REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E789 OF 2025
BETWEEN
GEORGE BUSH OMOGO………………………………………….PETITIONER
AND
ENERGY AND PETROLEUM
REGULATORY AUTHORITY ………………………………1 ST RESPONDENT
THE CABINET SECRETARY, MINISTRY OF ENERGY……………..…………………………………………2 ND RESPONDENT
THE ATTORNEY GENERAL………………………………..3 RD RESPONDENT
SICPA KENYA LIMITED………………………………..INTERESTED PARTY
JUDGMENT
1. I begin writing this judgment by acknowledging the supremacy of the Constitution and the sovereignty of the People of Kenya. At the heart of the Constitution of Kenya, 2010 lies the enduring principle that all sovereign power belongs to the people of Kenya. The Constitution, as the supreme law of the Republic, binds all persons and all State organs, and requires that every exercise of public authority derives its legitimacy from and remains faithful to the will of the people. It is for this reason that public participation occupies a central place in Kenya's constitutional order. Article 10 identifies public participation as one of the national values and principles of governance that must guide all State organs and public officers whenever they make or implement public policy or enact legislation, while Article 118 specifically requires Parliament to conduct its legislative business in an open manner and to facilitate public involvement in its legislative and other business.
2. Public participation is therefore not a mere procedural ritual to be performed for appearances. It is a constitutional imperative that gives practical expression to the sovereignty of the people. It provides citizens with a meaningful opportunity to contribute to decisions that affect them, promotes openness, accountability and inclusiveness in governance and strengthens public confidence in the democratic processes.
3. Therefore, in determining disputes concerning compliance with these constitutional obligations, this Court must at all time remain guided by the principle that what the Constitution demands is genuine and meaningful public participation, undertaken in good faith and within the circumstances of each case, rather than a process that guarantees consensus or accommodates every individual viewpoint .
4. Equally, Article 232 of the Constitution provides for values and principles of public service. Sub article (1) (d) provides for involvement of the people in the process of policy making as one of such values and principle. Instrumental is also the Statutory Instruments Act, 2013. Section 5 of the Statutory Instruments Act provides that:
(1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—
(a)have a direct, or a substantial indirect effect on business; or
(b)restrict competition;
the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.
(2)In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—
(a)drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and
(b)ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.
(3) Without limiting by implication, the form that consultation referred to in subsection (1) might take, the consultation shall—
(a)involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or
(b)invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.
5. Section 5A of the Statutory Instruments Act further provides that:
5A. Explanatory memorandum
(1)Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—
(a)a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b)a brief statement of all the consultations undertaken before the statutory instrument was made;
(c)a brief statement of the way the consultation was carried;
(d)an outline of the results of the consultation;
(e)a brief explanation of any changes made to the legislation as a result of the consultation.
(2)Where no such consultations are undertaken as contemplated in subsection (1), the regulation-making authority shall explain why no such consultation was undertaken.
(3)The explanatory memorandum shall contain such other information in the manner specified in the Schedule and may be accompanied by the regulatory impact statement prepared for the statutory instrument.
6. Section 6 of the same Act makes it mandatory for a regulation making authority to prepare a regulatory impact statement if a proposed statutory instrument is likely to impose significant costs on the community. Section s 7, 8 and 11 of the Act provides for the contents of the regulatory impact statements, the notification of the regulatory impact statements and the laying of the Statutory Instrument before Parliament.
7. The Supreme Court of Kenya set out the principles of public participation in the case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR), as follows;
Guiding Principles for public participation
(i)a constitutional principle under article 10(2) of the Constitution , public participation applies to all aspects of governance.
(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v)Public participation is not an abstract notion; it must be purposive and meaningful.
(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case-to-case basis.
(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
(ix)Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
8. In Robert N. Gakuru & others v Kiambu County Government & 3 others [2014] eKLR , the court stated that:
“public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates…it behoves the Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action. ”
9. The above decision was affirmed on appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR), wherein the Court of Appeal stated that:
[20]…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation.
10. Addressing the same issue in Minister for Health v New Chicks South Africa Pty Ltd CCT 59/04, the Constitutional Court of South Africa observed that the forms of facilitating an appropriate degree of participation in the law-making process are of infinite variation.
“What matters is that at the end of the day, a reasonable opportunity is offered to the members of the public and all interested parties to know about the issue and to have an adequate say.”
11. Ngcobo, J . in Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, 2006(12) BCLR 1399(CC), 2006 (6) SA 416 (CC) observed:
“Merely allowing public participation in the law-making process is not enough. More is required and measures need to be taken to facilitate public participation in the law-making process.”
12. These decisions speak to the point, that public participation must be real, reasonable and meaningful both qualitatively and quantitatively. The public must be given an opportunity to participate in the legislative process. The body or authority responsible must take reasonable measures to facilitate public participation and has the onus of proving, when challenged either by Parliament of before the Courts, to demonstrate that it discharged this obligation. See Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR ).
