Consumers Federation of Kenya (cofek) (suing Through Ephraim Kanake, Stephen Mutoro and Henry Ochieng) v The Cabinet Secretary, National Treasury and Planning & 4 others

AND IN THE MATTER OF EAST AFRICAN COMMUNITY (EAC) GAZETTE DATED 30TH JUNE 2024 (VOL. AT 1 – NO. 18) BETWEEN CONSUMERS FEDERATION OF KENYA (COFEK) (SUING THROUGH EPHRAIM KANAKE, STEPHEN MUTORO AND HENRY OCHIENG) ............................................................................................... PETITIONER AND THE CABINET SECRETARY, NATIONAL TREASURY AND PLANNING ..................................................................................... 1ST RESPONDENT CABINET SECRETARY, EAST AFRICAN COMMUNITY ASALS AND REGIONAL DEVELOPMENT ..................................................... 2ND RESPONDENT THE HONOURABLE ATTORNEY GENERAL ........................ 3RD RESPONDENT THE KENYA REVENUE AUTHORITY .................................... 4TH RESPONDENT THE NATIONAL ASSEMBLY OF KENYA ................................ 5TH RESPONDENT JUDGMENT Introduction And Background 1. This judgment concerns a constitutional petition of considerable moment, situated at the confluence of Kenya’s domestic constitutional sovereignty and its obligations within the framework of regional integration. At its core, the petition challenges the legal, procedural, and constitutional legitimacy of the Government of Kenya’s decision to impose a ten per cent (10%) import duty on crude palm oil. The impugned fiscal measure was adopted through the institutional mechanisms of the East African Community (EAC) and subsequently promulgated via the EAC Gazette of 30th June 2024. The petitioner contends that the decision, in both its conception and implementation, offends the Constitution of Kenya and exceeds the authority vested in the relevant national and regional organs. 2. The gravamen of the dispute does not lie in the economic prudence or policy desirability of the contested levy, but rather in the procedure through which it was introduced. The Petitioner asserts that the impugned tax whose incidence, by its very nature, bears directly and substantially upon the Kenyan populace was imposed in the absence of the constitutionally prescribed processes of parliamentary oversight and public participation envisaged under the Constitution of Kenya, 2010. In consequence, the Petitioner invites this Court to grant, inter alia, the following reliefs: a. A Declaration be and is hereby issued that decision of the Kenyan Government to stay the application of the 0% rate of import duty on crude palm oil and apply a rate of 10% for the importation of crude palm oil to Kenya is unconstitutional, null and void. b. An order be and is hereby issued, prohibiting the respondents, either by themselves, their agents, representatives or their assigns or any other persons acting on their behalf, from implementing the East African Community (EAC) Gazette Notice dated 30th June 2024 (Vol. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 2

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AT 1 – No. 18), with respect to the introduction of a 10% import duty on crude palm oil for crude palm oil imports to Kenya. c. A Declaration be and is hereby issued that any decision of the Government to apply for stay or any other related measure under the East Africa Community’s Common External Market without proper public participation and parliamentary scrutiny in line with the Articles 10, 201 and 209 of the constitution as well as the Statutory Instruments Act, is unconstitutional, null and void. d. A Declaration be and is hereby issued that prior to submission for consideration by the council of ministers under the Common External Tariffs by the Government of Kenya on any measure, which directly or indirectly impose a positive or negative taxation impact on the Kenyan people, prior adequate public participation and parliamentary scrutiny of the measure shall be conducted. e. Costs of the Petition. 3. The factual background to this dispute is, for the most part, not a matter of controversy. Kenya is a Member State of the East African Community (hereinafter referred to as EAC) and is accordingly bound by the Treaty for the Establishment of the East African Community as well as the Protocol on the Establishment of the East African Community Customs Union. A central feature of the Customs Union is the Common External Tariff (hereinafter referred to as CET), which stipulates uniform duty rates applicable to goods imported into the Partner States from territories outside the Community. 4. It is common ground that the Common External Tarriff rate applicable to crude palm oil is ordinarily set at zero per cent (0%). However, the EAC Customs Union Protocol permits a Partner State, upon application and subject to the approval of the Council of Ministers, to obtain a temporary “stay of application” of a CET rate, thereby enabling that State to impose a higher or otherwise varied rate for a defined period and for specified policy considerations. 