Shaz Ventures Limited & 3 others v Kenya Plant Health Inspectorate Service & 1 other

a. A declaration that the Respondents' act of illegally charging the Petitioners phytosanitary services and increasing the phytosanitary services fees from 16 Cents Per Kilogram to 50 Cents Per Kilogram is a violation of Petitioner's fundamental rights under Article 40 of the constitution. b. A Declaration That the Respondents' violated Article 10 and 47 of the Constitution of Kenya. c. An order of Certiorari to remove into this Honorable Court and quash the Respondents' unlawful decision of illegally charging the Petitioners phytosanitary services and increasing the phytosanitary services fees from 16 Cents Per Kilogram to 50 Cents Per Kilogram. d. An order of Prohibition prohibiting the Respondent from illegally charging the Petitioners phytosanitary services and increasing the phytosanitary services fees from 16 Cents Per Kilogram to 50 Cents Per Kilogram. e. A declaration that the Petitioners are not subject to the payment of phytosanitary services fee for the importation of coal. f. Costs of this of petition. 3. For years prior to 2024, the Petitioners paid phytosanitary inspection fees to KEPHIS at a rate of Kshs 16cents per kilogram of coal imported. This fee was being charged ostensibly for plant health inspection services on the coal shipments at border entry points. In or about July 2024, KEPHIS unilaterally demanded a higher fee of Kshs 50cent per kg (along with Kshs 600 per import permit) before releasing the Petitioners’ consignments. 4. The Petitioners assert that this “new fee” was imposed abruptly, without any prior stakeholder engagement or public notice, and that it far exceeds the previous charge, thereby significantly increasing their cost of doing business. They contend that coal is not a plant or plant product and should never have attracted any phytosanitary fee in the first place; hence the entire levy whether at 16cents or 50cents is ultra vires and unlawful. The sharp fee escalation, they allege, has no legal basis, was done in an unprocedural and unreasonable manner, and threatens their economic viability. 5. The 1st Respondent opposes the petition and maintains that there is nothing “new” or illegal about the 50cent per kg fee. It avers that this rate is prescribed by law specifically, in the Plant Protection (Fees and Charges) Rules, 2009 Legal Notice No. 48 which sets a charge of 50 cents per kilogram for inspection of imported plant produce, plus Kshs 600 for a plant import permit. KEPHIS states that the Petitioners had all along been undercharged paying 16 cents instead of the lawful 50cents due to historical or administrative oversight, and that in 2024 KEPHIS simply began enforcing the correct legal fee. 6. The Hon. Attorney General as the 2nd Respondent also opposes the petition through Grounds of Opposition dated 22nd January 2025. He argues that the Petition is defective for lack of precision in pleading the alleged constitutional violations. In particular, the Petitioners are faulted for failing to specify with particularity the acts or omissions that violated the Constitution, and for not explicitly challenging the legality of the law or regulations that empower KEPHIS to levy fees. 7. The Attorney General invokes the principle of presumption of constitutionality of statutes, noting that the Petitioners have not sought to declare any provision of the Plant Protection Act or subsidiary legislation unconstitutional. Enforcing a duly enacted fee, absent a direct challenge to the law itself, cannot be deemed unconstitutional, in his view. The 2nd Respondent further contends that the Petition amounts to an abuse of judicial process, aimed at preventing a state agency from performing its lawful https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 2

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mandate. It is also pointed out that no specific wrongdoing is attributed to the Attorney General, a mere party by virtue of his office, and thus the pleadings disclose no cause of action against the 2nd Respondent. 8. Both Respondents urge that the Petition be dismissed with costs. 9. All parties filed written submissions: the Petitioners’ submissions are dated 26th November 2024; the 1st Respondent’s submissions are dated 26th November 2024; and the 2nd Respondent’s submissions are dated 5th June 2025. Petitioners’ Submissions 8. The Petitioners submit that KEPHIS’s action of tripling the phytosanitary fees was illegal, unconstitutional, and violated their rights in multiple respects. First, they argue that the Respondents’ conduct violated Article 47 of the Constitution on fair administrative action. The Petitioners emphasize that no consultation or prior notice was given to them or other stakeholders before the drastic fee increase was effected. They contend that such an arbitrary change, implemented without adhering to basic procedural fairness, was “unprocedural” and