13. The petitioner in these proceedings is Mr. George Bush Omogo was aggrieved by the way public participation was conducted, if at all, in the making of the Petroleum (Products Quality Management) (No.2) Regulations 2025 (the Regulations). The Regulations were published on 14 th November 2025 through Legislative Supplement No. 97 and Legal Notice No. 185 of 2025. In his petition dated 20 th November 2025, the petitioner seeks the following reliefs:
a) A declaration that the Petroleum (Products Quality Management) (No.2) Regulations 2025 published via Legislative Supplement No. 97 under Legal Notice No. 185 of 2025 is unconstitutional for want of public participation and is therefore null and void.
b) An order of permanent injunction restraining the respondents from any further implementation of the Petroleum (product quality management) (No.2) Regulations, 2025, either by themselves, their agents or any other person or entity acting under their instructions.
c) An order directing the 1 st and 2 nd respondents to conduct adequate and effective public participation in accordance with the Constitution before enacting any regulations and or policies touching on management of the quality of petroleum products.
d) Costs of this petition.
e) Any other relief that this Honourable Court may deem just in order to protect the interest of the general public.
14. The petition is premised on grounds on the face thereof and supported by the petitioner’s affidavit sworn on even date. The petitioner’s complaint is that the 2 nd respondent had on 30 th May 2025 published Legal Notice No. 104 of 2025 establishing Petroleum (Product Quality Management) Regulations, 2025. That the said Regulations were challenged in Court through Constitutional Petition No. E 631 of 2025 on account of lack of public participation. That on 16 th October 2025, upon Parliament through its Committee on Delegated Legislation considering the report and recommendations, Parliament nullified the Regulations on among others reasons, lack of public participation.
15. The petitioner is aggrieved that instead of conducting public participation as advised by Parliament, the 2 nd respondent revoked the Legal Notice No. 104 of 2025 and simply republished the same Regulations in Legal Notice No. 185 of 2025 in November 2025. The petitioner is further aggrieved that the republished Regulations introduced new policies that govern the petroleum market in Kenya. He singles out Regulation 7 which he claims that it introduced compulsory marking requirement for petroleum products consumed in Kenya using the approved marking technology and that the newly introduced Regulation imposes an unjustified cost burden on consumers without their input, which violates the principle of good governance and the citizen’s right to social and economic justice.
16. The petitioner asserts that before the Regulations, the only petroleum products that were being marked were duty free products consumed by the military and diplomats as well as to other countries and that it is not clear why the respondents decided to extend the marking to locally consumed products. He also questions the manner in which the tender for marking was awarded to the interested party.
Responses to the petition
17. The 1 st respondent opposes the petition through replying affidavit and further affidavit sworn by Daniel Kiptoo Burgaria, OGW, MBS on 11 th December 2025 and by Hamid Mohamed sworn on 20 th February 2026. The 1 st respondent asserts that the enactment of the Regulation was exercised within the provisions of sections 9, 10(a) (ii) and 11(g) of the Energy Act and sections 92(1) and 101 (1) (f) of the Petroleum Act, Cap 308 Laws of Kenya.
18. That contrary to the petitioner’s assertions, the Legal Notice No. 104 of 2025 was inadvertently submitted to Parliament outside the seven sitting days required under section 11(1) of the Petroleum Act and that therefore the decision to revoke the said Gazette Notice was to correct the mistake. It is further asserted that the National Assembly did not venture into the adequacy or lack of public participation but pointed out that the 1 st respondent had not attached the evidence of public participation. Further contention is that the impugned Regulations did not materially affect the contents of the revoked Regulations.
19. It is deposed that in developing the Regulations, the 1 st respondent fully complied with constitutional and statutory requirements governing the making of delegated legislation including articles 10, 47 and 232 of the Constitution and the Statutory Instruments Act. To wit, that there were engagements with Oil Marketing Companies and sector associations; a regulatory impact statement was prepared; the draft regulations were published in the Kenya Gazette; there was nationwide public notices in two newspapers of wide circulation; public consultation forums held in various places such as Nairobi, Mombasa, Kisumu, Nakuru among others; stakeholder comments were considered and the Regulations were submitted to the Attorney General, the Cabinet Secretary responsible for Petroleum and Parliament for review and scrutiny.
20. According to the 1 st respondent, Regulation 7 was introduced pursuant to and in response to issues raised during public participation, particularly concerns relating to wide spread fuel adulteration and that therefore, it was not required to be subjected to a fresh round of public participation.
