Kongaren Multipurpose Cooperative Society v Ministry of Industrialization, Trade & Enterprise Development & 4 others

3. Sometime in 2021, Kenya was allocated an annual quota rate of 210,163 metric tonnes of sugar that it could import at subsidized duties. The importation of this amount of sugar was achieved by September 2021, meaning that thereafter, any sugar imported by Kenya from any other COMESA member state would attract a 100% duty. sometime in March 2019, Kenya entered into a bilateral agreement with Uganda whereby Kenya granted Uganda sugar free access into the Kenyan market to the tune of 90,000 over and above the annual quota allocated by COMESA. This bilateral agreement is what forms the basis of the Petition herein. The petitioner has challenged the legality of the bilateral agreement, terming it as propagating preferential treatment to Uganda by allowing Uganda its sugar into the Kenyan Market on duty free basis above the allocated annual quota allocated by COMESA. Petitioner’s Case 4. The Petitioner argues that the agreement was made without the involvement or input and participation of various stakeholders of the sugar industry in Kenya like small scale sugar farmers who are greatly affected by the agreement. Additionally, the Petitioner asserts that as a result of that agreement, sugar from Uganda has flooded the Kenyan Market and is sold at a subsidized price compared to the sugar produced locally in Kenya and therefore created an unfair competition as the proceeds for local sugar cannot match the price of sugar from Uganda. 5. The Petitioner further argues that this agreement has impacted the sugar industry stakeholders and businessmen in Kenya who equally have permits to import sugar from various member states of COMESA. The Petitioner contends that this agreement has rendered the COMESA treaty an ineffective treaty. Further, they argue that the said agreement has not been domesticated or ratified in Kenya, thereby making it an invalid law applicable in Kenya. In conclusion, they described the agreement of falling short of the spirit of the principles of COMESA which promote free and fair trade amongst its member states and for this reason, Kenya should not be subjected to a separate bilateral arrangements which are contra the objectives of COMESA. 6. It is upon this backdrop, that the Petitioner now seeks the following reliefs against the Respondents: i. A declaratory order to the effect that the decision made by Kenya allowing importation of duty-free sugar from Uganda and above the quota amount allocated by COMESA is null and void for all purposes; ii. A declaratory order to the effect that the preferential tariff treatment accorded to Uganda whereby Ugandan sugar is granted free access into the Kenyan Market amounts ho discrimination therefore null and void for all purposes; iii. An order directing the Respondents to stop the preferential treatment accorded to Uganda in terms of importation of zero-rated sugar above the quantity allocated under the COMESA framework; iv. That matters relating to this petition affect the entire country of Kenya as the consumers and stakeholders in the sugar industry which thereby means that this court has jurisdiction to determine this petition; v. The petitioner prays for any other relief that the Honourable court may find fair, just and reasonable to give when all the circumstances are taken into account. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16603/eng@2025-09-30 2

