REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO E065 OF 2021
IN THE MATTER OF ARTICLES 2(4), 2(5) & 2(6), 7, 10, 19, 20, 21(1) & 21 (3), 22, 23, 35, 43, 93(2), 94(2) & 94(4), 118, 153(4)(a), 156 (4) & 156(6), 165(3), 258, & 259(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS ENSHRINED IN ARTICLES 35 AND 43 OF THE CONSTITUTION
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 3, 5, 6, 7, 8 & 15 OF THE TREATY MAKING AND RATIFICATION ACT, 2012
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 4, 5, 5A, 6, 7, 8 & 13 OF THE STATUTORY INSTRUMENTS ACTS, 2013
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 4 & 5 OF THE ACCESS TO INFORMATION ACT, 2016
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLES 6, 7, 8(1), 8(2), 8(3) & 8(4) OF THE TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY CUSTOMS UNION
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY COMMON MARKET
AND
IN THE MATTER OF THE ECONOMIC PARTNERSHIP AGREEMENT BETWEEN THE REPUBLIC OF KENYA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
-BETWEEN-
KENYA SMALL SCALE FARMERS FORUM ……......... 1 ST PETITIONER
ECONEWS AFRICA …………………………………….. 2 ND PETITIONER
-VERSUS-
THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ………................................................................................... 1 ST RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INDUSTRIALIZATION, TRADE AND ENTERPRISE DEVELOPMENT ……... 2 ND RESPONDENT
THE SPEAKER, NATIONAL ASSEMBLY ………….... 3 RD RESPONDENT
JUDGMENT
The Background
1. The 1 st Petitioner, Kenya Small Scale Farmers Forum, describes itself as a society registered under the Societies Act, Cap 108, Laws of Kenya, with the goal of empowering small-scale farmers with capacities at all levels to enhance equal partnerships for sustainable and dignified livelihoods. Some of its specific objectives include to mobilize small scale farmers for self-organization and collective voice, create awareness on the issues affecting small scale farmers in Kenya, campaign, lobby and advocate for change of policy in favour of small-scale farmers in Kenya and to build the capacity of small-scale farmers to enable them participate effectively in policy formulation by seeking to be self-reliant and foster effective national networks that will empower them to increase their visibility. It brings this petition in the public interest.
2. The 2 nd Petitioner, ECONEWS AFRICA, is a not-for-profit organization registered under the Non-Governmental Organizations Coordination Act, CAP 134, Laws of Kenya[now repealed by the Public Benefit Organisations Act]. At the heart of its objects are fighting poverty and inequality through advocating for access to trade policy and related information by the general public, promotion of good practices in trade and economic affairs in the region, promoting transparency in negotiation of trade agreements by nations in Africa and advocacy on free trade agreements.
3. The 2 nd Petitioner asserts that it has already made huge impacts in advocating for open and good governance in negotiating economic agreements by states and enabling free and open exchange of information on these matters.
4. The 1 st Respondent, the Attorney General, is a Constitutional office holder under Article 156 of the Constitution of Kenya, 2010 and the Principal Legal Advisor to the Government and duly authorised to represent the National Government in all disputes of this nature.
5. The 2 nd Respondent, the Cabinet Secretary responsible for the Ministry of Industrialization, Trade and Enterprise Development, is a Constitutional office holder and a state officer under Article 152 of the Constitution.
6. The 3 rd Respondent, the Speaker of the National Assembly, is a state officer duly established under Article 106 of the Constitution. He is responsible for steering and presiding over proceedings at the National Assembly.
The Petitioner’s case
7. The Petition dated 28 th February 2021 and amended on 17 th March 2021 raises a constitutional challenge to the signing, ratification process and public participation framework of the Economic Partnership Agreement (EPA) between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland, signed on 8 th December 2020.
8. The Petitioners seek the following reliefs: -
(1 A declaration that the Respondents violated Article 118 of the Constitution by purporting to carry out Treaty making process without adequate public participation or at all.
(2 A declaration that the Respondents violated Article 35 of the Constitution by failing to provide in full information relating to the negotiations and Treaty making for the Economic Partnership Agreement under reference.
(3 An order compelling the Respondents to avail the subject Agreement to the general public through translated versions in Kiswahili and local languages as recognised by Article 44 of the Constitution.
(4 An order compelling the Respondents to provide simplified versions of the subject Agreement and in Kiswahili and local languages to the general public to facilitate public participation.
(5 An order compelling the Respondents to carry out meaningful public participation by reaching out to the general public and stakeholders at grass root levels, and who do not easily have access to internet resources or knowledge of use of internet.
(6 An order compelling the 2nd Respondent to commission meaningful regulatory impact and economic impact assessment studies into the impact of the subject Agreement on Kenya, and cause it to be published in the Kenya Gazette under Section 8 of the Statutory Instruments Act, and sections 6 and 7 of the Treaty Making and Ratification Act prior to submitting the Agreement for consideration by the 3 rd Respondent.
(7 An order staying further debate or consideration of the subject Agreement by the 3 rd Respondent until the public participation ordered herein has been carried out.
(8 An order that the Respondents jointly and severally bear the costs of the Petition.
9. The Petition is anchored on the grounds on the face of it and is further supported by the sworn affidavit of Davies Nyachieng’a, an economist and trade expert who is also the Program Officer in charge of Trade and Investment with the 2 nd Petitioner in which he avers that following a January 2020 meeting between the former Kenyan President Uhuru Kenyatta and the UK Prime Minister Boris Johnson, the Ministry of Trade signalled negotiations for an Economic Partnership Agreement (EPA). That the text and impact of the Agreement were kept hidden from the public until the Ministry abruptly announced its signing on 8 th December 2020.
10. It is averred that small-scale, rural Kenyan farmers expressed deep anxieties that heavily subsidized UK agricultural products would flood the local market and ruin their livelihoods and hence demonstrated the lack of transparency in Treaty negotiations.