5. On 30th June 2024, the East African Community issued Gazette Vol. AT 1 No. 18, which set out, inter alia, an approved measure at Serial No. 158. The said entry directed that “Uganda and Kenya to stay application of the EAC CET rate of 0% and apply a duty rate of 10% for one year.” The measure took effect on 1st July 2024 and constitutes the operative regional directive underpinning the impugned fiscal adjustment. 6. The Petitioner, a consumer advocacy organisation, contends that the decision by the Government of Kenya to seek the said stay of application and the resultant imposition of the ten per cent (10%) duty was undertaken in a manner that wholly circumvented the constitutionally mandated processes of parliamentary scrutiny and public participation. It is this asserted procedural infirmity that forms the fulcrum of the present constitutional challenge. The Petitioner’s Case 7. The Petitioner’s case, as articulated in the Petition and the Supporting Affidavit of Stephen Mutoro, rests upon several interrelated pillars. First, the Petitioner contends that the imposition of any tax, or the variation thereof, is a quintessential legislative function vested exclusively in Parliament pursuant to Articles 94(1), 209, and 210 of the Constitution. According to the Petitioner, the decision by the Executive to seek a stay of the zero per cent (0%) CET rate and thereby introduce a ten per cent (10%) duty constitutes, in substance and effect, a tax-varying measure. It is asserted that by electing to proceed directly through the regional mechanisms of the EAC Council of Ministers, without prior https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 3

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recourse to Parliament, the Executive violated the constitutional principle of separation of powers and impermissibly usurped the legislative authority of Parliament. 8. Second, the Petitioner asserts that the impugned decision-making process egregiously contravened the national values and principles of governance most notably the principle of public participation enshrined in Article 10(2)(a) of the Constitution. It is averred that no form of public consultation or stakeholder engagement was undertaken in relation to a fiscal measure that directly affects the price of an essential food commodity and, by extension, the economic and social well-being of millions of Kenyans. 9. Third, the Petitioner alleges that the impugned decision has resulted in the violation of substantive constitutional rights. In particular, it is argued that the consequential escalation in the price of cooking oil and its derivatives infringes the right to be free from hunger and the right to adequate food of acceptable quality under Article 43(1)(c), the right to human dignity protected under Article 28, and the consumer rights guaranteed under Article 46 of the Constitution. 10. Lastly, the Petitioner avers that the decision arrived at without comprehensive consultation or a proper assessment of its far-reaching economic implications has destabilised the local edible oils manufacturing sector by significantly increasing the cost of raw materials. It is contended that this escalation in production costs has adversely affected the competitiveness of local industries and poses an imminent threat of closure, with the potential loss of employment for more than 10,000 Kenyans engaged in the domestic palm-oil processing and related value-addition chains. The Respondents’ Cases 11. The Respondents, though filing separate Replying Affidavits, advance a broadly aligned defence, the substance of which may be summarised as follows. 12. The 1st, 2nd, and 3rd Respondents the Executive and the Attorney-General through the sworn Replying Affidavit of Hon. CPA John Mbadi Ng’ongo, EGH, contend that the Petition rests on a fundamental misapprehension of the East African Community legal and institutional framework. They assert that the Treaty for the Establishment of the East African Community Act (Cap. 4C) effectively domesticates the East African Community (EAC)Treaty and the attendant regional instruments as part of the law of Kenya. By enacting this domesticating statute, Parliament is said to have delegated authority over certain customs and tariff matters, including the consideration and approval of stays of application of the Common External Tariff (CET), to the EAC Council of Ministers and the East African Legislative Assembly. Consequently, the Respondents argue that subjecting an EAC Gazette notice to prior approval by the Parliament of Kenya would be inconsistent with the constitutional and statutory delegation already effected. 13. The Respondents further assert that public participation did in fact occur. They rely upon a general public notice issued by the National Treasury inviting budget proposals for the 2024/2025 financial year, as well as subsequent stakeholder engagement forums. They additionally justify the introduction of the ten per cent (10%) duty as a policy measure directed at curbing the misdeclaration of semiprocessed palm oil as crude oil, a practice said to have occasioned significant revenue losses to the State. 14. It is further deponed that the customs proposals were subjected to a review and analytical process undertaken by the Budget Committee, comprising officers from the National Treasury and the Kenya Revenue Authority, prior to submission to the Cabinet Secretary for consideration and approval. According to the Respondents, this review evaluated, inter alia, the anticipated effects on commodity prices and the projected improvement in revenue collection following the elimination of misdeclaration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 4

