https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10133

Law Society of Kenya v Principal Secretary, State Department for Industry & 4 others (Petition E654 of 2025) [2026] KEHC 10133 (KLR) (Constitutional and Human Rights) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 10133 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E654 of 2025 RE Aburili, J June 29, 2026 Between The Law Society Of Kenya Petitioner and Principal Secretary, State Department for Industry 1st Respondent Cabinet Secretary, Ministry Of Investment, Trade And Industry 2nd Respondent The Attorney General 3rd Respondent and Kenya Industrial Property Institute 1st Interested Party Chief Of Staff And Head Of Public Service 2nd Interested Party Judgment 1.In the 9th October 2025 the petitioner, Law Society of Kenya seeks the following reliefs:a.A declaration that the directive issued by the 1st respondent and dated 30th September 2025, purporting to require the approval of the board of the 1st interested party before any trademark, patent, or industrial design can be registered, revoked or renewed, is unconstitutional, unlawful, unreasonable, ultra vires, and therefore, null and void.b.A declaration that the said directive violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution, the Trade Marks Act (Cap. 506), the Industrial Property Act (Cap. 509), and the Fair Administrative Action Act and is inconsistent with Kenya’s obligations under the TRIPS Agreement.c.An order of certiorari quashing the directive of the 1st respondent dated 30th September 2025.d.A conservatory order by way of permanent injunction restraining the 1st respondent or the Board of 1st interested party from enforcing, implementing, or in any way giving effect to the impugned directive.e.Any other or further orders that it deems just and necessary to give effect and/or meaning to any of the reliefs sought above.f.The costs of this petition be awarded to the petitioner. 2.The petition is premised on grounds on the face thereof and supported by an affidavit sworn by Florence Muturi, its Chief Executive Officer, on even date. The petitioner challenges a directive issued by the 1st respondent on 30th September 2025 to the Managing Director of the interested party directing that, with immediate effect no trademarks, patents, or industrial designs are to be registered, revoked, or renewed without the approval of the Board of the interested party. 3.The petitioner asserts that the directive offends Articles 1(3) 3(1), 10, 19, 40 and 46, 47, 232 of the Constitution; sections 3(1) of the Trade Marks Act, sections 3 and 7, 11 and 12 of the Industrial Property Act and Article 41(2) of the TRIPS Agreement. Responses to the petition 4.The respondents and interested parties did not file formal responses to the petition. The Petitioner’s submissions 5.In the petitioner’s written submissions dated 12th November, 2025, Articles 22(1), 165 (3) (b) and (d) and 258 of the Constitution and the decisions in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8(KLR) and Kabui v Teacher Service Commission & 2 others [2025] KEHC 2868 are cited to assert this court’s jurisdiction to hear and determine the instant petition. 6.The petitioner submits that Article 10 of the Constitution binds all State organs, State officers, and public officers to uphold the national values and principles of governance, including the rule of law, public participation, good governance, integrity, transparency, and accountability. It is argued that the impugned directive violates these constitutional principles. 7.According to the petitioner, the directive violates the principle of legality under Articles 1(3), 2(1) and 3(1) of the Constitution because legislative authority belongs to Parliament exclusively, not the executive. That by issuing the impugned directive, the 1st respondent purported to exercise powers that were never delegated, effectively attempting to amend Acts of Parliament through executive action. The petitioner further submits that the Trademark Act is an Act of Parliament, and that therefore, any changes to the statutory functions of the Registrar of Trademarks or the Managing Director of the 1st interested party can only be done by Parliament. 8.The petitioner contends that the impugned directive is illegal and unconstitutional because it implies that the 1st respondent’s administrative order is superior to, or can override an Act of Parliament. This, it is argued, violates the constitutional hierarchy, undermines the rule of law and contravenes the principle of constitutional supremacy by placing the directive above the laws it purports to govern. 9.In the petitioner’s view, the statutory regime is clear that the Registrar and managing director handles registrations; and that the directive therefore introduces uncertainty. It is further contended that there was no objective justification provided for the 1st respondent’s restructuring of the Intellectual Property registration process. 