REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E713 OF 2024
BETWEEN
LAKE VICTORIA AQUACULTURE ASSOCIATION…………..PETITIONER
AND
CABINET SECRETARY, MINING, BLUE ECONOMY, AND MARITIME AFFAIRS……………………………………………………..…1 ST RESPONDENT
ATTORNEY GENERAL………………………………………2 ND RESPONDENT
AND
COUNCIL OF GOVERNORS……………………………INTERESTED PARTY
JUDGMENT
1. In the petition dated 23 rd December 2024 the petitioner, Lake Victoria Aquaculture Association, seeks the following relief:
a) A declaration that the Fisheries Management and Development (Aquaculture) Regulations, 2024, are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 174, 186, 189 and 232 of the Constitution.
b) A declaration that the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional.
c) An order quashing the Fisheries Management and Development (Aquaculture) Regulations, 2024.
d) In the alternative, an order quashing Schedule Six of the Fisheries Management and Development (Aquaculture) Regulations under L/N 126 of 2024 and the fees contained therein.
e) A declaration that the 1 st Respondent has no legal mandate to introduce the impugned levies, Aquaculture being a devolved function.
f) An order for costs of this Petition to be provided for.
g) Any other orders that this Honourable Court may deem just and appropriate.
2. The petition is premised on grounds on the face thereof and supported by an affidavit of Peter Ondeng sworn on even date. The petitioner challenges the constitutionality of the Fisheries Management and Development (Aquaculture) Regulations, 2024 (the Regulations) published by the 1 st respondent through Legal Notice No. 126. The Regulations were to take effect on 1 st January 2025.
3. The petitioner contends that the Regulations impose among others, a Kshs. 50,000 licensing fee for all aquaculture establishments operating in public water bodies, irrespective of size and a 5% ad valorem fee on the value of landed fish.
4. The Petitioner avers that the said licensing and ad valorem fees introduced under the Regulations are arbitrary and punitive and will have an adverse effect on the aquaculture sector and its value chain by raising the cost of doing business, discouraging investment among others.
5. The Petitioner contends that the Regulations are, punitive, disproportionately affecting aquaculture operators as well as small and medium enterprises (SMEs); detrimental to Kenya’s aquaculture industry and its competitiveness and inconsistent with Kenya’s constitutional and statutory framework, including; the principles of devolution and public participation.
6. The petitioner maintains that the imposition of a flat fee of Kshs. 50,000 licensing fee and 5% ad valorem fees under the Regulations are arbitrary, unreasonable and violates Articles 6, 27, 43, 46, 47, and 174 of the Constitution. According to the petitioner, the flat licensing fee of Kshs. 50,000 fails to consider the operational scale and capacity of aquaculture establishments. It disproportionately impacts small and medium enterprises as well as enterprises that are operating within the aquaculture value chain.
7. The petitioner pleads that the 5% ad valorem fee offends the principle of certainty in law. It fails to specify how the value of landed fish is to be calculated, creating ambiguity and leaving industry players uncertain about compliance obligations. It further exposes aquaculture operators to discretionary and potentially unfair enforcement practices which may lead to inconsistent and discriminatory application of the fee. In addition, it does not resonate with the dictates of Public Finance Management Act and the requirements of Section 5 of the Statutory Instruments Act, 2013.
8. It is the petitioner’s case that the 5% ad valorem fee is punitive and undermines food security goals by raising the cost of fish and pricing it out of reach for most Kenyans. It disincentives investment in the sector contrary to the Big Four Agenda. That in totality, the licensing fees and ad valorem fees make aquaculture economically unviable, threatening the livelihoods of thousands of small-scale fish farmers and aquaculture operators. This will lead to massive job losses within the aquaculture value chain, contrary to the right to livelihood and right to fair labour practices.
9. The petitioner avers that impugned fees were imposed without proper public participation or consultation with industry stakeholders. That despite aquaculture being a devolved function, the 1 st respondent did not meaningfully engage County Governments and other stakeholders in formulating the Regulations, violating Articles 10 and 118 of the Constitution as well as sections 4, 5, 6, 7, and 8 of the Statutory Instruments Act.
10. The petitioner states that prior to the promulgation of Legal Notice No. 126, the 1 st respondent had published these Regulations under Legal Notice No. 62. It did not contain the Sixth Schedule now contained in the Legal Notice No. 126 that seeks to impose the Kshs. 50,000 licensing fee and the 5% ad valorem fees on landed fish.
