A fresh constitutional petition has been lodged at the Malindi High Court seeking to overturn Legal Notice No. 78 of 2020, which introduced the Standards (Verification of Conformity to Standards and Other Applicable Regulations) Order. The case, filed by Francis Njoroge Wanjiku and Martin Kimutai Chesire, asks the court to declare the legal notice unconstitutional, null and void.
Alleged Constitutional Violations
In their petition, the applicants argue that the 2020 legal notice contravenes several provisions of the Constitution of Kenya, 2010, including Articles 10, 11, 27, 40, 46 and 47. They claim the order undermines key constitutional principles such as public participation, equality and freedom from discrimination, protection of property rights, consumer rights and the right to fair administrative action.
Dispute Over Conformity Assessment and PVoC
At the heart of the dispute is the Conformity Assessment Procedure and the Pre-Export Verification of Conformity to Standards (PVoC) programme, which applies to all goods imported into Kenya. The petitioners contend that the framework introduces unlawful and unconstitutional fees, including inspection charges and royalty payments allegedly collected by contracted inspection agencies on behalf of the Kenya Bureau of Standards (KEBS). According to the court filings, these inspection and royalty fees amount to illegal taxation and violate constitutional provisions governing public finance and taxation, as well as sections of the Statutory Instruments Act. They further argue that the royalty imposed under the programme effectively amounts to an unlawful customs duty on imports, introduced without proper legal authority.
Challenge to Import Standardisation Mark (ISM)
The petition also questions the legality of the Import Standardisation Mark (ISM) regime, a product certification system applied to imported goods. The applicants are seeking court declarations that the ISM scheme, together with associated public charges including sticker costs and royalty payments, is illegal, unconstitutional, and invalid.
Allegations Against KEBS and Other Agencies
The petition accuses KEBS, the National Standards Council and other respondents of failing in their constitutional oversight roles. It further claims that the implementation of the conformity assessment framework threatens national interests by undermining citizens’ rights, property, peace, stability and overall national security.
Orders Sought
Among the key remedies sought are:
- Immediate revocation of Legal Notice No. 78 of 2020
- Nullification of the Conformity Assessment Procedure
- Termination of the PVoC programme and the ISM regime
- An order of mandamus compelling relevant state agencies to develop a new, constitutionally compliant conformity assessment framework within six months
- Termination of existing contracts linked to the disputed procedures
- Publication of audited accounts detailing collection and use of royalty fees since 2008 for the PVoC programme and since 2015 for the ISM scheme
- Costs of the petition and any other relief the court may grant
The matter now awaits determination by the Malindi High Court, with the outcome likely to have significant implications for import regulation and standards enforcement in Kenya.