21. It is contended that Regulation 7 was introduced to address persistent practices of petroleum fuel adulteration, illegal diversion of transit and export fuels into the domestic market, fuel smuggling across borders and theft of petroleum products within the national supply chain which undermine consumer safety, damage engines and infrastructure, distort fair competition and occasion significant loss of government revenue.
22. It is urged that prior enforcement mechanisms based solely on conventional quality testing were insufficient to detect complex adulteration and diversion schemes, particularly where adulterated fuel could be blended in a manner that temporarily masked non-compliance with surface-level quality parameters. That Regulation 7 therefore introduced a mandatory marking regime as a preventive, traceability-based enforcement mechanism, consistent with international best practice, which enables the Authority and other enforcement agencies to scientifically authenticate fuel throughout the supply chain from depot to retail and consumer points.
23. It is contended that the petitioner’s allegation regarding procurement of the interested party offends the doctrine of exhaustion owing to the provisions of sections 167 and 175 of the Public Procurement and Asset Disposal Act (PPADA) and that in any event, such a procurement complies with the provisions of section 103 (2) (d) of the PPADA that allows for direct procurement. Therefore, that the procurement was lawful, justified on technical and operational grounds and undertaken within the province of the PPADA.
24. The 1 st respondent deposes that public participation is not a legal requirement for the specific tendering process or the technical execution of fuel marking as both fall under distinct administrative and statutory mandates. That while public participation is mandatory during the formulation of Regulations under the Statutory Instruments Act, the subsequent act of marking fuel is a routine enforcement tool used to execute EPRAs existing mandate to ensure quality and curb a 1.05% non-compliance rate. Consequently, that the choice of the interested party is an operational decision intended to detect adulteration and protect revenue, which line any other technical enforcement method, does not require a fresh round of public debate for its daily implementation.
25. It is also contended that Regulation 7 was informed by extensive technical assessments, historical enforcement of data, interagency collaboration with the KEBS and KRA, and Kenya’s long-standing experience with marking of export and duty exempt petroleum products which demonstrated the effectiveness of marking as a deterrent and detection tool.
26. With respect to the issue of costs and fuel prices, the 1 st respondent avers that the cost of fuel marking is minimal and amount to only a few cents per litre and does not materially affect the pump price of petroleum products. That the cost of marking is borne at the supply chain level by oil marketing companies as part of their statutory compliance and quality assurance obligations and is not imposed directly on consumers.
27. Further, that in practice, the marginal cost of marking is absorbed within existing operational efficiencies and compliance costs and is outweighed by the economic benefits of reduced fraud, improved tax compliance and the elimination of losses currently provided into fuel due to theft, adulteration and illegal diversion.
28. The 1 st respondent asserts that the mandatory marking of petroleum products is an established regulatory standard within the East African region and is implemented by Kenya’s neighbouring states pursuant to express statutory and regulatory frameworks governing petroleum quality, revenue protection and anti-adulteration enforcement hence, it is an accepted, harmonised and evidence-based enforcement tool within the East African Community.
29. It is contended that fuel marking is not a new legislative enactment but an operational fulfilment of EPRA’s existing mandate under the Energy Act, 2019.That the problem has existed since 1998, with the current iteration under the Petroleum (Products Quality Management) Regulations, 2025 merely refining existing technical standards. The marking resonates with the dictates of article 46 of the Constitution.
30. The 1 st respondent pleads that the petitioner’s allegations of unfair markets practice and private interested fall within the purview of the Competition Authority of Kenya which the petitioner should have approached first. Further that, the immediate implementation of marking for locally consumed products is necessary to stop the theft of millions of litres from the Kenya Pipelines Company; the Petroleum (Products Quality Management) Regulations are existing laws already enacted under the Energy Act, and the implementation of the fuel marking under the Impugned Regulations is merely an enforcement of those existing regulations.
The Petitioner’s submissions
31. The petitioner filed submissions dated 27 th March 2026. He contends that, the Kenya Gazette is not the best way to reach out to the people as very few Kenyans go through the publications. Further, that all the attendance forms speak to consultations with stakeholders and representatives of various organizations who are persons of interest and do not represent the ordinary citizen.
32. According to the petitioner, the original Regulations published in the Gazette Notice marked DKB -5 in Daniel Kiptoo’s affidavit provides at Regulations 5 provided for sampling and testing of petroleum products imported in Kenya to be done by KEBS. That Regulation 6 provided for marking of export petroleum products while 7 provided for marking of illuminating kerosene only. That the impugned Regulations added premium motor spirit and automotive gas oil. They further included locally consumed products as opposed to the export products provided for in the gazetted Regulations. He argued that Kenyans who probably came across the gazette notice have no idea when and why such critical changes were made in Regulations that were eventually enacted.