11. The deponent states that there was a flawed and inadequate Public Participation since the public only learned of the ongoing parliamentary ratification process on 3 rd February 2021, through miniature, easily missed newspaper advertisements which were tucked deep inside the Daily Nation. Further, that the Notices published on 3 rd February 2021 were in English and directed the reader to a section of the National Assembly’s website.
12. It is deposed that the online link provided by Parliament contained an incomplete copy of the 600-page Agreement titled “Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland”, hereinafter referred to as ‘ the Impugned Agreement’ or ‘EPA’ omitting critical annexes being Customs Duties on Products Originating in the EAC Partner States; Annex II Customs Duties on Products Originating in the UK; Joint Statement of the Parties on the Objectives and Essential and Fundamental Elements of this Agreement; Protocol I Concerning the Definition of the Concept of “Originating Products and Methods of Administrative Cooperation; Protocol 2 on Mutual Administrative Assistance in Customs Matters; and the Memorandum of Understanding Between Kenya and the UK Concerning the Economic Partnership Agreement.
13. It is pleaded that the initial 7-days timeline granted for public feedback was grossly inadequate given the document’s extreme complexity, length and technical English. That the digital-only approach effectively locked out illiterate, semi-illiterate and rural stakeholders, resulting in only three elite individuals submitting views initially.
14. He contended on the same issue that even as an exposed trade and economic affairs expert, it was the first time he was coming across the voluminous and complex Agreement and he concluded that the time frame of only seven days granted to the public to give their views was inadequate especially in view of the fact that the notice generally would not be accessible to rural farmers and fishermen who were the critical stakeholders in matters agriculture and fishing.
15. He avers that despite Parliament later ordering a pause and fresh public participation, a subsequent notice issued on 26 th February 2021 still provided an unreasonably short deadline until 5 th March 2021.
16. It is their case that the Agreement has severe economic risks to Kenya because agriculture and fishing are the backbones of Kenya’s rural economy. That the impugned EPA phases out tariffs on key UK imports such as chicken, pork and maize and provides de-escalation of tariffs for these products for over 25 years. That because the UK is permitted to heavily subsidize its national producers, a capability Kenya lacks, local products will become uncompetitive, threatening to turn Kenya into a net importer.
17. The affiant deposes that the Agreement was non-compliant with legal and regional obligations, particularly that it breaches the EAC Customs Union Protocol. [EACCUP] It is stated that the Kenyan government failed to notify the East African Community (EAC) Secretary-General or give the required 90-day notice to partner states under Article 37 of the EAC Customs Union Protocol yet a similar EU-Kenya trade deal faced stiff regional resistance for similar economic threats.
18. The deponent asserts that the Ministry of Trade failed to conduct or publish a Regulatory or Economic Impact Assessment Report as required by the Treaty Making and Ratification Act and the Statutory Instruments Act. That further, despite promising in a December 2020 memorandum to roll out public sensitization campaigns on the impact and benefits of the Agreement, the Ministry failed to conduct any public engagements.
19. He swears that the Agreement, in so far as it exists only in English and available only partially on the website of the 3 rd Respondent, it has not been reasonably availed to the stakeholders. That this explains why only three elites were able to submit their views in the first place.
20. In response to the Agreement, the 2 nd Respondent filed a Replying Affidavit dated 7 th February 2024 sworn by ALFRED OMBUDO K’OMBUDO, the Principal Secretary State Department for Trade in which he opposed the Public Participation claims under Article 118 of the Constitution and denies the assertion that Article 118 of the Constitution was breached due to a lack of public participation. He deposes that because the Economic Partnership Agreement (EPA) was presented to Parliament for ratification, it automatically enters a formal legislative process requiring public engagement at both the committee stage and during plenary sessions.
21. It is deposed that unlike other East African Community (EAC) member states, Kenya is not classified as a Least Developed Country (LDC) and so it could not benefit from the UK’s Generalized Scheme of Preferences (GSP), which is strictly reserved for LDCs. Therefore, separate negotiations were necessary.
22. He avers that Kenya strategically utilized both a regional approach, modelling negotiations after the past EAC-EU EPA text and a bilateral approach. That the bilateral timeline was accelerated due to the rapidly closing Brexit transition window and the urgent need to preserve duty-free and quota-free market access for Kenyan exports to the UK.
23. The deponent refutes claims that the EAC Secretariat was kept in the dark regarding the deal. He asserts that several correspondences were exchanged between the UK Minister of State for Trade Policy, the Cabinet Secretary Ministry of East Africa Community and Regional Development of Kenya and they actively engaged with the EAC Secretary-General and regional partner states as early as January 2020 to discuss the post-Brexit trade transition. It is intimated that a follow-up letter dated 21 st July 2020 was officially copied to the EAC Secretariat and all relevant trade ministries within the partner states.
24. He further deposes that the Kenya-UK EPA does not lock out regional neighbours but instead features an open accession clause allowing other EAC member states to join whenever they are ready.
25. The affiant opposes allegations that local agricultural sectors will be destroyed by heavily subsidized UK goods. He states under the agreement’s terms, critical agricultural items central to Kenya’s export market such as cut flowers, fresh beans, fruits and vegetables retain Most Favoured Nation (MFN) tariff protections.
26. That additionally, a variety of vital developing-nation products have been entirely exempted from tariff liberalization rules under the United Kingdom Global Tariffs (UKGT) and thus urges that the Court dismisses the Petition with costs.
27. The 3 rd Respondent also filed a Replying Affidavit dated 22 nd December 2025 sworn by SERAH KOKO M.B.S., the Deputy Clerk of the National Assembly under the authorization of the Speaker of the National Assembly. She asserts that the National Assembly acted strictly within its constitutional and statutory mandates, provided thorough democratic oversight and that the petition is both premature and legally baseless.
28. It is averred that the 3 rd Respondent complied with its constitutional mandate and the law as well as public participation. It is asserted that the National Assembly discharged its duties in strict compliance with Article 118 of the Constitution, Section 8(1) and 8 (3) of the Treaty Making and Ratification Act and its own Standing Orders.