10.The petitioner argues that the directive violates the principles of the rule of law, legality, and principles of lawful, prompt, and efficient public service under Articles 21 and 232 of the Constitution by disrupting the statutory framework for intellectual property registration. It is contended that the directive hinders the protection of property rights under Article 40 and undermines the State's obligation to facilitate innovation and entrepreneurship. The petitioner further submits that requiring Board approval for every IPsingle processing of IP rights will result in administrative paralysis, delayed service and wastage of public resources and time. 11.The petitioner submits that section 3(1) of the Trade Marks Act designates the Director of the 1st interested party as the Registrar, while sections 11 and 12 of the Industrial Property Act assign operational and technical responsibilities to the Managing Director/examiners. Under Section 7 of the Industrial Property Act, the Board’s mandate is limited to governance and policy-oriented functions. The directive flips this statutory allocation and thus usurps the Registrar/ Managing Director’s functions. 12.Further, submission is that the intended functions under the directive are ultra vires those expressly provided under the relevant Acts of Parliament. It is submitted that under Article 155 (2) of the Constitution, the Principal Secretary’s role is limited to policy implementation and oversight and does not extend to altering statutory responsibilities or conferring adjudicative powers on a Board not designated by law. The impugned directive intrudes into Parliament’s allocation of regulatory power making it ultra vires. It relies on the case of Republic v Judicial Commission of Inquiry Into the Goldenberg Affair & 3 others Ex Parte Mwalulu & 8 others [2004] KEHC 1337 (KLR). 13.The petitioner contends that the impugned directive violates the doctrine of legitimate expectation by frustrating the public's expectation that intellectual property rights will be registered promptly and in accordance with the established legal framework. It is argued that requiring Board approval for every registration which meets only four times a year, would cause unavoidable delays, loss of priority rights, commercial harm and possible violation of TRIPS Agreement's requirement against unnecessary procedural delays. The petitioner relies on Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR) in support of this argument. 14.The petitioner contends that the directive violates Article 47(1) of the Constitution and sections 4 and 5 of the Fair Administrative Action Act because it was issued unilaterally, without engaging affected stakeholders. It is submitted no prior notice or reason was given before the directive took immediate effect. It relies on the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR). That the impugned directive further violates Article 41(2) of the TRIPS Agreement. 15.The respondents and interested parties neither filed responses nor submissions. Analysis and Determination 16.I have considered the unopposed petition and I find the following issues emerging for determination:a.Whether the 1st respondent’s directive violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution, the Trade Marks Act (Cap. 506), the Industrial Property Act (Cap. 509), and the Fair Administrative Action Act, and is inconsistent with Kenya’s obligations under the TRIPS Agreement, thereby rendering it unconstitutional, unlawful, and ultra vires.b.Whether the 1st respondent’s directive violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution, the Trade Marks Act (Cap. 506), the Industrial Property Act (Cap. 509), and the Fair Administrative Action Act, and is inconsistent with Kenya’s obligations under the TRIPS Agreement, thereby rendering it unconstitutional, unlawful, and ultra vires. 17.I begin by exploring the relevant constitutional and statutory provisions cited by the petitioner in support of the reliefs sought. A. The Constitution 18.Article 1(3) of the Constitution provides:(3)Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—(a)Parliament and the legislative assemblies in the county governments;(b)the national executive and the executive structures in the county governments; and(c)the Judiciary and independent tribunals. 19.Article 2 (1) provides that the Constitution is the Supreme law of the Republic and binds all persons and all State organs at both levels of government. Sub Article (5) provides that the general rules of international law shall form part of the law of Kenya. Article 3(1) makes it mandatory for every person to respect, uphold and defend the Constitution. 20.Article 10 provides for the National values and principles of governance. Under sub-Article (1), it makes it explicit that the national values and principles of governance stipulated therein shall bind all state organs, state officers, public officers and all persons whenever any of them- applies or interprets the Constitution; enacts, applies or interprets the law; or makes or implements public policy decisions. 21.Sub Article (2) of Article 10 lists the national values and principles of governance 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. 22.Article 40 provides for the right to property while Article 47 guarantees the right to fair administrative action. Under Article 47, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Sub Article (2) provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. 