33. The petitioner opines that while the issue in court is not whether or not the tender was lawfully and regularly awarded to the interested party, the fact that the Director of the 1 st respondent denied award of the marking tender to the Interested Party while the Senior Surveillance and Enforcement Officer admits that the Interested Party has been awarded the tender, tells a lot about the secrecy surrounding the making of the Regulations.
34. The petitioner urges that the respondents should have demonstrated that the public was educated and informed on the nature of the Regulations, the objectives, the meaning of marking of the products, the technology to be used, when and where the marking would be done, how to tell a marked and unmarked product, the penalties proposed, etc., to enable them understand the proposed laws and give their informed views on the matter.
35. The petitioner further argues that this explanation and or information being given in court in the further affidavit should have been captured in newspapers, radio talks, memos, circulars, barazas and given to the general public and stakeholders to read, understand and give their opinion. He relies on the Court of Appeal decision in Kiambu County Government & 3 Others v Robert N. Gakuru & Others (supra) where it was held that public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation.
36. The petitioner argues that while the 1 st respondent claims that public participation was conducted in the towns of Nairobi, Mombasa, Kisumu, Eldoret, Nakuru and Nanyuki, these fora covered approximately 6 counties out of 47, representing about 7% of the counties in the Republic contrary to the dictates of the decision in Kiambu County Government v Robert N. Gakuru (supra).
37. According to the petitioner, public participation allegedly carried out in the six urban centres did not meet the qualitative and quantitative threshold of public participation. That it was not explained why radios (including vernacular radio stations) were never used, considering only a small number of Kenyans read newspapers; that there was no way of receiving feedback from Kenyans through newspapers and therefore that such mode of notification excluded a large segment of the Kenyan population. He relies on the case of Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR to further augment his point on public participation.
38. The petitioner also cites the decision in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others ; SC Petition No. 5 of 2017 [2019] eKLR; Gakuru & others v Governor Kiambu County & 3 others [2014] KEHC 7516 (KLR) and Names Expunged (Suing on their behalf and on behalf of the Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy (supra) to augment that in this case, public participation was procedural and illusionary rather than substantive.
The Respondents’ submissions
39. The respondents filed submissions dated 30 th March 2026, wholly reiterating the content in their replying affidavit and maintaining that the impugned Regulations were enacted within a proper constitutional and statutory framework and in full compliance with the requirements of adequate and effective public participation. They rely on the decisions in Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth & others 1985J LRC (Const) and British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Partes); Mastermind Tobacco Kenya Limited (Affected Party) (supra).
40. The respondents further maintain that the Regulation 7 was a direct outcome of stakeholder engagement and did not require a fresh round of public participation; that it serves a legitimate public interest in combating fuel adulteration, protecting consumers and safeguarding government revenue and has not been shown to be inconsistent with the parent statutes (the Energy Act and the Petroleum Act). They cite the case of Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC63(KLR) and Kenya Bankers Association v Attorney General & another; Centra Bank of Keya (Interested Party) [2019] eKLR and William Odhiambo Abok v Attorney General & 2 others [2019] KEHC 10924 (KLR).
41. On the engagement of the interested party to conduct fuel marking process, it was submitted that this was lawful, justified and in compliance with section 103 (2) (d) of the PPADA. Further, that the petition offends the doctrine of exhaustion by virtue of sections 167 and 175 of the PPADA that establish a dispute resolution mechanism. They rely on the decision in Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority & 2 others [2018] KEHC 8263 (KLR).
42. The respondents submit that regarding the tender awarding process being done in secrecy, at 17 th December 2025, when the affidavit of Daniel Kiptoo Burgaria was sworn, the procurement process had not been concluded and no award had been made in favour of the interested party. That by 20 th February 2026, at the time Hamid Mohamed swore the affidavit, the procurement process had been concluded and direct tender had been duly awarded.
43. The respondents further rely on section 27 of the Civil Procedure Act and the decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) and urge for the dismissal of the petition with costs.
The Interested party’s submissions
44. The 1 st respondent filed submissions dated 1 st May 2026 which abide by the response of the 1 st respondent and associates itself with the submissions made on behalf of the respondents. It further submits that no case has been made or demonstrated against it.
Analysis and determination
a) Whether the impugned Gazetted Regulations met the threshold for public participation
b) Whether the reliefs sought should be granted
Whether the Regulation met the threshold for public participation.
45. The petitioner contends that the Regulations did not meet the threshold for public participation. He has submitted that from the Parliamentary Committee on Delegated Legislation Report, the Legal Notice No. 104 of 2025 was nullified on two grounds. First, that the Regulations were tabled before Parliament outside the timelines stipulated by the Statutory Instruments Act and second that there no public participation.