11. The petitioner therefore contends that the licensing fee and the ad volarem fee were introduce in the new set of Regulations under Legal Notice No. 126 under the Sixth Schedule without consultation or prior notice to stakeholders thereby, undermining the principles of transparency and accountability.
12. The petitioner pleads that the Government has over the years held out the aquaculture sector as a priority area for investment and sustainable development, going so far as to roll out an Aquaculture Business Development Program and providing incentives such as subsidized inputs. This representation created a legitimate expectation among industry players that the regulatory environment would be fair, predictable, and consistent with Blue Economy goals.
13. The petitioner avers that by imposing the arbitrary, discriminatory, and punitive fees under the impugned Regulations, the respondents have breached this legitimate expectation and dealt a devastating blow to investor confidence in the sector.
14. The petitioner states that aquaculture being a devolved function under the Fourth Schedule of the Constitution, the imposition of fees by the national government, as prescribed in the Sixth Schedule of the Regulations, amounts to an encroachment on county government functions in violation of under Articles 186 and 189 of the Constitution. In addition, the Regulations create an unconstitutional and unlawful duplication of fees and levies between the national and county governments regarding the licensing and regulation of aquaculture.
15. The petitioner pleads that the Kshs. 50,000 licensing fee for all aquaculture establishments is arbitrary and disproportionate. The 5% ad valorem fee on the value of landed fish imposes a recurring cost that threatens local aquaculture enterprises’ commercial viability and sustainability, already struggling against cheaper fish imports. It further constitutes a tax due to its broad applicability and lack of direct correlation to specific services, contravening Articles 114 and 210 of the Constitution.
16. It is the petitioner’s case that these fees therefore impose an unsustainable burden on local producers, already grappling with high input costs, limited access to financing, and narrow profit margins. If implemented, the regulations risk jeopardizing the government’s own Blue Economy strategy, which identifies aquaculture as a cornerstone for food security and economic development.
17. The petitioner contends that the punitive fees do not align with the national development goals. They have far-reaching socio-economic consequences for the aquaculture sector and the broader economy.
Responses to the petition
18. In response, the 1 st respondent filed replying affidavit sworn by Hassan Ali Joho on 12 th March 2025 opposing the petition on several grounds. The 1 st respondent asserts that he is empowered under sections 74 (1) and (2) and 208 of Fisheries Management and Development Act, Cap 378 to make Aquaculture Regulations.
19. The 1 st respondent pleads that in compliance with those sections, he constituted a Technical Committee to develop Aquaculture Regulations. The Technical Committee comprised of Fisheries Officers from State Department for the Blue Economy and Fisheries and the Semi- Autonomous Government Agencies (SAGAs), State Counsel from the Ministry, Legislative Drafters from the Office of the Attorney General and the Kenya Law Reform Commission among others.
20. It is asserted that the Regulations underwent stakeholder consultations and public participation before being finalized as shown by the attached attendance lists and supporting documents. In addition, the Ministry forwarded the Regulations to the Office of the Attorney General and Department of Justice for legal scrutiny, concurrence and retuning them to the Ministry for Cabinet Secretary’s signature before the same could be transmitted to the Government for publication in the Gazette.
21. That on 13 th February, 2024 the then Cabinet Secretary published in the Gazette the Fisheries Management and Development (Aquaculture) Regulations, 2024 under Legal Notice No. 62 of 2024. The Cabinet Secretary in compliance with section 11 (1) of the Statutory Instruments Act, 2013 through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13 th March, 2024, transmitted the published Regulations to the Clerks of the National Assembly and the Senate for purposes of tabling them before the relevant committee of the House.
22. That in compliance with section 7 (3) of the Statutory Instruments Act through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 14 th March 2024, transmitted the Proposed Draft Regulatory Impact Statement to the Chief Executive Officer for the Kenya Law Reform Commission for independent advice on the adequacy of the Regulatory Impact Statement. The Chief Executive Officer for the Kenya Law Reform Commission through a letter Ref No. KLRC/8/81 VOL III dated 14 th March 2024 responded approving the proposed draft Regulatory Impact Statement.
