Kenyans have received major relief after the High Court declared the government’s decision to impose a 10 per cent import duty on crude palm oil unconstitutional.
Justice Bahati Mwamuye, delivering the judgment on Thursday, held that the State violated key constitutional requirements by introducing the duty without parliamentary approval or adequate public participation.
In the decision, the court ruled that the move to stay the application of the zero-rated duty and replace it with a 10 per cent tariff was unlawful from the outset.
“A declaration be and is hereby issued that the decision of the Government of Kenya to stay the application of the zero percent rate of import duty on crude palm oil and apply a rate of 10 percent is unconstitutional, null, and void,” Justice Mwamuye said.
The judge found that the State had bypassed critical procedural steps required under Articles 10, 201 and 209 of the Constitution, as well as the Statutory Instruments Act, which mandate transparency, accountability and public involvement before any policy with fiscal implications is implemented.
Justice Mwamuye noted that the imposition of the duty had immediate and far-reaching consequences for consumers, particularly because palm oil is a key raw material in the manufacture of cooking oil and other household products.
Evidence presented by the Consumer Federation of Kenya (petitioner) showed a sharp rise in the prices of cooking oil shortly after the tariff took effect, underscoring the socioeconomic impact of the decision.
“It is important to observe that the constitutional requirements of parliamentary approval and public participation are not empty formalities,” the judge said.
“They serve as crucial mechanisms to subject policy decisions, especially those with significant socioeconomic ramifications, to democratic scrutiny and debate.”
He added that by bypassing these procedures, the government denied Kenyans the opportunity to engage on a measure that directly touched on their right to food and dignity.
Although the petitioner argued that the duty increase infringed on several consumer rights, the court held that it was unnecessary to make a substantive determination on those claims because the procedural violations alone were sufficient to invalidate the State’s action.
The judgment further clarified that even where Kenya operates within regional frameworks such as the East African Community’s Common External Tariff (CET), domestic constitutional safeguards must still be complied with.
Regional obligations, the court emphasised, do not override the requirement for internal approval mechanisms.
Consequently, the court issued a prohibition barring the government and its agencies from implementing or giving effect to the EAC Gazette Notice dated June 2024 that introduced the 10 per cent duty.
It also declared that any future attempts to alter taxation measures under the EAC CET regime must first undergo proper public participation and parliamentary scrutiny.
“A finding of unconstitutionality based on a flawed process is sufficient to dispose of this matter,” Justice Mwamuye held, stressing that due process is a core component of protecting public welfare.