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15. The 5th Respondent, the National Assembly through the Replying Affidavit of Samuel Njoroge, C.B.S., raises a jurisdictional objection. It is averred that the Petitioner is, in substance, impugning a decision of the EAC Council of Ministers. By reference to Articles 23, 27, and 30 of the EAC Treaty, the National Assembly contends that the East African Court of Justice (hereinafter referred to as the EACJ) is vested with exclusive jurisdiction to review the legality of acts of EAC organs. It is thus argued that this Court lacks the jurisdiction to entertain the Petition. 16. On the merits, the National Assembly concedes that it did not undertake specific scrutiny of the impugned stay application but maintains that its general approval of the national budget and the Finance Bill, 2024 processes that were themselves preceded by public participation provided sufficient constitutional ratification of the Executive’s actions. The National Assembly further urges the Court to exercise judicial restraint and to refrain from entering the province of policy formulation, a domain constitutionally assigned to the Executive and the Legislature. 17. The Petition was canvassed by way of written submissions and the parties filed their respective written submissions. Petitioner’s Submissions 18. In its written submissions dated 25th November 2024, the Petitioner undertook a detailed and methodical rebuttal of the Respondents’ positions. On the question of jurisdiction, the Petitioner maintained that the present challenge is not directed at the decision of the EAC Council of Ministers as such, but rather at the conduct of Kenyan State organs in initiating and implementing a fiscal measure without adherence to domestic constitutional requirements. The Petitioner drew a clear distinction between the jurisdiction of the East African Court of Justice which is confined to matters concerning the interpretation and application of the EAC Treaty and the jurisdiction of this Court, which is the primary sentinel of the Constitution and is empowered to interrogate alleged violations of constitutional provisions by national organs. 19. With respect to the argument on delegation, the Petitioner contended that the authority to impose taxes is a sovereign function of the people of Kenya, exercisable solely through Parliament and incapable of delegation to any external body. Relying on Okiya Omtatah Okoiti v Cabinet Secretary to the National Treasury & 3 Others (2018) eKLR, the Petitioner submitted that any attempt by the Executive to impose or vary a tax without express legislative sanction is unconstitutional. The domestication of the EAC Treaty, it was argued, cannot be construed as a blanket delegation of Parliament’s taxing power. 20. On the issue of public participation, the Petitioner asserted that the generalised budget consultation processes cited by the Respondents were not directed at and did not specifically address the proposed duty on crude palm oil. Consequently, the Petitioner maintained that such processes fell short of the constitutional standard of meaningful public participation required in respect of a measure with direct and significant implications for consumers and the broader public. Respondents’ Submissions 21. In its written submissions dated 17th December 2024, the Honourable Attorney-General identified three issues for determination, namely: whether taxation measures may lawfully be imposed within the East African Community framework; whether the taxation measures adopted within that framework are unconstitutional; and whether the requirement for public participation was satisfied. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 5