unreasonable, hence falling short of the Article 47 standard that administrative action be lawful, reasonable, and procedurally fair. 9. The Petitioners further submit that the magnitude of the fee hike was so unreasonably high as to be disproportionate and oppressive. They assert that this onerous fee has the effect of denying them the full use of their property without justification, thereby infringing Article 40 of the Constitution. By introducing “new fees which do not meet the Petitioners’ favour,” the Respondents allegedly interfered with the Petitioners’ right to property, resulting in loss of revenue and risking the closure of their businesses. The Petitioners characterize the move as “unlawful, arbitrary and a flagrant violation” of their economic rights. Although Article 40 protects against deprivation of property, the Petitioners argue that indirectly, an exorbitant regulatory fee can amount to an unjustified restriction on their property and economic freedom, especially if the fee lacks lawful authority or proportionality to a legitimate aim. 10. A central point of the Petitioners’ case is that KEPHIS had and has no legal mandate to levy any phytosanitary fees on coal imports at all. They point out that KEPHIS is established to regulate plant health specifically in relation to “plants, seeds, plant varieties and agricultural produce”. The Petitioners refer to the statutory definitions in the Plant Protection Act (Cap 324) and the Seeds and Plant Varieties Act (Cap 326). Coal and crushed stone, the Petitioners submit, plainly fall outside these definitions and are not subject to plant health inspection services. They argue that the inclusion of their imported commodity in KEPHIS’s phytosanitary regime is ultra vires the mandate of KEPHIS and ultra vires the Plant Protection Act, which was meant to guard against pests in plants and related organic material. Since coal is inert mineral ore, the Petitioners contend there is no legal basis for demanding a plant import permit or charging any phytosanitary fee on such imports. Any fees hitherto collected on coal, even at 16cent, were therefore unlawful; the increase to 50cent merely aggravated the illegality. For this reason, the Petitioners seek a declaration that they are not subject to phytosanitary fees for importation of coal. 1st Respondent’s (KEPHIS) Submissions 8. In response, the 1st Respondent maintains that the Petition is misconceived as it challenges a lawful fee that KEPHIS is empowered to charge. KEPHIS submits that it is established under the KEPHIS Act (No. 54 of 2012) and entrusted to implement various plant protection laws listed in the Act’s First Schedule, including the Plant Protection Act (Cap 324). The 1st Respondent submits that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 3

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Petitioners themselves admitted in their pleadings that KEPHIS had all along been undercharging them 16cents instead of the 50cent provided in the Legal Notice. In KEPHIS’s view, this undermines the Petitioners’ case: it demonstrates that the so-called “new fee” was the correct lawful fee which KEPHIS simply began enforcing, and that the Petitioners had no entitlement to the previous undercharged rate. 9. KEPHIS strongly disputes the allegation that its actions were illegal or ultra vires. It asserts that coal imports can indeed pose phytosanitary risks, and that KEPHIS’s mandate extends to inspecting any imports that could carry pests harmful to plants. Although coal is not a plant, KEPHIS argues that the regulatory net is cast wider by the Plant Protection Act, which authorizes inspection of not only plants but also any conveyances, containers, soil, or other articles that might harbor destructive pests. KEPHIS’s submissions imply that the requirement for a Plant Import Permit was applied to the Petitioners’ coal shipments to ensure that no pest or pathogen is inadvertently brought in. By virtue of its statutory duty to protect plant health, KEPHIS contends it acted within the law in inspecting the coal imports and levying the applicable fee. The 1st Respondent thus denies overstepping its jurisdiction; on the contrary, it asserts that it would be a dereliction of duty not to subject such imports to inspection if there is any risk to biosecurity. 10. The 1st Respondent submits that the Petitioners have not demonstrated any violation of Article 47. KEPHIS argues that no individualized “decision” against the Petitioners was made that would trigger the right to a personal hearing. Rather, what occurred was an operational measure to implement an existing general law uniformly to all importers. KEPHIS posits that when an established legal fee is enforced, an affected person cannot claim a right to be heard to continue enjoying an unlawful advantage (paying less). It cites the holding in Republic v KRA Ex parte Yaya Towers Ltd [2008] eKLR that a legitimate expectation cannot be used to shield one from obeying the law. The 1st Respondent highlights Nyamu, J.’s observation in that case that an expectation of a benefit “cannot exist or be justified if it contradicts a clear provision of law”, and that an agency’s correction of an earlier underenforcement of the law does not amount to an unfair withdrawal of a benefit. 