Kiwafa Women Group v Kenya Bureau Of Standards (Tribunal Appeal E007 of 2025) [2026] KEST 3 (KLR) (13 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE STANDARDS TRIBUNAL AT NAIROBI** **STANDARDS TRIBUNAL APPEAL NO. E007 OF 2025** **KIWAFA WOMEN GROUP** ............................................................... **APPELLANT** **VERSUS** **KENYA BUREAU OF STANDARDS** ........................................... **RESPONDENT** **JUDGMENT** 1. **Introduction** 2. The Appellant, Kiwafa Women Group, is a registered community‑based women’s group engaged in processing potato starch from Ol Joro‑Orok, Nyandarua County. 3. The Respondent, Kenya Bureau of Standards (KEBS), is a statutory body established under Section 3 of the Standards Act, Cap. 496, with the mandate under Section 4 to promote, establish and enforce standards of goods and services in Kenya. 4. This appeal challenges the Respondent’s **Notice of Destruction dated 17th December 2025** (the “**impugned Notice**”) by which the Respondent directed the destruction of seized potato starch products belonging to the Appellant. 5. Being aggrieved by the decision of the Respondent in the impugned notice, the Appellant lodged an appeal to this honorable Tribunal pursuant Section 11 of the Standards Act by filing a Statement of Appeal dated 24th December 2025. The appeal is supported by the affidavit of Emily Wairimu Wanjiku sworn on 12th February 2026 together with the accompanying bundle of documents. 6. The Respondent on its part opposed the appeal by way of the Replying Affidavit sworn on 29th January 2026 and a Supplementary Affidavit sworn on 27th February 2026 both by Gladys Rop 7. The parties agreed to dispose of the matter by way of written submissions. 8. **Factual Background** 9. The material facts giving rise to the dispute are largely uncontested. 10. Given the nature of the appeal that revolves around the impugned notice, we find it necessary to lay out the key events leading upto the impugned notice chronologically so as to put the issues into perspective. We thus set out the factual narrative herein below. 11. On 30th September 2025, the Respondent’s officers conducted a surveillance inspection and issued a Factory Surveillance Inspection Report wherein they found a homemade, non‑food‑grade sodium hypochlorite in bleaching of potato starch among other multiple non-conformities which do not relate to this appeal such as hygiene failures: absence of KS EAS 39:2024, no in‑house or contracted laboratory testing, no quality records, no batch numbers or expiry dates, poor housekeeping, and finished products stored in a residential house. 12. During the inspection, random samples of the potato starch were taken vide a Samples Collection Form dated 30th September 2025. 13. On 2nd October 2025, the Respondent suspended Standardization Mark Permit No. 70588, citing the use of the homemade hypochlorite solution. The suspension letter also ordered the Appellant to recall all non‑compliant products. 14. Immediately thereafter, on 3rd October 2025, the Respondent issued a seizure notification to the Appellant. 15. Additionally, the Appellant’s employee signed a voluntary declaration to cease using diluted hypochlorite and improve practices on 2nd October 2025. 16. The Appellant responded by letter dated 9th October 2025. It denied bleaching, asserting that its starch is naturally white. However, it indicated that they will *stop using watered down bleach (10 ml of dilute sodium hypochlorite in 80 litres of water) as a sanitising solution*.” 17. Laboratory test results were shared progressively. On 14th and 22nd October 2025, the starch compositional tests (pH, sulphated ash, acidity, microbial parameters) all returned compliant, with pH exactly 7.0 – at the upper boundary of the permissible range (5‑7). Critically, in an email dated 23rd October 2025, the Respondent informed the Appellant that “*the samples have not been tested for sodium hypochlorite residues.*” 18. On 28th October 2025, the Respondent shared the test result which found that 2.09% available chlorine against a minimum requirement of 3.5% under KS EAS 295:2021 which the Respondent indicated was sub‑standard and non‑food‑grade. 19. The parties thereafter engaged in extensive correspondence through letters, emails and WhatsApp communications as follows: 1. On 24th October 2025, the Appellant submitted a conformity report addressing all other non‑conformities (hygiene, handwashing, partitioning, batch stickers, etc.), but reiterated that it did not bleach its starch and that the non‑conformity was erroneous. 2. On 4th November 2025, the Appellant requested an appointment to discuss the matter; the Respondent invited the Appellant to a public participation event so as to meet on its sidelines. 3. On 5th and 6th November, the Appellant shared the results it had received and asked for the way forward. 4. 20 November 2025, the Respondent re‑shared the bleaching agent result. 5. The next day, the Appellant asked for the way forward on starch. 6. On 23 November, the Appellant expressed confusion, stating its starch was naturally white and its test results showed no bleaching, questioning why a recall would be needed. The Respondent thereafter responded that its findings were scientifically proven by lab results showing chlorine in solutions, based on the Appellant’s own formulation records. 7. On 24th November 2025, the Appellant asked whether there were any other tests done on the starch and the Respondent then sent to them previously shared results. 8. Finally, on 25th November 2025, the Respondent confirmed by email that there were no additional starch test results beyond those already shared. 