23. It is deponed that the National Assembly invited the Ministry for a Parliamentary scrutiny of the Regulations by their Delegated Legislation Committee through a letter from the Clerk Ref No. NA/DAA&GPC/CDL/2024/(034) dated 16 th April, 2024 and another Ref No. NA/DAA&GPC/CDL/2024/(040) dated 24 th April, 2024. The Delegated Legislation Committee of the National Assembly scrutinized the Regulations and made the comments.
24. It is pleaded that the Delegated Legislation Committee recommended that for Regulation 13 (1) (b) there was a compelling need to indicate in the schedule the fees chargeable and which were to be reviewed by the Cabinet Secretary from time to time. Further that in doing so, the members of the National Assembly for the Delegated Legislation Committee were exercising their power under Article 1 (2) and (3) (a) of the Constitution.
25. That in compliance with the provisions of Article 1(3) (a) of the Constitution the National Assembly therefore advised on the inclusion of fees in the proposed draft Regulations. The National Assembly Delegated Legislation Committee acceded to the Regulations vide letter Ref No. No. NA/DAA&GPC/CDL/2024/ (106) dated 2 nd October, 2024. The Regulations were similarly tabled before the Senate which acceded to them through letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3 rd July, 2024. This aligned with Parliament’s mandate stipulated under section 16 of the Statutory Instruments Act.
26. It is deponed that in line with the provisions of the Statutory Instruments Act, the Ministry through the Kenya Fisheries Service (Regulator of the Fisheries and Aquaculture sector) opted for the proposed levies as provided for in the schedule and incorporated the same in the Proposed Draft Regulations and forwarded to the Office of the Attorney General for action. In so doing, the Ministry was guided by section 3 of the Income Tax Act to impose the said charges. It was further guided by the Third Schedule, Head B Regulation 5(g) on rates of Tax to be charged.
27. The 1 st respondent posits that on 30 th December, 2024, the petitioner through a letter dated the same date and referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislation, requested the Ministry to initiate a comprehensive review of both the Regulations and the Act. The Ministry was to meet with the petitioner and other stakeholders in the Fisheries and Aquaculture Sector with the intent to discuss and review the fees as provided in the schedule.
28. The 1 st respondent asserts that the Regulations as approved is meant to create opportunities for jobs, and to an extent generate revenue to the state. That based on the foregoing, the Ministry conducted a Regulatory Impact Assessment; developed and prepared an explanatory Memorandum in line with the provisions of section 5A of the Statutory Instruments Act and engaged County Governments as evidenced by letters dated 16 th May, 2024 and 29 th April, 2024 and 11 th June 2024.
29. The 1 st respondent pleads that the Ministry revoked Legal Notice No 62 of 2024 and replaced them with Legal Notice No.126 of 2024 after guidance from Parliament and in line with the provisions of section 19 of the Statutory Instruments Act. Legal Notice No 126 of 2024 had the fees as guided and advised by parliament and the fees is only being applied upon Commercial Aquaculture Fish Farmers and not the Small Scale and Medium-Scale Fish Farmers.
30. It is contended lastly contended that contrary to the assertion by the petitioner, section 116 to section 123 of the Fisheries Management and Development Act has granted the regulation of Commercial Aquaculture to the Director General of the Kenya Fisheries Service. Further that section 25 of the Statutory Instruments Act, provides that a statutory Instrument may provide for the imposition of fees and charges in respect of any matter with regard to which provision is made in the enabling legislation.
The Interested party’s response
31. The interested party supported the petition through replying affidavit sworn by Mary Mwiti, EBS on 14 th November 2025. It confirms the function of fisheries is assigned to county governments pursuant to Part 2, section 1 (e) of the Fourth Schedule and reiterates the facts as pleaded in the petition regarding the enactment of the Fisheries Management and Development (Aquaculture) Regulations, 2024 through Legal Notice No. 126 of 2024 and its impact.
32. It is claimed that the licensing fees and ad volarem fee is a substantive change to the impugned Regulations with far reaching implication on aquaculture stakeholders and as such ought to have been subjected to public participation. This was however not done as the same were arrived upon without due consideration of views and memoranda received during public participation exercise of the initial Fisheries Management and Development (Aquaculture) Regulations through Legal Notice No. 62 of 2024.
33. It is asserted that this was a violation of Articles 10(2) (a) and 118(1 (b) of the Constitution, the disposition in Petition No. 5 of 2017 British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 4 others and section 5(3) (a) of the Statutory Instrument’s Act. There was also an absence of the regulatory impact statement and compliance certificate as envisage by section 7(5) of the Statutory Instrument’s Act.