46. It is not in dispute that instead of conducting public participation, a ground upon which the Parliamentary Committee on Delegated Legislation rejected the Regulations, the 2 nd respondent revoked the Legal Notice No. 104 of 2025 and republished it th
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E789 OF 2025
BETWEEN
GEORGE BUSH OMOGO………………………………………….PETITIONER
AND
ENERGY AND PETROLEUM
REGULATORY AUTHORITY ………………………………1 ST RESPONDENT
THE CABINET SECRETARY, MINISTRY OF ENERGY……………..…………………………………………2 ND RESPONDENT
THE ATTORNEY GENERAL………………………………..3 RD RESPONDENT
SICPA KENYA LIMITED………………………………..INTERESTED PARTY
JUDGMENT
1. I begin writing this judgment by acknowledging the supremacy of the Constitution and the sovereignty of the People of Kenya. At the heart of the Constitution of Kenya, 2010 lies the enduring principle that all sovereign power belongs to the people of Kenya. The Constitution, as the supreme law of the Republic, binds all persons and all State organs, and requires that every exercise of public authority derives its legitimacy from and remains faithful to the will of the people. It is for this reason that public participation occupies a central place in Kenya's constitutional order. Article 10 identifies public participation as one of the national values and principles of governance that must guide all State organs and public officers whenever they make or implement public policy or enact legislation, while Article 118 specifically requires Parliament to conduct its legislative business in an open manner and to facilitate public involvement in its legislative and other business.
2. Public participation is therefore not a mere procedural ritual to be performed for appearances. It is a constitutional imperative that gives practical expression to the sovereignty of the people. It provides citizens with a meaningful opportunity to contribute to decisions that affect them, promotes openness, accountability and inclusiveness in governance and strengthens public confidence in the democratic processes.
3. Therefore, in determining disputes concerning compliance with these constitutional obligations, this Court must at all time remain guided by the principle that what the Constitution demands is genuine and meaningful public participation, undertaken in good faith and within the circumstances of each case, rather than a process that guarantees consensus or accommodates every individual viewpoint .
4. Equally, Article 232 of the Constitution provides for values and principles of public service. Sub article (1) (d) provides for involvement of the people in the process of policy making as one of such values and principle. Instrumental is also the Statutory Instruments Act, 2013. Section 5 of the Statutory Instruments Act provides that:
(1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—
(a)have a direct, or a substantial indirect effect on business; or
(b)restrict competition;
the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.
(2)In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—
(a)drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and
(b)ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.
(3) Without limiting by implication, the form that consultation referred to in subsection (1) might take, the consultation shall—
(a)involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or
(b)invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.
5. Section 5A of the Statutory Instruments Act further provides that:
5A. Explanatory memorandum
(1)Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—
(a)a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b)a brief statement of all the consultations undertaken before the statutory instrument was made;
(c)a brief statement of the way the consultation was carried;
(d)an outline of the results of the consultation;
(e)a brief explanation of any changes made to the legislation as a result of the consultation.
(2)Where no such consultations are undertaken as contemplated in subsection (1), the regulation-making authority shall explain why no such consultation was undertaken.
(3)The explanatory memorandum shall contain such other information in the manner specified in the Schedule and may be accompanied by the regulatory impact statement prepared for the statutory instrument.
6. Section 6 of the same Act makes it mandatory for a regulation making authority to prepare a regulatory impact statement if a proposed statutory instrument is likely to impose significant costs on the community. Section s 7, 8 and 11 of the Act provides for the contents of the regulatory impact statements, the notification of the regulatory impact statements and the laying of the Statutory Instrument before Parliament.
7. The Supreme Court of Kenya set out the principles of public participation in the case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR), as follows;
Guiding Principles for public participation
(i)a constitutional principle under article 10(2) of the Constitution , public participation applies to all aspects of governance.
(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v)Public participation is not an abstract notion; it must be purposive and meaningful.
(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case-to-case basis.
(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
(ix)Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
8. In Robert N. Gakuru & others v Kiambu County Government & 3 others [2014] eKLR , the court stated that:
“public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates…it behoves the Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action. ”
9. The above decision was affirmed on appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR), wherein the Court of Appeal stated that:
[20]…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation.
10. Addressing the same issue in Minister for Health v New Chicks South Africa Pty Ltd CCT 59/04, the Constitutional Court of South Africa observed that the forms of facilitating an appropriate degree of participation in the law-making process are of infinite variation.
“What matters is that at the end of the day, a reasonable opportunity is offered to the members of the public and all interested parties to know about the issue and to have an adequate say.”
11. Ngcobo, J . in Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, 2006(12) BCLR 1399(CC), 2006 (6) SA 416 (CC) observed:
“Merely allowing public participation in the law-making process is not enough. More is required and measures need to be taken to facilitate public participation in the law-making process.”
12. These decisions speak to the point, that public participation must be real, reasonable and meaningful both qualitatively and quantitatively. The public must be given an opportunity to participate in the legislative process. The body or authority responsible must take reasonable measures to facilitate public participation and has the onus of proving, when challenged either by Parliament of before the Courts, to demonstrate that it discharged this obligation. See Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR ).