20. Ultimately, the Respondent issued the impugned Notice of Destruction on 17th December 2025, thereby precipitating the present appeal. 21. **Submissions of the Parties** 22. We have considered the written submissions filed by both parties. 23. The Appellant contends that the Respondent issued the destruction notice without any laboratory evidence that the starch contained sodium hypochlorite 24. The Appellant also argues that the Respondent shifted its justification from non‑compliance with KS 2964:2022 to the use of hypochlorite, violated fair administrative action by failing to consider its representations, acted speculatively, and ordered a disproportionate destruction. It relies on *Pastoli v Kabale District Local Government Council* [2008] 2 EA 300, *Republic v Kenya National Examinations Council ex parte Gathenji* [1997] eKLR, and *Republic v Public Procurement Administrative Review Board ex parte Selex Sistemi Integrati* [2008] eKLR. 25. On the other hand, the Respondent contends that the destruction notice was justified by the inspection findings, the Appellant’s admission of using diluted hypochlorite, and the bleaching agent test proving the solution was sub‑standard. The Respondent relies on Section 4(1)(c) of the Standards Act (power to examine the manner of production) and cites *Judicial Service Commission v Mutava* [2015] eKLR noting that fair administrative action is contextual and *Municipal Council of Mombasa v Republic* [2002] eKLR contending that decisions are judged on material available at the time. Ultimately the respondent distinguishe *Pastoli* on the ground that evidence existed of non-compliance. **D. Issues for Determination** 1. Having considered the pleadings, affidavits, documentary evidence and rival submissions, the Tribunal is of the view that the following issues arise for determination: 1. Whether the Respondent had sufficient evidence to lawfully issue the Notice of Destruction. 2. Whether the Respondent impermissibly shifted its justification from the seizure notice to the destruction notice. 3. Whether the Appellant’s right to fair administrative action was violated. 4. Who should bear the costs of the Appeal. 2. We believe the above issues will enable the tribunal dispose off the matter. **Issue No. I: Whether the Respondent had sufficient evidence on 17th December 2025 to lawfully issue the Notice of Destruction.** 1. We note from the onset that the Appellant has not impugned the decision to suspend the standardization mark by letter of 2nd October 2025 or the Seizure Notice of 3rd October 2025 but rather the Notice of 17th December 2025. 2. We also wish to note that the evidence put on record post 17th December 2025 by both by the Appellant in respect to the Government Chemist Certificate of Analysis dated 20th January 2026 and the test result by the Respondent 23rd January 2026 are of no consequences in respect to this issue and as far as the impugned notice is concerned. We shall thus not comment any further on the same. 3. The Appellant’s principal contention is that the Respondent proceeded to issue the impugned notice in the absence of scientific evidence demonstrating that the potato starch products contained sodium hypochlorite. In particular, it is the Appellants case that the Respondent relied on allegations of contamination that were never proved by contemporaneous laboratory tests after inspection. While arguing that administrative decision must be founded on objective evidence, the Appellants relied on the case of *Pastoli Vs. Kabale District Local Government Council & others [2008] 2 EA 300*. 4. The Respondent, on its part, maintains that its enforcement action was never limited to compositional non-compliance alone. It argues that the inspection revealed unsafe and unacceptable food handling practices, including the alleged use of homemade non-food-grade sodium hypochlorite in the processing environment. 5. Upon review of the evidence placed before the Tribunal, we find the following factual position: 1. The Factory Surveillance Report explicitly states that the firm was “using homemade non‑food grade sodium hypochlorite in bleaching of potato starch after extraction.” 2. The Scheme of Supervision and Control (executed between the parties) included “bleaching” as a process step. Clause 3.9(xiii) of the SSC required the Appellant to “ensure that the product(s) fully comply with applicable standards,” which by necessary implication includes using only food‑grade inputs and maintaining good manufacturing practices. 3. The Appellant vide its letter dated 9th October 2025 alludes to the fact that sodium hypochlorite was being used thus it states in part as follows: “… *stop using watered down bleach (10 ml of dilute sodium hypochlorite in 80 ltrs of water) as a sanitising solution*.” 4. The Appellant by a declaration dated 3rd October 2025 by Emily Wanjiku its officer stated the they would “… *stop using dilute hypochlorite*” 5. We have noted a number of email and WhatsApp message communication between the Appellant’s and Respondent officers which alludes to the existence of some test results on sodium hypochlorite. 6. We have also noted the laboratory test report dated 28th October 2025 which shows the existence of chlorine in the sample. This lab report was actually annexed by the Appellant. 6. The Tribunal finds that the presence of a non‑food‑grade chemical in a food processing area found during the inspection, combined with the laboratory test report dated 28th October 2025 as well as the admission by the Appellant on WhatsApp communication and its letter of 9th October 2025 as well as the Appellant’s admission vide a declaration of 3rd October 2025 creates an unacceptable risk of cross‑contamination that tilts the balance towards a conclusion that indeed there was sufficient evidence that the Respondent relied upon in the issuance of the impugned notice. 