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22. On the first issue, the Respondents submitted that the Petition is anchored on a misapprehension of the EAC legal regime, particularly the East African Community Customs Management Act, 2004 and the Common External Tariff (CET), 2022. They argued that the Treaty for the Establishment of the East African Community was domesticated through the Treaty for the Establishment of the East African Community Act (Cap. 4C), thereby forming part of Kenya’s municipal law and not merely an international instrument under Article 2(6) of the Constitution. Reliance was placed on Beatrice Wanjiku & Another v Attorney General & Others [2012] eKLR for the proposition that, although the Constitution is supreme, international instruments incorporated into Kenyan law operate subject to it. The Respondents maintained that taxation measures arising from the Treaty and its protocols fall within the permissible delegation of authority envisaged under Articles 209 (2) and 210 (1) of the Constitution. Consequently, they contended that Kenya, as part of a single customs territory, may implement tax measures published through the EAC Gazette without further reference to Parliament. 23. On the second issue whether the impugned taxation measures are unconstitutional the Respondents argued that the Petitioner had failed to discharge the burden of proving unconstitutionality as required under Section 109 of the Evidence Act (Cap. 81). They relied upon Law Society of Kenya v Attorney General & Another [2019] KESC 16 (KLR), wherein the Supreme Court affirmed the presumption of constitutionality that attaches to statutes and the obligation on a challenger to specify the impugned provision and demonstrate its inconsistency with the Constitution. Further reliance was placed on the Supreme Court of India decision in State of M.P. v Rakesh Kohli & Another, Civil Appeal No. 684 of 2004, as cited with approval by the Supreme Court of Kenya in Cabinet Secretary for the National Treasury and Planning & Others v Okiya Omtatah Okoiti & Others, Petition No. E031 of 2024 (as consolidated), cautioning courts against invalidating legislation absent clear and irrebuttable proof of constitutional transgression. The Respondents submitted that Cap. 4C enjoys this presumption of constitutionality and that the Petitioner had not shown that the delegation of authority therein is unconstitutional or that the impugned measure is inconsistent with any constitutional provision. 24. On public participation, the Respondents asserted full compliance with Article 10 of the Constitution. They relied on evidence annexed to their Replying Affidavit demonstrating that the National Treasury issued public notices between 6th October and 10th November 2023 inviting submissions and providing an official email address for that purpose. They further referred to stakeholder engagement meetings attended by various interest groups, details of which were supplied in the annexures. Placing reliance in the Supreme Court decision in Cabinet Secretary, National Treasury & Planning & Others v Okiya Omtatah Okoiti & Others, they argued that Article 10 does not prescribe a rigid formula for participation and that adequate opportunities for engagement were provided and duly considered before Kenya’s proposals were submitted to the EAC Secretariat. 25. The Respondents further submitted that the impugned tax measure was a necessary means of protecting public revenue and curbing rampant misdeclaration of partially refined palm oil as crude oil, which attracts a lower duty. They asserted that global supply constraints from major palm-oilexporting countries had increased the risk of abuse of the CET regime, necessitating Kenya’s request for a stay of application of the CET rate. It was their position that an inter-agency Budget Committee undertook an extensive review of the economic impact of the proposed measure including expected revenue gains and price effects before recommending it to the Cabinet Secretary. They invoked Article 24 of the Constitution to argue that any incidental limitation of rights was reasonable, proportionate, and justified in pursuit of socio-economic welfare under Article 43. In their view, the measure was evidence-based, necessary, and tailored to safeguard the public interest. 26. The Respondents further submitted that the Petitioner had neither demonstrated that Parliament’s authority had been usurped nor established any constitutional infirmity attaching to the impugned https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 6

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Gazette Notice. They reiterated that Parliament, through Cap. 4C, validly delegated certain customs and tariff functions to the regional mechanisms established under the EAC Customs Union Protocol. They urged the Court to find that the measure was enacted within the proper legal framework, supported by public participation, and guided by constitutional and statutory mandates, and to dismiss the Petition accordingly. 27. The 5th Respondent, through its written submissions dated 22nd September 2025, raised several points concerning the jurisdiction of this Court and the nature of the impugned decision. 28. It was submitted that the decision under challenge is not attributable solely to the 1st Respondent, but rather constitutes a determination of the East African Community (EAC) Council of Ministers acting pursuant to the Treaty for the Establishment of the East African Community. The 5th Respondent contended that Articles 23, 27, and 30 of the Treaty confer exclusive jurisdiction on the East African Court of Justice (EACJ) to determine the legality of acts of Community organs. Consequently, it was argued that this Court lacks jurisdiction, as any national scrutiny of such decisions would risk fragmenting the uniform application of Community law and undermine the objectives of regional integration. Reliance was placed on the comparative jurisprudence in Costa v ENEL (Case 6/64), and the principle enunciated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, namely that where a court lacks jurisdiction, it must decline to exercise its functions. 