13. The petitioner in these proceedings is Mr. George Bush Omogo was aggrieved by the way public participation was conducted, if at all, in the making of the Petroleum (Products Quality Management) (No.2) Regulations 2025 (the Regulations). The Regulations were published on 14 th November 2025 through Legislative Supplement No. 97 and Legal Notice No. 185 of 2025. In his petition dated 20 th November 2025, the petitioner seeks the following reliefs:
a) A declaration that the Petroleum (Products Quality Management) (No.2) Regulations 2025 published via Legislative Supplement No. 97 under Legal Notice No. 185 of 2025 is unconstitutional for want of public participation and is therefore null and void.
b) An order of permanent injunction restraining the respondents from any further implementation of the Petroleum (product quality management) (No.2) Regulations, 2025, either by themselves, their agents or any other person or entity acting under their instructions.
c) An order directing the 1 st and 2 nd respondents to conduct adequate and effective public participation in accordance with the Constitution before enacting any regulations and or policies touching on management of the quality of petroleum products.
d) Costs of this petition.
e) Any other relief that this Honourable Court may deem just in order to protect the interest of the general public.
14. The petition is premised on grounds on the face thereof and supported by the petitioner’s affidavit sworn on even date. The petitioner’s complaint is that the 2 nd respondent had on 30 th May 2025 published Legal Notice No. 104 of 2025 establishing Petroleum (Product Quality Management) Regulations, 2025. That the said Regulations were challenged in Court through Constitutional Petition No. E 631 of 2025 on account of lack of public participation. That on 16 th October 2025, upon Parliament through its Committee on Delegated Legislation considering the report and recommendations, Parliament nullified the Regulations on among others reasons, lack of public participation.
15. The petitioner is aggrieved that instead of conducting public participation as advised by Parliament, the 2 nd respondent revoked the Legal Notice No. 104 of 2025 and simply republished the same Regulations in Legal Notice No. 185 of 2025 in November 2025. The petitioner is further aggrieved that the republished Regulations introduced new policies that govern the petroleum market in Kenya. He singles out Regulation 7 which he claims that it introduced compulsory marking requirement for petroleum products consumed in Kenya using the approved marking technology and that the newly introduced Regulation imposes an unjustified cost burden on consumers without their input, which violates the principle of good governance and the citizen’s right to social and economic justice.
16. The petitioner asserts that before the Regulations, the only petroleum products that were being marked were duty free products consumed by the military and diplomats as well as to other countries and that it is not clear why the respondents decided to extend the marking to locally consumed products. He also questions the manner in which the tender for marking was awarded to the interested party.
Responses to the petition
17. The 1 st respondent opposes the petition through replying affidavit and further affidavit sworn by Daniel Kiptoo Burgaria, OGW, MBS on 11 th December 2025 and by Hamid Mohamed sworn on 20 th February 2026. The 1 st respondent asserts that the enactment of the Regulation was exercised within the provisions of sections 9, 10(a) (ii) and 11(g) of the Energy Act and sections 92(1) and 101 (1) (f) of the Petroleum Act, Cap 308 Laws of Kenya.
18. That contrary to the petitioner’s assertions, the Legal Notice No. 104 of 2025 was inadvertently submitted to Parliament outside the seven sitting days required under section 11(1) of the Petroleum Act and that therefore the decision to revoke the said Gazette Notice was to correct the mistake. It is further asserted that the National Assembly did not venture into the adequacy or lack of public participation but pointed out that the 1 st respondent had not attached the evidence of public participation. Further contention is that the impugned Regulations did not materially affect the contents of the revoked Regulations.
19. It is deposed that in developing the Regulations, the 1 st respondent fully complied with constitutional and statutory requirements governing the making of delegated legislation including articles 10, 47 and 232 of the Constitution and the Statutory Instruments Act. To wit, that there were engagements with Oil Marketing Companies and sector associations; a regulatory impact statement was prepared; the draft regulations were published in the Kenya Gazette; there was nationwide public notices in two newspapers of wide circulation; public consultation forums held in various places such as Nairobi, Mombasa, Kisumu, Nakuru among others; stakeholder comments were considered and the Regulations were submitted to the Attorney General, the Cabinet Secretary responsible for Petroleum and Parliament for review and scrutiny.
20. According to the 1 st respondent, Regulation 7 was introduced pursuant to and in response to issues raised during public participation, particularly concerns relating to wide spread fuel adulteration and that therefore, it was not required to be subjected to a fresh round of public participation.
