[2019] KEST 113 (KLR)

Master Freighters Limited v Kenya Bureau of Standards (Tribunal Appeal 6 of 2019) [2019] KEST 113 (KLR) (18 December 2019) (Judgment)

Neutral citation: [2019] KEST 113 (KLR)

Republic of Kenya

In the Standards Tribunal

Tribunal Appeal 6 of 2019

GM Mburu, Chair, H Sigei, MS Makhandia, P Mungai & L Abdiwahid, Members

December 18, 2019

Between

Master Freighters Limited

Appellant

and

Kenya Bureau of Standards

Respondent

Judgment

1. The Appellant is a limited liability company incorporated and domiciled in Kenya whose principal business activities include among others importation and sale of vegetable cooking oils.

2. The Respondent is a body corporate established under Section 3 of the Standards Act, Cap 496 of the Laws of Kenya (Standards Act) whose mandate include among others promoting standardization in industry and commerce and controlling use of Standardization Marks and Distinctive Marks.

3. This appeal was filed by the Appellant herein on 24th October, 2019 being dissatisfied by the decision of the Respondent dated 28th August, 2018. The appellant sought to file the matter out of time with the leave of the Honourable Tribunal. The delay according to the appellant was caused by court proceedings vide Constitutional Petition No.306 of 2018. The Appellant had imported a consignment of palm oil products from Malaysia on 2nd June, 2018. The Respondent vide a letter dated 28th August, 2018 required that the Appellant’s consignments from Malaysia be re-shipped back to the country of origin because the cooking oil products were tested and failed to comply with Standard requirements on Vitamin A Fortification. The Appellant proposed to have the consignment re-sampled and re-tested and the Respondents agreed to the re-sampling via a letter dated 22nd October, 2018 on the condition that the Appellant pay for the re-testing and re-sampling. Following the re-sampling and re-testing 48 containers out of 58 were found to be compliant with Vitamin A fortification requirement while 10 consignments were found not to be compliant.

4. On 18th July, 2019 the Head of Public Service wrote to the Respondent requesting the immediate release of oil that have met the Kenyan standards regarding Vitamin A fortification. The decision meant that the Appellant’s consignments from Malaysia could be released to the Appellant unconditionally.

5. The parties to the complaint, Mr. Manwa Advocate representing the Appellant and Mr. Mutiso Advocate representing the Respondent appeared before the Honourable Tribunal on 1st November, 2019 and the Tribunal gave directions to the effect that the complaint proceeds by way of hearing on 14th November 2019. The Tribunal sat next on the 22nd November, 2019. Mr. Mutiso wished to withdraw the Preliminary Objection as filed and the prayer was granted. The matter was scheduled for hearing of the substantive application on 6th December, 2019.

6. The matter proceeded as scheduled. We have had the opportunity to read and analyze the pleadings, evidence produced in the Tribunal, the examination and cross-examination of the witness and the succinct oral submissions by learned Counsels at the hearing of the matter. We now render ourselves as follows.

II. The Respective Parties’ Cases The Appellant’s case 7. The Appellant imported a consignment of containers of palm oil products from Malaysia on 2nd June, 2018. The Respondent in executing its mandate subjected the consignment to inspection and testing as required by law. The results at first instance failed to comply with the requirements of Vitamin A fortification in oils.

8. Vide a letter dated 15th October, 2019 the Appellant requested for re-sampling of the consignment. The consignment was re-tested and 48 containers out of 58 were found to be compliant with Vitamin A fortification requirement while 10 containers were found not to be compliant.

9. Subsequently, the Respondent sought a waiver of fortification requirement on the impounded cargo for edible oils which waiver was granted by the Cabinet Secretary, Ministry of Industry, Trade & Cooperation.

10. During the hearing of the matter, Mr. Manwa, Advocate for the Appellant stated that despite having knowledge of the waiver, the Respondent has frustrated the Appellant by failing to release the goods. He further stated that the Respondent should instead, be assisting the Appellant with the clearance of the matter.

11. Mr. Manwa, also during court stated that the goods had been incurring costs of storage for two years and with the waiver at hand, the Appellant prays to have the Tribunal compel the Respondent to immediately release the consignment.

12. The Appellants through their Advocate Mr. Manwa prayed for the Respondent to be made to cater for the costs of storage, the intended profit from April 2018 when the consignment was imported. The Appellant also prays for costs of the appeal.

The Respondent’s case 13. Prior to the hearing of this matter, the Respondent raised a Preliminary Objection dated 13th November, 2019; the respondent raised a preliminary objection and challenged the jurisdiction of this Tribunal on account of the appeal having been filed out of time. The Respondent thus challenged the Tribunal’s statutory and/or inherent powers to extend the time for filing an Appeal under Section 11 of the Standards Act.

14. The Respondent further challenged the appeal and stated that a decision was reached by the High Court at Nairobi in petition No. 306 of 2018 on 26th September, 2019 and fourteen days thereof lapsed on 10th October, 2019 and that this appeal had been filed more than 14 days later once again and that this appeal could not have been filed out of time by dint of the petition.

15. The Respondent in the notice of Preliminary Objection further stated that the application for extension of time has been filed after inordinate and inexcusable delay and no proper, valid or justifiable reasons were given by the Respondent to warrant extension of time.