2nd Respondent’s (Attorney General) Submissions 8. The Attorney General, in alignment with KEPHIS, submits that the Petition lacks merit both procedurally and substantively. On the issue of pleadings, the AG reiterates the requirement from Anarita Karimi Njeru (No. 1) [1979] and Mumo Matemu v Trusted Society [2013] eKLR that a constitutional petition must state the provisions violated, the manner of violation, and the remedy sought with a reasonable degree of precision. He argues that the Petitioners have made broad allegations of constitutional violation without delineating how the specified Articles (10, 47) specifically apply to the facts at hand hence, according to the AG, their case is on a weak foundation. 9. Substantively, the Attorney General supports the stance that no rights have been violated by the mere implementation of a statutory fee. He aligns with the 1st Respondent’s position that Article 40 is not implicated, because regulatory fees and taxes are part of the social contract and do not amount to arbitrary deprivation especially where the fees are imposed by law and serve a public interest objective. On Article 47, the AG submits that the Petitioners had alternative remedies under the Fair Administrative Action Act such as requesting written reasons or appealing administratively which they did not pursue, instead directly coming to the constitutional court. 10. Finally, on his involvement, the 2nd Respondent emphasizes that KEPHIS is a state corporation capable of suing and being sued in its own name, and no substantive relief is sought against the Attorney General. He submits that his joinder was unnecessary and that the Petitioners have not demonstrated any act or omission by his office that contributed to the dispute. The AG thus urges dismissal of the Petition with costs, asserting it is unwarranted litigation brought to avoid compliance with lawful dues. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 4

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11. The Respondents collectively ask the Court to find that KEPHIS acted intra vires and in accordance with the Constitution and the law. They urge that the Petitioners’ case be dismissed for lack of merit, so that KEPHIS may continue to perform its crucial regulatory functions without inhibition. Issues for Determination 8. From the foregoing, the Court distils the following key issues for determination, a. Whether the Petition has been pleaded with sufficient precision as required for constitutional petitions. b. Whether the 1st Respondent’s act of levying phytosanitary inspection fees on the Petitioners’ imported coal and the subsequent increase of that fee was within the scope of its lawful mandate. Analysis and Determination Whether the Petition has been pleaded with suflcient precision as required for constitutional petitions. 8. It is settled law that anyone seeking redress for alleged constitutional violations must draft their petition with a reasonable degree of precision, identifying the specific constitutional provisions in question and the way they are said to be infringed. This principle was first articulated in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and later affirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. In Mumo Matemu, the appellate court reiterated that constitutional petitions should “set out with reasonable precision the provisions of the Constitution alleged to be contravened and the manner of contravention”, echoing the Anarita dictum. This requirement serves to ensure that a Respondent knows the case to meet and that the Court can identify the constitutional dispute in issue. However, the Mumo Matemu court also cautioned that while precision is important, it “is not synonymous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated.” and should not be applied in an overly formalistic manner to impede justice. In other words, a petition should be struck out for imprecision only if it is so vague and lacking in particulars that responding to it or adjudicating it would be difficult or prejudicial. The focus should be on substance over form, as Article 159(2)(d) of the Constitution encourages courts to administer justice without undue regard to procedural technicalities. 