21. It is contended that Regulation 7 was introduced to address persistent practices of petroleum fuel adulteration, illegal diversion of transit and export fuels into the domestic market, fuel smuggling across borders and theft of petroleum products within the national supply chain which undermine consumer safety, damage engines and infrastructure, distort fair competition and occasion significant loss of government revenue.
22. It is urged that prior enforcement mechanisms based solely on conventional quality testing were insufficient to detect complex adulteration and diversion schemes, particularly where adulterated fuel could be blended in a manner that temporarily masked non-compliance with surface-level quality parameters. That Regulation 7 therefore introduced a mandatory marking regime as a preventive, traceability-based enforcement mechanism, consistent with international best practice, which enables the Authority and other enforcement agencies to scientifically authenticate fuel throughout the supply chain from depot to retail and consumer points.
23. It is contended that the petitioner’s allegation regarding procurement of the interested party offends the doctrine of exhaustion owing to the provisions of sections 167 and 175 of the Public Procurement and Asset Disposal Act (PPADA) and that in any event, such a procurement complies with the provisions of section 103 (2) (d) of the PPADA that allows for direct procurement. Therefore, that the procurement was lawful, justified on technical and operational grounds and undertaken within the province of the PPADA.
24. The 1 st respondent deposes that public participation is not a legal requirement for the specific tendering process or the technical execution of fuel marking as both fall under distinct administrative and statutory mandates. That while public participation is mandatory during the formulation of Regulations under the Statutory Instruments Act, the subsequent act of marking fuel is a routine enforcement tool used to execute EPRAs existing mandate to ensure quality and curb a 1.05% non-compliance rate. Consequently, that the choice of the interested party is an operational decision intended to detect adulteration and protect revenue, which line any other technical enforcement method, does not require a fresh round of public debate for its daily implementation.
25. It is also contended that Regulation 7 was informed by extensive technical assessments, historical enforcement of data, interagency collaboration with the KEBS and KRA, and Kenya’s long-standing experience with marking of export and duty exempt petroleum products which demonstrated the effectiveness of marking as a deterrent and detection tool.
26. With respect to the issue of costs and fuel prices, the 1 st respondent avers that the cost of fuel marking is minimal and amount to only a few cents per litre and does not materially affect the pump price of petroleum products. That the cost of marking is borne at the supply chain level by oil marketing companies as part of their statutory compliance and quality assurance obligations and is not imposed directly on consumers.
27. Further, that in practice, the marginal cost of marking is absorbed within existing operational efficiencies and compliance costs and is outweighed by the economic benefits of reduced fraud, improved tax compliance and the elimination of losses currently provided into fuel due to theft, adulteration and illegal diversion.
28. The 1 st respondent asserts that the mandatory marking of petroleum products is an established regulatory standard within the East African region and is implemented by Kenya’s neighbouring states pursuant to express statutory and regulatory frameworks governing petroleum quality, revenue protection and anti-adulteration enforcement hence, it is an accepted, harmonised and evidence-based enforcement tool within the East African Community.
29. It is contended that fuel marking is not a new legislative enactment but an operational fulfilment of EPRA’s existing mandate under the Energy Act, 2019.That the problem has existed since 1998, with the current iteration under the Petroleum (Products Quality Management) Regulations, 2025 merely refining existing technical standards. The marking resonates with the dictates of article 46 of the Constitution.
30. The 1 st respondent pleads that the petitioner’s allegations of unfair markets practice and private interested fall within the purview of the Competition Authority of Kenya which the petitioner should have approached first. Further that, the immediate implementation of marking for locally consumed products is necessary to stop the theft of millions of litres from the Kenya Pipelines Company; the Petroleum (Products Quality Management) Regulations are existing laws already enacted under the Energy Act, and the implementation of the fuel marking under the Impugned Regulations is merely an enforcement of those existing regulations.
The Petitioner’s submissions
31. The petitioner filed submissions dated 27 th March 2026. He contends that, the Kenya Gazette is not the best way to reach out to the people as very few Kenyans go through the publications. Further, that all the attendance forms speak to consultations with stakeholders and representatives of various organizations who are persons of interest and do not represent the ordinary citizen.
32. According to the petitioner, the original Regulations published in the Gazette Notice marked DKB -5 in Daniel Kiptoo’s affidavit provides at Regulations 5 provided for sampling and testing of petroleum products imported in Kenya to be done by KEBS. That Regulation 6 provided for marking of export petroleum products while 7 provided for marking of illuminating kerosene only. That the impugned Regulations added premium motor spirit and automotive gas oil. They further included locally consumed products as opposed to the export products provided for in the gazetted Regulations. He argued that Kenyans who probably came across the gazette notice have no idea when and why such critical changes were made in Regulations that were eventually enacted.