34. The interested party pleads that the success of devolution requires that the national government enacts policies and legal instruments to promote, nurture and support the devolved governance system. This among others entails revising existing statutes to align them with devolved functions. Accordingly, it is required that the national government amend and/ or revises the provisions of the Fisheries Management and Development Act Cap 378 Laws of Kenya and its attendant Regulations.
The Petitioner’s submissions
35. The petitioner’s written submissions are dated 7 th February, 2025. The petitioner cites Articles 10 (2) , 118 and 232 of the Constitution, sections 5 and 6 of the Statutory Instruments Act and the decision in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR and British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR for the contention that the threshold for public participation was not met; it was not real but illusory. This is because, the 1 st respondent published initial draft regulations (Legal Notice No. 62 of 2024) without indicating any licensing or ad valorem fees; subsequently introduced the fees through the Legal Notice No. 126 without any further consultation or stakeholder engagement and revoked Legal Notice No. 62 through Legal Notice No. 126, effectively ambushing stakeholders who had participated in the earlier process that did not discuss or debate these fees.
36. The petitioner cites Articles 174, 186 and 189 of the Constitution that provide for devolution. It further submits that Part 2 of the Fourth Schedule explicitly devolves “County fisheries” functions, including aspects of aquaculture and maintains that by imposing new licensing and ad valorem fees through the national framework, the 1 st respondent encroaches on the mandate of the counties and established a parallel regulatory regime, which will lead to double or overlapping charges. Reliance is placed on the decision in Council of Governors & 47 others v Attorney General & 3 others [2020] KEHC 4 and The Supreme Court’s Advisory Opinion Reference No. 2 of 2013
37. The petitioner therefore urges that the Regulations create a situation where aquaculture operators face, double taxation; administrative confusion and Fiscal Overreach. Hence undermining the Constitution’s design that empowers counties to regulate matters intimately connected with local needs and development priorities. Further that the 5% ad valorem charge imposed by the Regulations is not a mere regulatory fee; it has the characteristics of a tax; it has a broad application; it is for revenue raising purposes and lacks a clear nexus and that therefore, this is an affront to the provisions of Articles114, 209 and 210 of the Constitution.
38. The petitioner relies on the decision in Mount Kenya Bottlers Limited & 3 Others v The Honourable Attorney General & 3 Others [2019] to argue that there is no express statutory authority under the Fisheries Management and Development Act, 2016, permitting the 1 st respondent to impose a 5% ad valorem fee on fish produce. The said fee unconstitutionally expands beyond the notion of cost recovery and thereby morphs into taxation without adherence to Articles 209 and 210.Moreover, the 5% fee is likely to be passed on to consumers, functioning akin to a consumption or excise tax, thereby affecting the final prices of fish and undermining the right to affordable protein.
39. The petitioner contends that the Kshs. 50,000 flat licensing fee fails to account for the vast differences in the scale of aquaculture operations. It is, therefore, prima facie discriminatory and contravenes Article 27 of the Constitution, which guarantees equality and non-discrimination. Reliance is placed on the decision in Kenya Flower Council v Meru County Government [2019] eKLR.
40. It is submitted that for fish farmers, producing a few hundred kilograms of fish per year, the Kshs. 50,000 represents a crippling burden, inhibiting their ability to remain viable. This fee locks out new entrants and entrenches inequality in the sector. It further violates the provisions of Article 56 of the Constitution.
41. The petitioner relies on the decisions in Kenya Association of Manufacturers & 2 others v Cabinet Secretary - Ministry of Environment and Natural Resources & 3 others [2017] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2014] eKLR for the contention that the Government, through: Blue Economy Agenda, Vision 2030, Big Four Agenda and Official Policy Statements has consistently portrayed aquaculture as a priority sector, encouraging both local and foreign investment. Therefore, Aquaculture stakeholders reasonably expected a supportive framework, minimal or proportionate regulatory fees, and consistent policy. The sudden and punitive nature of the 5% ad valorem fee and KES 50,000 licensing fee shatters these expectations. Further reliance is placed on Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR).
