https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9870

Lake Victoria Aquaculture Association v Cabinet Secretary, Mining, Blue Economy, And Maritime Affairs & 2 others (Petition E713 of 2024) [2026] KEHC 9870 (KLR) (Constitutional and Human Rights) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9870 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E713 of 2024 RE Aburili, J June 29, 2026 Between Lake Victoria Aquaculture Association Petitioner and Cabinet Secretary, Mining, Blue Economy, And Maritime Affairs 1st Respondent Attorney General 2nd Respondent and Council of Governors Interested Party Judgment 1.In the petition dated 23rd December 2024 the petitioner, Lake Victoria Aquaculture Association, seeks the following relief:a.A declaration that the Fisheries Management and Development (Aquaculture) Regulations, 2024, are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 174, 186, 189 and 232 of the Constitution.b.A declaration that the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional.c.An order quashing the Fisheries Management and Development (Aquaculture) Regulations, 2024.d.In the alternative, an order quashing Schedule Six of the Fisheries Management and Development (Aquaculture) Regulations under L/N 126 of 2024 and the fees contained therein.e.A declaration that the 1st Respondent has no legal mandate to introduce the impugned levies, Aquaculture being a devolved function.f.An order for costs of this Petition to be provided for.g.Any other orders that this Honourable Court may deem just and appropriate. 2.The petition is premised on grounds on the face thereof and supported by an affidavit of Peter Ondeng sworn on even date. The petitioner challenges the constitutionality of the Fisheries Management and Development (Aquaculture) Regulations, 2024 (the Regulations) published by the 1st respondent through Legal Notice No. 126. The Regulations were to take effect on 1st January 2025. 3.The petitioner contends that the Regulations impose among others, a Kshs. 50,000 licensing fee for all aquaculture establishments operating in public water bodies, irrespective of size and a 5% ad valorem fee on the value of landed fish. 4.The Petitioner avers that the said licensing and ad valorem fees introduced under the Regulations are arbitrary and punitive and will have an adverse effect on the aquaculture sector and its value chain by raising the cost of doing business, discouraging investment among others. 5.The Petitioner contends that the Regulations are, punitive, disproportionately affecting aquaculture operators as well as small and medium enterprises (SMEs); detrimental to Kenya’s aquaculture industry and its competitiveness and inconsistent with Kenya’s constitutional and statutory framework, including; the principles of devolution and public participation. 6.The petitioner maintains that the imposition of a flat fee of Kshs. 50,000 licensing fee and 5% ad valorem fees under the Regulations are arbitrary, unreasonable and violates Articles 6, 27, 43, 46, 47, and 174 of the Constitution. According to the petitioner, the flat licensing fee of Kshs. 50,000 fails to consider the operational scale and capacity of aquaculture establishments. It disproportionately impacts small and medium enterprises as well as enterprises that are operating within the aquaculture value chain. 7.The petitioner pleads that the 5% ad valorem fee offends the principle of certainty in law. It fails to specify how the value of landed fish is to be calculated, creating ambiguity and leaving industry players uncertain about compliance obligations. It further exposes aquaculture operators to discretionary and potentially unfair enforcement practices which may lead to inconsistent and discriminatory application of the fee. In addition, it does not resonate with the dictates of Public Finance Management Act and the requirements of Section 5 of the Statutory Instruments Act, 2013. 8.It is the petitioner’s case that the 5% ad valorem fee is punitive and undermines food security goals by raising the cost of fish and pricing it out of reach for most Kenyans. It disincentives investment in the sector contrary to the Big Four Agenda. That in totality, the licensing fees and ad valorem fees make aquaculture economically unviable, threatening the livelihoods of thousands of small-scale fish farmers and aquaculture operators. This will lead to massive job losses within the aquaculture value chain, contrary to the right to livelihood and right to fair labour practices. 9.The petitioner avers that impugned fees were imposed without proper public participation or consultation with industry stakeholders. That despite aquaculture being a devolved function, the 1st respondent did not meaningfully engage County Governments and other stakeholders in formulating the Regulations, violating Articles 10 and 118 of the Constitution as well as sections 4, 5, 6, 7, and 8 of the Statutory Instruments Act. 10.The petitioner states that prior to the promulgation of Legal Notice No. 126, the 1st respondent had published these Regulations under Legal Notice No. 62. It did not contain the Sixth Schedule now contained in the Legal Notice No. 126 that seeks to impose the Kshs. 50,000 licensing fee and the 5% ad valorem fees on landed fish. 11.The petitioner therefore contends that the licensing fee and the ad volarem fee were introduce in the new set of Regulations under Legal Notice No. 126 under the Sixth Schedule without consultation or prior notice to stakeholders thereby, undermining the principles of transparency and accountability. 12.The petitioner pleads that the Government has over the years held out the aquaculture sector as a priority area for investment and sustainable development, going so far as to roll out an Aquaculture Business Development Program and providing incentives such as subsidized inputs. This representation created a legitimate expectation among industry players that the regulatory environment would be fair, predictable, and consistent with Blue Economy goals. 13.The petitioner avers that by imposing the arbitrary, discriminatory, and punitive fees under the impugned Regulations, the respondents have breached this legitimate expectation and dealt a devastating blow to investor confidence in the sector. 14.The petitioner states that aquaculture being a devolved function under the Fourth Schedule of the Constitution, the imposition of fees by the national government, as prescribed in the Sixth Schedule of the Regulations, amounts to an encroachment on county government functions in violation of under Articles 186 and 189 of the Constitution. In addition, the Regulations create an unconstitutional and unlawful duplication of fees and levies between the national and county governments regarding the licensing and regulation of aquaculture. 15.The petitioner pleads that the Kshs. 50,000 licensing fee for all aquaculture establishments is arbitrary and disproportionate. The 5% ad valorem fee on the value of landed fish imposes a recurring cost that threatens local aquaculture enterprises’ commercial viability and sustainability, already struggling against cheaper fish imports. It further constitutes a tax due to its broad applicability and lack of direct correlation to specific services, contravening Articles 114 and 210 of the Constitution. 16.It is the petitioner’s case that these fees therefore impose an unsustainable burden on local producers, already grappling with high input costs, limited access to financing, and narrow profit margins. If implemented, the regulations risk jeopardizing the government’s own Blue Economy strategy, which identifies aquaculture as a cornerstone for food security and economic development. 17.The petitioner contends that the punitive fees do not align with the national development goals. They have far-reaching socio-economic consequences for the aquaculture sector and the broader economy. Responses to the petition 18.In response, the 1st respondent filed replying affidavit sworn by Hassan Ali Joho on 12th March 2025 opposing the petition on several grounds. The 1st respondent asserts that he is empowered under sections 74 (1) and (2) and 208 of Fisheries Management and Development Act, Cap 378 to make Aquaculture Regulations. 