23.Article 232 of the Constitution provides for the values and principles of public service to include- high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; involvement of the people in the process of policy making among others. Sub Article (2) explicitly states that the said values and principles apply to public service in all state organs in both levels of government and all state corporations. B. The Trade Mark Act Cap 506 Laws of Kenya and the Industrial Property Act, Cap. 509 Laws of Kenya. 24.Section 3(1) of the Trademarks Act provides that the Director shall be the Registrar of Trademarks. Section 2 of the said Act defines Director to mean the Managing Director of the Kenya Industrial Property Institute [KIPI], appointed under section 11(1) of the Industrial Property Act. Under the said section, Institute means the Kenya Industrial Property Institute established by section 3 of the Industrial Property Act. 25.Section 2 of the Industrial Property Act defines Board to mean the Board of Directors of the Kenya Industrial Property Institute constituted under section 6 of the said Act. Institute means the Kenya Industrial Property Institute established under section 3 of the Act. Section 3 of the Act provides for the establishment of the Institute while section 5 of the Act provides for the functions of the Institute. The section provides:The functions of the Institute shall be to—(a)consider applications for and grant industrial property rights;(b)screen technology transfer agreements and licences;(c)provide to the public, industrial property information for technological and economic development; and(d)promote inventiveness and innovativeness in Kenya. 26.Section 6 of the Act provides for the establishment of the Board of Directors while section 7 of the Act provides for functions and powers of the Board as follows:The Board shall have all powers necessary for the proper performance of its functions under this Act and in particular but without prejudice to the generality of the foregoing, the Board shall have power to—(a)control, supervise and administer the assets of the Institute in such manner as best promotes the purpose for which the Institute is established;(b)determine the provisions to be made for capital and recurrent expenditure and for reserves of the Institute;(c)receive any grants, gifts, donations or endowments on behalf of the Institute and make legitimate disbursements therefrom;(d)enter into association with other bodies or organizations within or outside Kenya as the Board may consider desirable or appropriate and in furtherance of the purpose for which the Institute is established;(e)open a banking account or banking accounts for the funds of the Institute; and(f)invest any funds of the Institute not immediately required for its purposes in the manner provided in section 20. 27.Section 8 of the Act provides for the conduct of business and affairs of the Board. It provides that the conduct and regulation of the business and affairs of the board shall be as provided in the affairs of the First Schedule. Clause 3 (1) and (2) of the First Schedule to the Act provides that the Board shall meet not less than four times in very financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting. Clause 2 provides that notwithstanding subparagraph (1), the Chairperson may, and upon requisition in writing by at least five members convene a special meeting of the board at any time for the transaction of the business of the Board. 28.Section 11 (1) of the Act provides for the position of the Managing Director. Subsection 2 stipulates the qualifications of the Managing Director. Subsection 3 (c) provides that the managing director shall be responsible for the day-to-day management or the affairs of the Institute subject to the directions of the Board. C. Fair Administrative Actions Act, FAAA, 2015 29.The Fair Administrative Action Act was enacted in 2015 to give effect to the provisions of Article 47(3) of the Constitution. Section 3 of the FAA A provides that the Act applies to all state and non-state agencies, including any person – exercising administrative authority; performing a judicial or quasi-judicial functions under the Constitution or any written law; or whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates. 30.Section (4) of the FAA A which replicates Article 47 (1) of the Constitution stipulates that:Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair and to be given written reasons for any administrative action that is taken against him. It further stipulates that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations in that regard; notice of a right to a review or internal appeal against an administrative decision, where applicable; a statement of reasons pursuant to section 6;notice of the right to legal representation, where applicable; notice of the right to cross-examine or where applicable; or information, materials and evidence to be relied upon in making the decision or taking the administrative action. 