[2019] KEST 103 (KLR)

REPUBLIC OF KENYA

IN THE STANDARDS TRIBUNAL

AT NAIROBI

TRIBUNAL APPEAL NO. 1 OF 2019

BETWEEN

NEW ITALYCOR LIMITED.....................APPELLANT

AND

KENYA BUREAU OF STANDARDS.....RESPONDENT

RULING

The appellant filed an application by way of Notice of Motion dated 8th January, 2019 alongside an appeal against the decision of the Respondent dated the same day. The Tribunal gave directions on 25th January, 2019 that parties file respective responses within 7 days and scheduled the matter for further directions on 22nd February, 2019.

On 22nd February, 2019, both parties appeared where it was noted that the Respondent had not filed any replying affidavit to the application but had filed a response to the main appeal dated 21st February, 2019. After long deliberations where Mr. Brian Mmbwaga for the Respondent and Mr. Morara holding brief for Mr. Mogire for the Appellant were fully engaged, the Tribunal directed parties to file their respective submission on the application by 26th February, 2019. It also reserved to deliver a ruling on 4th March, 2019.

The application dated 8th January, 2019 prays for the following orders;

a. That the appeal filed herein be certified urgent and be heard ex-parte in the first instance;

b. That the appellant be granted leave to lodge an appeal against the decision of the Respondent dated 6th December, 2018 and the appeal lodged herein be deemed filed within the stipulated period;

c. That the respondent be compelled to allow an independent test of the samples now held at the inland container depot in the presence of the appellant’s expert representative;

d. That the hearing of the instant appeal be fast tracked on account of the occurring costs and penalties as consequences of the Respondents’ decision made on 6th December, 2018 and 24th December, 2018;

e. That the costs of the motion be provided for.

It is instructive to note that at this stage, this Tribunal is not dealing with the merits of the appeal and as such shall limit its engagement to the interim prayers sought in the notice of motion. As already stated above, we have not sighted in the record any replying affidavit by the Respondent to the notice of motion application dated 8th January, 2019. We have only seen a statement of response to the appeal dated 31st January and filed on 21st February, 2019 as well as submissions dated and filed on 26th February, 2019. The Respondent did not also deem it fit to file an affidavit to answer or counter the averments contained in the appellant’s affidavit filed in support of the motion. As we speak the appellant’s factual averments have not been properly answered by an affidavit. In the absence of any replying affidavit from the Respondent, this Tribunal is left with no option but to find that the averments by the applicant are not controverted at all.

We now return to the prayer by the applicant. This Tribunal finds that in the main and at this stage, the prayer for resampling and testing is founded on the applicant’s believe that having obtained a certificate of conformity from the respondent’s authorized agent dated 15th October, 2018 from the country of origin, certificate no. CoC. No. S-2018/10/510674 the results of tests conducted by the Respondent on 11th November, 2018 resulting in the finding that the goods were substandard could be affirmed by a resampling and testing in the presence of its representative. A request was formally made on 14th December, 2018. It was responded to by a letter dated 24th December, 2018 which was delivered to the appellant on 3rd January, 2019. This letter declined any other tests. It gave no reason for the decline. We were unable to discern, in the absence of reasons in the letter and in absence any explanations by an affidavit on oath by the respondent the justifications for the decline.

We find it apt at this point to also address ourselves on the issue of timelines as was raised. It is not in dispute that under Section 9 (1) of the Standard Tribunals (practice and procedure) rules, an aggrieved party is required to appeal to the tribunal within 14 days of the decision appealed against. The decision to reject the goods was made on 6th December, 2018. It was communicated to the applicant on 14th December, 2018. The applicant could only appeal against this decision 14 days from the date of receipt of the decision, which is on or before 28th December, 2018. The applicant instead on the same date, sought a review of the decision whose rejection was communicated on 3rd January, 2019. The applicant filed the present application on 9th January, 2019. We find the appeal to have been properly admitted. In any event, this Honourable Tribunal has the discretion to extend time for parties where the time provided is not met provided the circumstances warrant and occasioning no prejudice to any of the parties.

The question this Tribunal agonized over is whether the request made by the applicant for resampling and testing was reasonable and justified? We also asked ourselves whether in law such requests are available to the person of the applicant. We went further to enquire whether there was any real or perceived prejudice the respondent and the public at large stood to suffer if the respondent were to grant the request. We find in the affirmative the question on the reasonableness of the request for resampling and in the negative the later. It is not conceivable why the respondent declined the request without reasons, most interesting is the fact that the applicant was willing to meet the cost of resampling and testing. We sought to be informed by Counsel for the Respondent whether such requests occur in the ordinary course of their business and the response was that they do.

For the above reasons, we find that the application is merited and hereby allows it in terms of prayer number 3.

We make the following orders;

a. The Respondent is hereby directed to conduct resampling and testing of the goods in the presence of the appellant’s duly appointed representative within 14 days of this date,

b. The applicant shall wholly meet the cost of resampling and testing to be conducted,

c. This matter be mentioned for submissions of the results of resampling and testing on 22nd March, 2019 for further directions,

d. Costs of the application shall be in the course.

Dated in Nairobi this 5th day of April 2019.

Hillary Sigei

(Member) ……………………………………………………

Moses Sande Makhandia

(Member) ……………………………………………..……

Peter Mungai

(Member) ……………………………………………………