19.The 1st respondent pleads that in compliance with those sections, he constituted a Technical Committee to develop Aquaculture Regulations. The Technical Committee comprised of Fisheries Officers from State Department for the Blue Economy and Fisheries and the Semi- Autonomous Government Agencies (SAGAs), State Counsel from the Ministry, Legislative Drafters from the Office of the Attorney General and the Kenya Law Reform Commission among others. 20.It is asserted that the Regulations underwent stakeholder consultations and public participation before being finalized as shown by the attached attendance lists and supporting documents. In addition, the Ministry forwarded the Regulations to the Office of the Attorney General and Department of Justice for legal scrutiny, concurrence and retuning them to the Ministry for Cabinet Secretary’s signature before the same could be transmitted to the Government for publication in the Gazette. 21.That on 13th February, 2024 the then Cabinet Secretary published in the Gazette the Fisheries Management and Development (Aquaculture) Regulations, 2024 under Legal Notice No. 62 of 2024. The Cabinet Secretary in compliance with section 11 (1) of the Statutory Instruments Act, 2013 through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13th March, 2024, transmitted the published Regulations to the Clerks of the National Assembly and the Senate for purposes of tabling them before the relevant committee of the House. 22.That in compliance with section 7 (3) of the Statutory Instruments Act through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 14th March 2024, transmitted the Proposed Draft Regulatory Impact Statement to the Chief Executive Officer for the Kenya Law Reform Commission for independent advice on the adequacy of the Regulatory Impact Statement. The Chief Executive Officer for the Kenya Law Reform Commission through a letter Ref No. KLRC/8/81 VOL III dated 14th March 2024 responded approving the proposed draft Regulatory Impact Statement. 23.It is deponed that the National Assembly invited the Ministry for a Parliamentary scrutiny of the Regulations by their Delegated Legislation Committee through a letter from the Clerk Ref No. NA/DAA&GPC/CDL/2024/(034) dated 16th April, 2024 and another Ref No. NA/DAA&GPC/CDL/2024/(040) dated 24th April, 2024. The Delegated Legislation Committee of the National Assembly scrutinized the Regulations and made the comments. 24.It is pleaded that the Delegated Legislation Committee recommended that for Regulation 13 (1) (b) there was a compelling need to indicate in the schedule the fees chargeable and which were to be reviewed by the Cabinet Secretary from time to time. Further that in doing so, the members of the National Assembly for the Delegated Legislation Committee were exercising their power under Article 1 (2) and (3) (a) of the Constitution. 25.That in compliance with the provisions of Article 1(3) (a) of the Constitution the National Assembly therefore advised on the inclusion of fees in the proposed draft Regulations. The National Assembly Delegated Legislation Committee acceded to the Regulations vide letter Ref No. No. NA/DAA&GPC/CDL/2024/ (106) dated 2nd October, 2024. The Regulations were similarly tabled before the Senate which acceded to them through letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3rd July, 2024. This aligned with Parliament’s mandate stipulated under section 16 of the Statutory Instruments Act. 26.It is deponed that in line with the provisions of the Statutory Instruments Act, the Ministry through the Kenya Fisheries Service (Regulator of the Fisheries and Aquaculture sector) opted for the proposed levies as provided for in the schedule and incorporated the same in the Proposed Draft Regulations and forwarded to the Office of the Attorney General for action. In so doing, the Ministry was guided by section 3 of the Income Tax Act to impose the said charges. It was further guided by the Third Schedule, Head B Regulation 5(g) on rates of Tax to be charged. 27.The 1st respondent posits that on 30th December, 2024, the petitioner through a letter dated the same date and referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislation, requested the Ministry to initiate a comprehensive review of both the Regulations and the Act. The Ministry was to meet with the petitioner and other stakeholders in the Fisheries and Aquaculture Sector with the intent to discuss and review the fees as provided in the schedule. 28.The 1st respondent asserts that the Regulations as approved is meant to create opportunities for jobs, and to an extent generate revenue to the state. That based on the foregoing, the Ministry conducted a Regulatory Impact Assessment; developed and prepared an explanatory Memorandum in line with the provisions of section 5A of the Statutory Instruments Act and engaged County Governments as evidenced by letters dated 16th May, 2024 and 29th April, 2024 and 11th June 2024. 29.The 1st respondent pleads that the Ministry revoked Legal Notice No 62 of 2024 and replaced them with Legal Notice No.126 of 2024 after guidance from Parliament and in line with the provisions of section 19 of the Statutory Instruments Act. Legal Notice No 126 of 2024 had the fees as guided and advised by parliament and the fees is only being applied upon Commercial Aquaculture Fish Farmers and not the Small Scale and Medium-Scale Fish Farmers. 30.It is contended lastly contended that contrary to the assertion by the petitioner, section 116 to section 123 of the Fisheries Management and Development Act has granted the regulation of Commercial Aquaculture to the Director General of the Kenya Fisheries Service. Further that section 25 of the Statutory Instruments Act, provides that a statutory Instrument may provide for the imposition of fees and charges in respect of any matter with regard to which provision is made in the enabling legislation. The Interested party’s response 31.The interested party supported the petition through replying affidavit sworn by Mary Mwiti, EBS on 14th November 2025. It confirms the function of fisheries is assigned to county governments pursuant to Part 2, section 1 (e) of the Fourth Schedule and reiterates the facts as pleaded in the petition regarding the enactment of the Fisheries Management and Development (Aquaculture) Regulations, 2024 through Legal Notice No. 126 of 2024 and its impact. 32.It is claimed that the licensing fees and ad volarem fee is a substantive change to the impugned Regulations with far reaching implication on aquaculture stakeholders and as such ought to have been subjected to public participation. This was however not done as the same were arrived upon without due consideration of views and memoranda received during public participation exercise of the initial Fisheries Management and Development (Aquaculture) Regulations through Legal Notice No. 62 of 2024. 