. The Applicant approached this court vide a Notice of Motion dated 7th August 2025, the Applicant seeks the following orders;
1) An Order of Certiorari be and is hereby issued to remove into this Honourable Court for purposes of quashing the decision by the Respondents, issued and/or published on 24thJuly 2025 purporting to auction and dispose of the Applicant's goods described under the following references:
LOT:0120/EMVCWH/24,LOT:0406/EMWCWH/24,LOT:0211/EMWCWH/24,LOT:0207/EMVCWH/24,LOT:0122/EMK/CWH/24,LOT:0110/EMK/CWH/24,LOT:0502/EMK/CWH/24,LOT:0213/EMK/CWH/24,LOT:0401/EMVCWH/24,LOT:0113/EMWCWH/24,LOT:0108/EMK/CWH/24,LOT:0212/EMVCWH/24,LOT:0506/EMWCWH/24,LOT:0119/EMVCWH/24. LOT:0208/EMWCWH/24,LOT:0118/EMK/CWH/24.
2) An order of Prohibition be and is hereby issued restraining the Respondents, their agents, officers or auctioneers from proceeding with or conducting any public auction, sale or disposal of the Applicant's said goods, or otherwise dealing with them in any manner adverse to the Applicant.
3) The costs of this application be provided for.
4) Any other and/or further relief that this Honourable Court be pleased expedient so to grant.
2. The Application is premised on the grounds of it and the averments of Divyesh Indubhai Patel in the Supporting Affidavit. He deponed that he is a Director of the Applicant, a duly incorporated company engaged in import, warehousing and distribution of general merchandise and is the legal and beneficial owner of various consignments of goods imported into Kenya and currently under the control of the Respondents herein. He averred that 24th July 2025 he came across a public auction notice published on the Respondents' platform indicating that the Applicant's goods referenced under several LOT numbers were scheduled for public auction on the 25th July 2025, the next day.
3. The deponent averred that the goods scheduled for auction are listed as follows:
LOT:0120/EMVCWH/24,LOT:0406/EMWCWH/24,LOT:0211/EMWCWH/24,LOT:0207/EMVCWH/24,LOT:0122/EMK/CWH/24,LOT:0110/EMK/CWH/24,LOT:0502/EMK/CWH/24,LOT:0213/EMK/CWH/24,LOT:0401/EMVCWH/24,LOT:0113/EMWCWH/24,LOT:0108/EMK/CWH/24,LOT:0212/EMVCWH/24,LOT:0506/EMWCWH/24,LOT:0119/EMVCWH/24,LOT:0208/EMWCWH/24, LOT:0118/EMK/CWH/24.
4. He urged that the Applicant had not received any prior notice, seizure memo, or demand letter from the Respondents warning of non-compliance or notifying it of the intention to auction the said goods. Further, that there was no communication whatsoever indicating a breach, forfeiture, or need for redemption.
5. The deponent averred that the sudden publication of the auction notice without any formal communication or demand is unlawful, arbitrary, and procedurally unfair. In this regard. The Respondents failed to comply with the requirements of the East African Community Customs Management Act, and Fair Administrative Action Act, both of which require notification and an opportunity to be heard. Furthermore, the timeline given less than 24 hours between publication and scheduled auction denied the Applicant any meaningful or reasonable opportunity to respond, regularize its position, or seek redress. This was a blatant violation of our rights under the provision of Articles 47 and 50 of the Constitution.
6. He further deponed that the Applicant has a legitimate expectation that state authorities, particularly revenue enforcement agencies, would comply with both constitutional and statutory safeguards before undertaking extreme enforcement actions such as public auction. He urged that in the premises, the decision to auction without notice or a hearing also violates the Applicant's right to property under Article 40 of the Constitution, and the underlying principles of natural justice, particularly the right to a fair hearing.
7. The deponent stated that the goods in issue were imported in the ordinary course of the Applicant's business and are held at the Respondents' premises pending clearance which the Applicant was prepared to facilitate once contacted. He annexed and marked as "DIP-2" invoices, bills of lading and commercial documents demonstrating ownership and import history to that effect. Consequently, the Applicant argues that if the auction is allowed to proceed, the Applicant would suffer irreparable loss and serious commercial harm as the goods form the backbone of current trading cycles and represent significant capital investment. He urged the court to grant the Application in view of the foregoing.
The 2nd Respondents’ case;
8. The 2nd respondent filed a Replying Affidavit dated 24th September 2025, sworn by Wycliffe Musili, an officer of the second respondent. He deponed that under section 5(2) of the Kenya Revenue Authority Act, Cap. 469, the 1st Respondent is required to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the Kenya Revenue Authority Act, Cap. 469 for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. Further, that under Part I of the First Schedule to the Kenya Revenue Authority Act, Cap. 469, the 1st Respondent enforces the East African Community Customs Management Act, 2004 and the Regulations made thereunder including the East African Community Customs Management Regulations, 2010.
9. Additionally, that the 1st Respondent is also appointed under section 5(1) of the East African Community Customs Management Act, 2004 (hereinafter “the EACCMA”) and is responsible for the management and control of the Customs including the collection of, and accounting for, Customs revenue in the Republic of Kenya.
10. He deponed that he was aware that the Applicant imported to Kenya 56 Containers of several assorted medical equipment and items (hereinafter to be referred to as “the Goods”) on several dates between July 2023 and December 2023. It is its case further, that upon importation, the Applicant neither entered nor removed the Goods from the vessel which imported the said Goods contrary to section 34 of the EACCMA. He urged that under section 34(1) of the EACCMA, the Applicant was required to enter and clear the Goods in the said 56 Container within twenty one days after the commencement of discharge or on arrival at the Port of Discharge of the vessels in which such Goods were imported.
11. He stated that the Applicant having failed to enter and clear the goods within 21 days as required under section 34(1) of the EACCMA, he caused the said Goods to be removed to a Customs warehouse pursuant to section 34(4) of the EACCMA pending entry, clearance or such further action by the Applicant. Further, that upon removing the Goods to, and depositing them at, a Customs warehouse, the Applicant had up to thirty (30) days to enter, clear and remove the Goods from the Customs Warehouse. However, the Applicant neither entered, cleared nor removed the Goods from the Warehouse. Upon expiry of the 30 days and the Applicant having neither entered, cleared nor removed the Goods from the Customs Warehouse, he concluded that the Applicant was no longer interested in entering and clearing the Goods thus abandoning them to be dealt with in a manner which the 1st Respondent considers fit including offering the Goods for sale by public auction.