29. The 5th Respondent further submitted that the measure was subject to domestic legislative processes in accordance with Sections 39A and 40 of the Public Finance Management Act and Standing Orders 244C and 245 of the National Assembly. It was contended that the Finance Bill 2024 was referred to the Departmental Committee on Finance and National Planning, which facilitated public participation in accordance with Article 119 of the Constitution, before tabling its report for adoption by the National Assembly. The Council of Ministers, it was argued, operates on the presumption that Partner States submit proposals that have undergone the requisite internal legal and parliamentary vetting. To reopen this chain of scrutiny before a national court, the 5th Respondent contended, would reintroduce a jurisdictional difficulty that falls exclusively within the competence of the EACJ when assessing compliance with domestic processes in reviewing Council decisions. 30. On the question of taxation policy, it was submitted that the Petition improperly seeks to invite the Court into matters of fiscal and tax policy, a domain reserved to Parliament and the Executive under Articles 94, 95, and 209 of the Constitution. It was emphasized that judicial review of fiscal measures is confined to cases of unconstitutionality or manifest irrationality, as affirmed in Pevans East Africa Ltd & Another v Chairman, Betting Control & Licensing Board & Others, Civil Appeal No. 11 of 2018. Reliance was also placed on Okoiti & Others v Cabinet Secretary, National Treasury & Others [2022] KEHC 13213, where it was reaffirmed that decisions on the imposition of taxes are within the exclusive remit of legislative authorities. 31. The 5th Respondent further argued that the Petition is misconceived, as it purports to challenge a decision of the EAC Council of Ministers, a matter falling within the exclusive jurisdiction of the EACJ under Articles 23, 27, and 30 of the Treaty. It was contended that the impugned measure underwent layered scrutiny, first through domestic parliamentary debate and public participation, and subsequently through regional endorsement. Any dispute regarding the adequacy of this process, it was submitted, must be addressed by the EACJ. Accordingly, the Petition was said to improperly seek to have this Court assume functions reserved for Parliament and the Executive in fiscal policy, contrary to the principle of separation of powers, and the Court was urged to dismiss the Petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 7

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Analysis And Determination 32. Upon careful consideration of the pleadings and submissions, the Court has identified the following issues for determination: i. Whether this Court has jurisdiction to entertain the Petition; ii. Whether the imposition of the 10% import duty on crude palm oil through the EAC Gazette, without prior parliamentary approval, violated Articles 94(1), 209, and 210 of the Constitution; iii. Whether the process leading to the imposition of the said duty violated the constitutional principle of public participation under Article 10 of the Constitution; iv. Whether the imposition of the duty violated the Petitioner's and the public's rights under Articles 28, 43(1)(c), and 46 of the Constitution; Whether this Court has jurisdiction to entertain the Petition 33. It is trite law, as held in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, that a court’s jurisdiction derives from the Constitution or legislation and cannot be conferred by parties or assumed. The 5th Respondent’s challenge to jurisdiction must therefore be addressed at the outset. Its central argument is that the Petitioner’s grievance relates to the East African Community (EAC) Council of Ministers’ decision, over which the East African Court of Justice (EACJ) has exclusive jurisdiction under Article 30 of the Treaty for the Establishment of the East African Community. 34. I am not persuaded that this argument is well-founded. It conflates the decision of the East African Community Council with the antecedent conduct of the Kenyan Executive. The Petition does not impugn the decision of the EAC Council; rather, it challenges the actions of Kenyan State organs in initiating the application to that Council without adhering to mandatory domestic constitutional and statutory procedures. The complaint, therefore, is not that the EAC Council acted in error, but that the conduct of the relevant Kenyan authorities was unconstitutional. 