29. The deponents swears that the Departmental Committee on Trade, Industry and Cooperatives conducted extensive public participation via national newspaper notices inviting public memoranda on the EPA though an advertisement in the Daily Nation and People’s Daily on 27 th February 2021 and then held 11 sittings. That key stakeholders were engaged including the Kenya Private Sector Alliance (KEPSA), Kenya Flower Council (KFC), Kenya Association of Manufacturers (KAM), Fresh Produce Exporters Association of Kenya (FPEAK), Econews Africa and various state ministries.
30. It is deposed that the Committee determined that the EPA aligns with Kenya’s legal framework and brings substantial economic advantages including market stability since it safeguards approximately Kshs. 39 billion in annual export revenues by securing duty-free, quota-free access to the UK market. Secondly that it ensures industrial safeguards since sensitive sectors such as dairy, cereals, and fisheries are protected via exclusion lists. That it allows progressive liberalization timelines over 7 to 25 years and offers up to 15 years of protection for infant industries.
31. It is asserted that the Agreement features a flexible framework, including a single-transformation rule for textiles, reducing production bottlenecks for local apparel manufacturing. Further that the Agreement also features a flexible accession mechanism, permitting future participation by other EAC partner states, thereby fostering regional cohesion. That additionally it entails a mandatory five-year review which will assess implementation and address any emerging concerns, ensuring the agreement remains responsive to Kenya’s evolving economic landscape.
32. The deponent further addresses the issues of the missing annexures where the Petitioners initially argued the process was rushed and incomplete because key annexes and protocols were omitted during the initial tabling on 18 th February 2021 and states that on 25 th February 2021, the temporary Deputy Speaker withdrew the motion from the Order Paper. The full text was subsequently tabled, sent back to the Committee for proper re-examination and debated a second time using a complete Addendum Report before final approval on 9 th March 2021.
33. It is pleaded that prior to full ratification, a temporary, self-terminating Memorandum of Understanding signed on 8 th December 2020 in London by the then Principal Secretary Amb. Johnson Weru for Kenya and Deputy Director Paul Walters for the UK was utilized as a stop-gap measure to prevent a lapse in trade preferences when the Brexit transition period ended. That this temporary MOU included a "best endeavours" clause requiring them to complete their domestic processes to bring the full EPA into force within three months by the end of March 2021.
34. The deponent notes that the Thirteenth National Assembly subsequently ratified an identical EU-Kenya EPA in 2024 using the exact same procedural framework, proving its legality and consistency with parliamentary practice. The affiant argues that the Petition is premature and improperly before the Court. That under Article 119 of the Constitution , the Petitioners had a primary constitutional avenue to formally petition the National Assembly directly to resolve their grievances, which they bypassed.
35. It is further asserted that bypassing internal parliamentary remedies invites premature judicial intervention into the legislative process, violating the principle of separation of powers.
36. It is asserted that the National Assembly operated wholly within its legal mandate, conducted a process marked by exceptional scrutiny and public participation and produced a lawful and constitutional outcome. The National Assembly acting in good faith and in compliance with the Constitution, Treaty Making and Ratification Act, the National Assembly Standing Orders and other applicable laws, safeguarded public interest and upheld the rule of law during the most recent approval process as well as the impugned one before the Court. The 3 rd Respondent maintains that the ratification process was a model of procedural propriety and progressive governance. It is urged that the Court dismisses the amended Petition with costs to the National Assembly.
37. The Parties took directions to canvass the Petition by way of written submissions.
The Submissions
38. The Petitioners’ joint submissions are dated 14 th October 2024. Counsel isolated the following issues for determination:
i. Whether the threshold for public participation as prescribed by law was met;
ii. Whether the Respondents adhered to the requirements of the Statutory Instruments Act on conducting a regulatory impact assessment test;
iii. Whether the agreement was ratified in violation of the EAC treaty and other Community Laws; and
iv. Whether the totality of the Respondents actions amount to a constitutional violation.
39. Counsel for the Petitioners cited the High Court’s decision in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR where the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) was cited in which the issue of public participation was defined. The Mombasa High Court Consolidated Constitutional Petition Nos. 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & Others vs. The Attorney General & Others was also cited.
40. Counsel submits on the first issue that the timeline and methods used by the National Assembly made a mockery of genuine public engagement. The case of Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 (Formerly Nairobi Constitutional Petition 43 of 2014) Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR was cited where the court espoused the nature of public participation to entail inclusivity and diversity especially on those most likely to be affected by a policy or legislation.
41. Counsel submits that the EPA was signed on 8 th December 2020 and almost two months later, on 3 rd February 2021, the National Assembly placed miniature notices in daily newspapers, giving the public only 8 days until 11 th February to submit views. It is stated that on 25 th February 2021, it was revealed that only sections of the EPA had been made public. The Speaker ordered a supplementary report, after which a new notice was published on 26 th February, giving the public a mere 7 days until 5 th March to critique the full text. The final treaty was ratified shortly after on 9 th March 2021.
42. It is stated that the complete agreement was not provided for public scrutiny initially nor was it translated into Kiswahili despite requests, preventing those most affected from understanding it. That accordingly, this directly threatens Kenyans’ economic and social rights under Article 43 of the Constitution .
43. Counsel for the Petitioners argues that the 2 nd Respondent, the Cabinet Secretary herein failed to conduct mandatory regulatory and economic impact assessments as required by Section 8 of the Statutory Instruments Act and Sections 6 and 7 of the Treaty Making and Ratification Act . It is submitted that no assessment reports were published in the Kenya Gazette to inform the public and relevant interest groups of the treaty’s long-term impacts. The case of George Ndemo Sagini v Attorney General & 3 others [2017] eKLR and British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 Others, Civil Appeal No. 112 of 2016; [2017] eKLR , were cited in support of the elaborate process expected to be undertaken before statutory instruments are published and enacted.
