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Court of AppealDismissedCivil Appeal No. 273 of 2019· [2021] KECA 1024 (KLR)

United Millers Limited v Kenya Bureau of Standards & 5 others [2021] KECA 1024 (KLR)

Court of Appeal
29 January 2021
ASAsike-MakhandiaKIKiageOKole Kantai
6,953 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that businesses must use statutory tribunals, like the Standards Tribunal, before rushing to the High Court for judicial review.

What this practically means

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Executive summary

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United Millers Limited imported 997.7 metric tonnes of brown sugar from Mauritius and obtained a Certificate of Conformity from a pre-shipment verification body. The Kenya Bureau of Standards seized 29,714 bags of the sugar after its accredited laboratory found the yeast and mould content exceeded the legal limit, and conveyed a decision to destroy the sugar pursuant to a multi-agency task force letter dated 7th September 2018. The appellant moved the High Court by judicial review seeking certiorari, prohibition, mandamus and a declaration under Article 47 and the Fair Administrative Action Act, without first approaching the Standards Tribunal. Mativo J dismissed the application, holding that sections 11 and 14A(4) of the Standards Act and sections 9(2) and (3) of the FAA Act obliged the appellant to exhaust the statutory remedies or apply for exemption under section 9(4), and that on the merits the Bureau acted lawfully and reasonably. On appeal, the Court of Appeal framed three issues: the exercise of discretion, the invocation of the exhaustion doctrine, and the merits. It held that judicial review orders are discretionary; that sections 9(2) and (3) of the FAA Act are mandatory and only section 9(4) provides an exemption on demonstrated exceptional circumstances; and that the impugned decision, being made under the Standards Act against the Bureau, fell within the tribunal's remit. The court noted the High Court should have downed its tools upon finding it lacked jurisdiction, but affirmed its merits analysis: the Bureau, as the only accredited laboratory, acted within its statutory powers and the decision was not shown to be arbitrary, capricious or irrational. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Exhaustion of administrative remedies under the Standards Act and the Fair Administrative Action Act

Holding

The doctrine of exhaustion is mandatory; the appellant was obliged to go to the tribunal or apply for exemption under section 9(4) of the FAA Act, and having done neither, the High Court was divested of jurisdiction.

Reasoning

Sections 11 and 14A(4) of the Standards Act direct aggrieved persons to the tribunal first. Section 9(2) and (3) of the FAA Act are couched in mandatory terms, and section 9(4) allows exemption only in exceptional circumstances on application. The appellant conceded the doctrine applied but argued the decision was made by the multi-agency team, not under the Act; the court rejected this because the substance of the dispute was against the Bureau and the decision was made under the Act.

p. 6
02

Exercise of judicial review discretion

Holding

Judicial review orders are discretionary and are not granted automatically; the High Court exercised its discretion soundly and on reasonable judicial principles, so the appellate court would not interfere.

Reasoning

The court reaffirmed that a court may refuse judicial review remedies even where the threshold is attained, weighing whether the remedy is the most efficacious. The trial court considered all relevant materials, eschewed irrelevant ones, and was guided by the need to do real and substantive justice; the grounds attacking its exercise of discretion therefore failed.

p. 4
03

Merits of the seizure and destruction decision of the Bureau

Holding

The Bureau acted within its statutory authority in testing the sugar in its accredited laboratory and ordering destruction under Section 14A(1); the decision was not shown to be irrational, arbitrary, capricious or in bad faith.

Reasoning

It was not disputed the Bureau had authority to test and destroy non-conforming goods. The Bureau's laboratory was the only accredited one; no proof showed the 6th respondent was accredited. Regulation 3 of the Verification of Conformity Order required importers to ensure goods meet Kenyan standards regardless of pre-shipment testing.

p. 6
04

Whether the High Court disrespected the doctrine of stare decisis by not following Fleur Investments

Holding

The High Court did not disrespect stare decisis; having regard to the issues it framed (exhaustion and grounds for judicial review), Fleur Investments was not in point, and the court in any event addressed stare decisis and Wednesbury principles at length.

Reasoning

The proposition in Fleur Investments was that relief may be granted for Wednesbury unreasonableness notwithstanding an unexploited statutory appeal process, but that did not assist given the issues framed by the trial court, and the Wednesbury grounds were not proved in any event.

p. 7

Legal principles established

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  • Where a statute establishes a dispute resolution mechanism, an aggrieved party must exhaust that mechanism before approaching the High Court, unless exempted under section 9(4) of the Fair Administrative Action Act upon demonstrating exceptional circumstances.
  • A court without jurisdiction must down its tools and cannot proceed to determine the merits, even where it has correctly found that it lacks jurisdiction.
  • Statutory power can only be exercised validly if exercised reasonably, not arbitrarily or in bad faith; and an appellate court will not interfere with a discretion exercised judicially.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Fair Administrative Action ActSection 4(1)
  • Fair Administrative Action ActSection 9(2)
  • Fair Administrative Action ActSection 9(3)
  • Fair Administrative Action ActSection 9(4)
  • Fair Administrative Action ActSection 11
  • Fair Administrative Action ActSection 16(4)
  • Standards ActSection 4(1)(c) and (i)
  • Standards ActSection 4
  • Standards ActSection 11
  • Standards ActSection 14
  • Standards ActSection 14(1)
  • Standards ActSection 14A
  • Standards ActSection 14A(1)
  • Standards ActSection 14A(4)
  • Standards ActSection 16
  • Standards ActSection 16A
  • Standards ActSection 16G
  • Standards ActSections 11 and 14A(4)
  • The Verification of Conformity to Kenya Standards of Imports Order, 2005Section 4
  • The Verification of Conformity to Kenya Standards of Imports Order, 2005Regulation 3
  • The Verification of Conformity to Kenya Standards of Imports Order, 2005Regulation 5

Cases cited (9)

  • Speaker of National Assembly v Karume
    [1992] KLR 21
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Fleur Investments Limited v Commissioner of Domestic Taxes & Anor.
    [2018] eKLR
  • The Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Republic v Judicial Service Commission ex parte Pareno
    (2014) eKLR
  • R v Wilkes
    1770 ER 327
  • Narok County Council v Trans Mara County Council & Another
    [2000] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    (2019) eKLR
  • Republic v Commissioner of Co-Operatives, Kirinyaga Tea Growers Co-operative & Savings & Credit Society Ltd
    [1999] 1 EA 245
On appeal from
High Court of Kenya at Nairobi
H.C. Judicial Review No. 396 of 2018
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction; the High Court decision was made in judicial review proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "United Millers Limited v Kenya Bureau of Standards & 5 others [2021] KECA 1024 (KLR)", Case Analysis (2021). Civil Appeal No. 273 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1024/eng@2021-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.