42. The petitioner urges that contrary to the dictates of Articles 43 and 46 of the Constitution, the 5% ad valorem fee will escalate production costs, ultimately translating to higher retail fish prices and undermining food security. It forecasts price hikes of up to 15% for fish and fish products due to cumulative licensing and ad valorem charges; likely reduction in fish farming activities—operators may scale down to avoid the punitive fees, leading to supply constraints and adverse effects on 500,000+ households who rely on aquaculture for their livelihoods, affecting children’s nutrition and educational prospects in these communities.
The Respondents’ submissions
43. The respondents’ submissions are darted 10 th February, 2025. They maintain that the Ministry complied fully with constitutional and statutory requirements for public participation in the entire exercise of promulgating the Regulations. Reliance is placed on Articles 10 (2) (a), 118 (1) (b) and 232 (1) (d) of the Constitution and sections 5 and 5A of the Statutory Instruments Act, 2013.
44. The respondents contend that the applicable test is whether a reasonable opportunity was afforded to the public to be heard rather than by actual participation of every affected person. They rely on the decisions in British American Tobacco Kenya, PLV v Cabinet Secretary for the Ministry of Health & 2 others (supra); Small Scale Farmers Forum & 6 others v Republic of Kenya and 2 others [2013] eKLR and North Rift Motor Bike Taxi Association v Uasin Gishu County Government [2015] eKLR for the proposition that parliament enjoys discretion on the modalities through which public participation is conducted, provided the process fits into the essential ingredients of public participation.
45. The respondents submit that the Ministry’s documented consultations, including JASCCOM engagements and direct correspondence with the Council of Governors; copies of attendance lists in the exhibit marked HAJ1 and the and the Ministry’s openness to further engagements as evidenced by its commitment to convene a stakeholder forum following the petitioner’s letter dated 30 th December 2024 referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislations demonstrates that public participation was undertaken.
46. The respondents further rely on Doctors for Life International v Speaker of the National Assembly and others [2006] ZACC 11 and Minister for Health v New Clicks South Africa (PTY) Ltd to submit that public participation does not require the law maker to accord a personal hearing to every individual affected by regulations that are being made. It is argued that what is required is the provisions of a reasonable opportunity for members of the public and all interested parties to be informed about the proposed legislation and to have an adequate say. This was done by the Ministry publishing the Regulations in the Gazette and in consultation with the various experts.
47. They reiterate that the Ministry constituted a Technical Committee comprising Fisheries Officers, State Counsel from the Office of the Attorney General and officers from the Kenya Law Reform Commission to develop the Regulations. It is contended that that the Committee conducted extensive stakeholder consultations, as evidenced by attendance lists and supporting documents annexed to the replying affidavit and marked as HAJ1. According to them, consultations were undertaken in key aquaculture hubs including Kisumu, Mombasa, Homa Bay and Busia, thereby affording fish farmers and other stakeholders an opportunity to provide input into the regulatory process. It is further submitted that concerns raised during those engagements, including issues relating to licensing fees and sustainable aquaculture practices, were considered and incorporated into the final Regulations.
48. The respondents submit that county governments were engaged through Joint Agricultural Sector Consultation and Cooperation Mechanism (JASSCOM) ensuring devolved interests were represented. The Council of Governors submitted comments on 29 th April and 16 th May 2024 which Ministry addressed through letters dated 11 th June 2024. This demonstrates inclusivity across governance levels, aligning emphasis on stakeholder involvement. Reliance was placed on Peter Makau Musoka and Award of Mining Concessionary Rights to the Mui Coal Basin Deposits [2015] eKLR and Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentists Council & another (Interested Parties) [2024] KEHC 8255 (KLR).
49. It is contended that the documented consultations including JASSCOM and direct engagement with the Council of Governors, meet this standard. Particular emphasis was placed on the petitioner's letter dated 30 th December 2024 requesting a stakeholder forum and the Ministry's commitment to convene such a forum as evidence of its openness to further consultation and engagement.
50. The respondents have further submitted that the Regulations underwent thorough parliamentary scrutiny, which itself constituted an important component of public participation. The Regulations were transmitted to the National Assembly and the Senate on 13 th March 2024 for consideration. The National Assembly’s Delegated Legislation Committee subsequently scrutinized them 16 th and 24 th April 2024 and recommended, among others, the inclusion of fees in the schedule, which was incorporated into Legal Notice No. 126.