33.It is asserted that this was a violation of Articles 10(2) (a) and 118(1 (b) of the Constitution, the disposition in Petition No. 5 of 2017 British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 4 others and section 5(3) (a) of the Statutory Instrument’s Act. There was also an absence of the regulatory impact statement and compliance certificate as envisage by section 7(5) of the Statutory Instrument’s Act. 34.The interested party pleads that the success of devolution requires that the national government enacts policies and legal instruments to promote, nurture and support the devolved governance system. This among others entails revising existing statutes to align them with devolved functions. Accordingly, it is required that the national government amend and/ or revises the provisions of the Fisheries Management and Development Act Cap 378 Laws of Kenya and its attendant Regulations. The Petitioner’s submissions 35.The petitioner’s written submissions are dated 7th February, 2025. The petitioner cites Articles 10 (2) , 118 and 232 of the Constitution, sections 5 and 6 of the Statutory Instruments Act and the decision in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR and British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR for the contention that the threshold for public participation was not met; it was not real but illusory. This is because, the 1st respondent published initial draft regulations (Legal Notice No. 62 of 2024) without indicating any licensing or ad valorem fees; subsequently introduced the fees through the Legal Notice No. 126 without any further consultation or stakeholder engagement and revoked Legal Notice No. 62 through Legal Notice No. 126, effectively ambushing stakeholders who had participated in the earlier process that did not discuss or debate these fees. 36.The petitioner cites Articles 174, 186 and 189 of the Constitution that provide for devolution. It further submits that Part 2 of the Fourth Schedule explicitly devolves “County fisheries” functions, including aspects of aquaculture and maintains that by imposing new licensing and ad valorem fees through the national framework, the 1st respondent encroaches on the mandate of the counties and established a parallel regulatory regime, which will lead to double or overlapping charges. Reliance is placed on the decision in Council of Governors & 47 others v Attorney General & 3 others [2020] KEHC 4 and The Supreme Court’s Advisory Opinion Reference No. 2 of 2013 37.The petitioner therefore urges that the Regulations create a situation where aquaculture operators face, double taxation; administrative confusion and Fiscal Overreach. Hence undermining the Constitution’s design that empowers counties to regulate matters intimately connected with local needs and development priorities. Further that the 5% ad valorem charge imposed by the Regulations is not a mere regulatory fee; it has the characteristics of a tax; it has a broad application; it is for revenue raising purposes and lacks a clear nexus and that therefore, this is an affront to the provisions of Articles114, 209 and 210 of the Constitution. 38.The petitioner relies on the decision in Mount Kenya Bottlers Limited & 3 Others v The Honourable Attorney General & 3 Others [2019] to argue that there is no express statutory authority under the Fisheries Management and Development Act, 2016, permitting the 1st respondent to impose a 5% ad valorem fee on fish produce. The said fee unconstitutionally expands beyond the notion of cost recovery and thereby morphs into taxation without adherence to Articles 209 and 210.Moreover, the 5% fee is likely to be passed on to consumers, functioning akin to a consumption or excise tax, thereby affecting the final prices of fish and undermining the right to affordable protein. 39.The petitioner contends that the Kshs. 50,000 flat licensing fee fails to account for the vast differences in the scale of aquaculture operations. It is, therefore, prima facie discriminatory and contravenes Article 27 of the Constitution, which guarantees equality and non-discrimination. Reliance is placed on the decision in Kenya Flower Council v Meru County Government [2019] eKLR. 40.It is submitted that for fish farmers, producing a few hundred kilograms of fish per year, the Kshs. 50,000 represents a crippling burden, inhibiting their ability to remain viable. This fee locks out new entrants and entrenches inequality in the sector. It further violates the provisions of Article 56 of the Constitution. 41.The petitioner relies on the decisions in Kenya Association of Manufacturers & 2 others v Cabinet Secretary - Ministry of Environment and Natural Resources & 3 others [2017] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2014] eKLR for the contention that the Government, through: Blue Economy Agenda, Vision 2030, Big Four Agenda and Official Policy Statements has consistently portrayed aquaculture as a priority sector, encouraging both local and foreign investment. Therefore, Aquaculture stakeholders reasonably expected a supportive framework, minimal or proportionate regulatory fees, and consistent policy. The sudden and punitive nature of the 5% ad valorem fee and KES 50,000 licensing fee shatters these expectations. Further reliance is placed on Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR). 42.The petitioner urges that contrary to the dictates of Articles 43 and 46 of the Constitution, the 5% ad valorem fee will escalate production costs, ultimately translating to higher retail fish prices and undermining food security. It forecasts price hikes of up to 15% for fish and fish products due to cumulative licensing and ad valorem charges; likely reduction in fish farming activities—operators may scale down to avoid the punitive fees, leading to supply constraints and adverse effects on 500,000+ households who rely on aquaculture for their livelihoods, affecting children’s nutrition and educational prospects in these communities. The Respondents’ submissions 43.The respondents’ submissions are darted 10th February, 2025. They maintain that the Ministry complied fully with constitutional and statutory requirements for public participation in the entire exercise of promulgating the Regulations. Reliance is placed on Articles 10 (2) (a), 118 (1) (b) and 232 (1) (d) of the Constitution and sections 5 and 5A of the Statutory Instruments Act, 2013. 44.The respondents contend that the applicable test is whether a reasonable opportunity was afforded to the public to be heard rather than by actual participation of every affected person. They rely on the decisions in British American Tobacco Kenya, PLV v Cabinet Secretary for the Ministry of Health & 2 others (supra); Small Scale Farmers Forum & 6 others v Republic of Kenya and 2 others [2013] eKLR and North Rift Motor Bike Taxi Association v Uasin Gishu County Government [2015] eKLR for the proposition that parliament enjoys discretion on the modalities through which public participation is conducted, provided the process fits into the essential ingredients of public participation. 45.The respondents submit that the Ministry’s documented consultations, including JASCCOM engagements and direct correspondence with the Council of Governors; copies of attendance lists in the exhibit marked HAJ1 and the and the Ministry’s openness to further engagements as evidenced by its commitment to convene a stakeholder forum following the petitioner’s letter dated 30th December 2024 referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislations demonstrates that public participation was undertaken. 46.The respondents further rely on Doctors for Life International v Speaker of the National Assembly and others [2006] ZACC 11 and Minister for Health v New Clicks South Africa (PTY) Ltd to submit that public participation does not require the law maker to accord a personal hearing to every individual affected by regulations that are being made. It is argued that what is required is the provisions of a reasonable opportunity for members of the public and all interested parties to be informed about the proposed legislation and to have an adequate say. This was done by the Ministry publishing the Regulations in the Gazette and in consultation with the various experts. 47.They reiterate that the Ministry constituted a Technical Committee comprising Fisheries Officers, State Counsel from the Office of the Attorney General and officers from the Kenya Law Reform Commission to develop the Regulations. It is contended that that the Committee conducted extensive stakeholder consultations, as evidenced by attendance lists and supporting documents annexed to the replying affidavit and marked as HAJ1. According to them, consultations were undertaken in key aquaculture hubs including Kisumu, Mombasa, Homa Bay and Busia, thereby affording fish farmers and other stakeholders an opportunity to provide input into the regulatory process. It is further submitted that concerns raised during those engagements, including issues relating to licensing fees and sustainable aquaculture practices, were considered and incorporated into the final Regulations. 