[2022] KEHC 13679 (KLR)

Okoiti v Cabinet Secretary for the National Treasury (Petition 499 of 2017) [2022] KEHC 13679 (KLR) (Constitutional and Human Rights) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13679 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 499 of 2017

HI Ong'udi, J

October 13, 2022

Between

Okiya Omtatah Okoiti

Petitioner

and

Cabinet Secretary for the National Treasury

Respondent

Judgment

1. The petitioner filed petition dated October 5, 2017 seeking the following reliefs: -i.A declaration that:a.The respondent has violated the Constitution of Kenya.b.The impugned decision to allow the importation of duty-free sugar affects the general public, including sugarcane farmers and workers in the sugar industry across the country, who ought to have been but were not consulted before the duty waiver was granted.c.The duty waiver was not enacted in accordance with the Constitution and the applicable statutes rendering it invalid, null and void ab initio.d.Gazette notice No 9801 dated September 29, 2017, is unconstitutional and, therefore, invalid, null and void.e.Pursuant to section 11(4) of the Statutory Instruments Act gazette notice No 9801 dated September 29, 2017, is void and no legal effectii.An order:a.Quashing gazette notice No 9801 dated September 29, 2017, for being unconstitutional and, therefore, invalid, null and void.b.The costs of this suit be provided for.iii.Any other relief the court may deem just to grant.

Petitioner’s case 2. The petition is founded on articles 1(1), 2(1) & (2), 4(2), 10(2),19, 20, 21, 24,40, 41,43, 47, 73 (1) (b), 129 (1) & (2), 153 (4) (a), 232 (1) (a), (b), (c), (d), (e) & (f) and 259 (1) & (3) of the Constitution.

3. A summary of his case as set out in his petition and supporting affidavit sworn on even date, is that, vide a special issue of the Kenya gazette, Vol CXIX-No 146, published on October 4, 2017, the respondent issued gazette notice No 9801 dated October 29, 2017, allowing the importation of duty-free sugar by local millers. The said waiver was to apply to the sugar which would have been loaded into a vessel between September 1, 2017 and December 31, 2017 destined to a port in Kenya and consigned in a local sugar miller.

4. That the said gazette notice was issued contrary to section 5 of the Fair Administrative Action Act the reason being that the respondent did not:i.issue a public notice of the proposed administrative action inviting public views in that regard;ii.consider all views submitted in relation to the matter before taking the administrative action;iii.consider all relevant and material facts;iv.issue a public notice specifying the internal mechanisms available to the persons directly or indirectly affected for purposes to appeal.

5. He averred that the gazette notice was also issued contrary to sections 5, 6, 7, and 8 of the Statutory Instruments Act as the public was not consulted and no regulatory impact statement was prepared. That the respondent’s impugned actions violated article 10(2) on the rule of law, democracy participation of the people, non- discrimination, protection of the marginalized, good governance, integrity, sustainable development, transparency and accountability.

6. He deponed that, the duty-free importation and dumping of sugar on the local market had destroyed the local sugar industry. That allowing only sugar millers to import such sugar was discriminatory against other sugar importers. Further that contrary to the requirement that state actors be transparent, the impugned gazette notice did not give the names of each sugar miller benefitting from the waiver and the amount of tax affected by the waiver.

7. He averred that allowing the statutory instrument to be applied retrospectively to sugar which would have been loaded into a vessel on September 1, 2017 was tailor made for vested interests and designed to achieve an undisclosed collateral purpose which was contrary to articles 10 and 73(2) of the Constitution. It also amounted to violation of articles 129 and 153(3) of the Constitution.

8. He deponed that, over the years Kenya’s sugar industry has been destroyed through such importation and dumping of duty-free sugar on the local market. Further, the duties imposed on sugar are intended to protect the struggling local industry from sugar produced cheaply elsewhere, and to raise revenue for the government, including the realization of rights secured in article 43 of the Constitution. He avers that allowing the importation of duty-free sugar would complicate matters for the hundreds of thousands of sugarcane farmers and workers in sugar factories across the country. This is since the local sugar millers are licensed to produce sugar from locally grown sugarcane and have no business importing it unless they have abandoned their commission.

9. The petitioners further depone that there was no sugar shortage to warrant the decision to allow the importation of the duty-free sugar, and the impugned gazette notice did not set a limit of the quantities of importation of the said sugar. Without capping the same, the three months period allowed under the impugned gazette notice was enough to swamp the local market with so much sugar that the local industry would die. Moreover there was no Act of parliament authorizing the duty waiver on imported sugar as per section 77 (b) of the Public Finance Management Act.

10. Under the East African Community Custom Management Act (EACCMA) 2004, the origin of goods determined whether or not they could enjoy waivers or the quantities be stated. The gazette notice did not indicate the origin of the duty free sugar.

11. He averred that there was no way the impugned gazette notice could be issued under section 114(2) of the EACCMA 2004 and executive order No 1 of 2017. He urged this court to protect the rule of law and constitutionalism in general.

The Respondent’s Case 12. The respondent filed a replying affidavit by Dr Julius Monzi Muia sworn on October 25, 2021 together with grounds of opposition dated December 19, 2018. The grounds are that: -1. The petition is an abuse of the court process as the issues raised therein are overtaken, as the gazette notice was for a limited period, which has since lapsed and is already spent and the honourable court ought not be dragged into a mere academic exercise.2. The orders sought in the petition and the consequential orders thereto should the petition succeed, would have adverse effects on the interest of third parties who on the basis of the gazette notice imported sugar and are not parties to the petition.3. As per article 50 as read together with article 47, it is only fair and just that the third parties who relied on the gazette notice be granted an opportunity to be heard.4. The petitioner has misapprehended the provisions of the impugned gazette notice as read together with the provisions of the EACCMA section 114 as read with section 20 of the fifth schedule.5. The petition has failed to meet the threshold for specificity in drafting as elucidated by the principles in the case of Anarita Karimi Njeru v Republic (1979) 1 KLR 154 reiterated in by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance, civil appeal No 290 of 2012. 6.The petition is vague and does not raise issues for constitutional interpretation by this honourable court and therefore ought to be struck out with costs to the respondents.

13. In the replying affidavit, the respondent deposed that between 2016 and 2017, there was a severe drought and famine experienced in various parts of Kenya. As a result, it was declared a national disaster by the President through executive order No 1 of 2017 dated February 10, 2017.

14. The prolonged drought culminated in a severe shortage of vital food stuff primarily maize which caused a sharp price escalation thereby reducing the purchasing power of Kenyans. It was thus decided that white maize that met the standards required for human consumption be allowed to be imported duty free to supplement what was available in the country. In addition, it was decided that registered animal feed manufacturers be allowed to import specific quantities of yellow maize for use in the manufacture of animal feed in order to remove pressure on the white maize. This led to the publication of the gazette notice No 3575 of April 2017 wherein the importation of ordinary maize was not restricted.

15. He averred that in late April and early May 2017, the prices of other commodities such as milk and sugar continued to escalate. Subsequently, various meetings were held and it was decided that the commodities, sugar and milk powder that were in short supply would be imported duty free in order to increase their availability and therefore reduce the prices. Consequently, on May 11, 2017, gazette notice number 4536 was published indicating that duty on sugar imported by any person with effect from the date of the gazette to August 31, 2017 and nine thousand tonnes of milk powder imported by the milk processors, with the authority of the Kenya Dairy Board and with effect from the day of the notice to July 31, 2017 that duty would not be paid.

16. He deposed that the exemption on duty on the said importation of the said items is and was in line with the provisions of section 114(2) of the EACCMA, fifth schedule, part B item 20 that provides for exemption from import duty in respect of relief goods imported for emergency use in specific areas where natural disaster calamity has occurred in a partner state.

17. He averred that the duty-free importation of the affected commodities was time bound and not quantity bound due to previous experiences where issues of unfairness were raised with regard to importation. It was thus decided that the importation window would be open for everyone for a short period to enhance fairness in the opportunity to import the commodities. There was also a caveat that the gazette notice only waived the duty on the sugar but all other regulatory requirements including those on quality and standards were to be adhered to.