31.Section 4(4) obligates the administrator to accord the person whom administrative action is taken an opportunity to-attend proceedings, in person or in the company of an expert of his choice; be heard; cross-examine persons who give adverse evidence against him; and request for an adjournment of the proceedings, where necessary to ensure a fair hearing. 32.Section 5 (1) of the FAA Act sets out the procedure in fair administrative action processes as follows:(1)In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall–aissue a public notice of the proposed administrative action inviting public views in that regard;(b)consider all views submitted in relation to the matter before taking the administrative action;(c)consider all relevant and materials facts; and(d)where the administrator proceeds to take the administrative action proposed in the notice–(i)give reasons for the decision of administrative action as taken;(ii)issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and(iii)specify the manner and period within the which such appeal shall be lodged. 33.Section 7 of the Act provides for applications for review of the administrative action by an aggrieved person. The section provides:(1)Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–(a)a court in accordance with section 8; or(b)a tribunal in exercise of its jurisdiction conferred in that regard under any written law.(2)A court or tribunal under subsection (1) may review an administrative action or decision, if–(a)the person who made the decision–(i)was not authorized to do so by the empowering provision;(ii)acted in excess of jurisdiction or power conferred under any written law;(iii)acted pursuant to delegated power in contravention of any law prohibiting such delegation;(iv)was biased or may reasonably be suspected of bias; or(v)denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;(b)a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;(c)the action or decision was procedurally unfair;(d)the action or decision was materially influenced by an error of law;(e)the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;(f)the administrator failed to take into account relevant considerations;(g)the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;(h)the administrative action or decision was made in bad faith;(i)the administrative action or decision is not rationally connected to–(i)the purpose for which it was taken;(ii)the purpose of the empowering provision;(iii)the information before the administrator; or(iv)the reasons given for it by the administrator;(j)there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;(k)the administrative action or decision is unreasonable;(l)the administrative action or decision is not proportionate to the interests or rights affected;(m)the administrative action or decision violates the legitimate expectations of the person to whom it relates;(n)the administrative action or decision is unfair; or(o)the administrative action or decision is taken or made in abuse of power. D. The TRIPS agreement 34.Article 41 of Trips Agreement provides as follows;Article 41 1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 3.Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceeding without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard. 4.Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases. 5.It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general. 35.The petitioner contends that the 1st respondent’s directive violates the provisions of Articles 1(3), 2(1), 3(1), 10 and 232 of the Constitution because the 1st respondent purported to take over the mandate that is preserved for the legislature. It is argued that in issuing the directive, the 1st respondent in effect transferred the statutory functions of the Registrar to the Board of the 1st interested party contrary to the dictates of the Trade Mark Act and which transfer can only be done by the Parliament. 36.Further, that the directive disrupts the guarantees of efficient registration of IP rights and hinders access to property rights under Article 40 of the Constitution and that the directive further compromises the constitutional obligation of public institutions to deliver services efficiently, effectively and economically. It is argued that requiring Board approval for every single processing of IP rights will inevitably result in administrative paralysis, delayed service delivery, and wastage of public resources and time because the board only meets four times annually. 37.The petitioner also submits that by issuing the directive, the 1st respondent acted contrary to the dictates of the Trade Marks Act and the Industrial Property Act that explicitly distinguishes the functions of the 1st interested party from its Board. That the said directive was issued without engaging affected stakeholders and no reason were given for its implementation. It is further submitted that the directive violates the legitimate expectation of potential IP rights holder because they expect that their applications would be processed expeditiously and within the IP regime established in law yet the board expected to now undertake the role of approving any applications on industrial property rights only sits four times annually. This position further violates Kenya’s obligations to international Agreements, particularly the TRIPS Agreement. 