48.The respondents submit that county governments were engaged through Joint Agricultural Sector Consultation and Cooperation Mechanism (JASSCOM) ensuring devolved interests were represented. The Council of Governors submitted comments on 29th April and 16th May 2024 which Ministry addressed through letters dated 11th June 2024. This demonstrates inclusivity across governance levels, aligning emphasis on stakeholder involvement. Reliance was placed on Peter Makau Musoka and Award of Mining Concessionary Rights to the Mui Coal Basin Deposits [2015] eKLR and Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentists Council & another (Interested Parties) [2024] KEHC 8255 (KLR). 49.It is contended that the documented consultations including JASSCOM and direct engagement with the Council of Governors, meet this standard. Particular emphasis was placed on the petitioner's letter dated 30th December 2024 requesting a stakeholder forum and the Ministry's commitment to convene such a forum as evidence of its openness to further consultation and engagement. 50.The respondents have further submitted that the Regulations underwent thorough parliamentary scrutiny, which itself constituted an important component of public participation. The Regulations were transmitted to the National Assembly and the Senate on 13th March 2024 for consideration. The National Assembly’s Delegated Legislation Committee subsequently scrutinized them 16th and 24th April 2024 and recommended, among others, the inclusion of fees in the schedule, which was incorporated into Legal Notice No. 126. 51.It is further contended that the Senate approved the Regulations on 3rd July 2024 while the National Assembly approved them on 2nd October 2024. Reliance is placed on Attorney General & 2 Others v Ndii & 79 Others [2022] KESC 8 (KLR) for the proposition that parliamentary deliberations constitute an important avenue through which public participation is realized. The respondents therefore rejected the petitioner's allegation that the fees were covertly introduced, arguing that the fees were incorporated following parliamentary guidance under section 19 of the Statutory Instruments Act 52.Additionally, it is submitted that the Ministry complied with the requirements of the Statutory Instruments Act by preparing a Regulatory Impact Assessment and an Explanatory Memorandum, both of which were approved by the Kenya Law Reform Commission. It is argued that these steps ensured the Regulations’ socio-economic implications were evaluated with stakeholder input, as required by law. 53.Addressing the contention that the Regulations encroach on devolved functions, it is submitted that county governments were adequately consulted and that county interests were protected through both JASCCOM engagements and Senate participation as evidenced by letter referred No. MIBEMA/SDBE&F/LEG /VOL 1.1 and exhibit marked HAJ 15 and letter dated 11th June 2024Ref. NO. MIBEMA/SDB& E/LEG/VOL.1.1. 54.Reliance is placed on Kenya Flower Council v Meru County Government [2019] KEHC 1523 (KLR) for the proposition that legislative mandate is delegated sovereign power of the people and therefore must be exercised in a manner that facilitates public participation. The Ministry’s engagement with county stakeholders and parliamentary oversight fully addressed these constitutional requirements, refuting the Petitioner’s devolution-based objections. The Ministry’s consultations, parliamentary scrutiny and statutory compliance demonstrate intentional public participation in the promulgation of the regulations. Articles 10(2)(a), 118(1)(b), and 232(1)(d) of the Constitution of Kenya, alongside Sections 5, 5A, and 7 of the Statutory Instruments Act, were adhered to. 55.The respondents cite the case of Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR and Speaker of the Senate & another v Attorney General & another; Law Society of Kenya & 2 Others (Amicus Curiae) [2013] KESC 7 (KLR), that speak to the issue of Article 110(3) of the Constitution on concurrence and assert that indeed this was done as augmented by letters Ref. No MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13th March, 2024 (HAJ 4); Ref No. NA/DAA&GPC/CDL/2024/ (106) dated 2nd October, 2024(HAJ10) and letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3rd July, 2024 (HAJ11). 56.The respondents assert that fees in Legal Notice No. 126 were specified in the Sixth Schedule under Regulation 13 (1) (b) following scrutiny and approval by the National Assembly and Senate, ensuring transparency. Inclusion of fees was in tandem with the provisions of sections 74 (1) and (2) (a) and 208(1) and (2) (b) of the Fisheries Management and Development Act, section 16 and 19 of the Statutory Instruments Act. The fees were therefore not covertly introduced and the 1st respondent acted within the law. Reliance is placed on the decision in Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) [2024] KEHC 8255 (KLR). 57.The respondents argue the assertions on violation of Articles 27 and 43 of the Constitution are baseless because, the fees apply solely to commercial aquaculture operations and not at small-scale or subsistence farmers. Reliance is placed on Sections 65 and 85 of the Fisheries Management and Development Act, which exempt non-commercial subsistence fishing from licensing requirements and vest oversight of non-commercial aquaculture activities in county governments. 58.The respondents maintain the Cabinet Secretary effectively followed the law by ascribing licensing fee purely to the commercial sector. Further reliance is placed on sections 5(2) (n), (j), 9 and 116-123 of the Fisheries Management and Development Act.Analysis and determinationa.Whether the Fisheries Management and Development (Aquaculture) Regulations are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 186, 189 and 232 of the Constitutionb.Whether the 1st respondent has legal mandate to introduce the impugned levies, Aquaculture being a devolved function.c.Whether the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional.d.Whether the petitioner has locus standi to institute these proceedingse.What reliefs should the court grant Whether the Regulations are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 186, 189 and 232 of the Constitution 59.The petitioner has advanced three arguments regarding the violation of the said constitutional violations. First, that the Regulations did not meet the threshold for public participation under Articles 10, 118 and 232 of the Constitution. Second, that the Regulation offend the principles of devolution under Articles 174, 186 and 189 of the Constitution and third that the licensing fees and ad valorem fees are discriminatory and offend the social economic and consumer protection rights guaranteed under Articles 27, 43 and 46 of the Constitution. 60.The other argument is that the Regulation did not adhere to the requirements of the Section 5, 5A and 7 of the Statutory Instruments Act. To wit, there was no public participation and no Regulatory Impact Assessment was done. They argue that the public participation alluded to by the respondents included everybody else except the petitions and other stakeholders of similar stature who would be affected by the Regulation. This position was supported by the interested party. 61.The respondents have on the other hand insisted that the Regulation met the threshold for public participation as evidenced by the documented consultations with various stakeholders, including the Council of Governors and the copies of attendance list. It is their position that, the concerns raised during the consultations were considered; the Regulations underwent parliamentary scrutiny and they provided a Regulatory Impact Assessment that was approved by the Kenya Law Reform Commission. It is also their case that Parliament has the discretion to employ whatever mechanisms of achieving public participation as long as it meets the threshold. 