44. Counsel submits on the third issue that the government of Kenya acted unlawfully by pursuing a unilateral trade deal instead of coordinating through regional institutions. It is submitted that under the EAC Customs Union and Common Market Protocols, a partner state wishing to conclude a trade agreement with a foreign country must send the proposal to the EAC Secretary General by registered mail, which initiates a mandatory 90-day comment period for other member states, followed by an EAC Council meeting as provided for under Article 37 of the Customs Union Protocol and of the Common Market Protoco l . That Kenya failed to execute this Protocol, potentially jeopardizing regional integration and the harmonized economic policies of the EAC.
45. Counsel for the Petitioners rejects the State’s defense that Brexit deadlines and Kenya’s non- LDC (Least Developed Country) status justified bypassing these vital steps, stating that partner states cannot legally act entirely individually. Counsel refers to the Vienna Convention on the Law of Treatie s, which requires state parties to be bound by the treaties they enter into and to perform them in good faith. The cases of Burundi Journalists Union vs. The Attorney General of Burundi, EACJ Ref. No. 7 of 2013 and Christopher Ayieko & another V. The Attorney General of the Republic of Kenya & The Secretary General of the East African
Community are cited for the proposition that the Protocol requires that other partners must be notified and given an opportunity to make input in the ratification process.
46. On the final issue, it is submitted that the cumulative actions of the state constitute a flagrant constitutional breach in that the process violated Article 10 on national values and participation of the people), Article 7 for failing to utilize the national language, Kiswahili, and Article 232 (1) (f) on transparency and timely provision of accurate information. Citing judicial precedent Olum v. Attorney-General (2002) eKLR, Counsel emphasizes that if either the purpose or the implementation effect of a statute infringes on guaranteed constitutional rights, it must be declared unconstitutional.
47. It is their submission that the Respondents failed to adhere to both the guiding principles and due procedures required for treaty ratification under Kenyan and regional community laws. They pray that the Court grants the orders sought in the amended Petition to declare the ratification unlawful.
The Respondents’ Submissions
48. The 1 st and 2 nd Respondents filed their submissions dated 15 th December 2025 in which learned Counsel Mr. Thande Kuria vigorously opposed the Petition, arguing that the ratification of the Kenya-UK Economic Partnership Agreement (EPA) followed due process, violates no constitutional provisions and serves crucial national economic interests.
49. Counsel submits that public participation was conducted and they deny the Petitioners’ claim that it was absent, asserting that the EPA was systematically subjected to public involvement during its parliamentary ratification stage in accordance with the Treaty Making and Ratification Act. It is added that there was thorough scrutiny where multiple sittings and handling motions regarding proposed amendments were conducted after which Parliament formally approved the treaty’s ratification.
50. It is submitted that Parliament concluded that the EPA directly supports Kenya’s food security agenda, offers immense benefits to local farmers and insulates the national economy from losing a vital export market. Counsel for the 1 st and 2 nd Respondents rejects the Petitioners’ assertion that the EPA will lead to Kenyan markets being flooded with British agricultural products.
51. Further, it is submitted that through extensive consultations with the private sector and stakeholders, a designated list of sensitive products including animal and fisheries products was established. That these specific items will attract heavy import duties if imported from the UK to shield local producers.
52. Counsel alludes to an asymmetric tariff reduction and submits that, while Kenya gains immediate protection and benefits, it will only gradually phase out duties on items deemed "non-sensitive" such as machinery and pharmaceuticals, providing Kenyan businesses with cheaper industrial and agricultural inputs.
53. Counsel’s submissions also highlight the massive scale of trade protected by the formalization of the post-Brexit agreement in that, the EPA ensures market access by protecting an annual export market valued at over Kshs. 40 billion which is approximately USD 365 million. That between 2015 and 2019, Kenya’s exports to the UK averaged Kshs. 39 billion between 2015-2019, making the UK Kenya’s second most important destination market in the European region after the Netherlands.
54. Counsel also states that the EPA will ensure financial savings by securing permanent duty-free access for critical products like green beans and cut flowers. That this deal saves Kenyan exporters over Kshs. 1.5 billion (£10 million) every year in customs duties. It is further stated that British companies operating in Kenya currently employ more than 250,000 Kenyans and support frictionless trade for roughly 2,500 UK businesses exporting to Kenya annually.
55. Counsel asserts that the EPA is compatible with East African Laws and denies the allegations that the treaty undermines regional frameworks. It is argued that Article 37 of the EAC Customs Union Protocol explicitly permits Partner States to separately conclude or amend trade agreements with foreign nations, provided the terms do not conflict with the protocol. Further, that the EPA was designed to promote broader regional integration. That under Article 143 of the Agreement, the treaty remains fully open to any other EAC country wishing to submit an accession request to the EPA Council.
56. Counsel for the 1 st and 2 nd Respondents maintains that the EPA safely fosters structural economic transformation, enhances trade capacity and aims at poverty eradication without infringing upon the Constitution. Consequently, they urge the Court to dismiss the matter entirely on the grounds that it fails to disclose any constitutional violations.
57. The 3 rd Respondent’s submissions are dated 22 nd December 2025 . Learned Counsel Ms. Sophie Otieno submits on two main issues as follows:
i. Whether the Petitioners have properly invoked the jurisdiction of this Court, having failed to first exhaust the alternative dispute resolution mechanism of petitioning the National Assembly under Article 119 of the Constitution (The Doctrine of Exhaustion of Remedies); and
ii. Whether the National Assembly, in considering and approving the ratification of the Kenya-UK EPA, fulfilled its constitutional and statutory obligations, particularly regarding:
the duty to facilitate public participation under Article 118(1)(b) of the Constitution; and the duty to conduct a meaningful and diligent scrutiny of the treaty.