35. The jurisdiction of this Court is firmly grounded in Article 165(3)(d) of the Constitution, which empowers it to hear any question regarding the interpretation of the Constitution, including whether anything done under the authority of the Constitution or any law is inconsistent with or in contravention of the Constitution. This Article, read together with Articles 22(3), 3(b), and 23, provides the framework for enforcing the Bill of Rights. The actions of the 1st and 2nd Respondents, as agents of the State, fall squarely within this constitutional mandate. 36. The East African Court of Justice (EACJ), as established under Article 23 of the Treaty for the Establishment of the EAC while competent to review the legality of Community acts, does not serve as the primary guardian of Kenya’s Constitution. Its jurisdiction is complementary, not substitutive, of domestic constitutional oversight. To hold that every action by the Kenyan Executive in pursuit of an EAC process is immune from scrutiny would create an accountability vacuum and cede Kenyan sovereignty to a supranational body without constitutional authorization. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 8

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37. The Supreme Court has consistently affirmed the primacy of the Constitution over international law and treaties. In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR), the Court held: “ the Kenyan Constitution is the supreme law of the land. International law and treaties which Kenya ratifies, become part of the Kenyan law, but they do not supersede the Constitution.” Similarly, the Court emphasized in its consideration of the hierarchy of laws that: “But, in taking issue with the High Court for relying on the UN Guidelines, the Court of Appeal opined (at para 115):“In the High Court decisions referred to above, reliance upon the UN Guidelines is premised on article 2(5) and (6) of the Constitution. The articles stipulate that the general rules of international law and any Treaty or Convention ratified by Kenya is part of the laws of Kenya. Whereas we do not fault the High Court for citing the UN Guidelines, it is imperative to bear in mind the hierarchy of laws in Kenya. The Supreme law in Kenya is the Constitution and if any general rule of international law or Treaty ratified by Kenya is inconsistent with the Constitution, the Constitution prevails.” (Emphasis added).” 38. This principle is dispositive of the jurisdictional question. The Court has both jurisdiction and duty to determine whether the actions of Kenyan state organs comply with the supreme law of the land. Whether the imposition of the 10% import duty on crude palm oil through the EAC Gazette, without prior parliamentary approval, violated Articles 94(1), 209, and 210 of the Constitution 39. Articles 209 and 210 of the Constitution embody the principle of “no taxation without representation.” Article 209 vests the power to impose taxes in the national government, while Article 210(1) provides unequivocally that “no tax or licensing fee may be imposed, waived or varied except as provided by legislation.” These provisions are not mere procedural formalities; they are fundamental constitutional safeguards designed to protect parliamentary sovereignty and the rights of citizens. 40. The Respondents’ contention that Parliament delegated this power through Cap. 4C is untenable. Taxation is a sovereign power exercised by the people through their elected representatives and cannot be lightly delegated, much less to an external entity over which the Kenyan electorate has no control. 41. This principle was affirmed in Okiya Omtatah Okoiti v Cabinet Secretary, National Treasury & 3 Others [2018] KEHC 9439 (KLR), where the High Court invalidated the Provisional Collection of Taxes and Duties Act, observing: “ If the intention of the drafters of the Constitution was to exempt tax laws, even temporarily, from the rigors of parliamentary approval and presidential assent, nothing would have been easier than for the Constitution to stipulate as much.” 42. In the present case, the Executive sought to impose a permanent one-year tax while entirely bypassing Parliament. Acceptance of the Respondents’ delegation argument would effectively create a backdoor for the Executive to impose taxes under the guise of EAC processes, thereby nullifying the constitutional safeguards enshrined in Articles 209 and 210. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 9