16. Mr. Mutiso, Advocate for the Respondent made and wished to have the Preliminary Objection withdrawn. The prayer was granted/allowed and the issue is deemed as spent (It will therefore note be further addressed in the matter).

17. The Respondent in its Statement of Response dated 27th November, 2019 however proceeded to address the appellant’s case on a without prejudice basis.

18. The Respondent stated that in executing its mandate, it published KS EAS 769: 2012 the standards and specifications upon which Fortified Edible Oils and Fats are to be measured.

19. The Respondent under Clause 5 of KS EAS 769seems to agree with the issues raised by the Appellants in as much as there was a testing of the consignment, a re-test and a waiver on the non-compliant consignment. The Respondent went ahead and stated that the waiver was advised by the Inter Agency for Anti-Illicit Trade Technical Working Group. The Respondent further stated that this was done vide Kenya Gazette Vol. CXX-No. 85.

20. The Respondent also raised issues with how the Appellant has also handled the matter. The Respondent further stated that while the release of the consignments was being procured, the Appellant challenged the detention, inspection and testing of the consignments via Constitutional Petition No. 306 of 2018 which was dismissed for lack of merit.

21. It is the Respondents case that the containers/consignments were released to the Appellant through an online platform termed as Kenya Electronic Single Window System. The Respondents through its witness and Manager of Inspections during re-examination stated that it was the mandate of the Appellant to collect the consignment after clearance with other involved agencies.

22. The Respondents witness further stated that there is a department that deals with the compliance of Diamond Mark of Quality and that it was up to the Appellant to claim the goods for clearance to be done.

23. Mr. Mutiso during the hearing of the matter also stated that the Respondent in its capacity has released the goods and that they might be held at the port for a different reason other than the clearance by their offices.

III. Issues For Determination 24. Having considered the facts, the law and the evidence before it, the Tribunal framed the following as the issues for determination:i.Whether there is a decision by the Respondent capable of being appealed at this Tribunal.ii.Whether the Respondent had released the subject matter goods.iii.Who should bear the costs of the suit?

1. Whether there is a decision by the Respondent capable of being appealed at this Tribunal 25The Tribunal observed that the cause of action arose on 24th August, 2018 when the Respondent initially condemned the Appellant’s edible oil for failure to comply with Vitamin A fortification requirement. What followed was a trail of correspondences and engagements between the parties and various government agencies culminating into a re-sampling and re-testing of the edible oils where 48 containers were found to be compliant and 10 were not. Regarding the 10 non complaint containers a waiver on Vitamin A fortification requirement was granted by the Cabinet Secretary, Ministry of Industry, Trade and Cooperatives and accordingly gazetted. The Gazette notice was not adduced by either party as evidence but we note that this matter is not contested.

26. The evidence before the Tribunal indicates that the Respondent indeed released the goods through the Single Window which the Appellant has access to, the Appellant has not disputed the fact that the goods were released through the Single Window but rather indicates that they have not been released. Unfortunately, the Appellant did not articulate to this Tribunal the form and shape that a release of goods would take. The Respondent’s letter of 2nd August, 2019 addressed to the Appellant and copied to Commissioner of Customs, Kenya Revenue Authority and The Managing Director of Kenya Ports Authority expressly lifts the seizure and order of reshipment following waiver of Vitamin A fortification requirement by the Cabinet Secretary for Industrialization and Trade.

27. Based on the above account of events, it is our considered view that decision of the Respondent of condemning the Appellant’s goods and ordering for their re-shipment was subsequently vacated and communicated accordingly.

2. Whether the Respondent had released the subject matter goods 28. Having found that the Respondent vacated its decision that triggered the cause of action we now turn on the issue of whether the Respondent had as a matter of fact released the subject matter goods.

29. We do find sufficient documented evidence to the fact that the Respondent released the goods including letters and printouts of the Single Window system. We however take cognizance of the fact that the process of releasing goods is very much a joint effort between various stakeholders including the Kenya Revenue Authority and the Kenya Ports Authority among others. The Respondent while releasing the consignment that benefited from waiver on Vitamin A fortification advised the Appellant to engage the other stakeholders in having the goods released. This to us shows good faith and transparency on the part of the Respondent.

30. Given that the Respondent has pronounced itself on release of the goods through the Single Window System and as per the letters sighted by this Tribunal, it follows that what the Appellant suffers from is not a failure on the part of the Respondent to release the goods and as such we are of the view that the remedy for the Appellant probably lies elsewhere and not in this Tribunal. Needless to say, this Tribunal does not have jurisdiction over the other parties involved in release of goods such as the Kenya Revenue Authority and the Kenya Ports Authority among others.

3. Who should bear the costs of the suit? 31. The Tribunal makes no orders as to costs as we note that the Respondent has been cooperative in the process in terms of agreeing to re-sampling and re-testing request and engaging the Ministry of Industry, Trade and Cooperatives.

DATED AT NAIROBI THIS18TH DAY OF DECEMBER, 2019. Gladys Muthoni Mburu - (Chairperson)Hillary Sigei - (Member)Moses Sande Makhandia - (Member)Peter Mungai - (Member)Lul Abdiwahid - (Member)Delivered in the presence of: