[2022] KEHC 201 (KLR)

Republic v Commissioner General, Kenya Revenue Authority & 2 others; Cup of Joe Limited (Exparte) (Judicial Review Application E051 of 2021) [2022] KEHC 201 (KLR) (22 March 2022) (Judgment)

Neutral citation: [2022] KEHC 201 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Application E051 of 2021

JM Mativo, J

March 22, 2022

Between

Republic

Applicant

and

Commissioner General, Kenya Revenue Authority

1st Respondent

James Githii Mburu

2nd Respondent

Attorney General

3rd Respondent

and

Cup of Joe Limited

Exparte

Judgment

1. This ruling determines two applications, namely, the ex parte applicant’s application dated 28th December 2021 and the Hon. Attorney General’s application dated 7th January 2022. The common factor between the two applications is that they all relate to a consignment comprising of 82 containers containing tea imported into the country by the ex parte applicant between April 2021 and June 2021. The said consignment was detained by the Respondents under instructions of the Director of Criminal Investigations.

2. The point of divergence is that the two applications seek diametrically opposed orders. In its application dated 28th December 2021, the ex parte applicant seeks an order of certiorari to quash an oral decision communicated to it by a one Thomas Karubee on 17th November 2021 refusing and or declining to release the said consignment held at the Regional Logistics Center at Changamwe, Mombasa. It also prays for an order of mandamus directing the Respondents to immediately release the Tea the subject of Bill of Lading No. 5 Container No. SAS1073SCSMO0267, BL No. SAS10745SCSM1332, BL No. SAS10745SCSM1333, BL No. SAS1075SCSM2371, BL No. SAS1075SCSM2372, BL No. SAS1075SCSM2416, BL No. SAS1075SCM2454, BL No. SAS1075SCSM2455 and COSU+6296346410. Lastly the applicant prays that the Respondent be condemned to pay special and punitive damages and any other orders as the court may deem fit.

3. Vide an application dated 30th December 2021, the Hon. Attorney sought to be enjoined in these proceedings which application was allowed by consent of the parties on 6th January 2022. Vide his application dated 7th January 2022, the Hon. Attorney prayed that the court visits the Regional Logistics Centre, the Container Freight Station where the 82 containers are currently held for verification. He also prayed for an order that the consignment be forfeited to the state and that the consignment be destroyed or re-shipped back to the country of origin. Alternatively, the Hon. Attorney General prays that the consignment be offloaded at the Port of Mombasa and be declared not fit for trading or any dealing in Kenya. Lastly, the Hon. Attorney General prays for costs of the application.

4. In order to put the two applications into a proper perspective, it is necessary to highlight, albeit briefly, the factual chronology of events which triggered the applications. Luckily, the factual matrix is substantially common ground or uncontroverted. For starters, the applicant imported 82 containers of tea from Iran and Vietnam for the purposes of blending and eventual re-export to overseas markets. It states that its authority to import tea was granted vide a license dated 26th September 2021. Also, it states that the containers were stored at the Regional Logistics Centre at Changamwe, a designated custom area as provided by the East African Community Customs Management Act (EACCMA). There is no contest that on 12th October 2021, the Commissioner General, Kenya Revenue Authority (KRA) granted written authority for the tea to be released for blending and packaging at the Chai Warehousing Bonded Warehouse in line with customs procedures and Regulations in conformity with section 4 (1) of EACCMA.

5. The applicant also states that on 17th November 2021, it dispatched 30 trucks to ferry the containers but they were refused by a one Thomas Karubee citing instructions not to release the tea but no written reasons or explanations were provided, and, owing to this turn of events, it initiated these proceedings but upon serving the suit papers, the 1st Respondent lodged a complaint with the Directorate of Criminal Investigations (DCI) who arrested the applicant’s director a one Joseph Kamau Kiminda, but he was subsequently released without any charges only to be re-arrested on allegations of having been engaged in terrorist activities, and again he was released without any charges. The applicant states that the continued detention of the tea has resulted in accumulation of where house rent to its detriment, and, there is a danger of the tea going bad. Also, it risks losing its contracts.

6. The application is opposed. The 1st and 2nd Respondents filed the Replying affidavit of Thomas Kirotich Karube, an officer of the 1st Respondent appointed under section 13 of the Kenya Revenue Authority Act1(KRA Act) dated 28th December 2021. He averred that he is currently based at the Regional Logistics Centre Container Freight Station (CFS) Mombasa and Head Verification Officer, and that he is responsible for releasing entries after payment of taxes and any other duties as allocated to him by his superiors. He deposed that its improper to sue the 3rd Respondent for performing his official functions, and in any event, no prayers have been sought against him. He averred that the applicant’s application is defective to the extent that it contains prayers not pleaded in the Statutory Statement.1Act No. 2 of 1995.

7. Mr. Karbue deposed that KRA works with other government agencies which have not been enjoined in this case, and, under section 16 of EACCMA, all imports into Kenya whether on transit or for local consumption are goods under customs control and must be cleared by the customs department before release. He averred that the applicant’s tea imported from Iran and Vietnam arrived in 4 batches as detailed at paragraph 18 of his affidavit, and, that the goods were not declared within 21 days as per section 34 (1) of EACCMA. He averred that it was only on 15th November 2021 when the applicant’s clearing agent presented to him clearing documents, among them 5 entries as follows; 2021MSA7908716, 2021MSA 7908722, 2021MSA7907528, 2021MSA7908718 and 2021MSA7902142.

8. Additionally, he deposed that among the customs import documents were 4 other attachments consisting of approval letter for goods to be transferred to the custom bonded facility No. BMSA 566 by Deputy Commissioner Revenue and Regional Coordination, Pre-import application approval dated 28th September 2021, Release order of Tea Board of Kenya dated 19th September 2021 and KEPHIS Release Order. He averred that the letter by the Regional Coordinator allowed the Iranian Black Tea to be warehoused at the customs bonded facility by the entry No. 2021MSA 7908718 and 2021, SMSA7902142 since the agent had used a wrong Customs Procedure Code W705 instead of W700, so, he only processed 3 entries which were correctly presented.

9. Mr. Karubee further averred that based on the approvals by the respective government agencies, namely, KEPHIS, Tea Board of Kenya (TBK) and Customs and Border Control, he initiated the transfer process of the three consignments to the customs bonded facility, but on 18th November 2021 he received instructions from the Chief Manager, Port Operations, through an e-mail and oral communication that he should stop further processing of the consignments because they were under investigations by the DCI, so, he stopped processing the consignments.

10. He averred that he personally witnessed a multi-agency verification which was done on the 82 containers between 8th September and 17th September 2021. He deposed that among the government agencies represented during the said exercise were officers from the DCl, Kenya Tea Board, Kenya Plant Health Inspectorate Services, Kenya Bureau of Standards and the KRA. He averred that the DCl is currently seized of the matter and he is investigating the circumstances under which the permit to import was granted among other offences, and that, vide a letter dated 28th December 2021, the DCI advised KRA not to release the consignment because it was under investigations, and, that, KRA is ready and willing to release the consignment depending on the outcome of the investigations.

11. Also, on record on behalf of the Respondents is the Replying affidavit dated 28th December 2021 sworn by a one PC Kibet Langat who investigated this case. He averred that sometimes in August 2021 the DCI received intelligence information that there were some tea consignments irregularly imported into the country. He averred that he was one of the officers assigned to follow up and verify the authenticity of the information and recommend the necessary actions to be taken and after investigating, he made the following findings: -i.That vide a letter dated 2nd June 2021, the applicant through its managing director wrote to the Agriculture and Food Authority requesting for approvals to import black orthodox teas, and vide a letter dated 7th June 2021 the Acting Director, Tea Board of Kenya requested for additional information concerning the intended importation. Vide a letter dated 8th June 2021, the applicant responded to the Tea Board of Kenya providing the additional information.ii.That on 23rd August 2021, the Tea Board of Kenya wrote to the Commissioner, Intelligence and Strategic Operations Department within the Kenya Revenue Authority informing KRA of its roles and particularly with regard to section 31 of the Tea Act, 2020. iii.That on 25th August 2021, the Tea Board of Kenya acting Chief Executive Officer, a one Peris Mudida wrote to the applicant’s Managing Director declining their request to import the black orthodox teas on grounds that the said tea was available in the local market and tea auction in Mombasa and as such the same contravened section 31 of the Tea Act.iv.That on 27th August 2021, the Tea Board of Kenya again wrote to the Commissioner Intelligence and Strategic Operations Department, Kenya Revenue Authority informing it that there were 82 containers of processed black tea belonging to the applicant imported without pre-import approval and that the containers were being held at the Regional Container Freight Station in Mombasa and the Tea Board of Kenya requested KRA to share information and take further action within the confines of the law.v.That vide a letter dated 2nd September 2021, the applicant expressly admitted that the tea they sought to import was locally available hence contravening section 31 (1) (a) of the Tea Act.

12. He averred that despite the said anomaly, the applicant was able to obtain a permit to import the tea into Kenya thus, raising the suspicion. He averred that on 2nd June 2021, the applicant’s director wrote to the Agriculture and Food Authority requesting for approvals to import despite the fact that the consignment was discharged on 13th April 2021 and on 26th May 2021 it had already been offloaded at the Port of Mombasa, a manifestation that the consignment had already been imported without pre-shipment import approval, hence, the need for further independent investigations. Mr. Langat deposed that the DCI is currently seized of the matter and he is investigating the circumstances under which the permit to import the tea was granted among other offences and that the investigations are at an advanced stage and several persons including the applicant’s Managing Director have been identified for prosecution.

13. The Hon. Attorney General’s application is founded on the grounds that the applicant had no authority to import the tea from the TBK, that the tea falls into the category of restricted goods within the meaning of section 2 of the EACCMA and that the consignment falls for destruction as provided under section 210 of EACCMA. The Hon. Attorney General also states that the applicant is guilty of material non-disclosure and that he failed to declare what he was importing in some instances, and, that there were discrepancies of what was imported as indicated in the bill of lading, while in some instances the applicant refers the contents as black tea, green tea, orthodox tea, maize (corn), butane and in other instances, the applicant failed to declare.

14. Additionally, the Hon Attorney General states that the documents submitted to the KRA and the Kenya Ports Authority exhibit material differences, so, the applicant is not honest in its dealings. Also, the Hon Attorney General states that the Kenya Ports Authority System container detail indicates that the commodity description was different from declaration made to the KRA because 50 out of 80 containers imported from Iran contain corn while 30 contain no description. Also, 2 containers from Vietnam were said to contain Butane. Additionally, the Hon Attorney General states that the applicant “most probably” sought approvals from Agriculture and Food Authority for importation of black orthodox teas after the investigations were began, and, after importing the tea contrary to provisions of EACCMA.

15. Further, the Attorney General states that vide a letter dated 25th August 2021, the Tea Board of Kenya wrote to the applicant declining their request to import the black orthodox tea on grounds that the tea was locally available and also at the tea auction in Mombasa, and, that the applicant admitted contravening section 31 of the Tea Act. As a consequence, the Hon. Attorney General states that the goods are illegal and prohibited as provided by section 200 of EACCMA, and, that the applicant is guilty of various malpractices among them noncompliance and tax evasion, importing tea without approval, making conflicting declarations. Additionally, the Hon AG states if the goods are released, the Kenyan market is in danger of receiving illegal and harmful tea unfit for human consumption based on the reputation of the country of origin, namely, Vietnam and Iran.

16. At the commencement of the hearing on 11th March 2021, Mr. Kibunja, the applicant’s counsel informed the court that he had filed a Reply to the Hon. AG’s application and a list of documents and that he would avail copies to the court. On 14th March 2021 when the matter came up for further hearing, I notified Mr Kibunja that the said affidavit was still not in the court file and he promised to avail it the same day, so, I allowed the parties to proceed with submissions. However, instead of availing duly filed copies as promised, the applicant’s counsel proceeded to file the affidavit on 14th March 2022 at 2. 09pm after I had reserved the matter for judgment. The said documents were filed out of time, without leave after parties had submitted. They are not properly on record, so, I will not consider them.

17. I am alive to the fact that judicial Review is ill equipped to deal with disputed matters of fact which involve fact finding on issues which require proof to a standard higher than the ordinary balance of probabilities in civil litigation. This position was underscored in Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo2 :-2{2015} e KLR.“55. It follows therefore that where the resolution of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review. The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”

18. Judicial review looks into the legality of the dispute not contested matters of evidence. The other important issue to note that is the need to bear in mind that determining contested issues of fact may involve a merit review, a function that is outside the purview of Judicial Review jurisdiction, save in very restricted grounds. Conscious of the ambit and scope of judicial review and bearing in mind the nature of the Hon. AG’s application and the core dispute which required verification of the contents of the consignment, on 28th January 2022 after hearing both parties, I ordered that the two applications shall be heard together, and, that the deponents to the affidavits shall be cross-examined on oath.

19. On 4th February 2022, hearing proceeded at the the Regional Logistics Center at Changamwe, Mombasa. CI Geoffrey Ndathi, the deponent to the affidavit in support of the Hon. AG’s application commenced his evidence in chief. His testimony was essentially a replication of his affidavit, so, it will add no value to rehash it here. At the site, the court witnessed the opening and verification of 2 containers in the presence of all the parties. All the parties confirmed that the contents were tea. As for the remaining 80 containers, the court with the concurrence of the parties directed that the verification exercise be undertaken in the presence of the court’s Deputy Registrar (DR) who would prepare a report and file it in court. Upon completing the process in the presence of the parties, she prepared the report dated 8th March 2022. Her key observations are that all the parties were in agreement that the consignment was tea, that some of the sacks were branded the country of origin and production and expiry dates. The parties were unable to agree whether container number TBU 9650954 contained tea because the contents looked different from the other containers while in container BSIU 9840128, she noted that there was a half sack which had a mixture of tea and wood chippings while container number TCNU 9529095 had 4 open sacks while some packages had no expiry dates.

20. C.I. Ndathi informed the court that he by passed the ODPP and purported to charge the applicant’s director in court. His evidence was that he was investigating alleged irregular tea imports. He testified that after the attempt to arraign the applicant in court in December 2021 or thereabouts, he forwarded his investigation file to the Office of the Director of Public Prosecutions (ODPP), but to date, he has not received any communication from the ODPP. He stated that Mr. Kiminda was also investigated for the alleged involvement in terrorist activities, but the case was withdrawn and the court file closed and his cash bail refunded. Upon further cross-examination CI Ndathi stated that the investigations are still ongoing, hence the need detain the consignment which may be used as exhibits in court.

21. Mr. Joseph Kamau Kiminda, the applicant’s Managing Director’s testimony essentially replicated his affidavit in support of the substantive application. He highlighted the nature of the applicant’s business which involves buying and selling tea and value addition of tea. He said his company buys tea from various destinations in the world and also tea auctions in Mombasa. It was his evidence that tea imported into the country for value addition and blending does not require pre-import approval, but it only requires declaration of the import value and adding at least 20% of the imported tea and it has to be re-exported within 6 months.

22. He said the consignment was subjected to 100% verification and the cargo was released by the KRA vide a release order dated 17th November 2021, but, when he sent trucks to collect the cargo, they were refused on grounds that the DCI had stopped its release. He said no explanation was provided and his letter to the DCIO elicited no response. He said a day after serving the Respondent with this court’s orders, he was arrested on 25th December 2021 and driven to the DCI’s offices where he met CI Ndathi, who failed to inform him the reasons for his arrest. He was held at Muthaiga Police Station without being told the reasons for his arrest and on 28th December 2021 he was released on bond. He said he was never furnished with a charge sheet. He also said he was told the anti-terrorist police wanted to hold him for 10 days and that he was arraigned at Kahawa Magistrates Court but he was never charged and the file was closed on 9th March 2022 and the court ordered refund of his cash bail.

23. Mr. Kiminda testified that he was been arrested with a one Peris Mudida, the Acting Head of the Tea Board of Kenya who refused to grant him the import license, but upon appealing, she reconsidered her decision and granted him the permit. Further, to be issued with the permit, the tea had to be subjected to analysis, which was done, so, he complied with all the requirements and paid the required charges. He said the verification was done and the tea was cleared for release, and no corn or butene was found as alleged. He clarified that the differences in the packaging is because tea packaging material is re-usable and it is usually re-cycled to save costs. Further, he said as an importer, it was not a requirement that he dictates the packaging because the primary concern is the content and all the containers were said to have tea. He said to date he has incurred losses of Kshs. 8,007,000/= and the loss continues to escalate.

24. Mr. Lemiso, counsel for the 1st and 2nd Respondents notified the court that he did not wish to adduce oral evidence, and that his clients would rely on the affidavits filed.

25. In his submissions, the applicant’s counsel submitted that the applicable statute is the Tea Act, 2020 and the Crops (Tea Industry Regulations) 2020. He referred to section 31 of the Tea Act and argued that the section regulates tea import and provides the circumstances tea can be imported into Kenya. He submitted that the tea imported by the applicant falls outside the ambit of section 31. He submitted that the tea was imported for blending and value addition and eventual re-export overseas. He referred to Regulation 32 (10) & (11) which provides for the exemptions and submitted that under these exemptions, tea meant for re-export is exempt from import approval. He submitted that the only condition is that it must be registered with the Tea Board of Kenya. He submitted that the tea industry is regulated by the Tea Board of Kenya as provided by Regulation 34. He submitted that the applicants are not required by law to apply for pre-import approval. Additionally, he submitted that notwithstanding the fact that the re-import license was not a requirement, the applicant applied for the approval which was declined, but his appeal was allowed and a permit granted. He argued that no explanation was offered for detaining the tea.

26. As for the Hon. Attorney General’s prayer for the consignment be destroyed, he argued that the said order is not available. Further, on the argument that the goods are exhibits, he argued that no charges were preferred against the applicant and investigations cannot be infinite. He submitted that public officials are required to act fairly. He also submitted that no reasons were provided for the refusal to release the goods and the applicant was discriminated because other companies in similar business have not been discriminated against. He urged the court to grant the orders sought.

27. Mr. Wachira, counsel for the Hon. AG highlighted the tests for grant of judicial review orders among them illegality. In support of this ground, he submitted that the goods were imported without authorization from the Agriculture and Food Authority and the Tea Board of Kenya. He cited the definition of restricted goods in section 2 (1) of the Custom and Excise Actas goods which are prohibited as therein defined. He also cited the definition in section in section of EACCMA which defines restricted goods as regulated under the said act or any law in force in the partner states. Additionally, he cited section 200 of the Act which prescribes offences for importation of prohibited, restricted and unaccustomed goods. Mr. Wachira submitted that the applicant’s application for approval was rejected, and despite such rejection, he proceeded to import the goods.

28. He submitted that the applicant is guilty of malpractices among them non-compliance with tax laws and tax evasion and importing tea into the country contrary to Regulation 32 of the Tea Regulations. Counsel submitted that the DCI did not act against the law because there was evidence of non-compliance with the law. He submitted that the DCI is mandated to investigate by section 35 of the National Police Service Act. He submitted that the goods were imported in breach of section 31 of the Tea Act and section 5 of the National Intelligence Act.

29. Mr. Wachira submitted that the DCI did not act irrationally because he acted after receiving complaints from the Tea Board of Kenya and the Kenya Tea Development Authority. He also cited the inconsistencies in the applicant’s documents and submitted that the DCI required more information. He argued that the court supervised verification disclosed other infractions such as expired tea, contaminated tea and argued that there was no 100% comprehensive verification. Citing section 210 of EACCMA and section 196 of the Customs and Excise Act, he submitted that the goods are liable to forfeiture and cited Mwasi v Republic3 in support of the proposition that forfeiture is penalty.3{1989} 544.

30. Mr. Lemiso submitted that the application is fatally defective and ought to be struck out because it offends Order 53 Rule 4 of the Civil Procedure Rules, 2010 which requires copies of the Statutory Statement to be served. He also submitted that the Statutory Statement did not disclose the reliefs sought. He argued that the said omission cannot be cured by Article 159 of the Constitution. He submitted that judicial review proceedings are special in nature (citing R v Social Security Fund). He also took issue with the manner in which the partis have been named. He argued that the 1st Respondent is wrongly sued because the relevant party is the Commissioner. He also argued that the 2nd Respondent is not a necessary party, that, he cannot be sued in his individual capacity and in any event, no orders have been sought against him.

31. As for merits, he submitted that no evidence was tendered to demonstrate the reasons detaining the goods were ever sought nor has the applicant ever sought to review the decision. He submitted that even though the consignment was imported between April 2021, the first time the applicant sought the release was 15th November 2021, that, Mr. Karubee refused to release the tea after he learnt that the DCI was investigating the matter, so, it was not illegal for the DCI to refuse to release the goods. He also submitted that it was not unreasonable to refuse to release the goods and once the DCI finalizes the investigations the goods will be released depending on the outcome of the investigations.

32. First, I will address the Hon. AG’s application because if it succeeds, then the applicant’s application will be rendered otiose. As a prelude to addressing the issues at hand, it is useful to recall some key guiding principles. For starters, the task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or Regulations. The courts when exercising this power of construction are enforcing the rule of law, by requiring statutory bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. Where discretion is conferred on the decision-maker, the courts also have to determine the scope of that discretion and therefore need to construe the statute purposefully.4One can confidently assume that Parliament intends its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.4Sir Rupert Cross, Statutory Interpretation, 13th edn. (1995), pp.172–75; J. Burrows, Statute Law in New Zealand, 3rd edn. (2003), pp.177–99. For a recent example in Canada see ATCO Gas and Pipelines Ltd vs Alberta (Energy and Utilities Board) [2006] S.C.R. 140.

33. Safeguarding legality is the most important purpose for the judicial review of administrative actions. The most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites as exist. So long as decision makers comply with these two rules, their decisions are safe. This fundamental principle generally requires that the exercise of powers by government functionaries must strictly comply with the law both substantively and procedurally. It follows, therefore, that the legality of decisions by public officials can be judicially challenged on grounds that the decision does not comply with the above-mentioned basic requirements of legality.

34. The most obvious example of illegality is where a decision maker acts beyond the powers, which are prescribed for it. In other words, it acts ultra vires. Decisions taken for improper purposes may also be illegal. Illegality also extends to circumstances where the decision-maker misdirects himself in law. Significantly, the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. The second issue that can be argued under illegality is fettering discretion. This heading for judicial review entails considering whether a functionary actually exercised the power it has, or whether because of some policy it has adopted, it has in effect failed to exercise its powers as required. The exercise of discretionary powers, as the rule of law requires, must be consistent with a variety of legal requirements and subject to judicial control. Consequently, the legality of a decision of a public functionary can be challenged on the grounds that discretion is abused or improperly exercised. Also relevant is the concept ‘error of law’ which is mainly concerned with the erroneous applications of the law.

35. Critical issues flow from the foregoing. First, whether the decision by the DCI to instruct the Respondents is founded on law; whether the DCI exceeded his powers; whether the Hon. AG has established any grounds to merit the orders sought. There is no contest that the DCI issued instructions stopping the release of the goods because he is investigating alleged offences which include irregular imports and alleged tax evasion and or importing goods into the country without pre-import licenses. There is no contest that the DCI is statutorily ordained to investigate offences. There is no doubt that there exists a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crimes. It follows that this court has to be careful not to impede the DCI’s statutory mandate. In this regard it is fruitful to refer to the Supreme Court of India in P. Chidambaram v Directorate of Enforcement5 and Skoda Auto Volkswagen India Private Limited v State of Uttar Pradesh6 in which the court in determining circumstances when it would be justified for the High Courts to interfere in the investigation of the police while exercising its inherent powers enunciated a compendium of principles that the High Court’s needs to adhere to. The said principles are reproduced below: -5(2019) 9 SCC 2462020 SCC On Line SC 95a.Police has the statutory right and duty under the relevant statutory provisions to investigate cognizable offences;b.Courts would not thwart any investigation into the cognizable offences;c.However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;d.The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'.e.While examining a /complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint;f.Criminal proceedings ought not to be scuttled at the initial stage;g.Quashing of a complaint should be an exception and a rarity than an ordinary rule;h.Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the process set by the law;i.The functions of the judiciary and the police are complementary, not overlapping;j.Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;k.Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;l.The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the complaint. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint does not deserve to be investigated or that it amounts to abuse of process of law.m.The courts power is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;n.However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law,…has the jurisdiction to quash the complaint; ando.When a prayer for quashing the complaint is made by the alleged accused, the court when it exercises the power…, only has to consider whether or not the allegations…disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations…"

36. To sum up the above principles, it can be said that the High Courts are required to exercise the power of quashing or prohibiting investigations in a careful and scrupulous manner without interfering with the statutory investigating rights of the investigating agencies. The most significant role of the High Courts, as has been underscored above, is to strive to create a balance, on the one hand between the rights of the genuine complainants disclosing commission of a cognizable offence and the statutory obligation of the investigating agency to investigate such cognizable offences and on the other hand rights of those innocent persons against whom the criminal proceedings are initiated in abuse of the process of law and the courts.

37. There is no denial of the fact that the courts inherent power is very wide, but as observed above, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass interim orders, as thought apposite in law. However, the High Court has to give reasons which will reflect the application of mind by the court to the relevant facts. Thus, it is not only incumbent upon the High Courts to proceed in a cautious manner while granting orders which prohibit police investigation, but any such order must also be accompanied by justifiable reasoning which discloses that the High Court has applied its mind in passing such an order.

38. I now apply the above principles to the facts before me in answering whether there are any justifiable grounds to allow the orders sought by The Hon. AG. A reading of the evidence shows that the containers were subjected to 100% verification exercise by multi-agency team. This team included officers from the DCI and KRA. This fact is admitted by Mr. Langat who was the Police Investigating Officer who first investigated the case. There is uncontroverted evidence that following this verification, the consignment was cleared for release by the KRA and when the importer dispatched trucks to ferry the cargo, they were verbally notified that they had instructions not to release the consignment. From the scanty information availed, the applicant learnt that the instructions emanated from the DCI.

39. During his evidence, CI Geoffrey Ndathi made a pertinent revelation. To put it bluntly, he opened a can of worms. He told the court on oath that the DCI by passed the office of the Director of Public Prosecutions (ODPP) and preferred charges against the applicant’s director a Mr. Kimingi in court. This stunning revelation is a turning point in this case. It manifests a blatant breach of the Constitution and a clear admission by the DCI that the acted ultra vires his statutory and constitutionally ordained mandate.

40. A special feature of the Constitution of Kenya, 2010 is the establishment of an independent office of the Office of the ODPP whose independence is provided under Article 157 (10) of the Constitution which declares that the Director of Public Prosecutions (DPP) shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, he shall not be under the direction or control of any person or authority.

41. This position is replicated in Section 6 of the Office of the Director of Public Prosecutions Act7which provides that pursuant to Article 157 (10) of the Constitution, the Director of Public Prosecutions shall- (a) not require the consent of any person or authority for the commencement of criminal proceedings; (b) not be under the direction or control of any person or authority in the exercise of his powers or functions under constitution, this Act or any other written law; and (c) be subject only to the Constitution and the law.7Act No. 2 of 2013.

42. A clear reading of the architecture of Article 157 of the Constitution leaves no doubt that the DPP is required to not only act independently, but to remain fiercely so. It is also important to mention that under Article 245 (4) (a) of the Constitution, "no person may give a direction to the Inspector General with respect to the investigation of any offence or offences." Just like the constitutionally guaranteed independence of the DPP, this provision is aimed at ensuring that investigations are undertaken independently. After concluding the investigations, the DCI is required to forward the investigation file to the ODPP for the DPP to independently evaluate the evidence and make an independent decision whether or not to prosecute. So, when a Chief Inspector of Police tells the court that DCI by passed this constitutional edict by purporting to charge a citizen in court without approval by the ODPP, then to me this is a clear impermissible assault to the Constitution. The DCI’s unlawful act is reduced the purported arraignment into a nullity and rendered the investigations (if any) undertaken then and any subsequent investigations on the same subject a nullity.

43. The office of the DCI is constituted by the authority of the Constitution and the enabling statute. The DCI cannot go beyond the power donated to his by the Constitution and the applicable statute. If the DCI acts beyond his authority, and certainly in contravention of it, the actions ensuing therefrom are regarded as nullities; they are not voidable, but simply void. A public functionary cannot confer jurisdiction to himself where none exists and cannot make a void decision valid.

44. The drafters of our constitution carefully demarcated the functions of the National Police Service. The role of the National Police Service and the DCI are spelt out in sections 24 and 35 of the National Police Service Act.8 Article 244 of the Constitution requires the National Police Service to (a) strive for the highest standards of professionalism and discipline among its members; (b) prevent corruption and promote and practice transparency and accountability; (c) comply with constitutional standards of human rights and fundamental freedoms; (d) train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and (e) foster and promote relationships with the broader society.8Ac No. 11A of 2011.

45. The doctrine of illegality, going back to Lord Mansfield, is based on 2 principles; first that a person should not benefit from his/her own wrong; and second, and relevant to this case, the law should not condone illegality. The purported prosecution cannot pass the legality test. It matters not that the DCI did not proceed with the prosecution. It is irrelevant that after the purported prosecution collapsed the DCI purported to seek approval from the ODPP. The illegality and breach of the Constitution cannot be cured by either purporting to investigate again or seeking orders as sought in the AG’s application which have the potential of circumventing the collapsed attempt to prosecute. The injury had been occasioned and any further investigation or prosecution is tainted with illegality. In the same vein, the instant application is founded on bad faith. It seeks to achieve that which the illegal prosecution did not achieve.

46. After the purported prosecution collapsed, the DCI again held the applicant’s director for 10 days on alleged terror related claims. A file opened at the Kahawa Law court also collapsed and the file was marked as withdrawn and the applicant’s director was released without any charges. With two failed attempts to charge the applicant’s director, the Hon. AG now says that the matter is still being investigated. Citing the alleged investigations, the Hon. AG urges the court to uphold their prayer that the consignment be held pending the investigations because the goods may be used as exhibits. The DCI is putting the horse in front of the cart by asking the court to help him hold “exhibits” as he searches for evidence.

47. The other clear manifestation of mala fides and evident scheme to punish the applicant’s director is not hard to find. CI Ndathi in his own words said they are still waiting to hear from the ODPP. That looks attractive. The question is, if the DCI is waiting for directions from the ODPP, what other investigations is he undertaking. The ODPP has not asked them to undertake further investigations.

