UNFIT FOR CONSUMPTION

Importer's bid to save 30,000 bags of condemned sugar flops

The case was dismissed by the High Court and Court of Appeal, but the company proceeded to the Supreme Court.

In Summary
  • The Supreme Court refused to hear the case, saying there is nothing on interpretation of the Constitution to be determined.
  • The 30,000 bags of sugar were part of a consignment from Mauritius declared by Kenya Bureau of Standards to be unfit for human consumption in 2018.
Supreme Court of Kenya
RULING: Supreme Court of Kenya
Image: FILE

An attempt by United Millers to stop a court decision to destroy 30,000 bags of sugar has failed.

The case was dismissed by the High Court and later by the Court of Appeal, but the company, still determined to overturn the decision, moved to the Supreme Court.

The Supreme Court refused to hear the case, saying there is nothing on the interpretation of the Constitution to be determined. The ruling was delivered last Friday.

The 30,000 bags of sugar were part of a consignment from Mauritius declared by the Kenya Bureau of Standards to be unfit for human consumption in 2018.

Kebs had sent a communication to United Millers that its sugar had failed the yeast and mold test and could not be released for sale and it was marked for destruction.

Aggrieved, the company filed an application to quash the decision, saying it offended the doctrine of fair administrative action.

The company through its director Kamal Narshi Shah argued that the decision was unreasonable, arbitrary and an infringement of its right to fair administrative action.

Shah said the company was granted a licence to import sugar from Mauritius pursuant to the requirements of the Agriculture and Food Authority, Sugar Directorate on July 11, 2017.

The company said it imported 997.7 tonnes of brown sugar, having complied with all import procedures and requirements.

It said it obtained a Certificate of Conformity from South Africa, but Kebs ordered the seizure of the commodity and later ordered it to be destroyed.

However, Supreme Court judges Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola dismissed the appeal filed by the company, saying the court did not have jurisdiction.

“We emphasized that where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance,” the judges held.

The Supreme Court further noted that while issues of constitutional interpretation and application were raised in the application for judicial review before the High Court, they were nipped in the bud when the preliminary objection was upheld by Justice John Mativo.

Mativo had noted that all dispute resolution mechanisms available were not exhausted before the matter was filed in court.

The company was of the view that its appeal raised matters of public interest because the multi-agency team’s continued operations under arbitrary protocols adversely affect the class of public engaging in commodity importation to Kenya.

Kebs opposed the case, saying the company was assuming that the sugar could be released for consumption yet during the hearing of the case, its standard and quality had deteriorated making it unfit for consumption.

Edited by Henry Makori