38.The question that this court must answer is the petitioner’s assertions have merit. First, regarding violation of the Constitution, it is explicit that the mandate to enact an Act of Parliament, amend it or repeal it is solely bestowed upon Parliament by virtue of Article 94 of the Constitution. The Article provides for the role of Parliament as follows:Role of Parliament.94.(1)The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.(2)Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty.(3)Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.(4)Parliament shall protect this Constitution and promote the democratic governance of the Republic.(5)No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.(6)An Act of Parliament, or legislation of a county, that confers on any State organ, State officer or person the authority to make provision having the force of law in Kenya, as contemplated in clause (5), shall expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority. 39.The petitioner has adduced evidence to show that the 1st respondent issued a directive that effectively takes away the mandate of the Registrar of Trademarks and /or Managing Director of the interested party and vest that mandate into the Board. There is no evidence that the provisions of the Trade Marks Act and those of the Industrial Property Act setting out the mandates of those personnel were amended or repealed. Being that Parliament is the only arm of government with the mandate to enact the laws and amend them or repeal them, and in the absence of any evidence that this was done, this court agrees with the petitioner that the directive violates the provisions of Articles 1(3), 2(1), (3) and (10) of the Constitution. 40.Regarding violation of the right to fair administrative Action guaranteed under Article 47 of the Constitution and sections 4 and 5 of the Fair Administrative Actions Act, in the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) the Court of Appeal in discussing the right to fair administrative action under Article 47, stated that:“ 45.Under Article 47 (2) of the Constitution as read with the provisions of the Fair Administrative Actions Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principle of law in Kenya. A shift has taken place and there is requirement to give reasons for administrative decisions. (See also Section 45 (2) (a) and (b) of the Employment Act No. 11 of 2007). In Judicial Service Commission -v- Hon. Justice Mutava Mbalu, Civil Appeal No. 52 of 2014, Githinji JA in considering the duty to give reasons for administrative action in light of Article 47 (2) of the Constitution expressed that reasons for decision should be given as a matter of right where a right under the Bill of Rights has been or is likely to be adversely affected by the administrative action and not otherwise; that the right to be given written reasons for the decision can be limited by law for a reasonable and justifiable cause. 46.Article 47 (2) of the Constitution as read with Sections 4 (3) (d) and 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Action Act require written reasons for administrative decision. Section 6 (1) as read with Section 6 (2) (a) of the Act stipulates that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary and such information shall include reasons for which the action was taken and any relevant documents relating to the matter. Sections 3(d), 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Act encompass a statutory obligation upon decision-makers to give written reasons for their decisions. This contrasts with common law that had stopped short of requiring reasons for all administrative decisions.” 41.There is no evidence that the directive was issued with the input of stakeholders. No prior notice was issued before the directive was made. The said directive was for immediate implementation. There is further no evidence that reasons were given for the directive and that the public and the stakeholders were given an opportunity to submit their views on the directive. This Court therefore agrees with the petitioner that indeed, the right to fair administrative action was violated. Article 232 (1) (d) of the Constitution on values and principles of public service mandates involvement of the people in the process of policy making. This principle was violated by the impugned directive. 42.On legitimate expectation, the Court of Appel in Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR) addressed its mind on the issue as hereunder:“The decision of the Supreme Court that we have just cited stresses that legitimate expectation involves a representation that must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate. Other important aspects of the doctrine is that the law does not protect every expectation save only those which are legitimate (South African Veterinary Council v. Szymanski 2003 ZASCA 11); clear statutory words override any contrary expectation however founded (R. v. DPP ex parte Kebilene [199] 4 All ER 801 and Republic v. Nairobi City County & Another, ex parte Wainaina Kigathi Mungai , HC. JR. Misc. C. No 356 of 2013; the representation must be one which the decision-maker can competently and lawfully make without which the reliance cannot be legitimate (Hauptfleisch v. Caledon Divisional Council [1963] (4) SA 53); legitimate expectation does not arise when it is made ultra vires the decision-maker’s powers (Rowland v. Environment Agency (2003) EWCA Civ. 1885; and a public authority which has made a representation which it has no power to make is not precluded from asserting the correct position which is within its power to make (Republic v. Kenya Revenue Authority, ex parte Aberdare Freight Services Ltd [2004] 2 KLR 530). 