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Respondents’ Case. 1st ,4th and 5th Respondents. 7. The 1st,4th and 5th Respondents filed a Replying Affidavit sworn on 7th June,2022 by Dr. Julius Muia. He avers that Kenya and Uganda are not only member states of COMESA but also Partner States in the East African Community (herein EAC) Customs Union which promotes unrestricted movement of goods between its partner states as long as the goods meet the rules of origin criteria, that is, the goods are wholly produced within EAC. 8. He further states that there was no contradiction between the provisions in the COMESA Treaty and the EAC Union Protocol as the COMESA Treaty was built on what is already contained in the EAC. He stated that under the COMESA sugar safeguard facility, quota allocations to member states under the COMESA Treaty are based on a formula that is approved by the council of ministers and further that EAC Partner States have a duty-free access to the Kenyan Sugar Market over and above the COMESA quota allocation by virtue of being a signatory to the EAC Customs Union, as long as the sugar meets the EAC Rules of Origin Criteria. 9. On the issue of the bilateral agreement, he stated that the instrument entered into between Kenya and Uganda was not an agreement but a communique as the trade between the 2 members states was already governed by the Treaty for the establishment of the EAC, the EAC Customs Union Protocol and the Common Market, which have already been ratified and form part of the Law of Kenya. Additionally, he averred that the bilateral agreement on importation of sugar is governed by EAC trade regime which allows trade between the EAC Partner States duty free, subject to goods meeting the rules of origin requirement. He emphasized that the special agreement entered into between Kenya and Uganda for importation of 90,000Metric Tonne of sugar into Kenya was in order to control the quantities imported and avoid flooding of the Kenyan market with Ugandan Sugar which would have been detrimental to our sugar industry, he emphasized that the joint communique was valid and was aimed at safeguarding domestic sugar production. He reiterated that the Ugandan Sugar imported to Kenyan market on duty free qualifies to enter Kenyan Market under the EAC Customs Union and as such, the trade between Kenya and Uganda is within the same Customs territory and does not therefore render the COMESA Treaty ineffective. 10. In Conclusion, he averred that the objective of the decision was to safeguard the domestic industry by ensuring that the interests of sugar and millers are protected from excess sugar imports from Uganda and therefore that the Petitioner misinterpreted the trading treaties that guide the trading blocs and many others have been developed and ratified in Kenya as forming part of the trade laws. 2nd Respondent 11. The 2nd Respondent filed a Replying Affidavit sworn on 25th Septemebr,2022 by Willis Audi. He averred that the Crops (Sugar Imports, Exports and By Products) Regulations 2020 gives the 2nd Respondent the mandate to regulate the importation of sugar into the Country. 12. He further contends that they were not aware of any valid permits for sugar imports that have been given by the 1st Respondent as they are the only body responsible for the permits as per the Regulations’, averred that the COMESA Quota allocation for sugar in 2021 was communicated via Kenya Gazette Notice No.221 dated 2nd March 2019 which quota they continue to be guided by and that this quota remains unexhausted to date contrary to the assertion that the same was exhausted by September,2021. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16603/eng@2025-09-30 3

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13. Additionally, he averred that the 2nd Respondent had no objections to sugar imports in excess of the COMESA quota as long as the approval was granted and the importer pays the requisite taxes levied by the 3rd Respondent, in any event, he averred, the communique between Kenya and Uganda was not a treaty within the meaning of Section 2 of the Treaty making and Ratifications Act. In conclusion, he averred that the petition was an abuse of judicial times and should be dismissed with costs. The 3rd Respondent 14. The 3rd Respondent filed grounds of opposition dated 24th November 2021 wherein the raised 15 grounds in opposition of the Petition. They reiterated that they were responsible for the management and control of customs, allow importation of Sugar as provided under the Sugar Act and the Sugar (Imports, Exports and by-Products) Regulations 2018.They emphasized that they do not take part in the allocation of quotas of imports and their mandate is only to ensure that the goods that enter or leave the country are as per the set legal frameworks and all permits are available. As such, they argued that they have been unfairly enjoined in the proceedings. 15. The Petition was canvassed by way of written submissions. Parties’ written submissions and the decisions referred thereto have been carefully considered. Determination 16. Having carefully considered the parties’ written submissions and rival arguments, the issue for this court’s determination is: 1. 17. Whether the Petition meets the threshold for Constitutional Petition. It is trite law that allegations of violation of the Constitution must not only be pleaded with specificity but must also be sufficiently proved. In Anarita Karimi Njeru v Republic [1979] eKLR the Court of Appeal held: … “ if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” This principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder: “ …the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16603/eng@2025-09-30 4

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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.” Further Chacha, J. in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR, stated that: “ It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.” 18. The principles set by these decisions were that a Constitutional Petition should set out with a degree of precision the Petitioner’s complaint, the provisions infringed, and the manner in which they are alleged to be infringed. 19. This court has had the liberty to carefully peruse the Amended Petition and it is clear that the Petitioner has not demonstrated with precision the rights that they claim have been infringed or violated. The Petition lacks particularity of the specific constitutional provisions that have been violated and for this reason, must fail. 20. In the upshot I find that the Petition is void of merit and is dismissed with no order as to costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 30TH day of SEPTEMBER, 2025. E.K OGOLLA JUDGE In the presence of: ………………………………………………….. for the Petitioner ……………………………………………………for the Respondent. Gisiele………………………………………… Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16603/eng@2025-09-30 5

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