58. Counsel submits on the court’s jurisdiction and exhaustion of remedies and states that courts have emphasized that petitioners must first exhaust internal parliamentary remedies be
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO E065 OF 2021
IN THE MATTER OF ARTICLES 2(4), 2(5) & 2(6), 7, 10, 19, 20, 21(1) & 21 (3), 22, 23, 35, 43, 93(2), 94(2) & 94(4), 118, 153(4)(a), 156 (4) & 156(6), 165(3), 258, & 259(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS ENSHRINED IN ARTICLES 35 AND 43 OF THE CONSTITUTION
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 3, 5, 6, 7, 8 & 15 OF THE TREATY MAKING AND RATIFICATION ACT, 2012
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 4, 5, 5A, 6, 7, 8 & 13 OF THE STATUTORY INSTRUMENTS ACTS, 2013
AND
IN THE MATTER OF CONTRAVENTION OF SECTIONS 4 & 5 OF THE ACCESS TO INFORMATION ACT, 2016
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLES 6, 7, 8(1), 8(2), 8(3) & 8(4) OF THE TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY CUSTOMS UNION
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLE 37 OF THE PROTOCOL ON THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY COMMON MARKET
AND
IN THE MATTER OF THE ECONOMIC PARTNERSHIP AGREEMENT BETWEEN THE REPUBLIC OF KENYA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
-BETWEEN-
KENYA SMALL SCALE FARMERS FORUM ……......... 1 ST PETITIONER
ECONEWS AFRICA …………………………………….. 2 ND PETITIONER
-VERSUS-
THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ………................................................................................... 1 ST RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INDUSTRIALIZATION, TRADE AND ENTERPRISE DEVELOPMENT ……... 2 ND RESPONDENT
THE SPEAKER, NATIONAL ASSEMBLY ………….... 3 RD RESPONDENT
JUDGMENT
The Background
1. The 1 st Petitioner, Kenya Small Scale Farmers Forum, describes itself as a society registered under the Societies Act, Cap 108, Laws of Kenya, with the goal of empowering small-scale farmers with capacities at all levels to enhance equal partnerships for sustainable and dignified livelihoods. Some of its specific objectives include to mobilize small scale farmers for self-organization and collective voice, create awareness on the issues affecting small scale farmers in Kenya, campaign, lobby and advocate for change of policy in favour of small-scale farmers in Kenya and to build the capacity of small-scale farmers to enable them participate effectively in policy formulation by seeking to be self-reliant and foster effective national networks that will empower them to increase their visibility. It brings this petition in the public interest.
2. The 2 nd Petitioner, ECONEWS AFRICA, is a not-for-profit organization registered under the Non-Governmental Organizations Coordination Act, CAP 134, Laws of Kenya[now repealed by the Public Benefit Organisations Act]. At the heart of its objects are fighting poverty and inequality through advocating for access to trade policy and related information by the general public, promotion of good practices in trade and economic affairs in the region, promoting transparency in negotiation of trade agreements by nations in Africa and advocacy on free trade agreements.
3. The 2 nd Petitioner asserts that it has already made huge impacts in advocating for open and good governance in negotiating economic agreements by states and enabling free and open exchange of information on these matters.
4. The 1 st Respondent, the Attorney General, is a Constitutional office holder under Article 156 of the Constitution of Kenya, 2010 and the Principal Legal Advisor to the Government and duly authorised to represent the National Government in all disputes of this nature.
5. The 2 nd Respondent, the Cabinet Secretary responsible for the Ministry of Industrialization, Trade and Enterprise Development, is a Constitutional office holder and a state officer under Article 152 of the Constitution.
6. The 3 rd Respondent, the Speaker of the National Assembly, is a state officer duly established under Article 106 of the Constitution. He is responsible for steering and presiding over proceedings at the National Assembly.
The Petitioner’s case
7. The Petition dated 28 th February 2021 and amended on 17 th March 2021 raises a constitutional challenge to the signing, ratification process and public participation framework of the Economic Partnership Agreement (EPA) between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland, signed on 8 th December 2020.
8. The Petitioners seek the following reliefs: -
(1 A declaration that the Respondents violated Article 118 of the Constitution by purporting to carry out Treaty making process without adequate public participation or at all.
(2 A declaration that the Respondents violated Article 35 of the Constitution by failing to provide in full information relating to the negotiations and Treaty making for the Economic Partnership Agreement under reference.
(3 An order compelling the Respondents to avail the subject Agreement to the general public through translated versions in Kiswahili and local languages as recognised by Article 44 of the Constitution.
(4 An order compelling the Respondents to provide simplified versions of the subject Agreement and in Kiswahili and local languages to the general public to facilitate public participation.
(5 An order compelling the Respondents to carry out meaningful public participation by reaching out to the general public and stakeholders at grass root levels, and who do not easily have access to internet resources or knowledge of use of internet.
(6 An order compelling the 2nd Respondent to commission meaningful regulatory impact and economic impact assessment studies into the impact of the subject Agreement on Kenya, and cause it to be published in the Kenya Gazette under Section 8 of the Statutory Instruments Act, and sections 6 and 7 of the Treaty Making and Ratification Act prior to submitting the Agreement for consideration by the 3 rd Respondent.
(7 An order staying further debate or consideration of the subject Agreement by the 3 rd Respondent until the public participation ordered herein has been carried out.
(8 An order that the Respondents jointly and severally bear the costs of the Petition.
9. The Petition is anchored on the grounds on the face of it and is further supported by the sworn affidavit of Davies Nyachieng’a, an economist and trade expert who is also the Program Officer in charge of Trade and Investment with the 2 nd Petitioner in which he avers that following a January 2020 meeting between the former Kenyan President Uhuru Kenyatta and the UK Prime Minister Boris Johnson, the Ministry of Trade signalled negotiations for an Economic Partnership Agreement (EPA). That the text and impact of the Agreement were kept hidden from the public until the Ministry abruptly announced its signing on 8 th December 2020.
10. It is averred that small-scale, rural Kenyan farmers expressed deep anxieties that heavily subsidized UK agricultural products would flood the local market and ruin their livelihoods and hence demonstrated the lack of transparency in Treaty negotiations.
