Kenya Bureau of Standards v M P Jethwa t/a Simoniz Textiles & 3 others [2000] KECA 368 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that bespoke tailors are not 'manufacturers' under the Standards Act, so they cannot be prosecuted for failing to notify the Bureau.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' tailoring activities - cutting, stitching and ancillary processes converting textile materials into garments - constitute 'manufacturing' within the meaning of Section 2 of the Standards Act so as to bring their operations under the Act.
- 2.How the word 'manufacture' in Section 2 of the Standards Act falls to be construed, given its inclusive statutory definition ('produce, process, treat, instal, test, operate and use').
Key legal issues
#Whether the respondents' bespoke tailoring constitutes 'manufacture' under Section 2 of the Standards Act
No. The respondents are not manufacturers; their operations are not brought under the Standards Act and the criminal charges premised on the contrary view cannot stand.
Tunoi JA recounted the tailoring process - customer selects textile, price and style are agreed, measurements taken, cloth cut and stitched into garments, buttons sewn and ironing done. Although Section 2 defines 'manufacture' inclusively, the Bureau's construction would be 'much too wide' and illogical. Applying the mischief rule, common sense and everyday usage, and the strict construction owed to a taxing act, he held bespoke tailoring is not manufacture, since standard specifications cannot exist for made-to-measure clothing. Githinji J's findings were specific and unassailable.
The proper approach to construing words in a taxing statute
A taxing Act is construed strictly and literally: the court looks only at what is clearly said; there is no intendment, no equity and no presumption about a tax, and nothing is read in or implied.
The court treated the Standards Act as 'a taxing act like this' and adopted Viscount Simon LC's dictum in Canadian Eagle Oil Co Ltd v Regem. Dictionaries cannot supply an accurate definition of 'manufacture'; instead the court looks at the mischief the Act is directed at and asks whether, as a matter of common sense and everyday usage, the facts fall within the ordinary meaning of the words assigned by Parliament. This strict-construction approach drove the rejection of the Bureau's wide reading.
The appellate court's stance towards the High Court's findings
The Court of Appeal accepted Githinji J's findings as specific and unassailable and dismissed the appeal with costs.
On the appeal against the High Court ruling, Tunoi JA declined to disturb the findings of the learned Judge, describing them as 'quite specific' and 'unassailable'. The concurring judgment thereby affirmed the first-instance determination that the respondents' tailoring operations fall outside the Standards Act, the Bureau's wider construction of 'manufacture' having been rejected as illogical, and the appeal was dismissed with costs.
Legal principles established
#- Bespoke tailoring - cutting and stitching textile materials to individual customers' measurements and styles - does not constitute 'manufacture' within Section 2 of the Standards Act, so tailors are not manufacturers and their operations do not fall under the Act.
- In a taxing Act, construction is strictly literal: nothing is to be read in or implied, and there is no equity and no presumption about a tax.
- Statutory words are construed by reference to the mischief the Act targets and the ordinary, everyday meaning of the words as applied to the facts of the case.
Court orders
#- 1.The appeal is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Short concurring judgment. Tunoi JA read Shah JA's lead judgment in draft and agreed the appeal must be dismissed. He independently analysed the respondents' bespoke tailoring process, held it impossible to define 'manufacture' accurately, applied the mischief rule and ordinary everyday usage, and - treating the Standards Act as a taxing act - adopted Viscount Simon LC's strict-construction dictum in Canadian Eagle Oil Co Ltd v Regem. He accepted Githinji J's findings as unassailable and agreed the appeal be dismissed with costs.
I have had the opportunity of reading in draft the judgment of Shah, JA and I agree with him that the appeal must be dismissed.p. 2
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. A. No. 327 of 1998
- Jurisdiction invoked
- Not stated in the judgment. The matter reached the Court of Appeal as Civil Appeal No. 2 of 1999 from a ruling of the High Court at Nairobi (Githinji J) in H.C. Misc. A. No. 327 of 1998; no constitutional or statutory provision underpinning the appellate jurisdiction is cited in the judgment.
Relief refused
#The appellant's attempt to overturn the High Court ruling and to have the respondents' tailoring operations characterised as 'manufacturing' under the Standards Act
The Bureau's wide construction of 'manufacture' was rejected and the High Court's findings were accepted as specific and unassailable
Costs
The appeal is dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As Shah, JA agrees, this appeal is dismissed with costs.
By definition in Section 2 of the Act "manufacture" includes produce, process, treat, instal, test, operate and use.
In construing statutes it is common to look at the mischief the Act is directed at and then, in that light, to consider whether as a matter of common sense and every day usage the facts of the particular case bring the case within the ordinary meaning of the words assigned by Parliament.
in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.
It is impractical to have a specification for clothes made to measure and a Kenya standard specification cannot exist for each item of cloth made exclusively for a particular customer.
The findings of the learned Judge are quite specific, and; in my view, unassailable. I accept them.
Issues in the judgment
#The document reproduces only the judgment of Tunoi JA. The coram lists three judges (Tunoi, Shah and Bosire JJ.A) and Tunoi expressly agrees with the draft judgment of Shah JA, which is not included in the record; the lead reasoning, and any separate view of Bosire JA, therefore cannot be captured from this text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Bureau of Standards v M P Jethwa t/a Simoniz Textiles & 3 others [2000] KECA 368 (KLR)", Case Analysis (2000). Civil Appeal No. 2 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/368/eng@2000-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.