7. The Appellant argues that the Respondent issued the impugned notice without scientific evidence. We disagree. There is sufficient evidence as set out above that sodium hypochlorite was present in the sample thus the Respondent was entitled to issue the impugned notice. The impugned Notice for Destruction of Seized Potato Starch was therefore lawful. 8. We thus find in favour of the Respondent on the 1st Issue. **Issue No. II: Whether the Respondent Impermissibly Shifted its Justification** 1. The Appellant argues that the Respondent shifted its justification from “*non‑compliance with KS 2964:2022*” under the seizure notice of 3rd October 2025 to “*use of sodium hypochlorite*” in the impugned notice of 17th December 2025. To this end, the Appellant relies on decision in **R Vs. Public Procurement Administrative Review Board ex parte Selex Sistemi Integrati [2008] eKLR** which held that a public body cannot retrospectively change the reasons for its decisions to justify an otherwise unlawful administrative action. 2. On its part, the Respondents indicate that its letter dated 2nd October 2025 expressly identifies use of sodium hypochlorite as a bleaching solution as the primary objective of enforcement. 3. We however note that the Respondent for reasons known to itself placed considerable emphasis on other grounds including hygiene, lack of traceability systems among others in its affidavits and submissions all of which have no bearing on the impugned notice. 4. The Tribunal finds that indeed the impugned notice clearly state that the basis of the decision was the inspection conducted on 30th September 2025 which inspection had indeed established that the sodium hypochlorite was being utilized for the manufacture of potato starch. Although other non-compliance issues were identified during the inspection, the reason for the enforcement from the initial findings being sodium hypochlorite remained the same throughout and did not change. 5. In sum, we hold that the Respondent did not shift its justification in issuing the impugned notice and as such we find in favour of the Respondent as far as issue No. 2 is concerned. **Issue No. III: Whether the Appellant’s right to fair administrative action was violated** 1. Article 47 of the Constitution as read with the Fair Administrative Action Act (FAAA) guarantees administrative action that is lawful, reasonable and procedurally fair. The Appellant raises three sub‑issues as far as this issue is concerned namely: failure to consider representations, legitimate expectation, and disproportionality. We shall address them. 2. On the first sub-issue, the Appellant argues that it expected enforcement to be grounded on disclosed laboratory findings. 3. The tribunal observes that the Appellant was engaged extensively in various correspondence and WhatsApp communications. Its letters of 9th, 21st, and 24th October 2025 were acknowledged and responded to. The Appellant was also given the test results. The impugned notice on its part gave the Appellant 30 days notice before destruction, during which the Appellant could (and did) file an appeal. The fact that the Respondent disagreed with the Appellant’s sanitising explanation does not mean it failed to consider it. The representations were considered and rejected based on the inspection findings and the test results. We thus find that the Appellant had a meaningful opportunity to be heard. In fact, all their letters, emails, WhatsApp messages were responded to by the Respondent. 4. The Respondent on its part argued that they took action based on the Scheme of Supervision and Control which provides that the Respondent may take action for breach of conditions, which includes the use of non‑food‑grade inputs. Moreover, it argues that a legitimate expectation cannot override the Respondent’s statutory duty to protect public health. 5. The Appellant contends that destruction of 2,250 kg is disproportionate, especially given that most other non‑conformities were addressed by December 2025. However, the violation goes to the core of food safety: a non‑food‑grade chemical used in a food processing area, with evidence that it was used as a processing aid (bleaching). Destruction is the only measure that guarantees the product does not reach consumers. As such we find the destruction order proportionate. 6. The Court of Appeal in *Judicial Service Commission v Mutava* [2015] eKLR held that procedural fairness depends on context. In the context of food safety enforcement, a regulator is not required to postpone action until every conceivable test is complete. 7. Noting that the Appellant was given opportunity to be heard through the response to their letters, WhatsApp messages and email as well as the fact that the impugned notice was based on evidence of a lab report then the Appellant was granted fair administrative action. 8. In sum, we find for the Respondent on the 3rd Issue. 9. **Disposition** 10. In Conclusion, having regard to our findings in respect to Issue No. 1,2 and 3 above, we find that the instant appeal is not merited and thus dismiss the Statement of Appeal dated 24th December 2025. 11. As far as costs are concerneed we order that each party shall bear its costs. **DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.** **Moses Sande Makhandia** **(Acting Chairman) ……………………...................................** **Peter Mungai** **(Member) ………………………...................................** **Adrian Onginjo ……………………………………………** **(Member)** **Evans Lagat ……………………………………………** **(Member)** *Delivered in the presence of:*