62.I therefore proceed by analysing the alleged violations. Public participation 63.Articles 10, 118 and 232 (1) (d) of the Constitution speak to the issue of public participation. Article 10 provides for the national values and principles of governance. Sub Article (1) is explicit that the said values and principles of governance stipulated therein bind all state organs, State officers, public officers and all persons whenever any of them—applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. 64.Sub Article (2) of Article 10 lists the national values and principles to include- patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development. 65.Article 118 (1) of the Constitution provides,Public access and participation.118.(1)Parliament shall—(a)conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and(b)facilitate public participation and involvement in the legislative and other business of Parliament and its committees. 66.Article 232 of the Constitution provides for values and principles of public service. Sub Article (1) (d) provides for involvement of the people in the process of policy making as one of such value and principle. Instrumental is also the Statutory Instruments Act, 2013. Section 5 provides,(1)Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—(a)have a direct, or a substantial indirect effect on business; or(b)restrict competition;the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.(2)In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—(a)drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and(b)ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.(3)Without limiting by implication, the form that consultation referred to in subsection (1) might take, the consultation shall—(a)involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or(b)invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument. 67.Section 5A of the Statutory Instruments Act provides:5A. Explanatory memorandum(1)Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—(a)a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;(b)a brief statement of all the consultations undertaken before the statutory instrument was made;(c)a brief statement of the way the consultation was carried;(d)an outline of the results of the consultation;(e)a brief explanation of any changes made to the legislation as a result of the consultation.(2)Where no such consultations are undertaken as contemplated in subsection (1), the regulation-making authority shall explain why no such consultation was undertaken.(3)The explanatory memorandum shall contain such other information in the manner specified in the Schedule and may be accompanied by the regulatory impact statement prepared for the statutory instrument. 68.Section 6 of the same Act provides that: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. 69.Sections 7, 8 and 11 of the Act provides for the contents of the regulatory impact statements, the notification of the regulatory impact statements and the laying of the Statutory Instrument before Parliament. 70.In 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) [2019] KESC 15 (KLR), the Supreme Court laid down the principles for public participation as follows: 71.The Supreme Court in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR, held:(96)From the foregoing analysis, we would like to underscore that public participation and 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(i)a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.(iii)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.(iv)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.(v)Public participation is not an abstract notion; it must be purposive and meaningful.(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.(vii)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.(viii)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.(ix)Components of meaningful public participation include the following:a.clarity of the subject matter for the public to understand;b.structures and processes (medium of engagement) of participation that are clear and simple;c .opportunity for balanced influence from the public in general;d.commitment to the process;e.inclusive and effective representation;f.integrity and transparency of the process;g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 72.In Robert N. Gakuru & others v Kiambu County Government & 3 others [2014] eKLR, the court stated that:“Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates…it behoves the Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively.” 73.The above decision on appeal, (Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR), the Court of Appeal affirmed the decision of the High Court and stated that:[20]…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation. 74.Addressing this same issue of public participation, in Minister for Health v New Chicks South Africa Pty Ltd CCT 59/04, the Constitutional Court of South Africa observed that the forms of facilitating an appropriate degree of participation in the law-making process are of infinite variation. “What matters is that at the end of the day, a reasonable opportunity is offered to the members of the public and all interested parties to know about the issue and to have an adequate say.” 75.Ngcobo, J. in Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, 2006(12) BCLR 1399(CC), 2006 (6) SA 416 (CC) observed, “merely allowing public participation in the law-making process is not enough. More is required and measures need to be taken to facilitate public participation in the law-making process.” 76.These decisions make the same point, that public participation must be real, reasonable and meaningful both qualitatively and quantitatively. The public must be given an opportunity to participate in the legislative process. The body responsible must take reasonable measures to facilitate public participation and has the burden to demonstrate that it discharged this obligation. See Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR). 77.In the case of Moses Munyendo & 908 others v Attorney General and another [2013] eKLR. The Court observed thus:“As concerns the pre-parliamentary or consultative stage, the Permanent Secretary has given evidence on how different stakeholders were consulted. Some of the organisations consulted include the following...This evidence is not controverted by the petitioners. Furthermore, I do not think it is necessary that every person or professional be invited to every forum in order to satisfy the terms of Article 10. Thus the contention that by the first petitioner, “I am aware that majority of Kenyans producers, processors, professionals or policy makers have not been invited to any stakeholders meetings to enrich any of the law” is not necessarily decisive of the lack of public participation. Such an argument was dismissed by Lenaola J., in Consumer Federation of Kenya (COFEK) v Public Service Commission Nairobi Petition No. 263 of 2013 [2013]eKLR thus, “[13] …. The Petitioner has latched on to the phrase “participation of the people” in a selective and selfish manner. I have said that there is no express requirement that “participation of the people” should be read to mean that “the people” must be present during interviews but taken in its widest context that their in-put is recognised.” 78.I have examined the documents annexed to the respondent’s replying affidavit. Particularly, I note their letters from Joint Agricultural Sector Consultation and Cooperation Mechanisms dated 21stOctober 2021, 26th October 2021, 14th November 2021 among others addressed to the County Executive Committee Members in Charge of Aquaculture Development within the 47 counties inviting them for the consultative meetings. I have also noted the minutes of the meetings held at North Coast Beach Hotel, Kilifi, Kitui, the National Aquaculture Research Development &Training Centre in Sagana, Goshen Inn at Eldoret at Golf Hotel Kakamega amog others and the attendance lists. I have also noted the letter to the CoG dated 11th June 2024 and the letters to Parliament dated 13th March 2024 and to the KLRC dated 14th March 2024. 79.In my view, the relevant stakeholders in the aquaculture industry were consulted, and the Regulations were subjected to parliamentary scrutiny. There is also evidence that there was an impact regulatory statement prepared by the Ministry and approved by the Kenya Law Reform Commission. In my view, the public participation was real and not illusionary. 80.The petitioner argued that the sixth schedule was not subjected to public participation and that it was introduced after public participation. In the case of Pevans East Africa Limited & another v Chairman, Betting control & Licensing Board & 7 others [2018] eKLR the court affirmed the power of the Parliament during the legislative process, to make changes to a Bill post public participation. The court stated:“…It must be appreciated that after the National Assembly has heard the views of members of the public and industry stakeholders on a Bill, it is not precluded from effecting amendments to the Bill, before finally passing it. These amendments do not necessarily have to agree with the views expressed by the people who have been heard, so long as the views have been taken into account. (See Nairobi Metropolitan PSV Saccos Union Ltd & 25 others v County of Nairobi Government & 3 others [2013] eKLR). In our view, it would bring the legislative process to a complete halt and undermine Parliament’s ability to discharge its constitutional mandate if, after having facilitated public participation on a Bill, Parliament is required to adjourn its proceedings every time a member proposes an amendment to the Bill, so that further public participation can take place on the particular proposed amendment…” 81.Further, in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25872 (KLR), a three judge bench at paragraphs 157 agreed with the decision in Pevans. They stated:“ 157.By its nature public participation is intended to explore new issues that may be raised, interrogate and understand existing ones which may lead to revision or refinement of the Bill through new proposals and amendments. We are bound by the holding in Pevans case (supra) that once the National Assembly has heard the views of members of the general public and stakeholders on the Bill, it is not precluded from effecting amendments to the Bill during debate before it is passed, as a contrary position would amount to curtailing the legislative mandate of the National Assembly. The National Assembly was not required to re-submit the amendments to public participation on narrow issues that were within what was contemplated within the Objects and Memorandum of the Bill. 82.It was hereafter, in the circumstances of this case, not necessary to subject the said Schedule or the proposed fees to the public participation again. Further, Article 1(2) of the Constitution provides that the people may exercise their sovereign power either directly or through their democratically elected representatives. Principles of devolution 83.The petitioner submitted that Part 2 of the Fourth Schedule devolves County Fisheries functions including the aspect of aquaculture. Therefore, by imposing new licensing and ad volarem does through the national framework, the 1st respondent encroached on the mandate of the county governments and established a parallel regulatory regime that will be led to double or overlapping of charges. The respondents submit that the consultations with County governments through JASSCCOM and direct correspondence with the Council of Governors demonstrate respect for Article 174 of the Constitution. Further Senate’s approval ensured county interested were safeguarded as mandate by Article 96 and the Council of government submitted its comments on 28th April 2024 which were addressed on 16th May 2024. There was also concurrence. The interested party, CoG, averred that its views were not considered. 84.Article 174 of the Constitution provides for the objects of devolution. These are:to promote democratic and accountable exercise of power; to foster national unity by recognising diversity; to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; to recognise the right of communities to manage their own affairs and to further their development; to protect and promote the interests and rights of minorities and marginalised communities; to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; to ensure equitable sharing of national and local resources throughout Kenya; to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and to enhance checks and balances and the separation of powers. 85.Article 186 of the Constitution provides:Respective functions and powers of national and county governments.186.(1)Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule.(2)A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.(3)A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.(4)For greater certainty, Parliament may legislate for the Republic on any matter. 86.Article 189 of the Constitution provides Cooperation between national and county governments. It provides,189.(1)Government at either level shall—(a)perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;(b)assist, support and consult and, as appropriate, implement the legislation of the other level of government; and(c)liaise with government at the other level for the purpose of exchanging information, coordinating administration and enhancing capacity. policies and(2)Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.(3)In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.(4)National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration. 87.The respondent has demonstrated that the Regulations were transmitted to Parliament (Senate and the National Assembly) for purposes of tabling them before the relevant committees. There is further evidence that both the National Assembly and the Senate acceded to the Regulations through letters dated 2nd October 2024 and 3rd July 2024 respectively. This is coupled with the evidence that the interested party (CoG) was involved in the drafting process of the Regulations. I agree with the respondents that there is no evidence that the Ministry encroached on the mandate of the county governments or abrogate the principles of devolution. 88.Section 107 of the Evidence places the burden on the person alleging the existence of a particular fact to proof. The petitioner has not discharged its evidentiary burden by demonstrating how the Ministry encroached on the mandate of the County. Alleged violation of Articles 27, 43 and 47 of the Constitution 89.The petitioner has submitted that the flat licensing fee of Kshs. 50,000 and the 5% ad volarem fee violate the provisions of Articles 27, 43 and 47 of the Constitution. It has argued that the licensing fee fails to account for the vast difference in the scale of aquaculture operations and that the ad volarem fee will escalate production costs, ultimately translating to higher retail fish prices and undermining food security. Further that the negative implication on food security and nutrition violate Articles 43 and 46 of the Constitution that speak on the economic and social rights and consumers rights. 90.The respondent has on the other hand refuted this argument and submitted that the said fees only apply to the commercial aquaculture operators and not small-scale farmers of subsistence farmers because sections 65 and 85 exempt them from licensing requirements and mandates counties to oversee non-commercial aquaculture. Further that Sections 116–123 of the Fisheries Management and Development Act vests regulatory authority over commercial aquaculture in the Kenya Fisheries Service. 91.I have read the provisions cited by the respondents and I note that Sections 65 of the Fisheries Management and Development Act, 2016 mandates the county governments to monitor aquaculture and mariculture practise and operations in areas under their respective jurisdiction. Section 85 exempts any person fishing only for purposes of non-commercial subsistence, intended to result in consumption of the fish caught, from the requirement for a licence but only requires such a person to apply for the respective county government for registration. 