12. The deponent averred that he consequently prepared a notice which the 1st Respondent issued to the Applicant on 11th April 2024 by way of publication of the Goods, in the Kenyan Gazette Notice No. 4452 of 12th April 2024 under Vol. CXXVI—No. 48 NAIROBI, for sale by way of public auction pursuant to section 42(1) of the EACCMA. This is set out in the copy of the said Kenya Gazette Publication of 12th April 2024. He pointed out that in the said Kenyan Gazette Notice No. 4452 of 2024, the 1st Respondent notified the Applicant that unless its imported 56 Containers earmarked for public auction are removed from the Customs Warehouse within 30 days from the 12th April 2024, the goods shall be considered abandoned to the 1st Respondent for sale by public auction.
13. He urged that upon expiry of the 30 days i.e. on 13th May 2024, 14th May 2024 and 15th May 2024, the Applicant still failed to enter and clear the Goods despite the express notification in Gazette Notice No. 4452 of 2024. Further, that whereas the statutory timelines (30 days) for the Applicant to lawfully remove the Goods from the Customs Warehouse lapsed on 13th May 2024, the Respondents gave the Applicant up to July 2025 (a period of more than a year) to enter the Goods for home consumption and pay Customs duties due. Even after the extended timelines, the Applicant never took any steps to lawfully remove the Goods from the Customs Warehouse. Even to this date, at the filing of this Application, the Applicant has not entered the Goods for home consumption as required under section 34(1) of the EACCMA.
14. The deponent averred that after 15th May 2024, upon expiry of the statutory period of notice, he offered several Goods including the sixteen (16) of the fifty-six (56) Containers imported by the Applicant in an online public auction which were scheduled to take place on 25th July 2025 pursuant to section 42(1) of the EACCMA. On that date the members of the Public successfully bid and purchased thirteen of the sixteen Containers. Lots no 0113/EMK/CWH/24,0212/EMK/CWH/24 and 0502/EMK/CWH/24 did not have successful bids and were scheduled to be re-offered for sale between 28th August 2025 and 30th August 2025.
15. He urged that on 29th July 2025, he received a Court Order from the Applicant, issued in Nairobi High Court Judicial Review No. E222 of 2025 Equip Agencies Limited vs The Commissioner of Customs and Boarder Control and Kenya Revenue Authority, staying the Respondents’ intended public auction of 28th August 2025 and 30th August 2025. He then removed the remaining Lots from the intended Auction List and the said Goods are still lying in the Customs Warehouse awaiting clearance by the Applicant or further Orders by this Honourable Court.
16. The deponent averred that it’s the sale of the 13 Containers and the intended sale of the 3 remaining Containers by way of public auction that has precipitated the filing of this Application which seeks the judicial review Orders of Certiorari and Prohibition. He responded to the Applicants’ Notice of Motion Application and Paragraphs No. “3 – 15” of the Applicant’s Supporting Affidavit as follows: Contrary to the Applicant’s allegations, at Paragraphs “a) – c)” of the Notice of Motion Application and Paragraphs No. “3 – 6” of the Supporting Affidavit, that it was not given prior written notice before the sale of 25th July 2025 by way of public auction, he reiterated the averments in the Replying Affidavit and urged that the Applicant was notified on 12th April 2024 of the intended sale by public auction through the Gazette Notice No. 4452 of 2024.
17. Further, that the said Gazette Notice No. 4452 of 2024 was issued pursuant to section 42 of the EACCMA as read with section 34 of the EACCMA and, that the Applicant had breached the provisions of section 34(1) of the EACCMA which required the Applicant to enter the impugned Goods for home consumption within 21 days and pay the customs duty due. Similarly, the Applicant had breached the provisions of section 42(1) of the EACCMA and directions in the Gazette Notice No. 4452 of 2024 which required the Applicant to lawfully remove the impugned Goods from the Customs Warehouse and enter them for home consumption within 30 days of 12thApril 2024 and pay the customs duty due.
18. He urged that the Applicant has failed to give any reason why it failed or has failed to enter the Goods for home consumption as required under section 34(1) of the EACCMA, a move which would have avoided the predicament which the Applicant is at the moment.
19. Additionally, he deponed that section 113 of the EACCMA does not allow the 1st Respondent to issue a demand notice or impose import duty where goods have not been entered since the Applicant has never complied with section 34(1) of the EACCMA. He denied the allegations that the Respondents violated or failed to comply with the provisions of the EACCMA and the Fair Administrative Actions Act.
20. He deponed that contrary to the Applicant’s allegations, at Paragraphs “d) – g)” of the Notice of Motion Application and Paragraphs No. “7 – 10” of the Supporting Affidavit, the Applicant has not disclosed to this Court that the impugned Goods were imported to Kenya on several dates between 9th August 2023 and 21st September 2023. Pursuant to section 34(1) of the EACCMA, the Applicant was required to clear the last imported Goods in issue on or before 12th October 2023 which translates to more than two years ago. Therefore, the Applicant has had an ample time of 2 years to “regularize its position”, enter the Goods for home consumption and remove them from the Customs Warehouse to avoid the risk of being auctioned by the 1st Respondent.
21. Secondly, that the Applicant had an opportunity on April – May 2024, when the Respondent issued the Gazette Notice No. 4452 of 2024, to salvage from the public action the impugned Goods which had been warehoused for non-compliance with section 34(1) of the EACCMA. Instead, the Applicant chose to sit on its rights and opted to allow the 1stRespondent to invoke and exercise its statutory mandate under section 42(1) of the EACCMA which allows for auction of goods which have remained in the Customs Warehouse for more than 30 days. From 13th April 2024, the effective date of the Notice of Goods to be sold at Customs Warehouse, the Applicant has had more than 12 months to enter the impugned Goods for home consumption in Kenya and remove them from the Customs Warehouse.