18. He deposed that on September 12, 2017, the Cabinet Secretary, Ministry of Agriculture Livestock and Fisheries wrote the Cabinet Secretary for the National Treasury & Planning and provided a list of registered sugar importers who had experienced delays in shipping their approved consignments and therefore their sugar had not been imported into the country by August 31, 2017 as per the gazette notice. The request was that the said sugar companies should not be locked out of the duty-free importation.

19. Further, on September 19, 2017, the Cabinet Secretary, Ministry of Agriculture, livestock and Fisheries, wrote another letter to the Cabinet Secretary, the National Treasury to provide details of the quantities that each company shipped and the bill of lading under which the quantities were being imported. Gazette notice No 4536 of May 12, 2017 was amended by gazette notice No 9802 of October 4, 2017 to allow any sugar loaded into a vessel destined to a port in Kenya to be declared duty free.

20. He averred that the Ministry of Agriculture and Livestock and Fisheries recommended the support of local sugar industries by allowing them to import duty free sugar into the country up to December 31, 2017. This was due to underutilization of factories due to shortage of cane. As a result, the gazette notice of October 4, 2017, was published to provide that import duty shall not be payable on the sugar which will have been loaded into a vessel between September 1, 2017 and December 31, 2017 destined to a port in Kenya and consigned to a local miller.

21. On October 10, 2017, the Cabinet Secretary, Ministry of Agriculture, Livestock and Finance after analysis on the sugar situation in the country, advised that gazette notice of October 2017 be revoked. The National Treasury having considered that some millers may have ordered sugar based on the gazette notice, decided that rather than revoking the said gazette notice, the deadline for importation was moved from December 31, 2017 to October 13, 2017 by an amendment to gazette notice No 9801 through gazette notice No 10149 of October 13, 2017.

22. The quantities of sugar imported during the duty-free window was 920, 571 MT. He deposed that the decision to allow importation of duty-free sugar was intended to cushion Kenyans from the escalating prices of this basic commodity in the wake of a prolonged drought. Further that the gazette notice dated September 29, 2017 was issued in line with the EACCMA 2004 and executive order No 1 of 2017. The said gazette notice lapsed on October 13, 2017.

The Petitioner’s Submissions 23. The petitioner filed submissions dated October 30, 2017 raising the following issues;i.Whether the court has jurisdictionii.Whether the petitioner has locus standi to institute these proceedingsiii.Whether the petition qualifies as public interest litigationiv.Whether procedural fairness has been afforded to the respondent in these proceedingsv.Whether the Public Finance Management Act, East African Community Customs Management Act 2004, the Sugar Act 2001, articles 40, 43, 129, 153(4) of the Constitution, the rights to Fair Administrative Action, and legitimate expectation were violated.vi.Whether there was public participationvii.Whether the duty of waiver is opaque, discriminatory, corrupt and unreasonableviii.Whether the gazette notice No 9801 of September 29, 2017 is voidix.Whether orders sought should be grantedx.Whether costs are payable

24. On whether the court has jurisdiction, he submitted that by dint of article 3(1), 23, 48, 159 and 165(3) of the Constitution this court has jurisdiction to hear and determine this petition. Relying on articles 3(1), 22 and 258 of the Constitution and the cases of Kiluwa Limited & another v Commissioner of Lands & 3 others [2015] eKLR and Timothy Otuya Afubwa & another v County Government of Trans Nzoia & 3 others [2016] eKLR, he submitted that he has the locus to move this court.

25. He submitted that he has met the tests of bona fide public interest litigation. He relied on the article “advancing human rights and equality through public interest litigation”, and the cases of Thakur Bahadur Singh and another v Government of Andhra Pradesh and … on September 23, 1998, and People’s Union for Democratic Rights & others v Union of India & others (1982) 3 SCC 235 for that argument.He argued that procedural fairness has been met since the respondents, filed its pleadings and submissions.

26. On whether the Public Finance Management Act was violated, he reiterated that section 77 (b) of the Public Finance Management Act only allows the respondent to waive a national tax, a fee or charge imposed by the national government and its entities where such a waiver or variation has been authorized by an Act of Parliament. There was no Act of Parliament authorizing the impugned duty waiver on imported sugar.

27. He submitted that section 114(2) of the EACCMA 2004 and executive order No 1 of 2017 cited by the respondent cannot be a legal basis for effecting the duty waiver on sugar imports. That the EACCMA is not an Act of Parliament anticipated in section 77 (b) of the Public Finance Management Act and this also applies to the executive order. thus, the respondent abused powers and violated section 77 (b) of the Public Finance Management Act.

28. On whether the EACCMA 2004 was violated, he argued that there is no way the impugned gazette notice could be issued under section 114 (2) of the said Act and the executive order No 1 of 2017 for the following reasons:i.the unnamed sugar millers are not government or its approved agents or a non- governmental organization or a relief agency anticipated under the Act;ii.the impugned gazette notice does not state that the duty free sugar will be used as relief food only in those areas specified in the executive order;iii.the impugned gazette notice does not set a limit on the amount of sugar to be imported duty free;iv.there is no evidence that the respondent has complied with the requirement that the commissioner shall submit a notification of the exemption detailing the description of the goods and quantities to the director for circulation to their partner states.He added that even though the EACCMA 2004 is not the relevant law, there is no evidence that the impugned gazette notice was issued pursuant to the regime for tax waivers under section 114(2) of the said Act.

29. Relying on sections 26, 27(1), 33 of the Sugar Actand section 3(m) of the second schedule to the Sugar Act and Sugar (imports, Exports and by products) Regulations, 2008, he submitted that the respondent has no role to play in the importation of sugar and clearly acted ultraviresthe Sugar Act 2001 when he issued the impugned gazette notice.

30. On whether there was public participation, and while relying on articles 10 (2) (a) and 232 (1) (d) of the Constitution; section 5 , 6 and 7 of the Statutory Instrument Act; and the case of In the Matter of the Principle of Gender Representations in the National Assembly and the Senate [2012] eKLR, he submitted that the respondent issued the impugned gazette notice without consulting the sugar industry players, including the sugarcane farmers in the sugar belt before it decided to allow the importation of duty free sugar. It also failed to prepare a regulatory impact statement prior to allowing the importation of duty-free sugar.

31. He referred to some two reports by Western Development Initiative Association and a Committee on Agriculture, Livestock & Co-operatives which discouraged the dumping of various types of sugar in the country. It was recommended that such sugar should be destroyed publicly.

32. Making reference to section 5 of the Fair Administrative Action Act, he submitted that there was no effective public participation before the respondent allowed the importation of duty- free sugar. Thus the said provision was violated. He also submitted that article 47 was violated by the respondent’s actions. He relied on Republic v Kenya Power & Lighting Co Ltd & another(2013) eKLR; Republic v National Police Service Commission exparte Daniel Chacha (2016) eKLR; and President of the Republic of South Africa and others v South African Rugby Football Union and others (CCT16/98) 2000 (1) SA 1 to buttress this submission.

33. The petitioner submitted that the duty waiver is opaque to the extent that it does not give the names of the sugar millers benefitting from it and the amount of tax affected by it and does not state how much tax revenue is to be lost. He submitted that by deliberately creating the impugned statutory instrument to be applied retrospectively to sugar which would have been loaded into a vessel on September 1, 2017, the respondent was tailor making it for vested interests amounting to corruption which is contrary to the national values and principles of governance in article 10 of the Constitution.

34. He argued that it is unreasonable that the local sugar millers who are licensed to produce sugar from locally grown sugarcane, are the ones licensed to import and dump on the local market the very duty-free sugar that had destroyed the industry and was aimed at protecting a special sector. Further, there is no known sugar shortage to warrant the decision to allow the importation of duty free sugar.

35. On whether articles 129 and 153 (4) of the Constitution were violated, he submitted in the affirmative and added that the respondent’s impugned actions are contrary to article 153(4) of the Constitution which enjoins him to act in accordance with the Constitution. He further submitted that the duty waiver is a threat to the bill of rights to the extent that the revenues realized from the duties imposed on sugar are required by government for realization of rights secured in article 43 of the Constitution. Further, that the destruction of the sugar industry would affect the livelihoods of hundreds of thousands of farmers and their dependents who rely on the industry.

36. He went on to submit that if the importation of duty-free sugar is allowed, it will complicate matters for the hundreds of thousands of sugarcane farmers and workers in sugar factories across the country. That, contrary to article 40, gazette notice No 9801 of September 29, 2017, allowing the importation of unspecified quantities of duty-free sugar by unnamed sugar millers, would result in the dumping of cheap sugar on local market. The result would lead to arbitrary deprivation of the property rights of peasant farmers and other investors in the sugar industry as the sugar market will be distorted.

37. He argued that he had the legitimate expectation that the respondent, being a state officer, would execute his mandate in strict compliance with the Constitution and the applicable law, but he did not. That all matters to do with importation of sugar should, in accordance with the law, be left to the directorate of sugar under the Agriculture Fisheries and Food Authority. Arguing on the impugned gazette notice No. 9801 of September 29, 2017 is void, he stated that the same is void as it was not laid before Parliament as required by section 11(1) of the Statutory Instruments Act, resulting in its being voided automatically by the action of section 11(4) of the Act. Further relying onDrChristopher Ndarathi Murungaru v AG and another, civil application No Nai 43 of 2006 (24/2006); Republic v Wilfred Onyango Nganyi & another [2008] eKLR he added that rule making procedures should be followed by administrative agencies as failure to comply rendered them invalid.

38. He urged the court to apply the doctrine of void ab initio to the gazette notice. Adding that administrative agencies can make rules only when rule making power is delegated to them by statute or the Constitution and that if an agency exceeds the power conferred by statute in making a rule, the rule made is void. He again argued that the fact that regulations made by an agency are reasonable or popular does not prevent them from being invalid. He refuted that the doctrine of necessity could be invoked in this matter outside article 58 of the Constitution.

39. He referred to an academic paper published in the Indiana Law Journal, titled, “Effect of an unconstitutional Statute; Carr, Auditor v State ex rel Coetlosquet, 127 Ind 204, 215; Chicago, Indianapolis, & Lousville Railway Company, Plff In Error, v Haynes L Hackett No 899; Norton v Shelby County(ii)He secondly referred to the second session of the eleventh parliament, titled, Communication on the Procedure for Consideration of Delegated Legislation, and submitted that the legal instrument was never placed before Parliament as required under section11(1) of the Statutory Instruments Act.

40. He submitted that being that there is no evidence that the impugned gazette notice has been withdrawn or otherwise nullified through administrative action, the orders sought are appropriate and should be granted.

41. On costs, he urged that the petition be allowed as prayed with costs being borne by the respondents. Relying on Erick Okeyo v County Government of Kisumu & 2 others (2004) eKLR. He further relied on the case of Biowatch Trust cited as CCT 80/2008 or 2009 ZACC 14, he submitted that should the suit fail, the costs should not be awarded to the respondents this being a matter between a private citizen and state.

The Respondent’s Submissions 42. The respondent filed submissions dated October 25, 2021 through the office of the Attorney General. Relying onB v Attorney General[2004] 1 KLR 431, counsel argued that the petition has been overtaken by events on the premise that the legal notice No 9801 provided for timelines for the importation of sugar duty free up until December 31, 2017. Further relying on Anarita Karimi Njeru v Republic 1(1979) and Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR, he argued that the petition ought to be dismissed as it lacks specificity.

43. He contends that the petition has provided little or no particulars as to the allegations and the manner of the alleged infringements of the law. That the petitioner has failed to specifically state which farmers and to what extent the alleged farmers were affected by the impugned gazette notice. Further he has failed to outline which rights have been violated beyond mentioning the same contrary to rule 10 of the Mutunga Rules.

44. He submitted that whereas the petitioner has claimed that the impugned gazette notice threatened the livelihood of thousands of sugarcane farmers and workers employed in sugarcane factories across the country, he has failed to provide cogent reasons for the assertions. In any event, he has by his own admission, indicated that one of the main causes of the decline of the sugar industry among others is the flooding of illegal sugar and cane poaching and not the directive by the respondent. Thus, the petition fails and should be dismissed.

45. Reiterating the contents of the replying affidavit as to the severe drought and issuance of the executive order No 1 by the President, he argued that the actions of the respondent were lawful having acted within the provisions of the law to safeguard the people of Kenya from disaster. Further the exemption from import duty was well within the provisions of the EACCMA. He adds that the actions of the respondent were in accordance with the law and demonstrative of the state’s commitment to provide for its people and ensure the realization of the rights of individuals under article 43 of the Constitution.

46. Counsel reiterated that the evidence adduced by the respondent demonstrated that the duty- free importation of the affected commodities was timebound in a bid to ensure fairness and not open ended so as to disenfranchise farmers in the country. That the gazette notice only waived the payment of the duty on sugar but importers were required to adhere to all other regulatory requirements, including those on quality and standards in line with the provisions of article 43.

47. Relying on Council of Civil Service Unions v Minister for the civil Service[1985] AC 374 on the grounds to be considered when determining whether an administrative action was ultravires, he argued that the petitioner has failed to demonstrate that the respondent’s actions fell within any of the grounds outlined therein. Hence as held in Republic v National Water Conservation & Pipeline Corporation & 11 others this court should down its tools where it fails to sniff any illegality, irrationality or procedural impropriety. Further that the petitioner has failed to meet the requirements of section 107 of the Evidence Act, hence the claim for unfair administrative action must fail.

48. He drew this court’s attention to the implication of the orders sought by the petitioner. He thus submitted that during the period when the impugned gazette notice and related notices were in place, a total of over 920, 571 MT of sugar was imported into the country by private entities. The said private entities, are not parties to the petition and have not had the benefit of having their day in court. Any orders to be issued will adversely affect their rights without them being heard.

49. Relying on Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (interested party) [2020] eKLR, he argued that it is just and fair that this court declines to grant the orders sought by the petitioner in public interest. This is due to the potential devastating effects on the unsuspecting public who despite acting lawfully during the subsistence of the gazette notice five years ago have not had their day in court and who would be adversely affected by the grant of any orders. He urged that the petition be dismissed in totality.

Analysis And Determination 50. Having carefully considered the parties’ pleadings and submissions and from the same the following issues arise for determination: -i.Whether the petition has met the threshold for a constitutional petitionii.Whether the petition is moot

Issue no (i). Whether the petition has met the threshold for a constitutional petition 51. The respondent submitted that the petition ought to be dismissed as it lacks specificity; It has provided little or no particulars as to the allegations and the manner of the alleged infringements of the law; the petitioner has failed to specifically address himself to which farmers and to what extent the alleged farmers were affected by the impugned gazette notice. That the petitioner has further failed to outline which rights have been violated beyond mentioning the same contrary to rule 10 of the Mutunga Rules and has failed to meet the threshold in section 107 0f the Evidence Act.

52. In a constitutional petition, a party that alleges violation of rights must plead his or her case with reasonable precision on the way the rights have been violated. This principle was set out in the case of Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272 which was upheld by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR which observed as follows:“…The principle inAnarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch D 637 at 639 holds true today:“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”The petition before the High Court referred to articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.”

53. Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) provides for the form a petition should take.In Timothy Njoya v Attorney General & another[2014] eKLR Lenaola J held: -“I agree with the above reasoning, and with respect, the petitioner cannot come to court to seek facts and information he intends to use to prove the very case that he is arguing before the court. He must also plead his case with some degree of precision and set out the manner in which the Constitution has been violated, by whom and even state the article of the Constitution that has been violated and the manner in which it has been violated”

54. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR held that:“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”Also see Humphrey Mutegi Burini & 9 others v Chief of the Kenya Defence Forces & another [2017] eKLR, by Mativo J (as he then was)

55. It is evident that for a constitutional petition to be sustainable the petitioner must cite constitutional provisions, and precisely identify the provisions that are alleged to have been violated or threatened with violation. He/she must also demonstrate the manner in which the said provisions have been violated or are threatened with violation from the facts and evidence of the case. Looking at the present petition, I agree with the respondent that the petitioner has only stated the constitutional provisions violated but has failed to demonstrate how they have been violated and the harm suffered if any.