48. Equally worrying is the prayer that the goods be destroyed or repatriated to the country of origin or be declared unfit for local markets. The Hon. AG and the DCI have overstepped their mandate by purporting to play the role of the Kenya Bureau of Standards. It should be recalled that the multi-agency that participated in the verification exercise included officers from the Kenya Bureau of Standards, the DCI, the KRA among others and the consignment was cleared for release. The Hon Attorney General now seeks to play the role of the Kenya Bureau of Standards by purporting to declare unsuitability of the goods. The prayer for destruction of the consignment not only lacks basis but also it flies on the face of section 14A of the Standards Actwhich provides: -14A. Order that goods be destroyed(1)An inspector may order the destruction of goods detained under section 14(1) if the following conditions are satisfied—(a)testing indicates that the goods do not meet the relevant Kenya Standard; and(b)it is reasonably necessary to destroy the goods because the goods are in a dangerous state or injurious to the health of human beings, animals or plants.(2)In an order under subsection (1) the inspector may require the owner of the goods to pay the costs of the destruction of the goods including the costs of transporting and storing the goods before destruction.(3)At least fourteen days’ notice shall be given of an order under subsection (1) either by giving the owner of the goods a written notice or by publishing a written notice in the Gazette.(4)Any person who is aggrieved by an order under subsection (1) may, within fourteen days of the notice of the order under subsection (3), appeal in writing to the Tribunal.(5)An order under subsection (1) shall not be carried out until the time for appealing to the Tribunal has expired and, if the order is appealed, the order shall not be carried out until the Tribunal has dealt with the appeal.(6)If the goods in respect of which an order under subsection (1) is made have not been entered into Kenya within the meaning of the Customs and Excise Act (Cap. 472) the goods may be exported and, if the owner of the goods gives an undertaking to export the goods, the order shall not be carried out until at least thirty days after the notice of the order under subsection (3).(7)No inspector shall be personally liable for making an order under subsection(1)in good faith.(8)No person shall be personally liable for carrying out an order under subsection (1) in good faith.(9)For greater certainty subsections (7) and (8) do not relieve the Bureau of any liability it may have with respect to an order that is made or carried out otherwise than in accordance with this section.

49. My reading of the law leaves no doubt that the DCI cannot and has no power to order destruction of goods or determine their suitability or otherwise. To my mind, goods imported into the country can be destroyed either at the customer’s request, or by Customs if they during the control of the goods find that the goods have to be destroyed. The consignment might have to be destroyed, exported out of the country or restored. After Customs has inspected the goods, it may be established that the goods cannot be restored or brought into the Kenyan market nor be exported out of the country without a specific authorization document. Then the alternative is destruction of the goods. The destruction takes place after the importer has exhausted all his appellate rights. The cases cited by Mr. Wachira are criminal cases and have nothing to do with goods governed by tax laws.

50. Additionally, there are general principles which should underlie the approach to investigations and prosecution. The DCI must at all times uphold the rule of law, the integrity of the criminal justice system and respect the fundamental rights of all human beings to be held equal before the law, and abstain from any wrongful and arbitrary abuse of his statutory mandate and or using investigations as a tool to harass citizens. Fundamentally, the primary duty of the investigator is to seek justice within the bounds of the law. The investigator serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate investigations and by exercising discretion not to pursue investigations or prosecution in appropriate circumstances where the facts do not disclose an offence. The investigator is required to protect the innocent and to seek prosecution of the culpable.

51. I find it fitting to recall the words attributed to Elie Wiesel, a holocaust survivor who said"...we must always side with the Rule of Law." 9 This is because law is the bloodline of every nation. The end of Law is justice. It gives justice meaning. It is by yielding Justice that law is able to preserve order, peace and security of lives and property, make the society secure and stable, regulate and shape the behaviour of citizens, safe guard expectations, function as a means of governance, a device for the distribution of resources and burdens, a mechanism for conflict resolution and a shield or refuge from misery, oppression and injustice. Through the discharge of these functions, the law has today assumed a dynamic role in the transformation and development of societies. It has become an instrument of social change.109Mr. Dainius Zalimas, President of the constitutional Court of the Republic of Lithuania, The Rule of Law and Constitutional Justice in the Modern World, 11-14 September 2017, Vilnius, Liuthania, delivering a speech at the Farewell Dinner for the 4th Congress of the World Conference on Constitutional Justice, 13th September 2017. 10Masinga vs Director of Public Prosecutions and Others(21/07) {2011} SZHC 58(29 April 2011: High Court of Swaziland.

52. In Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & Another11 I paraphrased the words of Baroness Helena Kennedy QC, a woman activist and chair of the British Council12 who said that:-11{2018} eKLR.12Published in Just Law {2004}.“Law is the bedrock of a nation, it tells who we are, what we are, what we value...almost nothing else has more impact on our lives. The law is entangled with everyday existence, regulating our social relation, and business dealings, controlling conduct, which could threaten our safety and security, establishing the rules by which we live. It is the baseline." (Emphasis added).

53. Flowing from my above discussion, it is my conclusion that the Hon AG’s application lacks legal foundation, its unmerited and the same is fit for dismissal.

54. I now turn to the ex parte applicant’s application. As I do so, I must mention that judicial oversight is necessary to ensure that decisions are taken in a manner, which is lawful, reasonable, rational and procedurally fair.13 A court has the power to review an administrative action if the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function. The simple test used throughout was whether the decision in question was one, which a reasonable authority could reach. The converse was described by Lord Diplock14 as ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.’13See VDZ Construction (Pty) Ltd vs Makana Municipality & Others{2011} JOL 28061 (ECG) para 1114{1976} UKHL 6; {1976} 3 All ER 665 at 697{1976} UKHL 6; , {1977} AC 1014 at 1064.

55. The test of Wednesbury unreasonableness has been stated to be that the impugned decision must be “objectively so devoid of any plausible justification that no reasonable body of persons could have reached it15 and that the impugned decision had to be “verging on absurdity” in order for it to be vitiated.16This stringent test has been applied in Australia17 where the Court held that in order for invalidity to be determined, the decision must be one, which no reasonable person could have reached, and to prove such a case required “something overwhelming.” It must have been conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt and when “looked at objectively, is so devoid of any plausible justification that no reasonable body of persons could have reached them.”15See Bromley London Borough Council vs Greater London Council{1983} 1 AC 768 (at [821].16Puhlhofer v Hillingdon London Borough Council[1986] 1 AC 484. 17In Prasad v Minister for Immigration{1985} 6 FCR 155.

56. The following propositions can offer guidance on what constitutes unreasonableness. First, wednesbury unreasonableness is the reflex of the implied legislative intention that statutory powers be exercised reasonably. This ground of review will be made out when the court concludes that the decision fell outside the area of decisional freedom, which that legislative assumption authorizes, that is, outside the “range” within which reasonable minds may differ. The test of unreasonableness is whether the decision was reasonably open to the decision-maker in the circumstances of the case. To say that the decision was “not reasonably open” is the same as saying that “no reasonable decision maker” could have made it.