22. He reiterated that the Applicant has not taken any step to enter, clear and remove the remaining Goods from the Customs Warehouse and further, urged that the above chain of events defeats the Applicant’s allegation that the Respondents gave the Applicant insufficient opportunity to “regularize its position.”
23. He urged that even if there was a legitimate expectation, such an expectation cannot override the express provisions of law including sections 34(1) and 42(1) of the EACCMA and the Customs Procedures. He denied the contents of Paragraphs No. “11 – 15” of the Supporting Affidavit, and stated that based on the Customs Laws and Procedures and factual issues, the judicial review orders of Certiorari and Prohibition as sought by the Applicant are contra statute and thus should not issue. That the 13 of the impugned 16 Containers have already been sold on 25th July 2025 by way of public auction pursuant to section 42(1) of the EACCMA. Thus they are no longer available for judicial review considering that the Applicant served the Orders on the Respondents on 29th July 2025.
24. He urged that the remaining Containers/Goods continue occupying space at the Customs Warehouse, as it accumulates the warehouse rent and other charges, thus denying other users space and place of storage of goods pending clearance. That part of the Consignment imported by the Applicant are perishable in nature and thus the continued delaying in disposing them will render them no longer fit for human use or consumption due to expiry and obsolescence. He stated that it is therefore in the interest of Justice, public good and order that an order do issue to discharge, vary, or set aside the interim orders of stay issued on 25thJuly 2025. He urged that it was in the interests of justice that the Application be allowed.
Applicants’ Submissions
25. Counsel urged that it is imperative to note that the Respondents contend that the Applicant ought to have invoked the provisions of Section 229 of the East African Community Customs Management Act (EACCMA) before approaching this Honourable Court and that the present proceedings offend the doctrine of exhaustion. That the said argument is misconceived both in fact and in law. The Applicant urged that: the provisions of Section 229 of EACCMA is inapplicable to the impugned decision; and, even if applicable, it does not constitute an adequate or effective remedy. Further, that this matter falls within the well-recognized constitutional exceptions to the doctrine of exhaustion as settled by the superior courts.
26. Counsel urged that the classical formulation of the doctrine was set out by the Court of Appeal of Kenya in the case of Speaker of the National Assembly v James Njenga Karume (1992) eKLR, which principle has been reaffirmed in the post-2010 constitutional era, but with important qualifications. He cited Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others (2015) eKLR in this regard. He pointed out that the Court was clear that exhaustion is a rule of judicial restraint not an absolute bar to jurisdiction.
27. Counsel submitted that under the provisions of Section 229 EACCMA provides for review of a “decision or omission of the Commissioner on matters relating to customs.” That provision is designed for disputes relating to: Classification of goods; Valuation; Assessment of duty; and Imposition of taxes or penalties whereas the present dispute does not concern: Any assessment decision; any valuation dispute; any classification ruling; or any demand for additional duty. He urged that the impugned decision concerns disposal of goods allegedly deemed abandoned under Section 42 EACCMA. In view of the foregoing, the Respondents have not demonstrated: What specific reviewable “decision” under Section 229 existed; Whether Section 229 applies to statutory abandonment; or whether such review would suspend the intended auction.
28. Counsel urged that the jurisprudence of both the Court of Appeal and the Supreme Court of Kenya is clear that exhaustion admits exceptions. He cited Republic v National Environment Management Authority ex parte Sound Equipment Limited (2011) eKLR, and Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR. He emphasized that the Supreme Court thus clarified that where constitutional rights are implicated, the High Court’s jurisdiction is not ousted.
29. Counsel cited the provisions of Section 9(4) of the Fair Administrative Action Act and urged that the present case constitutes exceptional circumstances because: The auction was scheduled within 24 hours of publication; No individualized notice was issued; No hearing was afforded; The Applicant’s property rights under Article 40 were immediately threatened; and the substratum of the dispute would have been permanently destroyed.
30. Counsel submitted that a remedy that cannot prevent irreparable loss is not effective and cited Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021) eKLR in this regard. Further, he stated that the supervisory jurisdiction of this Court under Articles 23 and 165 of the Constitution cannot be subordinated to statutory mechanisms where constitutional violations are alleged. He urged that in Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR, the Court of Appeal recognized that where a statutory remedy is inadequate to address the grievance raised, recourse to judicial review remains available. Further, that the Court underscored that statutory mechanisms do not automatically bar the High Court’s jurisdiction where legality and procedural fairness are in question.
31. Counsel urged that the Applicant’s case raises: Violation of Article 47; Violation of Article 40; Breach of natural justice; and Irrationality and disproportionality. That these are constitutional legality questions, not merely customs assessment disputes. Further, that Section 229 does not provide an automatic stay of auction; The Respondents have not demonstrated that review would suspend disposal; and that the auction was imminent and irreversible. To this end, the alternative remedy was therefore neither adequate nor efficacious.
32. Counsel submitted that in light of the foregoing authorities, Section 229 EACCMA is inapplicable to disposal under Section 42; No effective alternative remedy has been demonstrated; Constitutional violations are directly implicated; and the matter falls squarely within recognized exceptions to exhaustion. Counsel maintained that the Court is therefore properly seized of jurisdiction.
33. Counsel urged that it is worth noting that the Respondents’ decision to auction the Applicant’s goods, communicated through a Gazette Notice dated 24th July 2025 scheduling the auction for 25thJuly 2025, violated Article 47 of the Constitution and the Fair Administrative Action Act, 2015. That the violation manifests in four principal respects: Failure to issue prior and adequate notice; Failure to afford the Applicant an opportunity to be heard; Failure to provide reasons; and Adoption of an unreasonable and disproportionate procedure. He cited Article 47(1) and (2) of the Constitution and urged that the Supreme Court in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR emphasized that administrative bodies must comply with constitutional standards of fairness. He stated that statutory compliance alone is insufficient; administrative action must meet constitutional thresholds.
34. Counsel urged that Section 4(3) of the Fair Administrative Action Act requires that where administrative action is likely to adversely affect rights, the administrator shall give the affected person: Prior and adequate notice of the nature and reasons for the proposed action; An opportunity to be heard and to make representations; Notice of a right to review or internal appeal; and a statement of reasons. That the Respondents did none of the above. Additionally, he stated that a mass Gazette publication scheduling auction within 24 hours cannot satisfy Section 4(3).