33. The petitioner opines that while the issue in court is not whether or not the tender was lawfully and regularly awarded to the interested party, the fact that the Director of the 1 st respondent denied award of the marking tender to the Interested Party while the Senior Surveillance and Enforcement Officer admits that the Interested Party has been awarded the tender, tells a lot about the secrecy surrounding the making of the Regulations.
34. The petitioner urges that the respondents should have demonstrated that the public was educated and informed on the nature of the Regulations, the objectives, the meaning of marking of the products, the technology to be used, when and where the marking would be done, how to tell a marked and unmarked product, the penalties proposed, etc., to enable them understand the proposed laws and give their informed views on the matter.
35. The petitioner further argues that this explanation and or information being given in court in the further affidavit should have been captured in newspapers, radio talks, memos, circulars, barazas and given to the general public and stakeholders to read, understand and give their opinion. He relies on the Court of Appeal decision in Kiambu County Government & 3 Others v Robert N. Gakuru & Others (supra) where it was held that public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation.
36. The petitioner argues that while the 1 st respondent claims that public participation was conducted in the towns of Nairobi, Mombasa, Kisumu, Eldoret, Nakuru and Nanyuki, these fora covered approximately 6 counties out of 47, representing about 7% of the counties in the Republic contrary to the dictates of the decision in Kiambu County Government v Robert N. Gakuru (supra).
37. According to the petitioner, public participation allegedly carried out in the six urban centres did not meet the qualitative and quantitative threshold of public participation. That it was not explained why radios (including vernacular radio stations) were never used, considering only a small number of Kenyans read newspapers; that there was no way of receiving feedback from Kenyans through newspapers and therefore that such mode of notification excluded a large segment of the Kenyan population. He relies on the case of Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR to further augment his point on public participation.
38. The petitioner also cites the decision in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others ; SC Petition No. 5 of 2017 [2019] eKLR; Gakuru & others v Governor Kiambu County & 3 others [2014] KEHC 7516 (KLR) and Names Expunged (Suing on their behalf and on behalf of the Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy (supra) to augment that in this case, public participation was procedural and illusionary rather than substantive.
The Respondents’ submissions
39. The respondents filed submissions dated 30 th March 2026, wholly reiterating the content in their replying affidavit and maintaining that the impugned Regulations were enacted within a proper constitutional and statutory framework and in full compliance with the requirements of adequate and effective public participation. They rely on the decisions in Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth & others 1985J LRC (Const) and British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Partes); Mastermind Tobacco Kenya Limited (Affected Party) (supra).
40. The respondents further maintain that the Regulation 7 was a direct outcome of stakeholder engagement and did not require a fresh round of public participation; that it serves a legitimate public interest in combating fuel adulteration, protecting consumers and safeguarding government revenue and has not been shown to be inconsistent with the parent statutes (the Energy Act and the Petroleum Act). They cite the case of Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC63(KLR) and Kenya Bankers Association v Attorney General & another; Centra Bank of Keya (Interested Party) [2019] eKLR and William Odhiambo Abok v Attorney General & 2 others [2019] KEHC 10924 (KLR).
41. On the engagement of the interested party to conduct fuel marking process, it was submitted that this was lawful, justified and in compliance with section 103 (2) (d) of the PPADA. Further, that the petition offends the doctrine of exhaustion by virtue of sections 167 and 175 of the PPADA that establish a dispute resolution mechanism. They rely on the decision in Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority & 2 others [2018] KEHC 8263 (KLR).
42. The respondents submit that regarding the tender awarding process being done in secrecy, at 17 th December 2025, when the affidavit of Daniel Kiptoo Burgaria was sworn, the procurement process had not been concluded and no award had been made in favour of the interested party. That by 20 th February 2026, at the time Hamid Mohamed swore the affidavit, the procurement process had been concluded and direct tender had been duly awarded.
43. The respondents further rely on section 27 of the Civil Procedure Act and the decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) and urge for the dismissal of the petition with costs.
The Interested party’s submissions
44. The 1 st respondent filed submissions dated 1 st May 2026 which abide by the response of the 1 st respondent and associates itself with the submissions made on behalf of the respondents. It further submits that no case has been made or demonstrated against it.
Analysis and determination
a) Whether the impugned Gazetted Regulations met the threshold for public participation
b) Whether the reliefs sought should be granted
Whether the Regulation met the threshold for public participation.
45. The petitioner contends that the Regulations did not meet the threshold for public participation. He has submitted that from the Parliamentary Committee on Delegated Legislation Report, the Legal Notice No. 104 of 2025 was nullified on two grounds. First, that the Regulations were tabled before Parliament outside the timelines stipulated by the Statutory Instruments Act and second that there no public participation.
46. It is not in dispute that instead of conducting public participation, a ground upon which the Parliamentary Committee on Delegated Legislation rejected the Regulations, the 2 nd respondent revoked the Legal Notice No. 104 of 2025 and republished it th
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