11. The deponent states that there was a flawed and inadequate Public Participation since the public only learned of the ongoing parliamentary ratification process on 3 rd February 2021, through miniature, easily missed newspaper advertisements which were tucked deep inside the Daily Nation. Further, that the Notices published on 3 rd February 2021 were in English and directed the reader to a section of the National Assembly’s website.
12. It is deposed that the online link provided by Parliament contained an incomplete copy of the 600-page Agreement titled “Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland”, hereinafter referred to as ‘ the Impugned Agreement’ or ‘EPA’ omitting critical annexes being Customs Duties on Products Originating in the EAC Partner States; Annex II Customs Duties on Products Originating in the UK; Joint Statement of the Parties on the Objectives and Essential and Fundamental Elements of this Agreement; Protocol I Concerning the Definition of the Concept of “Originating Products and Methods of Administrative Cooperation; Protocol 2 on Mutual Administrative Assistance in Customs Matters; and the Memorandum of Understanding Between Kenya and the UK Concerning the Economic Partnership Agreement.
13. It is pleaded that the initial 7-days timeline granted for public feedback was grossly inadequate given the document’s extreme complexity, length and technical English. That the digital-only approach effectively locked out illiterate, semi-illiterate and rural stakeholders, resulting in only three elite individuals submitting views initially.
14. He contended on the same issue that even as an exposed trade and economic affairs expert, it was the first time he was coming across the voluminous and complex Agreement and he concluded that the time frame of only seven days granted to the public to give their views was inadequate especially in view of the fact that the notice generally would not be accessible to rural farmers and fishermen who were the critical stakeholders in matters agriculture and fishing.
15. He avers that despite Parliament later ordering a pause and fresh public participation, a subsequent notice issued on 26 th February 2021 still provided an unreasonably short deadline until 5 th March 2021.
16. It is their case that the Agreement has severe economic risks to Kenya because agriculture and fishing are the backbones of Kenya’s rural economy. That the impugned EPA phases out tariffs on key UK imports such as chicken, pork and maize and provides de-escalation of tariffs for these products for over 25 years. That because the UK is permitted to heavily subsidize its national producers, a capability Kenya lacks, local products will become uncompetitive, threatening to turn Kenya into a net importer.
17. The affiant deposes that the Agreement was non-compliant with legal and regional obligations, particularly that it breaches the EAC Customs Union Protocol. [EACCUP] It is stated that the Kenyan government failed to notify the East African Community (EAC) Secretary-General or give the required 90-day notice to partner states under Article 37 of the EAC Customs Union Protocol yet a similar EU-Kenya trade deal faced stiff regional resistance for similar economic threats.
18. The deponent asserts that the Ministry of Trade failed to conduct or publish a Regulatory or Economic Impact Assessment Report as required by the Treaty Making and Ratification Act and the Statutory Instruments Act. That further, despite promising in a December 2020 memorandum to roll out public sensitization campaigns on the impact and benefits of the Agreement, the Ministry failed to conduct any public engagements.
19. He swears that the Agreement, in so far as it exists only in English and available only partially on the website of the 3 rd Respondent, it has not been reasonably availed to the stakeholders. That this explains why only three elites were able to submit their views in the first place.
20. In response to the Agreement, the 2 nd Respondent filed a Replying Affidavit dated 7 th February 2024 sworn by ALFRED OMBUDO K’OMBUDO, the Principal Secretary State Department for Trade in which he opposed the Public Participation claims under Article 118 of the Constitution and denies the assertion that Article 118 of the Constitution was breached due to a lack of public participation. He deposes that because the Economic Partnership Agreement (EPA) was presented to Parliament for ratification, it automatically enters a formal legislative process requiring public engagement at both the committee stage and during plenary sessions.
21. It is deposed that unlike other East African Community (EAC) member states, Kenya is not classified as a Least Developed Country (LDC) and so it could not benefit from the UK’s Generalized Scheme of Preferences (GSP), which is strictly reserved for LDCs. Therefore, separate negotiations were necessary.
22. He avers that Kenya strategically utilized both a regional approach, modelling negotiations after the past EAC-EU EPA text and a bilateral approach. That the bilateral timeline was accelerated due to the rapidly closing Brexit transition window and the urgent need to preserve duty-free and quota-free market access for Kenyan exports to the UK.
23. The deponent refutes claims that the EAC Secretariat was kept in the dark regarding the deal. He asserts that several correspondences were exchanged between the UK Minister of State for Trade Policy, the Cabinet Secretary Ministry of East Africa Community and Regional Development of Kenya and they actively engaged with the EAC Secretary-General and regional partner states as early as January 2020 to discuss the post-Brexit trade transition. It is intimated that a follow-up letter dated 21 st July 2020 was officially copied to the EAC Secretariat and all relevant trade ministries within the partner states.
24. He further deposes that the Kenya-UK EPA does not lock out regional neighbours but instead features an open accession clause allowing other EAC member states to join whenever they are ready.
25. The affiant opposes allegations that local agricultural sectors will be destroyed by heavily subsidized UK goods. He states under the agreement’s terms, critical agricultural items central to Kenya’s export market such as cut flowers, fresh beans, fruits and vegetables retain Most Favoured Nation (MFN) tariff protections.
26. That additionally, a variety of vital developing-nation products have been entirely exempted from tariff liberalization rules under the United Kingdom Global Tariffs (UKGT) and thus urges that the Court dismisses the Petition with costs.
27. The 3 rd Respondent also filed a Replying Affidavit dated 22 nd December 2025 sworn by SERAH KOKO M.B.S., the Deputy Clerk of the National Assembly under the authorization of the Speaker of the National Assembly. She asserts that the National Assembly acted strictly within its constitutional and statutory mandates, provided thorough democratic oversight and that the petition is both premature and legally baseless.
28. It is averred that the 3 rd Respondent complied with its constitutional mandate and the law as well as public participation. It is asserted that the National Assembly discharged its duties in strict compliance with Article 118 of the Constitution, Section 8(1) and 8 (3) of the Treaty Making and Ratification Act and its own Standing Orders.