82.A pre-requisite to successful invocation of the doctrine of legitimate expectation, we reiterate, is that the person who bases his or her claim on the doctrine has to satisfy that he or she has relied on the decision-maker’s representation to his or her detriment. In the instant case, the appellants have not demonstrated how they relied on the 1st respondent’s decision to their detriment. A claim based on mere legitimate expectation, without anything more in the form of suffered detriment, cannot ipso facto sustain an action founded on the doctrine of legitimate expectation. (See Sethi Auto Service Station & Another v. Delhi Development Authority & Others , (2009) 1 SCC 180).” 43.The Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) set out the ingredients to be met when establishing a case for legitimate expectation and stated that:“(265)An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation(268)An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA) at [paragraph 28]: the Court held as follows:The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:i.The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.(ii)The expectation must be reasonable: Administrator, Transvaal v. Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.iii.The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”This was also referred to with approval in Walele v. City of Cape Townand Others; 2008 (6) S.A 129 (C.C.) paragraph 41.[269]The emerging principles may be succinctly set out as follows:a.there must be an express, clear and unambiguous promise given by a public authority;b.the expectation itself must be reasonable;c.the representation must be one which it was competent and lawful for the decision-maker to make; and(d)there cannot be a legitimate expectation against clear provisions of the law or the Constitution.” 44.In Keroche Industries Ltd v Kenya Revenue Authority & 5 others [2007] KEHC 3680 (KLR) the court stated as hereunder:26.The court finds that the Applicants claim is well embraced by the principle of legitimate expectation and the following decisions underpin the applicant’s claim.27.In R (BIBI) v Newham London Borough Councl Schieman LJ gave a set of three practical questions for the Court to pose in ascertaining whether a claim based on legitimate expectation is properly grounded and these are:(1)What has the public authority, whether by practice or by promise committed itself;(2)Whether the authority has acted or proposes to act unlawfully in relation to its commitment;(3)What should the court do. 45.The Registrar of Trademarks and/or Managing Director of the interested party is , as stipulated in the Trade Marks Act, in charge of the registration of trademarks, patents and industrial designs. The 1st respondent’s directive departs from this practice which is anchored in law. There is also the expectation that any directive issued would be issued in accordance with the law. The law regarding the mandate of the Board and that of the Registrar and Managing Director is clearly stipulated in the Trademarks Act and the Industrial Property Act. No amendment to the law has been sought and obtained on the sections providing for those mandates and neither has there been a challenge on the constitutionality of those provisions. This court therefore agrees with the petitioner that the directive violates the legitimate expectation of potential IP rights-holders and the stakeholders. 46.Regarding violation of Article 40 of the Constitution, Article 260 of the Constitution defines property to include intellectual property. Under Articles 22 and 258 of the Constitution, one need not to wait for an actual violation to occur before they can bring a suit to court to protect their fundamental rights and freedoms. By the 1st respondent issuing the impugned directive, the property rights of potential Intellectual property rights-holders are threatened. This is because, examining the provisions of the Industrial Property Act, the Board sits four times annually which means that any person intending to have their trademarks, patents of industrial designs registered, would have to wait for three months before such an application can be approved by the Board. This, in the opinion of this Court, violates the right to property guaranteed under Article 40 of the Constitution. This further violates the dictates of Article 232 of the Constitution on values and principles of public service which mandates involvement of the people in the process of policy making. 