21. In the present case, the 2nd Respondent contends that the Petition does not meet the threshold of specificity and is therefore defective. Upon review of the Petition, this Court is of the view that, in substance, the Petitioners have adequately identified the constitutional provisions they rely on and outlined the factual matrix of the alleged violations. The Petition expressly cites Articles 10, 40, and 47 and avers, for instance, that “the Respondents’ act of illegally charging and increasing the phytosanitary fees from 16 cents to 50 cents per kilogram is a violation of the Petitioners’ fundamental rights under Article 40”. It further claims that the Respondents’ actions violated Article 10 (national values) and Article 47 (fair administrative action). The supporting affidavit then narrates the events said to give rise to those violations. In their submissions, the Petitioners amplified how Article 47 was violated, how Article 10 was breached, and how Article 40 was infringed. 22. The Respondents have not demonstrated any substantial inability to respond caused by the manner of pleading. Indeed, both Respondents were able to file substantive responses and submissions engaging https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 5

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with Article 40, 47, and 10 issues. The matters in controversy are evident: whether the fee was illegal, and whether it violated property and fair administration rights. Thus, in line with the liberal approach endorsed in Nation Media Group Ltd v AG, this Court finds that the Petition meets the minimum threshold of specificity and should be determined on merits rather than be struck out for any technical lapses. As was stated in Matemu (supra), precision in constitutional petitions “demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions”. The Petitioners have, in our view, pleaded their case with reasonable precision by citing the relevant Articles and outlining the factual basis of the alleged contraventions. 23. The objection by the 2nd Respondent on this point is therefore dismissed. Lawfulness of the Phytosanitary Fee on Coal 24. The first substantive issue is whether KEPHIS acted within the scope of its legal authority in imposing phytosanitary inspection fees on the Petitioners’ coal imports, and specifically in increasing the fee from 16cents to 50cents per kg. If KEPHIS had no jurisdiction over coal or no valid legal instrument authorizing the fee, then its actions would be ultra vires and liable to be quashed on that basis alone. 25. The doctrine of ultra vires is a cornerstone of administrative law: a public body must not act outside the limits of authority granted to it by law. As Lord Macnaghten famously stated in Westminster Corporation v London & Northwestern Railway Co. [1905] AC 426, “a public body invested with statutory powers must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and must act reasonably…”. If an action is taken without legal jurisdiction, it is null and void ab initio. 26. The Kenya Plant Health Inspectorate Service (KEPHIS) is established by the KEPHIS Act (No. 54 of 2012). Section 3 of that Act establishes KEPHIS as a state corporation. Section 4 outlines its functions, which broadly include: regulating matters relating to plant protection, seeds, and plant varieties; administering plant health certification; and monitoring the quality of agricultural inputs and produce, among others. Crucially, Section 6(1) of the Act provides that KEPHIS “shall, in the performance of its functions under this Act, implement the provisions of the laws specified in the First Schedule”. The First Schedule then lists various statutes for which KEPHIS is the implementing agency. These include the Plant Protection Act (Cap 324), the Seeds and Plant Varieties Act (Cap 326), and possibly others like the Agricultural Produce (Export) Act (Cap 319) etc. By virtue of Section 6(2), the Cabinet Secretary may amend the Schedule by order to add more laws. For our purposes, the key law is the Plant Protection Act, since it is under that Act that phytosanitary measures at importation are governed. 27. The Plant Protection Act (Cap 324) is an older statute whose purpose is to make better provision for the exclusion, prevention, and eradication of pests destructive to plants. It provides for measures such as quarantine, inspection, treatment, and destruction of plants or plant products that may carry harmful pests. Under Section 3 of that Act, the Minister has powers to make rules for, among other things, regulating the importation of plants and imposing fees for any inspection or service under the Act. Indeed, the Plant Protection (Fees and Charges) Rules are made under that provision. The Act defines a “plant” very broadly in Section 2, as noted earlier, to mean “any member of the vegetable kingdom, whether living or dead, and includes any part of a plant, whether severed therefrom or not”. This would cover live plants, fruits, vegetables, timber, cut flowers, seeds, leaves, roots, etc., including even dead or dried plant material such as timber or dried herbs. 28. The Act also defines “pest” in broad terms as any destructive or harmful insect, fungus, bacteria, or other thing injurious to plants. Importantly, the Act empowers inspectors, KEPHIS officers to inspect https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 6