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43. While Section 8 of Cap. 4C provides for the domestication of Community Acts into Kenyan law, this provision must be read subject to the Constitution. As held in East African Community v Republic [1970] E.A. 457, “ The Constitution of Kenya is paramount and any law, whether of Kenya, the Community, or any other country applied in Kenya, which conflicts with the Constitution, is void to the extent of the conflict…Provisions of a treaty entered into by the Government of Kenya do not become part of municipal law except as provided by Kenyan law. If such provisions conflict with the Constitution, they are void to the extent of the conflict.” 44. Accordingly, any Community Act imposing a tax without compliance with the legislative requirements of Article 210 is, to that extent, unconstitutional and void. The process leading to the imposition of the 10% duty on crude palm oil was therefore fundamentally flawed, as the Executive failed to obtain parliamentary approval prior to applying to the EAC Council, in contravention of Articles 94(1), 209, and 210. 45. Taxation is a sovereign function that may not be exercised by the Executive absent express legislative sanction. The domestication of the EAC Treaty does not amount to a blanket delegation of Parliament’s taxing authority. While Cap. 4C incorporates regional obligations into domestic law, it cannot bypass Parliament’s constitutional role in approving measures that directly increase the tax burden on the citizenry. 46. The Executive’s unilateral imposition of the 10% duty on crude palm oil without specific parliamentary approval is unconstitutional. Whether the process leading to the imposition of the said duty violated the constitutional principle of public participation under Article 10 of the Constitution 47. Article 10 of the Constitution enshrines public participation as a cornerstone of democratic governance. It requires more than perfunctory consultation; it mandates meaningful engagement that is accessible, informed, and capable of influencing decision-making. Effective public participation depends on deliberate strategies for outreach, education, and access to institutions of governance. 48. In Doctors for Life International vs Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11, the South African Constitutional Court held that the reasonableness of legislative efforts to facilitate public involvement must consider the nature and importance of the legislation, the intensity of its impact, and other relevant factors. Sachs J emphasized that: “ All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws”. 49. The Respondents’ claim that public participation was achieved through general budget consultations is unpersuasive. The notice published by the National Treasury was generic, with no indication that the increase in crude palm oil duty from 0% to 10% was a discrete item open to public consideration. The stakeholder meetings referenced were engagements with select entities, not forums for public participation. The public cannot meaningfully participate in processes of which they are unaware. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 10

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50. As Odunga J. observed in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR wherein the learned Judge while relying on the South African Constitutional Court’s decision in Doctors for Life International vs. Speaker of the National Assembly and Others (supra) explored in great detail what is required for effective public participation as follows: 75. “In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action. Article 196(1)(b) just like the South African position requires just that. Dealing with the issue I wish to reiterate what was held in Doctors for Life International vs. Speaker of the National Assembly and Others (supra)to the effect that: “The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law-making process. The key words in this phrase are “facilitate” and “involvement”. To “facilitate” means to “make easy or easier”, “promote” or “help forward”. The phrase “public involvement” is commonly used to describe the process of allowing the public to participate in the decision-making process. The dictionary definition of “involve” includes to “bring a person into a matter” while participation is defined as “[a] taking part with others (in an action or matter); . . . the active involvement of members of a community or organization in decisions which affect them”. According to their plain and ordinary meaning, the words public involvement or public participation refer to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. That is the plain meaning of section 72(1)(a). This construction of section 72(1)(a) is consistent with the participative nature of our democracy. As this Court held in New Clicks, “[t]he Constitution calls for open and transparent government, and requires public participation in the making of laws by Parliament and deliberative legislative assemblies.” The democratic government that is contemplated in the Constitution is thus a representative and participatory democracy which is accountable, responsive and transparent and which makes provision for the public to participate in the law-making process.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 11