92.I have also read sections 116 to 123 of the Fisheries Management and Development Act, 2016. These provisions vest regulatory authority over commercial aquaculture in the Kenya Fisheries Service. I have further examined the sixth Schedule of the Regulations where the impugned fees are stipulated and I note that it is explicitly stated that the fees therein only apply to commercial aquaculture. In my view and in light of the foregoing, the petitioner has not demonstrated how the licensing fees and the ad valorem fee violate the provisions of Article 27, 43 and 46 of the Constitution to the required standards envisaged by the Anarita Karimi Njeru v Republic [1979] eKLR. See also the decision in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR. Whether the 1st respondent has legal mandate to introduce the impugned levies, Aquaculture being a devolved function 93.The petitioner has argued that the 1st respondent did not have mandate to introduce the licensing fees and ad valorem fees in the Regulation as aquaculture is a devolved function. The respondents have submitted that the 1st respondent acted within its mandates as stipulated under sections 74 and 208 of the Fisheries Management and Development Act, 2016 and section 16 of the Statutory Instruments Act, 2013. 94.Section 74 of the Fisheries Management and Development Act, 2016 provides: (1)The Cabinet Secretary may make Regulations for the better carrying out of the provisions of this Act.(2)Without prejudice to the generality of the provisions of subsection (1), the Regulations shall include—(a)fish hatchery standards;(b)qualifications of persons authorized to offer aquaculture extension services;(c)the mode of establishment of fish cages or any such form of aquaculture establishment in Kenya fishery waters;(d)aquaculture extension systems;(e)fish disease surveillance,controland management in aquaculture establishments;(f)the use of biotechnology to increase productivity;(g)codes of practice for fish farmers; or(h)any other measure that he deems necessary for the proper management of aquaculture. 95.Section 208 of the same Act provides, that the(1)The Cabinet Secretary may make regulations for the better carrying into effect of the provisions of this Act.(2)Without prejudice to the generality of subsection (1), the Cabinet Secretary may make regulations for any or all of the following purposes—(b)establishing the conditions of issue of, and procedures of application for, any licence or other authority under this Act or regulations thereunder, the form and the fees payable therefor; 96.Under Section 16 of the Statutory Instruments Act:Subject to section 11, and in so far as its practically possible, the Committee shall confer with the regulation-making authority for which the statutory instrument has been made and brought before the Committee for scrutiny, before tabling the report to Parliament for their information and modification where necessary.(1)Where Parliament has adopted a report or a resolution that a statutory instrument be annulled—(a)the instrument shall stand annulled; and(b)the Clerk of the relevant house shall publish the annulment in the Parliamentary website and shall convey the resolution of the House to the regulation making authority.(2)Upon receipt of the communication from the Clerk in accordance with this section, the regulation making authority shall publish the annulment in the Gazette within fourteen days. 97.Section 25 of the Statutory Instruments Act provides,25.Fees and charges(1)A statutory instrument may provide for the imposition of fees and charges in respect of any matter with regard to which provision is made in the enabling legislation.(2)A power to impose fees or charges shall include power to provide for all or any of the following matters—(a)specific fees or charges;(b)minimum fees or charges;(c)maximum fees or charges;(d)ad valorem fees or charges;(e)the payment of fees or charges either generally or under specified conditions or in specified circumstances; and(f)the reduction, waiver or refund, in whole or in part, of any fees or charges, either upon the happening of a certain event or in the discretion of a specified person. 98.Based on the above cited provisions of the Fisheries Management and Development Act, 2016 and the Statutory Instruments Act, I find and hold that the 1st respondent acted within his mandate. Whether the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional. 99.The petitioner submits that the 5% ad valorem charge imposed by the Regulations has the characteristics of a tax which is a violation of the provisions of Articles 114, 209, 210 of the Constitution. That it has a broad application; it is for revenue raising purposes and lacks a clear nexus. It is further argued that there is no express statutory authority under the Fisheries Management and Development Act, 2016, permitting the 1st respondent to impose a 5% ad valorem fee on fish produce. 100.The petitioner contends that the Kshs. 50,000 flat licensing fee fails to account for the vast differences in the scale of aquaculture operations. That it is, therefore, prima facie discriminatory and contravenes Article 27 of the Constitution. It is submitted that for fish farmers, producing a few hundred kilograms of fish per year, the Kshs. 50,000 represents a crippling burden, inhibiting their ability to remain viable. It further violates the provisions of Article 56 of the Constitution. 101.The licensing fee and the ad valorem fee as elucidated above are informed by the provisions of sections 74 and 208 of the Fisheries Management and Development Act. I therefore find that the 1st respondent acted within his mandate. 102.Further, the fees are not applicable to all as asserted by the petitioner but to commercial aquaculture by dint of sections 65 and 85 of the said Act. It is also incumbent upon the petitioner do demonstrate how the fees are unreasonable, punitive and unconstitutional as envisaged by sections 107, 108 and 109 of the Evidence Act. The petitioner has not discharged the burden of proof Whether the petitioner has locus standi to institute the petition. 103.I have deliberately brought this issue to the very tail end of the judgment because the petition raised very serious issues that required an examination of the relevant statute in this area which has not been exploited by the courts and I found it necessary to discuss those issues. That said, and having found that the petition is not merited, I now briefly discuss the question f locus standi of the petitioner. 104.The petitioner describes itself at paragraph 4 of the petition that it is a duly registered society representing the interests of aquaculture enterprises operating in and around Lake Victoria and that its membership comprises small, medium and large scale fish farmers who rely on aquaculture for their livelihood. In support of the petition, an affidavit was sworn by Peter Ondeng who describes himself as the secretary of the petitioner, and duly authorised to swear the affidavit by the petitioner’s members. There is no list of members of the petitioner, officials of the registered society, or any such authority signed by the officials mandating the deponent to institute the petition on behalf of the unknown members and officials. There is a certificate of registration of the petitioner as an association. 105.This Court is alive to the provisions of Articles 22 and 258 of the Constitution that permit any person claiming that their rights as guaranteed under the Constitution, or that the Constitution is violated or threatened with violation, to approach the Court for constitutional remedies. The Court is equally aware that person is defined under Article 260 of the Constitution to include incorporated and incorporated entities. Further awareness is of Article 159(2)(d) of the Constitution which mandates courts to administer justice without undue regard to procedural technicalities. The question however is whether locus standi is a procedural technicality. 106.However, the issue is not whether the association’s members might have real constitutional grievances. It’s whether this particular case has been filed by someone legally able to bring it to Court. The association says that it is acting for members whose rights were violated, relying on Articles 22 and 258 of the Constitution. However, there is no proof that anyone authorized the filing of this petition as the petition was filed in the association’s name, without any named officials or members suing on its behalf. 