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not just plant consignments but also any container, package, conveyance (ship, vehicle) or soil that might contain or spread pests (Section 6 and 7 of the Act). This is where the concept of “regulated articles” comes in a term used in plant quarantine to refer to non-plant items that can nonetheless carry pests. Although the Act itself does not explicitly list “coal” or “minerals,” it gives the Minister authority to prohibit or regulate the importation of “any plants, articles or things” liable to introduce pests (Section 3(1)(a)). 29. In exercise of these powers, the Minister issued the Plant Protection (Importation Orders) and the Plant Protection (Fees and Charges) Rules. The Fees and Charges Rules set out various charges for permits, inspections, and other services. According to the evidence on record, one of the prescribed fees is: “Inspection of imported agricultural produce – 50 cents per kilogram (minimum charge Kshs 100) + Kshs 500 per phytosanitary certificate”. Another is “Plant Import Permit – Kshs 600”. These figures correspond to the 50cents/kg and Kshs 600 that KEPHIS sought to enforce. Therefore, there is a valid subsidiary legislation that imposes a 50cent per kg fee for inspecting imported plant produce. 30. The core of the Petitioners’ ultra vires argument is that their imported commodity (coal) is neither a plant nor plant product nor agricultural produce, and thus should not be subjected to the Plant Protection Act regime at all. Coal is a mineral used as fuel. It is not grown or cultivated, and it is not intended to propagate any plant. Similarly, crushed stones are quarried rock used in construction. These are clearly not plants. 31. It is evident that coal does not fit within the ordinary meaning of “plant” or “plant product”. It is also not an “agricultural produce”. The 1st Respondent did not cite any specific provision from the statutes or rules that designates coal as a regulated item. 32. The Court finds merit in the Petitioners’ contention that KEPHIS’s imposition of phytosanitary fees on coal was, on the face of it, beyond its statutory authority. The definitions in the relevant Acts support the view that KEPHIS’s jurisdiction covers living or dead plant materials and related agricultural products and not minerals. Coal is not agricultural produce but rather considered as a fossil fuel as well as a mineral commodity; it is a geological material. Thus, the legal instrument is being applied out of context. 33. Therefore, the Court finds that the inclusion of coal imports in KEPHIS’s phytosanitary inspection regime was ultra vires. The 1st Respondent acted without jurisdiction in purporting to require the Petitioners to obtain plant import permits and pay per-kilo inspection fees for a commodity not contemplated by the plant protection laws. This renders the entire action unlawful. 34. In conclusion on this issue, the Court finds and holds that KEPHIS’s action of charging the Petitioners phytosanitary fees on coal was without a proper legal foundation and was ultra vires the Plant Protection Act. Final Orders 21. For the reasons set out in the judgment above, this Court makes the following orders: a. A declaration be and is hereby issued that the Respondents’ act of charging the Petitioners phytosanitary inspection fees and purportedly increasing such fees from 16cents per kilogram to 0.50cents per kilogram for the importation of coal was illegal, ultra vires and unconstitutional; b. A declaration be and is hereby issued that the Petitioners are not liable to pay phytosanitary inspection or services fees to the 1st Respondent for the importation of coal; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 7

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c. An order of certiorari be and is hereby issued to remove into this Court and quash the decision by the 1st Respondent implemented in or about July 2024, requiring the Petitioners to pay phytosanitary services fees at the rate of 0.50cents per kilogram and Kshs 600 per permit on imported coal; d. An order of prohibition be and is hereby issued prohibiting and restraining the 1st Respondent, by itself, its officers, agents, or any other person acting on its behest, from charging, levying, demanding, or collecting any phytosanitary services fees in respect of the Petitioners’ importation of coal; AND e. The 1st Respondent shall bear the costs of this Petition, to be paid to the Petitioners. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER 2025 ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner – No appearance Counsel for the 1st Respondent – Ms. Kaluai Counsel for the 2nd Respondent – Ms. Were h/b Mr. Kaumba Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19285/eng@2025-12-17 8

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