56. I however also note that in the case of Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (interested party); With Kenya Human Rights Commission & another (amicus curiae) (petition 229 of 2012) [2012] KEHC 2480 (KLR) (Constitutional and Human Rights) (20 September 2012) (Judgment), the judges stated: -46. We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that ……… The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.47…. Indeed, both the respondents and the interested party have proceeded from this understanding. They have sought to explain at length the contours of article 73 and chapter six of the Constitution in response to the petitioner’s allegations. If one needed evidence that these parties understood the claim facing them, it is to be found in their various papers filed in court and the oral submissions made in court. This being a constitutional issue of immense public importance and interest, we refuse to worship at the altar of formal fetishism on this issue and hold that the controversy at issue has been defined with reasonable precision to warrant a proper judicial determination on merits.”

57. In view of the above cited case law, it is clear that a respondent has to be given proper notice about the nature of the claims being made so that he/she can adequately prepare their case. The court therein while noting that the said case was not an epitome of precise, comprehensive, or elegant drafting, it nonetheless finds that the complaints raised by the petitioner are concrete enough for the court to consider. I also note that the respondent understood the claim and that is the reason why he substantively responded to it.

58. Although I note that the petition is not pleaded with precision as required I am persuaded to consider it as it can be deciphered from the petition what the real issues in the matter are.

Issue no (ii). Whether the petition is moot 59. The respondent raised this issue in his grounds of opposition. He also noted in the replying affidavit that the impugned gazette notice being referred to by the petitioner, lapsed on October 13, 2017. The petitioner did not respond to this issue. This petition is dated October 5, 2017 and was filed on the same day, which was about a week to the lapse of the gazette notice.

60. In the case of Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi[2019] eKLR the court stated: -.“26. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.[17]

27. The legal doctrine known as 'mootness' is well developed in constitutional law jurisprudence. Accordingly, a case is a moot one if it.[18]“...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

28. Furthermore, a case will be moot-[19]“…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”

61. The petitioner has sought for declarations and a judicial review order. To wit, a declaration that the respondent has violated the Constitution of Kenya; that the impugned decision to allow the importation of duty free sugar affects the general public, including sugar cane farmers and workers in the sugar industry across the country, who ought to have been consulted before the decision; the waiver was not enacted in accordance with the Constitution and the applicable statutes rendering it invalid, null and void; the gazette notice No 9801 of September 29, 2017 is unconstitutional, therefore, invalid null and void; and pursuant to section 11(4) of the Statutory Instruments Act, and the gazette notice has no legal effect. On judicial review, he has sought an order to quash the impugned gazette notice.

62. This petition was birthed as a consequence of the impugned gazette notice. The said gazette notice or decision was to run for a limited period. As evidenced by the parties’ pleadings, the said period lapsed on October 13, 2017.

63. From the detailed response by the respondent it is clear that a good number of Kenyans made use of the directions contained in the impugned gazette notice, and imported sugar which is no longer in the market. It is now five (5) years since the gazettement of the said gazette notice, and the beneficiaries of the same plus the executive order by His Excellency the President (now retired) are not parties in this petition. Any orders if made will affect them yet they have not been heard which will be a new violation of article 47 of the Constitution and the Fair Administrative Actions Act.

64. My humble finding is that the petition has been overtaken by events. Any orders issued will not be effected in the circumstances. Having found that the petition is moot and overtaken by events it would be immaterial considering the other issues raised in the petition.

65. The upshot is that the petition fails and is dismissed. This being a public interest case I order each party to bear its own costs.

Orders accordingly.

DATED AND SIGNED THIS 11THDAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13THDAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDEJUDGE OF THE HIGH COURT