35. Counsel submitted that the right to be heard (audi alteram partem) is now constitutionally entrenched and cited Judicial Service Commission v Mbalu Mutava & another (2015)eKLR in this regard. He submitted that in the present case, the Applicant was never invited to explain, regularize, redeem, or respond before the drastic step of auction was taken. The Respondents cannot rely on “deemed abandonment” to extinguish the constitutional right to be heard. Statutory power must be exercised in conformity with constitutional safeguards.
36. Counsel urged that the Gazette Notice denies meaningful opportunity to react; Frustrates access to justice under Article 48; and is manifestly unreasonable. He cited Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR and urged that a 24-hour notice for disposal of commercial cargo worth significant value cannot pass the test of reasonableness. He submitted that Article 47(2) expressly guarantees the right to written reasons where rights are adversely affected and cited the Supreme Court in Kenya Revenue Authority v Export Trading Company Limited (2018) eKLR which underscored that public bodies must give reasons for decisions affecting rights and that such obligation is grounded in constitutional accountability. He additionally cited Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021)eKLR, and urged that therefore, the Respondents: Waited over a year from alleged abandonment; Selected only 16 out of 56 containers; Scheduled auction with 24-hour notice; and Failed to engage the Applicant. That the procedure adopted was disproportionate to the objective of revenue collection and warehouse management.
37. Counsel urged that even if Section 42 EACCMA permits disposal of abandoned goods, such power must be exercised in conformity with the Constitution. He cited Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR and urged that Section 42 cannot be invoked as a shield against Article 47 compliance.
38. Counsel cited Article 40(1) and Article 40(2) (a) of the Constitution and urged that whilst the present matter does not concern compulsory acquisition, Article 40(2) expressly prohibits arbitrary deprivation. Further, that the key question therefore is whether the Respondents’ conduct amounted to arbitrariness. He cited Attorney General & another v Zinj Limited (2021)eKLR and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021)eKLR, and urged that Arbitrariness therefore includes: Absence of procedural fairness; Lack of proportionality; Unreasonable or capricious action; Abuse of statutory power; Selective or unexplained enforcement.
39. It is the Applicants; case that the Respondents purported to rely on Section 42 of the EACCMA to deem the goods abandoned. However, statutory authority does not immunize unconstitutional conduct. He cited Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR and urged that a decision that deprives a person of valuable commercial cargo without: Personal notice, a hearing, written reasons, and a reasonable redemption opportunity. To this end, the said conduct is constitutionally arbitrary.
40. Counsel submitted that proportionality is now a constitutional requirement under Articles 10, 24 and 47 and further, stated that in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014)eKLR, the Supreme Court affirmed that constitutional adjudication requires assessment of proportionality where rights are limited. He urged that selective enforcement without transparent criteria offends Article 10 values of accountability and transparency and cited Kenya Revenue Authority v Export Trading Company Limited (2018) eKLR, in this regard. That to this end, Revenue considerations cannot override: Due process, Procedural fairness, and Constitutional protection of property. True public interest lies in lawful governance. Counsel urged that the impugned auction was therefore constitutionally infirm and liable to be quashed.
41. Counsel submitted that the reliefs of Certiorari and Prohibition are anchored in: Article 23(3) (f) of the Constitution, Article 47 of the Constitution, the Fair Administrative Action Act, 2015 and Sections 8 and 9 of the Law Reform Act. That for the avoidance of doubt, Judicial review remedies are no longer confined to the narrow common law grounds of illegality, irrationality and procedural impropriety. They now operate within a constitutional framework. He cited Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014)eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR in this regard. Further, that Certiorari issues to quash a decision that: Is made without jurisdiction; Exceeds statutory authority; violates the Constitution; is procedurally unfair; and is irrational or unreasonable. He cited Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others (1997) eKLR, on the scope of Certiorari.
42. Counsel submitted that it is worthy to note that the impugned decision to auction the Applicant’s goods is amenable to certiorari because: It was undertaken in violation of Article 47; No individualized notice was issued; No hearing opportunity was afforded; The decision was arbitrary and disproportionate; and It amounted to unconstitutional deprivation under Article 40. That a decision reached in violation of constitutional guarantees is ultra vires the Constitution. He maintained that the auction decision, having been reached in breach of constitutional standards, is null and void ab initio and therefore liable to be quashed.
43. Counsel submitted that where there is threatened continuation or repetition of unlawful conduct, prohibition is appropriate. Therefore, the Applicant is entitled to prohibition because: The Respondents may proceed to complete or perfect the sale; they may conduct similar arbitrary auctions in respect of remaining goods; they may rely on the same unconstitutional procedure again. That the violation demonstrated is systemic not incidental. Consequently, without prohibition: The Respondents retain discretion to repeat the impugned process; and The Applicant remains exposed to future unconstitutional action.
44. Counsel urged that the impugned auction decision was unconstitutional, unlawful and procedurally unfair; the decision is amenable to and liable for quashing by Certiorari; and the Respondents should be prohibited from implementing, enforcing, or repeating the impugned process. He submitted that the Applicant has satisfied the legal threshold for the grant of orders of Certiorari and Prohibition and urged the Court to: Quash the impugned decision; Prohibit its implementation or repetition; Affirm the supremacy of the Constitution; and Grant the reliefs sought with costs.
Respondents’ Submissions
45. The respondent filed submissions dated 15th December 2025. Counsel for the respondent submitted that the Applicant has not exhausted the available remedies provided under the EACCMA. That in making this Argument, the Respondents rely on the following grounds:
(i) The Applicant has not sought to review the 1st Respondent’s decision to auction the Goods pursuant section 229(1) of the EACCMA.
(ii) The Applicant has not utilized the opportunities available under sections 34 and 42 of the EACCMA to enter goods for home consumption.
