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Court rules Kebs liable after illegal Kwale mill closure

Tom Ojienda
Lawyer Tom Ojienda when he appeared for Kwale International Sugar Company at the Mombasa Law Courts in October 2018. PHOTO | KEVIN ODIT | NMG 

The Kenya Bureau of Standards (Kebs) is exposed to a compensation claim after the Kwale International Sugar Company Ltd (Kiscol) won against the State at the High Court.

The High Court declared last week that the closure of the miller’s factory through a multi-agency swoop in June 2018 was illegal and unconstitutional.

“This court is satisfied that petitioner has demonstrated that its factory was closed without the due process of the law and without disclosure of written reasons for the decision,” said Judge Eric Ogola in a judgement dated November 7.

“In view of my findings and conclusion of this matter … I therefore make the following orders … the order declaring the seizures of the petitioner’s factory, warehouses and stores by respondents herein illegal and unconstitutional.”

The compensation covers losses incurred by the miller over 66 months when its premises were closed down arbitrarily and the detention of 93,359 bags of sugar now found to be compliant with the standards.

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Kiscol had on October 26, 2018 sued Kenya Bureau of Standards (Kebs), Kenya Revenue Authority, (KRA) Directorate of Criminal Investigation, (DCI) Inspector-General of Police (IGP), Ministry of Trade and the Attorney-General (AG) for economic sabotage and abuse of power when the multi-agency team mounted a crackdown of illegal sugar in June 25, 2018.

Kiscol through lawyer Tom Ojienda told the court that it was facing operational challenges following the closure which had made it difficult to harvest and process cane.

Justice Ogola found that Kebs used shortcuts to carry out its duties and that it did not act within the law.

The KRA, DCI and the IG were absolved from the charges, with judge Ogola saying they carried out mandates pursuant to directions from Kebs and cannot be blamed for the shortcomings of the bureau.

“This court is satisfied that the blame in this petition must fall solely on the 1st Respondent (Kebs) … It cannot, like in the matter of this court, set out in a fishing expedition to find fault. It must always operate on the basis of ‘a reasonable cause',” read the ruling.

The court ordered Kebs to immediately renew the miller’s standardisation permits, lift seizures and allow owners access to its warehouses and stores.

A permanent injunction restraining Kebs, its agents or servants from purporting to seize the millers sugar consignment stored in its warehouse was also issued.

The miller will also receive Sh59 million as compensation for 8,995 bags of sugar which Kebs refused to re-test in violation of court orders.

“The compensation shall be based on the market value of each bag,” said Justice Ogola.

A 50Kg bag of sugar costs Sh6,600 summing up to a total of Sh59.3 million.

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