47.Second, regarding violation of the Trademarks Act and the Industrial Property Act, comparing the mandates of Institute under section 5, the Board under section 7 and the Managing Director under section 12 of the Industrial Property Act reveals that the functions of the Board are purely policy related whereas those functions of the Registrar and /or managing director are operational and technical in nature. Section 12 clearearly stipulates that the Managing Director is responsible for the day-to-day management of the affairs of the Institute. There being no evidence that the said Acts have been amended to change the roles of the Board and those of the Registrar / Managing Director as stipulated in those Acts, I find and hold that the directive violates section 3 of the Trademark Act and sections 5, 7, 11 and 12 of the Industrial Property Act. 48.I further find that the directive violates Article 41 of the TRIPS agreement that requires expedition in processing IP rights related applications. Waiting until the Board that sits four times annually to approve the applications does not in anyway ensure that the process is expeditious as contemplated in the Act.. 49.On whether the directive ultra vires? In my view, it is. From the material placed before this Court as analyzed above, the impugned directive clearly goes against the dictates of the Constitution, the mandate of the 1st respondent and the provisions of the Trademarks Act and the Industrial Property Act elucidated herein above. The court in the decision in Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR defined what an illegal decision is. It stated:“ 11.An administrative decision is flawed if it is illegal. A decision is illegal if it: -(a)contravenes or exceeds the terms of the power which authorizes the making of the decision;(b)pursues an objective other than that for which the power to make the decision was conferred;(c)is not authorized by any power;(d)contravenes or fails to implement a public duty. 50.In a nutshell, the directive violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution; sections 3(1) of the Trademarks Act; sections 5, 7, 11 and 12 of the Industrial Property Act and Article 41 of the TRIPS Agreement. On whether the reliefs sought should be granted 51.The petitioner seeks for a declaration that the 1st respondents directive is unconstitutional, unlawful, ultra vires and therefore null and void; a declaration that the said directive violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution, the Trade Marks Act (Cap. 506), the Industrial Property Act (Cap. 509), and the Fair Administrative Action Act, and is inconsistent with Kenya’s obligations under the TRIPS Agreement; an order of certiorari and a conservatory by way of permanent injunction restraining the 1st respondent or the Board of 1st interested party from enforcing, implementing, or in any way giving effect to the impugned directive and costs. 52.The court in Republic v Judicial Commission of Inquiry into Goldenberg Affair & 3 others Exparte Mwalulu & 8 others [2004] KEHC 1337 (KLR) stated:“We find that it would be serious abdication of jurisdiction and powers of this court if we were to shy away from quashing a nullity because in essence the doctrine of ultra vires permits the courts to strike down decisions or acts made or done by bodies exercising public functions which they have no power to make. The courts have a specific mission and a duty to uphold the rule of law. Indeed, the doctrine of ultra vires was one of the original pillars upon which judicial review was founded.” 53.In Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR), the Court of Appeal held as follows regarding prohibition and certiorari:“That now brings us to the question we started with, namely, the efficacy and scope of mandamus, prohibition of certiorari. These remedies are only available against public bodies such as the Council in this case. What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”“...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.” 54.In end, I find that the petitioner is entitled to the reliefs sought. I grant the following reliefs:a.A declaration is hereby issued that the directive issued by the 1st respondent Cabinet Secretary, State Department for Industry and dated 30th September 2025, purporting to require the approval of the board of the 1st interested party before any trademark, patent, or industrial design can be registered, revoked or renewed, is unconstitutional, unlawful, unreasonable, ultra vires, and therefore, null and void.b.A declaration is hereby issued that the said directive dated 30th September 2025 violates the provisions of Articles 1(3), 2(1), 2(5), 3(1), 10, 40, 47 and 232 of the Constitution, the Trade Marks Act (Cap. 506), the Industrial Property Act (Cap. 509), and the Fair Administrative Action Act and is inconsistent with Kenya’s obligations under the TRIPS Agreement.c.Certiorari is hereby issued removing into this court for purposes of quashing and I hereby quash the directive of the 1st respondent dated 30th September 2025.d.A permanent injunction is hereby issued restraining and prohibiting the 1st respondent or the Board of 1st interested party Kenya Industrial Property Institute from enforcing, implementing, or in any way giving effect to the impugned directive.e.Each party to bear their own costs of the petition. 55.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 29TH DAY OF JUNE, 2026R.E. ABURILIJUDGE