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51. The court further stated: “ Merely to allow public participation in the law-making process is, in the prevailing circumstances, not enough. More is required. Measures need to be taken to facilitate public participation in the law-making process. Thus, Parliament and the provincial legislatures must provide notice of and information about the legislation under consideration and the opportunities for participation that are available. To achieve this, it may be desirable to provide public education that builds capacity for such participation. Public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens….” 52. Further, the High Court in Law Society of Kenya v National Assembly of Kenya & 3 others [2025] KEHC 5472 (KLR) reinforced that meaningful participation requires adequate notice, information, and the genuine ability to influence decisions. 53. None of these elements were present in the instant petition with respect to the crude palm oil duty. The absence of any specific, meaningful participation constitutes a clear violation of Article 10. Accordingly, this Court finds that the Public participation in this matter was inadequate and fell short of constitutional standards. Whether the imposition of the duty violated the Petitioner's and the public's rights under Articles 28, 43(1)(c), and 46 of the Constitution 54. The Petitioner alleges violations of Article 28 (right to dignity), Article 43(1)(c) (right to food), and Article 46 (consumer rights). While media evidence indicates increases in the price of cooking oil following the duty’s imposition, it is unnecessary to conduct a full inquiry into these socio-economic impacts. A finding of unconstitutionality based on procedural failings suffices to dispose of the Petition. 55. However, in light of the findings on the procedural infirmities above, it is not strictly necessary to make a definitive determination on the alleged violation of these substantive rights. A finding of unconstitutionality based on a flawed process is sufficient to dispose of the matter. The Court is mindful that a detailed inquiry into the economic and social impact of the tax would require extensive evidence and would veer into the realm of policy, an area where courts traditionally exercise restraint. 56. That said, it is important to observe that the constitutional requirements of parliamentary approval and public participation are not empty formalities. They serve as crucial mechanisms to subject policy decisions, especially those with significant socio-economic ramifications, to democratic scrutiny and debate. By bypassing these procedures, the Respondents denied the people of Kenya the opportunity to have a say on a measure that directly affects their fundamental rights to food and dignity. The causal link between the procedural violation and the potential infringement of socio-economic rights is, in this context, palpable. 57. Overall, the process and imposition of the impugned 10% duty without compliance with constitutional procedure infringes or threatens to infringe protected rights, and the same also fundamental principles and values that underpin our Constitutional dispensation in a manner that cannot be justified or mitigated. The only route available is, therefore, to strike-down the same for being unconstitutional. 58. In view of the foregoing, the Petition succeeds and the Court makes the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 12

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a. A Declaration be and is hereby issued that the decision of the Government of Kenya to stay the application of the 0% rate of import duty on crude palm oil and apply a rate of 10% is unconstitutional, null and void; b. A Declaration be and is hereby issued that any decision of the Government of Kenya to apply for stay or any other related measure under the East Africa Community’s Common External Market without proper public participation and parliamentary scrutiny in line with the Articles 10, 201 and 209 of the constitution as well as the Statutory Instruments Act, is unconstitutional, null and void; c. A Prohibitory Order be and is hereby issued, prohibiting the 1st, 2nd, and 4th Respondents, their agents, or any person acting under their authority, from implementing, enforcing, or in any way giving effect to the East African Community Gazette Notice dated 30th June 2024 (Vol. AT 1 – No. 18) with respect to the introduction of a 10% import duty on crude palm oil for the importation of crude palm oil into Kenya; d. A Declaration be and is hereby issued that prior to submission for consideration by the council of ministers under the Common External Tariffs by the Government of Kenya on any measure, which directly or indirectly impose a positive or negative taxation impact on the Kenyan people, prior adequate public participation and parliamentary scrutiny of the measure must and shall be conducted; AND e. As this matter was public interest litigation, each Party to bear its own costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF NOVEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner – Mr. Tali Tali Counsel for the 1st – 3rd Respondents – Mr. Kaumba Counsel for the 4th a 5th Respondent- No appearance Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18223/eng@2025-11-27 13

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