57. If a statute, which confers a decision-making power, is silent on the topic of reasonableness, that statute should be construed so that it is an essential condition of the exercise of the powers that it be exercised reasonably. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano18 the court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature. These are: -18JR No 17 B of 2015. a.Illegality- Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.b.Fairness- Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.c.Irrationality and proportionality- The courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation19:-19{1948} 1 K. B. 223, H.L."If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere...but to prove a case of that kind would require something overwhelming..."

58. Having concluded as I have herein above that the DCI’s actions are tainted with illegality, manifest bad faith, the inevitable conclusion that follows is that the decision to detain the cargo premised on the impugned investigations cannot pass the legal validity test. This is because nothing good comes out of an illegality and the court would be endorsing al illegality if it falls into the trap of sanctioning a decision arrived at through a questionable and flawed process. On this ground alone, the applicant’s application succeeds.

59. On merit, the core ground raised by the Respondents is that the applicant violated section 31 of the Tea Act which provides: -31. Tea imports(1)A person who imports tea into Kenya shall prior to importation — (a) provide evidence that the teas they intend to import are not available in the local market or at the tea auction; (b) provide a sample of the teas to be imported and pre-import verification certificate from the country of origin; and (c) obtain pre-import approval from the Board.(2)A person who contravenes this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings or to both.

60. The applicant’s response to the above ground of assault is two-fold. One: -the applicant concedes that its application for pre-import approval was declined by the Tea Board of Kenya. However, the applicant states that its subsequent appeal to the Tea Board of Kenya was allowed and a pre-import permit granted. There is evidence that the DCI arrested the officer who granted the licence, but that is how far it it goes. There was no attempt, even in the slightest manner to suggest that she had no power to allow the appeal and grant the license. Simply put, the validity of the license is not under challenge nor have I bee invited to determine its validity. The Respondents kept on arguing that the permit was obtained after the goods were in Kenya, but they failed to address a pertinent question, which is, whether the permit once given cures the omission. As stated above, before me is not a proceeding challenging the validity of the said permit.

61. The second ground cited by the applicant is that the license was not a requirement at all. To buttress this argument, the applicant argued that tea imported for blending purposes and re-export does not require a license. To buttress this argument, the applicant cited The Crops (Tea Industry) Regulations, 2020 which by dint of Regulation (3) apply with respect to tea produced and marketed in Kenya, and imported or exported into and out of Kenya. These Regulations were Gazeted on 22nd May 2020. Mr. Wachira argued that these Regulations were stayed by the High Court. That may so, but nothing was produced to show that they were not in force as at the material time.

62. Specifically, the applicant placed reliance on Regulation 32 (10) & (11) which provides: -(10)The following tea imports shall be exempt from pre-import approval—(a)tea imports for sale through the Mombasa tea auction; and(b)transit teas.(11)An importer who imports tea into Kenya for blending or export shall re-export the tea within a period of six months of the date of import and proof of such re-export shall be maintained for inspection by the Authority.

63. Buttressed by the above provision, the applicant argued that the tea imported was for purposes of blending and re-export. The Regulations defines "blending" as follows: - means the process of mixing of teas of different or same grades to affect the flavour and characteristics of the tea for the purposes of packing and sale. To the extent that the tea was imported for blending, which is uncontroverted, then, by dint of these Regulations, the pre-import authorization was not a requirement. It follows that the applicant survives the hurdle erected by the argument that pre-shipment authorization was a pre-requirement.

64. The applicant prays for an order Mandamus. Mandamus will issue to compel a person or body of persons who has failed to perform a duty to the detriment of a party who has a legal right to expect the duty to be performed.20 Simply put, Mandamus is a judicial command requiring the performance of a specified duty which has not been performed.20See Kenya National Examinations Council vs R ex parte Geoffrey Gathenji Njoroge & 9 Others{1997} eKLR.

65. The applicant prays for a writ of certiorari. Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. As held herein above, there is clear evidence to suggest that the decision to detain the cargo is tainted with illegality, so, the writ of certiorari is merited.

66. Mr. Lemiso urged the court to strike out the application for offending Order 53 Rule 4 of Civil Procedure Rules, 2020. Specifically, he argued that the prayers are not set out in the Statutory Statement. H also faulted the manner in which the parties are named in the application.

67. Prior to the promulgation of the Constitution of Kenya, 2010, there was a two-tier legal basis for judicial review jurisdiction of the Kenyan courts. The two critical references in search for answers to this question were Sections 8 and 9 of the Law Reform Act21 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules, 2010 which was the procedural basis of judicial review of administrative actions on the other hand. The promulgation of the Constitution of Kenya, 2010 and the legal developments thereafter have brought into focus other legal bases of jurisdiction for judicial review of administrative actions in Kenya. A legal practitioner, judicial officer, student or other researcher in the realm of judicial review as a remedial stream of our courts has to consider all this for completeness sake.2221Cap 26, Laws of Kenya.22See Elisha Ogoya, The Changing Character of Judicial Review Jurisdiction Under the Constitutional and Statutory Order in Kenya, http://lsk.or.ke/Downloads/Elisha%20Ongoya%20-%20Judicial%20Review.pdf

68. This court has had the opportunity to address similar question several cases among them Republic v Kenya Revenue Authority, Commissioner Ex parte Keycorp Real advisory limited 23 and Republic v Kenya Revenue Authority, Commissioner for Investigation and Enforcement Department Ex parte Centrica Investments.24 The following excerpt is illuminating and to the point:-23{2019} e KLR.24{2019} eKLR.“There are also instances of direct recognition of judicial review remedies, jurisdiction and grounds in the body of the Constitution. Article 23 of the Constitution is the remedial appendance to article 22 of the Constitution. Article 22 vests courts with jurisdiction for enforcement of fundamental rights and freedoms set out in or recognized by the Bill of Rights. Among the reliefs available in proceedings for enforcement of fundamental rights and freedoms is an order of judicial review.Article 47 of the constitution codifies every person’s right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 6 Further there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action. Each of these prescriptions fit the recognized grounds for judicial review of administrative actions.Article 165 of the Constitution establishes and vests jurisdiction in the High Court. Part of the jurisdiction vested in the High Court is: “supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function …” There is explicit judicial review content in this normative prescription of jurisdiction.”2525Ibid.

69. In the above cited cases, this court was confronted with the question whether under the 2010 Constitution, a person requires leave to approach the court. It was emphatic that the entrenchment of the right to access the court in the Constitution opened the doors to access justice, a position aptly captured by the phrase "Justice is open to all, like the Ritz Hotel"26attributed to a 19th Century jurist. Article 22 of the Constitution guarantees the right to institute court proceedings to enforce the Bill of Rights. Article 23 grants the court the authority to uphold and enforce the Bill of Rights.26Sir James Matthew, 19th Century jurist.