29. The deponents swears that the Departmental Committee on Trade, Industry and Cooperatives conducted extensive public participation via national newspaper notices inviting public memoranda on the EPA though an advertisement in the Daily Nation and People’s Daily on 27 th February 2021 and then held 11 sittings. That key stakeholders were engaged including the Kenya Private Sector Alliance (KEPSA), Kenya Flower Council (KFC), Kenya Association of Manufacturers (KAM), Fresh Produce Exporters Association of Kenya (FPEAK), Econews Africa and various state ministries.
30. It is deposed that the Committee determined that the EPA aligns with Kenya’s legal framework and brings substantial economic advantages including market stability since it safeguards approximately Kshs. 39 billion in annual export revenues by securing duty-free, quota-free access to the UK market. Secondly that it ensures industrial safeguards since sensitive sectors such as dairy, cereals, and fisheries are protected via exclusion lists. That it allows progressive liberalization timelines over 7 to 25 years and offers up to 15 years of protection for infant industries.
31. It is asserted that the Agreement features a flexible framework, including a single-transformation rule for textiles, reducing production bottlenecks for local apparel manufacturing. Further that the Agreement also features a flexible accession mechanism, permitting future participation by other EAC partner states, thereby fostering regional cohesion. That additionally it entails a mandatory five-year review which will assess implementation and address any emerging concerns, ensuring the agreement remains responsive to Kenya’s evolving economic landscape.
32. The deponent further addresses the issues of the missing annexures where the Petitioners initially argued the process was rushed and incomplete because key annexes and protocols were omitted during the initial tabling on 18 th February 2021 and states that on 25 th February 2021, the temporary Deputy Speaker withdrew the motion from the Order Paper. The full text was subsequently tabled, sent back to the Committee for proper re-examination and debated a second time using a complete Addendum Report before final approval on 9 th March 2021.
33. It is pleaded that prior to full ratification, a temporary, self-terminating Memorandum of Understanding signed on 8 th December 2020 in London by the then Principal Secretary Amb. Johnson Weru for Kenya and Deputy Director Paul Walters for the UK was utilized as a stop-gap measure to prevent a lapse in trade preferences when the Brexit transition period ended. That this temporary MOU included a "best endeavours" clause requiring them to complete their domestic processes to bring the full EPA into force within three months by the end of March 2021.
34. The deponent notes that the Thirteenth National Assembly subsequently ratified an identical EU-Kenya EPA in 2024 using the exact same procedural framework, proving its legality and consistency with parliamentary practice. The affiant argues that the Petition is premature and improperly before the Court. That under Article 119 of the Constitution , the Petitioners had a primary constitutional avenue to formally petition the National Assembly directly to resolve their grievances, which they bypassed.
35. It is further asserted that bypassing internal parliamentary remedies invites premature judicial intervention into the legislative process, violating the principle of separation of powers.
36. It is asserted that the National Assembly operated wholly within its legal mandate, conducted a process marked by exceptional scrutiny and public participation and produced a lawful and constitutional outcome. The National Assembly acting in good faith and in compliance with the Constitution, Treaty Making and Ratification Act, the National Assembly Standing Orders and other applicable laws, safeguarded public interest and upheld the rule of law during the most recent approval process as well as the impugned one before the Court. The 3 rd Respondent maintains that the ratification process was a model of procedural propriety and progressive governance. It is urged that the Court dismisses the amended Petition with costs to the National Assembly.
37. The Parties took directions to canvass the Petition by way of written submissions.
The Submissions
38. The Petitioners’ joint submissions are dated 14 th October 2024. Counsel isolated the following issues for determination:
i. Whether the threshold for public participation as prescribed by law was met;
ii. Whether the Respondents adhered to the requirements of the Statutory Instruments Act on conducting a regulatory impact assessment test;
iii. Whether the agreement was ratified in violation of the EAC treaty and other Community Laws; and
iv. Whether the totality of the Respondents actions amount to a constitutional violation.
39. Counsel for the Petitioners cited the High Court’s decision in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR where the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) was cited in which the issue of public participation was defined. The Mombasa High Court Consolidated Constitutional Petition Nos. 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & Others vs. The Attorney General & Others was also cited.
40. Counsel submits on the first issue that the timeline and methods used by the National Assembly made a mockery of genuine public engagement. The case of Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 (Formerly Nairobi Constitutional Petition 43 of 2014) Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR was cited where the court espoused the nature of public participation to entail inclusivity and diversity especially on those most likely to be affected by a policy or legislation.
41. Counsel submits that the EPA was signed on 8 th December 2020 and almost two months later, on 3 rd February 2021, the National Assembly placed miniature notices in daily newspapers, giving the public only 8 days until 11 th February to submit views. It is stated that on 25 th February 2021, it was revealed that only sections of the EPA had been made public. The Speaker ordered a supplementary report, after which a new notice was published on 26 th February, giving the public a mere 7 days until 5 th March to critique the full text. The final treaty was ratified shortly after on 9 th March 2021.
42. It is stated that the complete agreement was not provided for public scrutiny initially nor was it translated into Kiswahili despite requests, preventing those most affected from understanding it. That accordingly, this directly threatens Kenyans’ economic and social rights under Article 43 of the Constitution .
43. Counsel for the Petitioners argues that the 2 nd Respondent, the Cabinet Secretary herein failed to conduct mandatory regulatory and economic impact assessments as required by Section 8 of the Statutory Instruments Act and Sections 6 and 7 of the Treaty Making and Ratification Act . It is submitted that no assessment reports were published in the Kenya Gazette to inform the public and relevant interest groups of the treaty’s long-term impacts. The case of George Ndemo Sagini v Attorney General & 3 others [2017] eKLR and British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 Others, Civil Appeal No. 112 of 2016; [2017] eKLR , were cited in support of the elaborate process expected to be undertaken before statutory instruments are published and enacted.