(iii) The Applicant has not sought a Review of the 1st Respondent’s Decision to Auction the Goods Pursuant Section 229(1) of the EACCMA
46. Counsel urged that the 1st Respondent’s decision to publish the impugned Goods in the Gazette and offer them for public auction is a decision capable of being reviewed under section 229(1) of the EACCMA. He reproduced the relevant provisions and cited Njeri v Commissioner of Customs & Border Control [20
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1) An Order of Certiorari be and is hereby issued to remove into this Honourable Court for purposes of quashing the decision by the Respondents, issued and/or published on 24thJuly 2025 purporting to auction and dispose of the Applicant's goods described under the following references:
LOT:0120/EMVCWH/24,LOT:0406/EMWCWH/24,LOT:0211/EMWCWH/24,LOT:0207/EMVCWH/24,LOT:0122/EMK/CWH/24,LOT:0110/EMK/CWH/24,LOT:0502/EMK/CWH/24,LOT:0213/EMK/CWH/24,LOT:0401/EMVCWH/24,LOT:0113/EMWCWH/24,LOT:0108/EMK/CWH/24,LOT:0212/EMVCWH/24,LOT:0506/EMWCWH/24,LOT:0119/EMVCWH/24. LOT:0208/EMWCWH/24,LOT:0118/EMK/CWH/24.
2) An order of Prohibition be and is hereby issued restraining the Respondents, their agents, officers or auctioneers from proceeding with or conducting any public auction, sale or disposal of the Applicant's said goods, or otherwise dealing with them in any manner adverse to the Applicant.
3) The costs of this application be provided for.
4) Any other and/or further relief that this Honourable Court be pleased expedient so to grant.
2. The Application is premised on the grounds of it and the averments of Divyesh Indubhai Patel in the Supporting Affidavit. He deponed that he is a Director of the Applicant, a duly incorporated company engaged in import, warehousing and distribution of general merchandise and is the legal and beneficial owner of various consignments of goods imported into Kenya and currently under the control of the Respondents herein. He averred that 24th July 2025 he came across a public auction notice published on the Respondents' platform indicating that the Applicant's goods referenced under several LOT numbers were scheduled for public auction on the 25th July 2025, the next day.
3. The deponent averred that the goods scheduled for auction are listed as follows:
LOT:0120/EMVCWH/24,LOT:0406/EMWCWH/24,LOT:0211/EMWCWH/24,LOT:0207/EMVCWH/24,LOT:0122/EMK/CWH/24,LOT:0110/EMK/CWH/24,LOT:0502/EMK/CWH/24,LOT:0213/EMK/CWH/24,LOT:0401/EMVCWH/24,LOT:0113/EMWCWH/24,LOT:0108/EMK/CWH/24,LOT:0212/EMVCWH/24,LOT:0506/EMWCWH/24,LOT:0119/EMVCWH/24,LOT:0208/EMWCWH/24, LOT:0118/EMK/CWH/24.
4. He urged that the Applicant had not received any prior notice, seizure memo, or demand letter from the Respondents warning of non-compliance or notifying it of the intention to auction the said goods. Further, that there was no communication whatsoever indicating a breach, forfeiture, or need for redemption.
5. The deponent averred that the sudden publication of the auction notice without any formal communication or demand is unlawful, arbitrary, and procedurally unfair. In this regard. The Respondents failed to comply with the requirements of the East African Community Customs Management Act, and Fair Administrative Action Act, both of which require notification and an opportunity to be heard. Furthermore, the timeline given less than 24 hours between publication and scheduled auction denied the Applicant any meaningful or reasonable opportunity to respond, regularize its position, or seek redress. This was a blatant violation of our rights under the provision of Articles 47 and 50 of the Constitution.
6. He further deponed that the Applicant has a legitimate expectation that state authorities, particularly revenue enforcement agencies, would comply with both constitutional and statutory safeguards before undertaking extreme enforcement actions such as public auction. He urged that in the premises, the decision to auction without notice or a hearing also violates the Applicant's right to property under Article 40 of the Constitution, and the underlying principles of natural justice, particularly the right to a fair hearing.
7. The deponent stated that the goods in issue were imported in the ordinary course of the Applicant's business and are held at the Respondents' premises pending clearance which the Applicant was prepared to facilitate once contacted. He annexed and marked as "DIP-2" invoices, bills of lading and commercial documents demonstrating ownership and import history to that effect. Consequently, the Applicant argues that if the auction is allowed to proceed, the Applicant would suffer irreparable loss and serious commercial harm as the goods form the backbone of current trading cycles and represent significant capital investment. He urged the court to grant the Application in view of the foregoing.
The 2nd Respondents’ case;
8. The 2nd respondent filed a Replying Affidavit dated 24th September 2025, sworn by Wycliffe Musili, an officer of the second respondent. He deponed that under section 5(2) of the Kenya Revenue Authority Act, Cap. 469, the 1st Respondent is required to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the Kenya Revenue Authority Act, Cap. 469 for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. Further, that under Part I of the First Schedule to the Kenya Revenue Authority Act, Cap. 469, the 1st Respondent enforces the East African Community Customs Management Act, 2004 and the Regulations made thereunder including the East African Community Customs Management Regulations, 2010.
9. Additionally, that the 1st Respondent is also appointed under section 5(1) of the East African Community Customs Management Act, 2004 (hereinafter “the EACCMA”) and is responsible for the management and control of the Customs including the collection of, and accounting for, Customs revenue in the Republic of Kenya.
10. He deponed that he was aware that the Applicant imported to Kenya 56 Containers of several assorted medical equipment and items (hereinafter to be referred to as “the Goods”) on several dates between July 2023 and December 2023. It is its case further, that upon importation, the Applicant neither entered nor removed the Goods from the vessel which imported the said Goods contrary to section 34 of the EACCMA. He urged that under section 34(1) of the EACCMA, the Applicant was required to enter and clear the Goods in the said 56 Container within twenty one days after the commencement of discharge or on arrival at the Port of Discharge of the vessels in which such Goods were imported.
11. He stated that the Applicant having failed to enter and clear the goods within 21 days as required under section 34(1) of the EACCMA, he caused the said Goods to be removed to a Customs warehouse pursuant to section 34(4) of the EACCMA pending entry, clearance or such further action by the Applicant. Further, that upon removing the Goods to, and depositing them at, a Customs warehouse, the Applicant had up to thirty (30) days to enter, clear and remove the Goods from the Customs Warehouse. However, the Applicant neither entered, cleared nor removed the Goods from the Warehouse. Upon expiry of the 30 days and the Applicant having neither entered, cleared nor removed the Goods from the Customs Warehouse, he concluded that the Applicant was no longer interested in entering and clearing the Goods thus abandoning them to be dealt with in a manner which the 1st Respondent considers fit including offering the Goods for sale by public auction.
