Petition Filed at Malindi High Court to Nullify KEBS Conformity Rules Over ‘Illegal Fees’

In the petition before Malindi  High Court, the applicants Francis Njoroge Wanjiku and Martin Kimutai Chesire argue that the legal notice violates several provisions of the Constitution of Kenya, 2010, including Articles 10, 11, 27, 40, 46 and 47. 

They claim the law offends principles of public participation, equality and non-discrimination, protection of property rights, consumer rights and fair administrative action.

The petition also faults the order for allegedly breaching the World Trade Organisation’s Technical Barriers to Trade (TBT) Agreement, particularly Articles 5 and 6, arguing that the conformity assessment procedures impose unnecessary and unlawful trade barriers on imports into Kenya.

At the centre of the dispute is the Conformity Assessment Procedure and the Pre-Export Verification of Conformity to Standards (PVoC) programme covering all goods imported into the country.

The petitioners contend that the programme introduces illegal and unconstitutional fees, including inspection charges and royalties allegedly collected by contracted inspection bodies on behalf of the Kenya Bureau of Standards.

They argue that the inspection fees are unlawful and unconstitutional for violating constitutional provisions governing public finance and taxation, as well as sections of the Statutory Instruments Act.

According to the petition, the royalty imposed amounts to an unlawful customs duty or tax levied on imports without proper legal authority.

The petition further challenges the legality of the product certification scheme known as the Import Standardisation Mark (ISM) regime.

The applicants want the court to declare the scheme and the associated public fees  including the sticker purchase price and royalty payments  illegal, unconstitutional, null and void.

Additionally, the petition accuses KEBS, National standards Council and other respondents for of abdicating their supervisory responsibilities under the Constitution and claims that the implementation of the conformity assessment framework threatens national security by undermining citizens’ rights, property, peace, stability and national interests.

Among the orders sought is the immediate revocation of Legal Notice No. 78 of 2020, the Conformity Assessment Procedure, the PVoC programme and the ISM regime.

The petitioners are also seeking orders of mandamus compelling the relevant state agencies to enact a new conformity assessment framework that complies with the Constitution, the Standards Act and applicable international agreements within six months of the court’s decision...

Further, they want the court to direct the termination of existing contracts related to the implementation of the contested procedures and to compel the publication of audited accounts detailing the collection and utilisation of the disputed royalty fees since 2008 for the PVoC programme and since 2015 for the ISM scheme.

They are also seeking costs of the petition and any other relief the court may deem appropriate.