107.The question therefore is, in view of these points, was this Court’s jurisdiction properly invoked? 108.On whether the association as described has capacity to sue, the Constitution in Articles 22 and 258 takes a broad view of who can bring constitutional petitions. These Articles permit all affected persons, people acting for others, public interest litigants and associations acting for their members. Rule 4(2) of the Mutunga Rules equally unnecessary procedural barriers to the institution of petitions alleging violation of rights and fundamental freedoms. However, that openness does not erase basic legal requirements. It does not remove the need for the party coming to Court to legally exist or otherwise show legal capacity to sue. 109.Standing and legal capacity are different. One might have standing under Articles 22 or 258 but still, must show that it is a legal person suing or that those appearing have authority to act for the people they represent. 110.Additionally, the other question is whether there is authority to file the petition on behalf of alleged members who are not even named? Even if the petitioner exist as an association, there is another major problem of there being no proof of authority. There is no resolution authorizing the filing of the petition, no meeting minutes, no constitutional provision showing who may sue and no evidence that the members agreed to institute these proceedings. 111.Filing a legal proceeding is a serious decision that can bind the association and affect members’ rights. Courts cannot therefore presume proper authorization just because people say they are officials or because an advocate filed the case. Authority to institute proceedings on behalf of the association is a factual matter and must be proved. 112.The petition is filed only in the Association’s Name without any identifiable officials sued on the association’s behalf. No individual members are named to show that the petition is in a representative capacity under any of the categories under Articles 22(2) or 258(2). If identifiable officials or members had come forward saying they act for the association or its members, this Court would have a clear legal person before it and could then examine representative standing. Instead, the Court has only the association’s name. that being the case, there is no identifiable legal person before this Court for jurisdiction to attach to. 113.The Court of Appeal in Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR considered the issue of locus standi, referring to the Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] e KLR case and stated as follows:“Having found that the respondent did not discharge its burden of proof, we need not consider the next and final ground; the capacity of the appellants to be sued. But for the development of the law, we shall consider it nonetheless. The appellants were sued as Finmax Community Based Group, the Chairman, Treasurer and Secretary. It was readily admitted that the 1st appellant was registered, as the name shows, as a community-based Group under the Ministry of Gender, Children and Social Development. The 2nd, 3rd and 4th appellants were its officials.The question posed to the Judge was whether, in those circumstances the respondent could institute an action against appellants. In his answer, the Judge found that the 1st appellant could only be sued through its officials. But since the 1st appellant’s Chairman, Secretary and Treasurer were joined in the suit, the Judge was of the view that that was sufficient; and that to insist on the particulars of the officials would be to place technicality above substance. He also justified the joinder on the ground that, since in such community organizations high turnover of officials is expected, it is wise to sue the office and not the specific officials, who may have vacated those offices at the time an action is instituted. The 1st appellant is an unincorporated association and therefore in law is not a legal personality with the capacity to sue or to be sued. For a long time, courts have held that such bodies could not sue or be sued. However, with the advent of the 2010 Constitution, this position appears to have changed. Article 260 which is the Interpretation section of the Constitution defines “a person” to include;“… a company, association or other body of persons whether incorporated or unincorporated”. (Own emphasis). As regards institution of court actions, Article 50, dealing with issues of fair hearing gives;“(1)Every person …. the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”It would seem, from the foregoing, that an association like the 1st appellant is “a person” who may institute proceedings and also be sued. However, the question today is not whether unincorporated entities may commence action or how actions against them may be commenced, but rather, the manner of commencing proceedings. It is equally also settled that they cannot maintain an action or actions brought against them in their names. Proceedings on their behalf or against them can only be through the registered officials, whose particulars, names and capacity must clearly be indicated in the suit. See Grace Mwenda Munjuri vs. Trustee of the Agricultural Society of Kenya [2014] eKLR. In this appeal, the 1st appellant, being an unincorporated organization, had no capacity to be sued in its own name. The respondent could only institute the suit as against named officials. Titles like Chairman, secretary or treasurer cannot be used as those are not legal persons against whom orders may be executed by the successful party in the proceedings.For the reasons we have given, this appeal succeeds. We accordingly allow it by setting aside the judgment and order of the High Court made on 24th March, 2015 and amended on 22nd April, 2015 and substitute it with an order dismissing the respondent’s suit”. 114.In Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Ex parte) (Judicial Review Application E032 of 2024) [2025] KEHC 4789 (KLR) (Judicial Review) (7 April 2025) (Ruling), this Court considered in extenso the above position and the Mumo Matemu case and found that the applicant’s failure to bring proceedings in the name of its registered officials was fatal to the proceedings. That position still holds as the circumstances of this case do not call for an interpretation that allows the petition to stand.Therefore, on what reliefs this Court should grant 115.The petitioner has sought for the following reliefs, a declaration that the Fisheries Management and Development (Aquaculture) Regulations, 2024, are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 174, 186, 189 and 232 of the Constitution; a declaration that the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional; an order quashing the Fisheries Management and Development (Aquaculture) Regulations, 2024; in the alternative, an order quashing Schedule Six of the Fisheries Management and Development (Aquaculture) Regulations under L/N 126 of 2024 and the fees contained therein; declaration that the 1st respondent has no legal mandate to introduce the impugned levies, Aquaculture being a devolved function. 116.In Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR), the court held as follows regarding certiorari:Only an order of Certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the appeal before us, the respondents did not apply for an order of certiorari and that is all we want to say on that aspect of the matter 117.I have already found that the petitioner has not established violation of the constitutional rights and the constitutional provisions as pleaded. Therefore, the petitioner is not entitled to any of the reliefs sought. 118.Accordingly, the petition dated 23rd December, 2024 is hereby dismissed with and order that each party meets their own costs. 119.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2026R.E. ABURILIJUDGE