44. Counsel submits on the third issue that the government of Kenya acted unlawfully by pursuing a unilateral trade deal instead of coordinating through regional institutions. It is submitted that under the EAC Customs Union and Common Market Protocols, a partner state wishing to conclude a trade agreement with a foreign country must send the proposal to the EAC Secretary General by registered mail, which initiates a mandatory 90-day comment period for other member states, followed by an EAC Council meeting as provided for under Article 37 of the Customs Union Protocol and of the Common Market Protoco l . That Kenya failed to execute this Protocol, potentially jeopardizing regional integration and the harmonized economic policies of the EAC.
45. Counsel for the Petitioners rejects the State’s defense that Brexit deadlines and Kenya’s non- LDC (Least Developed Country) status justified bypassing these vital steps, stating that partner states cannot legally act entirely individually. Counsel refers to the Vienna Convention on the Law of Treatie s, which requires state parties to be bound by the treaties they enter into and to perform them in good faith. The cases of Burundi Journalists Union vs. The Attorney General of Burundi, EACJ Ref. No. 7 of 2013 and Christopher Ayieko & another V. The Attorney General of the Republic of Kenya & The Secretary General of the East African
Community are cited for the proposition that the Protocol requires that other partners must be notified and given an opportunity to make input in the ratification process.
46. On the final issue, it is submitted that the cumulative actions of the state constitute a flagrant constitutional breach in that the process violated Article 10 on national values and participation of the people), Article 7 for failing to utilize the national language, Kiswahili, and Article 232 (1) (f) on transparency and timely provision of accurate information. Citing judicial precedent Olum v. Attorney-General (2002) eKLR, Counsel emphasizes that if either the purpose or the implementation effect of a statute infringes on guaranteed constitutional rights, it must be declared unconstitutional.
47. It is their submission that the Respondents failed to adhere to both the guiding principles and due procedures required for treaty ratification under Kenyan and regional community laws. They pray that the Court grants the orders sought in the amended Petition to declare the ratification unlawful.
The Respondents’ Submissions
48. The 1 st and 2 nd Respondents filed their submissions dated 15 th December 2025 in which learned Counsel Mr. Thande Kuria vigorously opposed the Petition, arguing that the ratification of the Kenya-UK Economic Partnership Agreement (EPA) followed due process, violates no constitutional provisions and serves crucial national economic interests.
49. Counsel submits that public participation was conducted and they deny the Petitioners’ claim that it was absent, asserting that the EPA was systematically subjected to public involvement during its parliamentary ratification stage in accordance with the Treaty Making and Ratification Act. It is added that there was thorough scrutiny where multiple sittings and handling motions regarding proposed amendments were conducted after which Parliament formally approved the treaty’s ratification.
50. It is submitted that Parliament concluded that the EPA directly supports Kenya’s food security agenda, offers immense benefits to local farmers and insulates the national economy from losing a vital export market. Counsel for the 1 st and 2 nd Respondents rejects the Petitioners’ assertion that the EPA will lead to Kenyan markets being flooded with British agricultural products.
51. Further, it is submitted that through extensive consultations with the private sector and stakeholders, a designated list of sensitive products including animal and fisheries products was established. That these specific items will attract heavy import duties if imported from the UK to shield local producers.
52. Counsel alludes to an asymmetric tariff reduction and submits that, while Kenya gains immediate protection and benefits, it will only gradually phase out duties on items deemed "non-sensitive" such as machinery and pharmaceuticals, providing Kenyan businesses with cheaper industrial and agricultural inputs.
53. Counsel’s submissions also highlight the massive scale of trade protected by the formalization of the post-Brexit agreement in that, the EPA ensures market access by protecting an annual export market valued at over Kshs. 40 billion which is approximately USD 365 million. That between 2015 and 2019, Kenya’s exports to the UK averaged Kshs. 39 billion between 2015-2019, making the UK Kenya’s second most important destination market in the European region after the Netherlands.
54. Counsel also states that the EPA will ensure financial savings by securing permanent duty-free access for critical products like green beans and cut flowers. That this deal saves Kenyan exporters over Kshs. 1.5 billion (£10 million) every year in customs duties. It is further stated that British companies operating in Kenya currently employ more than 250,000 Kenyans and support frictionless trade for roughly 2,500 UK businesses exporting to Kenya annually.
55. Counsel asserts that the EPA is compatible with East African Laws and denies the allegations that the treaty undermines regional frameworks. It is argued that Article 37 of the EAC Customs Union Protocol explicitly permits Partner States to separately conclude or amend trade agreements with foreign nations, provided the terms do not conflict with the protocol. Further, that the EPA was designed to promote broader regional integration. That under Article 143 of the Agreement, the treaty remains fully open to any other EAC country wishing to submit an accession request to the EPA Council.
56. Counsel for the 1 st and 2 nd Respondents maintains that the EPA safely fosters structural economic transformation, enhances trade capacity and aims at poverty eradication without infringing upon the Constitution. Consequently, they urge the Court to dismiss the matter entirely on the grounds that it fails to disclose any constitutional violations.
57. The 3 rd Respondent’s submissions are dated 22 nd December 2025 . Learned Counsel Ms. Sophie Otieno submits on two main issues as follows:
i. Whether the Petitioners have properly invoked the jurisdiction of this Court, having failed to first exhaust the alternative dispute resolution mechanism of petitioning the National Assembly under Article 119 of the Constitution (The Doctrine of Exhaustion of Remedies); and
ii. Whether the National Assembly, in considering and approving the ratification of the Kenya-UK EPA, fulfilled its constitutional and statutory obligations, particularly regarding:
the duty to facilitate public participation under Article 118(1)(b) of the Constitution; and the duty to conduct a meaningful and diligent scrutiny of the treaty.
58. Counsel submits on the court’s jurisdiction and exhaustion of remedies and states that courts have emphasized that petitioners must first exhaust internal parliamentary remedies be
[...truncated]