12. The deponent averred that he consequently prepared a notice which the 1st Respondent issued to the Applicant on 11th April 2024 by way of publication of the Goods, in the Kenyan Gazette Notice No. 4452 of 12th April 2024 under Vol. CXXVI—No. 48 NAIROBI, for sale by way of public auction pursuant to section 42(1) of the EACCMA. This is set out in the copy of the said Kenya Gazette Publication of 12th April 2024. He pointed out that in the said Kenyan Gazette Notice No. 4452 of 2024, the 1st Respondent notified the Applicant that unless its imported 56 Containers earmarked for public auction are removed from the Customs Warehouse within 30 days from the 12th April 2024, the goods shall be considered abandoned to the 1st Respondent for sale by public auction.
13. He urged that upon expiry of the 30 days i.e. on 13th May 2024, 14th May 2024 and 15th May 2024, the Applicant still failed to enter and clear the Goods despite the express notification in Gazette Notice No. 4452 of 2024. Further, that whereas the statutory timelines (30 days) for the Applicant to lawfully remove the Goods from the Customs Warehouse lapsed on 13th May 2024, the Respondents gave the Applicant up to July 2025 (a period of more than a year) to enter the Goods for home consumption and pay Customs duties due. Even after the extended timelines, the Applicant never took any steps to lawfully remove the Goods from the Customs Warehouse. Even to this date, at the filing of this Application, the Applicant has not entered the Goods for home consumption as required under section 34(1) of the EACCMA.
14. The deponent averred that after 15th May 2024, upon expiry of the statutory period of notice, he offered several Goods including the sixteen (16) of the fifty-six (56) Containers imported by the Applicant in an online public auction which were scheduled to take place on 25th July 2025 pursuant to section 42(1) of the EACCMA. On that date the members of the Public successfully bid and purchased thirteen of the sixteen Containers. Lots no 0113/EMK/CWH/24,0212/EMK/CWH/24 and 0502/EMK/CWH/24 did not have successful bids and were scheduled to be re-offered for sale between 28th August 2025 and 30th August 2025.
15. He urged that on 29th July 2025, he received a Court Order from the Applicant, issued in Nairobi High Court Judicial Review No. E222 of 2025 Equip Agencies Limited vs The Commissioner of Customs and Boarder Control and Kenya Revenue Authority, staying the Respondents’ intended public auction of 28th August 2025 and 30th August 2025. He then removed the remaining Lots from the intended Auction List and the said Goods are still lying in the Customs Warehouse awaiting clearance by the Applicant or further Orders by this Honourable Court.
16. The deponent averred that it’s the sale of the 13 Containers and the intended sale of the 3 remaining Containers by way of public auction that has precipitated the filing of this Application which seeks the judicial review Orders of Certiorari and Prohibition. He responded to the Applicants’ Notice of Motion Application and Paragraphs No. “3 – 15” of the Applicant’s Supporting Affidavit as follows: Contrary to the Applicant’s allegations, at Paragraphs “a) – c)” of the Notice of Motion Application and Paragraphs No. “3 – 6” of the Supporting Affidavit, that it was not given prior written notice before the sale of 25th July 2025 by way of public auction, he reiterated the averments in the Replying Affidavit and urged that the Applicant was notified on 12th April 2024 of the intended sale by public auction through the Gazette Notice No. 4452 of 2024.
17. Further, that the said Gazette Notice No. 4452 of 2024 was issued pursuant to section 42 of the EACCMA as read with section 34 of the EACCMA and, that the Applicant had breached the provisions of section 34(1) of the EACCMA which required the Applicant to enter the impugned Goods for home consumption within 21 days and pay the customs duty due. Similarly, the Applicant had breached the provisions of section 42(1) of the EACCMA and directions in the Gazette Notice No. 4452 of 2024 which required the Applicant to lawfully remove the impugned Goods from the Customs Warehouse and enter them for home consumption within 30 days of 12thApril 2024 and pay the customs duty due.
18. He urged that the Applicant has failed to give any reason why it failed or has failed to enter the Goods for home consumption as required under section 34(1) of the EACCMA, a move which would have avoided the predicament which the Applicant is at the moment.
19. Additionally, he deponed that section 113 of the EACCMA does not allow the 1st Respondent to issue a demand notice or impose import duty where goods have not been entered since the Applicant has never complied with section 34(1) of the EACCMA. He denied the allegations that the Respondents violated or failed to comply with the provisions of the EACCMA and the Fair Administrative Actions Act.
20. He deponed that contrary to the Applicant’s allegations, at Paragraphs “d) – g)” of the Notice of Motion Application and Paragraphs No. “7 – 10” of the Supporting Affidavit, the Applicant has not disclosed to this Court that the impugned Goods were imported to Kenya on several dates between 9th August 2023 and 21st September 2023. Pursuant to section 34(1) of the EACCMA, the Applicant was required to clear the last imported Goods in issue on or before 12th October 2023 which translates to more than two years ago. Therefore, the Applicant has had an ample time of 2 years to “regularize its position”, enter the Goods for home consumption and remove them from the Customs Warehouse to avoid the risk of being auctioned by the 1st Respondent.
21. Secondly, that the Applicant had an opportunity on April – May 2024, when the Respondent issued the Gazette Notice No. 4452 of 2024, to salvage from the public action the impugned Goods which had been warehoused for non-compliance with section 34(1) of the EACCMA. Instead, the Applicant chose to sit on its rights and opted to allow the 1stRespondent to invoke and exercise its statutory mandate under section 42(1) of the EACCMA which allows for auction of goods which have remained in the Customs Warehouse for more than 30 days. From 13th April 2024, the effective date of the Notice of Goods to be sold at Customs Warehouse, the Applicant has had more than 12 months to enter the impugned Goods for home consumption in Kenya and remove them from the Customs Warehouse.
22. He reiterated that the Applicant has not taken any step to enter, clear and remove the remaining Goods from the Customs Warehouse and further, urged that the above chain of events defeats the Applicant’s allegation that the Respondents gave the Applicant insufficient opportunity to “regularize its position.”
23. He urged that even if there was a legitimate expectation, such an expectation cannot override the express provisions of law including sections 34(1) and 42(1) of the EACCMA and the Customs Procedures. He denied the contents of Paragraphs No. “11 – 15” of the Supporting Affidavit, and stated that based on the Customs Laws and Procedures and factual issues, the judicial review orders of Certiorari and Prohibition as sought by the Applicant are contra statute and thus should not issue. That the 13 of the impugned 16 Containers have already been sold on 25th July 2025 by way of public auction pursuant to section 42(1) of the EACCMA. Thus they are no longer available for judicial review considering that the Applicant served the Orders on the Respondents on 29th July 2025.
24. He urged that the remaining Containers/Goods continue occupying space at the Customs Warehouse, as it accumulates the warehouse rent and other charges, thus denying other users space and place of storage of goods pending clearance. That part of the Consignment imported by the Applicant are perishable in nature and thus the continued delaying in disposing them will render them no longer fit for human use or consumption due to expiry and obsolescence. He stated that it is therefore in the interest of Justice, public good and order that an order do issue to discharge, vary, or set aside the interim orders of stay issued on 25thJuly 2025. He urged that it was in the interests of justice that the Application be allowed.
Applicants’ Submissions
25. Counsel urged that it is imperative to note that the Respondents contend that the Applicant ought to have invoked the provisions of Section 229 of the East African Community Customs Management Act (EACCMA) before approaching this Honourable Court and that the present proceedings offend the doctrine of exhaustion. That the said argument is misconceived both in fact and in law. The Applicant urged that: the provisions of Section 229 of EACCMA is inapplicable to the impugned decision; and, even if applicable, it does not constitute an adequate or effective remedy. Further, that this matter falls within the well-recognized constitutional exceptions to the doctrine of exhaustion as settled by the superior courts.
26. Counsel urged that the classical formulation of the doctrine was set out by the Court of Appeal of Kenya in the case of Speaker of the National Assembly v James Njenga Karume (1992) eKLR, which principle has been reaffirmed in the post-2010 constitutional era, but with important qualifications. He cited Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others (2015) eKLR in this regard. He pointed out that the Court was clear that exhaustion is a rule of judicial restraint not an absolute bar to jurisdiction.
27. Counsel submitted that under the provisions of Section 229 EACCMA provides for review of a “decision or omission of the Commissioner on matters relating to customs.” That provision is designed for disputes relating to: Classification of goods; Valuation; Assessment of duty; and Imposition of taxes or penalties whereas the present dispute does not concern: Any assessment decision; any valuation dispute; any classification ruling; or any demand for additional duty. He urged that the impugned decision concerns disposal of goods allegedly deemed abandoned under Section 42 EACCMA. In view of the foregoing, the Respondents have not demonstrated: What specific reviewable “decision” under Section 229 existed; Whether Section 229 applies to statutory abandonment; or whether such review would suspend the intended auction.
28. Counsel urged that the jurisprudence of both the Court of Appeal and the Supreme Court of Kenya is clear that exhaustion admits exceptions. He cited Republic v National Environment Management Authority ex parte Sound Equipment Limited (2011) eKLR, and Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR. He emphasized that the Supreme Court thus clarified that where constitutional rights are implicated, the High Court’s jurisdiction is not ousted.
29. Counsel cited the provisions of Section 9(4) of the Fair Administrative Action Act and urged that the present case constitutes exceptional circumstances because: The auction was scheduled within 24 hours of publication; No individualized notice was issued; No hearing was afforded; The Applicant’s property rights under Article 40 were immediately threatened; and the substratum of the dispute would have been permanently destroyed.
30. Counsel submitted that a remedy that cannot prevent irreparable loss is not effective and cited Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021) eKLR in this regard. Further, he stated that the supervisory jurisdiction of this Court under Articles 23 and 165 of the Constitution cannot be subordinated to statutory mechanisms where constitutional violations are alleged. He urged that in Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR, the Court of Appeal recognized that where a statutory remedy is inadequate to address the grievance raised, recourse to judicial review remains available. Further, that the Court underscored that statutory mechanisms do not automatically bar the High Court’s jurisdiction where legality and procedural fairness are in question.
31. Counsel urged that the Applicant’s case raises: Violation of Article 47; Violation of Article 40; Breach of natural justice; and Irrationality and disproportionality. That these are constitutional legality questions, not merely customs assessment disputes. Further, that Section 229 does not provide an automatic stay of auction; The Respondents have not demonstrated that review would suspend disposal; and that the auction was imminent and irreversible. To this end, the alternative remedy was therefore neither adequate nor efficacious.
32. Counsel submitted that in light of the foregoing authorities, Section 229 EACCMA is inapplicable to disposal under Section 42; No effective alternative remedy has been demonstrated; Constitutional violations are directly implicated; and the matter falls squarely within recognized exceptions to exhaustion. Counsel maintained that the Court is therefore properly seized of jurisdiction.
33. Counsel urged that it is worth noting that the Respondents’ decision to auction the Applicant’s goods, communicated through a Gazette Notice dated 24th July 2025 scheduling the auction for 25thJuly 2025, violated Article 47 of the Constitution and the Fair Administrative Action Act, 2015. That the violation manifests in four principal respects: Failure to issue prior and adequate notice; Failure to afford the Applicant an opportunity to be heard; Failure to provide reasons; and Adoption of an unreasonable and disproportionate procedure. He cited Article 47(1) and (2) of the Constitution and urged that the Supreme Court in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR emphasized that administrative bodies must comply with constitutional standards of fairness. He stated that statutory compliance alone is insufficient; administrative action must meet constitutional thresholds.
34. Counsel urged that Section 4(3) of the Fair Administrative Action Act requires that where administrative action is likely to adversely affect rights, the administrator shall give the affected person: Prior and adequate notice of the nature and reasons for the proposed action; An opportunity to be heard and to make representations; Notice of a right to review or internal appeal; and a statement of reasons. That the Respondents did none of the above. Additionally, he stated that a mass Gazette publication scheduling auction within 24 hours cannot satisfy Section 4(3).
