2. ***The Community shall co-ordinate its trade relations with foreign countries so as to facilitate the implementation of a common policy in the field of external trade.*** 3. ***(a) Upon the signing of this Protocol and before its coming into force, and taking into account, inter alia, the provisions of paragraphs 1 and 2 of this Article, the Partner States shall identify the issues arising out of their current relationships with other integration blocs and multilateral and international organisations of which they are members in order to establish convergence on those matters for the purposes of the Customs Union.*** ***(b) For purposes of this paragraph, the Partner States shall, upon the signing of this Protocol formulate a mechanism to guide the relationships between the Customs Union and other integration blocs, multilateral and international organisations.*** 1. ***(a) A Partner State may separately conclude or amend a trade agreement with a foreign country provided that the terms of such an agreement or amendments are not in conflict with the provisions of this Protocol.*** ***(b) Where a Partner State intends to conclude or amend an agreement, as specified in paragraph 4(a) of this Article, with a foreign country the Partner State shall send its proposed agreement or amendment by registered mail to the Secretary General, who shall communicate the proposed agreement by registered mail to the other Partner States within a period of thirty days, for their consideration.*** ***(c) Where a Partner State notifies the other Partner States of its intention under paragraph 4(b) of this Article, the other Partner States shall make comments and proposals as they may deem appropriate, within ninety days from the receipt of the Secretary General's notification, before the conclusion or amendment of the agreement.*** ***(d) Following the receipt of the comments and proposals as specified in paragraph 4(c) of this Article, the Secretary General shall convene a meeting of the Council within a period of sixty days to consider the comments and proposals.*** ***(e) Where the Partner States do not submit comments and proposals within the period specified under paragraph 4(c) of this Article, the concerned Partner State may conclude or amend the said agreement.*** 1. The mechanism for an EAC partner state negotiating a trade agreement with a third party is explicitly set out under Article 37 above. The Protocol does not bar a partner state from concluding agreements with other international organizations or third parties outside of the EAC, but mandates a clear, sequential block mechanism which is that a Partner State seeking to negotiate a preferential trade deal with a foreign country must promptly notify the EAC Secretary General of its intention. 2. The Secretary General is obligated to transmit this information to all other Partner States to allow them a mandatory 90-day period to submit comments and evaluate the regional impact. 3. The EAC Council of Ministers must then meet to determine if the bloc wishes to pursue a joint negotiation, preserving the integrity of the Customs Union. 4. The Petitioners contend, and this is an uncontroverted fact, that the 1st and 2nd Respondents completely skipped these steps by failing to notify the Secretary General and completely extinguishing the mandatory 90-day regional comment period. 5. Therefore, that by offering the United Kingdom unilateral preferential market access, Kenya compromised the EAC’s Common External Tariff framework, which in turn creates a severe structural risk of trade deflection, where UK imports entering Kenya duty-free could be repackaged and slipped into the wider EAC market. The likely result would be breaching **Regional Rules of Origin** and inviting deep suspicion from regional trading partners. 6. I have considered the defense of state necessity and urgency where the Respondents argue that the fast-approaching Brexit deadlines created an emergency that threatened to collapse Kenya’s duty-free access to a Kshs. 40 Billion export market. They maintain that because other EAC partners are classified as Least Developed Countries (LDCs) entitling them to automatic duty-free access to the UK, Kenya, as a lower-middle-income nation, was structurally forced to act alone to protect its green bean and flower exporters. 7. This Court’s view of this argument by the respondents is that international law does not recognize internal economic anxiety or external deadlines as a justification for violating binding treaty protocols. The Respondents’ defense that the treaty contains an accession clause allowing other EAC states to join later does not cure the initial illegality. It is like building a legally compliant house on a broken procedural foundation. 8. Having stated the above, this Court notes that Kenya has a sovereign duty to protect its domestic economy from severe disruption and it must also respect the principle of *pacta sunt servanda* regarding regional treaties that it has ratified on the one hand. However, constitutional democracy dictates that the nobility of an economic objective cannot sanitize an unconstitutional pathway. Article 2(6) of the Constitution is clear that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. 9. Therefore, while this Court recognizes the delicate balance that the Executive was forced to strike in negotiating and entering into the EPA, I find that the National Assembly and the Executive represented by the Respondents herein rushed the EPA ratification process and compromised on the transparency of the process through public participation which is a national value and principle of governance, by withholding annexes, ignoring language accessibility requirements for ordinary citizens and skipped mandatory statutory impact assessments. 10. However, because the Petitioners provided no evidence of bad faith or irrationality and in order to avoid creating an economic crisis or causing immediate collapse to the agricultural sectors dependent on the UK market, this Court will not issue an outright, immediate invalidation of the EPA treaty. 11. Instead, given that these deficiencies are capable of being remedied and in order to secure effective compliance with the Constitution and the law while balancing constitutional rectitude with economic stability of the Country, this Court issues structural interdicts and retains supervisory jurisdiction over the implementation of the following orders: 12. ***That since the Agreement provides for sensitization of the stakeholders of the implications and benefits of the Agreement, the respondents shall develop a sensitization programme and disseminate the contents of the Agreement to all stakeholders in the sector and get their views on how the Agreement is impacting them and incorporate those views in the five yearly review of the 25-year period Agreement.*** 13. ***Such dissemination shall be Conducted both in Kiswahili and English languages as official languages as well and indigenous, Kenya Sign Language, Braille and other communication formats and technologies accessible to persons with disabilities, in accordance with Article 7 of the Constitution.*** 14. ***That since the first five years have since lapsed, the respondents shall publish the report on the review which was conducted at the end of the first five years of implementing the Agreement and that all the remaining five-year periodic reviews shall be conducted and reports disseminated in the manner stated in (b) above.*** 15. ***The procedural non-compliance with the EAC Customs Union Protocol shall be remedied through subsequent compliance with the notification and consultation requirements, through the relevant diplomatic channels via the relevant Ministry responsible for EAC Affairs and Trade.*** 16. ***The Ministry of Industrialization, Trade and Enterprise Development or its successor in title is hereby directed to commission, complete and publish a Regulatory and Economic Impact Assessment of the EPA which is already under implementation within 120 days of being served with this Judgment.*** 17. ***On the deficient Public Participation, the Ministry of*** ***Industrialization, Trade and Enterprise Development or its successor in title is directed to develop and implement a comprehensive sensitization programme, including stakeholder consultations in affected sectors and to publish a report demonstrating public views considered during the successive five-year reviews of the Agreement.*** 18. ***The Cabinet Secretary for Industrialization, Trade and Enterprise Development or for the successor Ministry in title is directed to file into this Court an affidavit or report of compliance within 120 days of being served with this Judgment, detailing the steps taken to comply with each of the orders (a) to (g) above.*** 19. ***The petitioners shall be at liberty to file responses to the compliance report within 90 days of receipt of the compliance affidavit or report.*** 20. ***This matter is retained for mention to assess compliance and issue further directions if necessary and therefore it shall be brought up after six months of this date to confirm the efforts made towards compliance.*** 21. ***I make no orders as to costs; the petition having been instituted in the public interest.*** 22. This file is closed subject to order (i) above. 23. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of July, 2026** **R.E. ABURILI** **JUDGE**