70. Article 48 guarantees the right to access court while Article 258 provides that every person has a right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention. I need not mention the supremacy of the Constitution and its binding nature decreed in Article 2.

71. Additionally, Article 47 provides for the right to a fair Administrative Action. To give effect to Article 47, Parliament enacted the Fair Administrative Action Act.27 Section 2 of the act defines an “administrative action” to include—the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. Article 23 (3) provides the remedies the Court can grant in cases for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. It also provides that in proceedings brought under Article 22, the court can grant appropriate relief including a declaration of rights, an injunction, a conservatory order, and invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the bill of rights, an order of compensation and an order of Judicial Review.27Act No. 4 of 2015.

72. In Masai Mara (SOPA) Limited v Narok County Government28 the court stated: -28Nairobi High Court Petition Number 336 of 2015. “On the issue of the application of Order 53 of the Civil Procedure Rules to a constitutional petition where a party seeks judicial review reliefs, I must hasten to point out that since the promulgation of the Constitution in 2010, administrative law actions and remedies were also subsumed in the Constitution. This can be seen in the eyes of Article 47 which forms part of the Bill of Rights. It is safe to state that there is now substantive constitutional judicial review when one reads Article 47 as to the right to fair administrative action alongside Article 23(3) which confers jurisdiction, on the court hearing an application for redress of a denial or violation of a right or freedom in the Bill of rights, to grant by way of relief an order for judicial review. 55. Order 53 of the Civil Procedure Rules do not consequently apply to Constitutional Petitions where the court is expected to exercise a special jurisdiction which emanates from the Constitution and not a statute. 56. I consequently decline to accede to the Respondent’s contention that the Petitioner ought to be denied the reliefs sought on the basis that the Petition was filed more than six months after the action complained of took place.”

73. Considering the above constitutional provisions and in particular the right to access justice, the question that arises is whether the omission in the statutory statement or improperly naming the parties is fatal to the applicant’s application. Section 7 (1) of Part two of the sixth schedule to the Constitution provides that (1) all law in force immediately before the effective date continues in force and shall be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution. This provision is sufficient to dispose the Mr. Lemiso’s argument.

74. All law must conform to the Constitutional edifice. It follows that the provisions of sections 8 and 9 of the Law Reform Act29 and Order 53 Rule 4 of the Civil Procedure Rules must conform to the Constitution or be construed with such adaptations, alterations, modifications so as to conform with the Constitution. As the Supreme Court of Appeal of South Africa observed30 "All statutes must be interpreted through the prism of the Bill of Rights." This statement is true of decisions made by constitutional bodies, statutory bodies and government functionaries. The governing statute and the resultant decision must be interpreted through the prism of Article 47 of the Constitution.29Cap 26, Laws of Kenya.30Serious Economic Offences vs Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO and [2000]

75. Judicial Review in now entrenched in the Constitution. The concept of Judicial Review under the Constitution of Kenya is similar to that under the Constitution of South Africa where it was held inPharmaceutical Manufacturers Association of South Africa in re ex parte President of the Republic of South Africa & Others31 that “the common law principles that previously provided the grounds for Judicial Review of public power have been subsumed under the Constitution and, insofar as they might continue to be relevant to Judicial Review, they gain their force from the Constitution. In the Judicial Review of public power, the two are intertwined and do not constitute separate concepts.” The court went further to say that there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution, which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.312000 (2) SA 674 (CC) at 33.

76. The entrenchment of the power of Judicial Review, as a constitutional principle should of necessity expand the scope of the remedy. First, parties, who were once denied Judicial Review on the basis of the public-private power dichotomy, should now access Judicial Review if the person, body or authority against whom it is claimed exercised a quasi-judicial function or a function that is likely to affect his rights. Second, the right to access the court is now constitutionally guaranteed. Third, an order of Judicial Review is one of the reliefs for violation of fundamentals rights and freedoms under Article 23(3) (f). Fourth, section 7 of the Fair Administrative Action Act32 provides that "any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision. Section 7 (2) of the act provides for grounds for applying for Judicial Review. Lastly, the cited infractions omissions are procedural technicalities curable by Article 159 (2) (d) of the Constitution.32Act No 4 of 2015.

77. I have severally stated that court decisions should boldly recognize the Constitution as the basis for Judicial Review. Judicial review is now a constitutional supervision of public authorities involving a challenge to the legal validity of the decision.33 Time has come for our courts to fully explore and develop the concept of Judicial Review in Kenya as a constitutional supervision of power and develop the law on this front. Courts must develop Judicial Review jurisprudence alongside the mainstreamed “theory of a holistic interpretation of the Constitution. Judicial Review is no longer a common law prerogative, but is now a constitutional principle to safeguard the constitutional principles, values and purposes. The Judicial Review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution.33SeeRepublic vs Commissioner of Customs Services Ex parte Imperial Bank Limited{2015} eKLR.

78. In conclusion, having faulted the purported investigations, and having held that the Hon. AG’s application is unmerited, it is my finding that the basis upon which the 1stRespondent declined to release the goods also collapses. Accordingly, I hereby issue the following orders: -a.That the Hon. Attorney Generals application dated 7th January 2022 be and is hereby dismissed.b.That the ex parte applicant’s application dated 28th December 2021 be and is hereby allowed.c.That an order of certiorari be and is hereby issued quashing the 1st Respondents’ oral decision communicated by a one Thomas Karubee on 17th November 2021 detaining, refusing, and or declining to release to the ex parte applicant its consignment of tea held at the Regional Logistics Centre in Changamwe, Mombasa.d.That an order of mandamus be and is hereby issued directing the Respondents to immediately release to the applicant the Tea the subject of Bill of Lading No. 5 Container No. SAS1073SCSMO0267, BL No. SAS10745SCSM1332, BL No. SAS10745SCSM1333, BL No. SAS1075SCSM2371, BL No. SAS1075SCSM2372, BL No. SAS1075SCSM2416, BL No. SAS1075SCM2454, BL No. SAS1075SCSM2455 and COSU+6296346410. e.That the 1st and 3rd Respondents shall pay to the ex parte applicant the costs of these applications.

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 22ND DAY OF MARCH 2022. JOHN M. MATIVOJUDGE