35. Counsel submitted that the right to be heard (audi alteram partem) is now constitutionally entrenched and cited Judicial Service Commission v Mbalu Mutava & another (2015)eKLR in this regard. He submitted that in the present case, the Applicant was never invited to explain, regularize, redeem, or respond before the drastic step of auction was taken. The Respondents cannot rely on “deemed abandonment” to extinguish the constitutional right to be heard. Statutory power must be exercised in conformity with constitutional safeguards.
36. Counsel urged that the Gazette Notice denies meaningful opportunity to react; Frustrates access to justice under Article 48; and is manifestly unreasonable. He cited Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR and urged that a 24-hour notice for disposal of commercial cargo worth significant value cannot pass the test of reasonableness. He submitted that Article 47(2) expressly guarantees the right to written reasons where rights are adversely affected and cited the Supreme Court in Kenya Revenue Authority v Export Trading Company Limited (2018) eKLR which underscored that public bodies must give reasons for decisions affecting rights and that such obligation is grounded in constitutional accountability. He additionally cited Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021)eKLR, and urged that therefore, the Respondents: Waited over a year from alleged abandonment; Selected only 16 out of 56 containers; Scheduled auction with 24-hour notice; and Failed to engage the Applicant. That the procedure adopted was disproportionate to the objective of revenue collection and warehouse management.
37. Counsel urged that even if Section 42 EACCMA permits disposal of abandoned goods, such power must be exercised in conformity with the Constitution. He cited Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR and urged that Section 42 cannot be invoked as a shield against Article 47 compliance.
38. Counsel cited Article 40(1) and Article 40(2) (a) of the Constitution and urged that whilst the present matter does not concern compulsory acquisition, Article 40(2) expressly prohibits arbitrary deprivation. Further, that the key question therefore is whether the Respondents’ conduct amounted to arbitrariness. He cited Attorney General & another v Zinj Limited (2021)eKLR and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (2021)eKLR, and urged that Arbitrariness therefore includes: Absence of procedural fairness; Lack of proportionality; Unreasonable or capricious action; Abuse of statutory power; Selective or unexplained enforcement.
39. It is the Applicants; case that the Respondents purported to rely on Section 42 of the EACCMA to deem the goods abandoned. However, statutory authority does not immunize unconstitutional conduct. He cited Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR and urged that a decision that deprives a person of valuable commercial cargo without: Personal notice, a hearing, written reasons, and a reasonable redemption opportunity. To this end, the said conduct is constitutionally arbitrary.
40. Counsel submitted that proportionality is now a constitutional requirement under Articles 10, 24 and 47 and further, stated that in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014)eKLR, the Supreme Court affirmed that constitutional adjudication requires assessment of proportionality where rights are limited. He urged that selective enforcement without transparent criteria offends Article 10 values of accountability and transparency and cited Kenya Revenue Authority v Export Trading Company Limited (2018) eKLR, in this regard. That to this end, Revenue considerations cannot override: Due process, Procedural fairness, and Constitutional protection of property. True public interest lies in lawful governance. Counsel urged that the impugned auction was therefore constitutionally infirm and liable to be quashed.
41. Counsel submitted that the reliefs of Certiorari and Prohibition are anchored in: Article 23(3) (f) of the Constitution, Article 47 of the Constitution, the Fair Administrative Action Act, 2015 and Sections 8 and 9 of the Law Reform Act. That for the avoidance of doubt, Judicial review remedies are no longer confined to the narrow common law grounds of illegality, irrationality and procedural impropriety. They now operate within a constitutional framework. He cited Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014)eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others (2016) eKLR in this regard. Further, that Certiorari issues to quash a decision that: Is made without jurisdiction; Exceeds statutory authority; violates the Constitution; is procedurally unfair; and is irrational or unreasonable. He cited Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others (1997) eKLR, on the scope of Certiorari.
42. Counsel submitted that it is worthy to note that the impugned decision to auction the Applicant’s goods is amenable to certiorari because: It was undertaken in violation of Article 47; No individualized notice was issued; No hearing opportunity was afforded; The decision was arbitrary and disproportionate; and It amounted to unconstitutional deprivation under Article 40. That a decision reached in violation of constitutional guarantees is ultra vires the Constitution. He maintained that the auction decision, having been reached in breach of constitutional standards, is null and void ab initio and therefore liable to be quashed.
43. Counsel submitted that where there is threatened continuation or repetition of unlawful conduct, prohibition is appropriate. Therefore, the Applicant is entitled to prohibition because: The Respondents may proceed to complete or perfect the sale; they may conduct similar arbitrary auctions in respect of remaining goods; they may rely on the same unconstitutional procedure again. That the violation demonstrated is systemic not incidental. Consequently, without prohibition: The Respondents retain discretion to repeat the impugned process; and The Applicant remains exposed to future unconstitutional action.
44. Counsel urged that the impugned auction decision was unconstitutional, unlawful and procedurally unfair; the decision is amenable to and liable for quashing by Certiorari; and the Respondents should be prohibited from implementing, enforcing, or repeating the impugned process. He submitted that the Applicant has satisfied the legal threshold for the grant of orders of Certiorari and Prohibition and urged the Court to: Quash the impugned decision; Prohibit its implementation or repetition; Affirm the supremacy of the Constitution; and Grant the reliefs sought with costs.
Respondents’ Submissions
45. The respondent filed submissions dated 15th December 2025. Counsel for the respondent submitted that the Applicant has not exhausted the available remedies provided under the EACCMA. That in making this Argument, the Respondents rely on the following grounds:
(i) The Applicant has not sought to review the 1st Respondent’s decision to auction the Goods pursuant section 229(1) of the EACCMA.
(ii) The Applicant has not utilized the opportunities available under sections 34 and 42 of the EACCMA to enter goods for home consumption.
(iii) The Applicant has not sought a Review of the 1st Respondent’s Decision to Auction the Goods Pursuant Section 229(1) of the EACCMA
46. Counsel urged that the 1st Respondent’s decision to publish the impugned Goods in the Gazette and offer them for public auction is a decision capable of being reviewed under section 229(1) of the EACCMA. He reproduced the relevant provisions and cited Njeri v Commissioner of Customs & Border Control [20
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