51. It is further contended that the Senate approved the Regulations on 3 rd July 2024 while the National Assembly approved them on 2 nd October 2024. Reliance is placed on Attorney General & 2 Others v Ndii & 79 Others [2022] KESC 8 (KLR) for the proposition that parliamentary deliberations constitute an important avenue through which public participation is realized. The respondents therefore rejected the petitioner's allegation that the fees were covertly introduced, arguing that the fees were incorporated following parliamentary guidance under section 19 of the Statutory Instruments Act
52. Additionally, it is submitted that the Ministry complied with the requirements of the Statutory Instruments Act by preparing a Regulatory Impact Assessment and an Explanatory Memorandum, both of which were approved by the Kenya Law Reform Commission. It is argued that these steps ensured the Regulations’ socio-economic implications were evaluated with stakeholder input, as required by law.
53. Addressing the contention that the Regulations encroach on devolved functions, it is submitted that county governments were adequately consulted and that county interests were protected through both JASCCOM engagements and Senate participation as evidenced by letter referred No. MIBEMA/SDBE&F/LEG /VOL 1.1 and exhibit marked HAJ 15 and letter dated 11 th June 2024Ref. NO. MIBEMA/SDB& E/LEG/VOL.1.1.
54. Reliance is placed on Kenya Flower Council v Meru County Government [2019] KEHC 1523 (KLR) for the proposition that legislative mandate is delegated sovereign power of the people and therefore must be exercised in a manner that facilitates public participation. The Ministry’s engagement with county stakeholders and parliamentary oversight fully addressed these constitutional requirements, refuting the Petitioner’s devolution-based objections. The Ministry’s consultations, parliamentary scrutiny and statutory compliance demonstrate intentional public participation in the promulgation of the regulations. Articles 10(2)(a), 118(1)(b), and 232(1)(d) of the Constitution of Kenya, alongside Sections 5, 5A, and 7 of the Statutory Instruments Act, were adhered to.
55. The respondents cite the case of Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR and Speaker of the Senate & another v Attorney General & another; Law Society of Kenya & 2 Others (Amicus Curiae) [2013] KESC 7 (KLR), that speak to the issue of Article 110(3) of the Constitution on concurrence and assert that indeed this was done as augmented by letters Ref. No MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13th March, 2024 (HAJ 4); Ref No. NA/DAA&GPC/CDL/2024/ (106) dated 2 nd October, 2024(HAJ10) and letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3 rd July, 2024 (HAJ11).
56. The respondents assert that fees in Legal Notice No. 126 were specified in the Sixth Schedule under Regulation 13 (1) (b) following scrutiny and approval by the National Assembly and Senate, ensuring transparency. Inclusion of fees was in tandem with the provisions of sections 74 (1) and (2) (a) and 208(1) and (2) (b) of the Fisheries Management and Development Act, section 16 and 19 of the Statutory Instruments Act. The fees were therefore not covertly introduced and the 1 st respondent acted within the law. Reliance is placed on the decision in Aura v Cabinet Secretary, Ministry of Health & 11 others;
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E713 OF 2024
BETWEEN
LAKE VICTORIA AQUACULTURE ASSOCIATION…………..PETITIONER
AND
CABINET SECRETARY, MINING, BLUE ECONOMY, AND MARITIME AFFAIRS……………………………………………………..…1 ST RESPONDENT
ATTORNEY GENERAL………………………………………2 ND RESPONDENT
AND
COUNCIL OF GOVERNORS……………………………INTERESTED PARTY
JUDGMENT
1. In the petition dated 23 rd December 2024 the petitioner, Lake Victoria Aquaculture Association, seeks the following relief:
a) A declaration that the Fisheries Management and Development (Aquaculture) Regulations, 2024, are unconstitutional for failure to comply with Articles 10, 27, 43, 55, 118, 174, 186, 189 and 232 of the Constitution.
b) A declaration that the imposition of the KES 50,000 licensing fee and the 5% ad valorem fee in the Sixth Schedule of the Regulations is unreasonable, punitive, and unconstitutional.
c) An order quashing the Fisheries Management and Development (Aquaculture) Regulations, 2024.
d) In the alternative, an order quashing Schedule Six of the Fisheries Management and Development (Aquaculture) Regulations under L/N 126 of 2024 and the fees contained therein.
e) A declaration that the 1 st Respondent has no legal mandate to introduce the impugned levies, Aquaculture being a devolved function.
f) An order for costs of this Petition to be provided for.
g) Any other orders that this Honourable Court may deem just and appropriate.
2. The petition is premised on grounds on the face thereof and supported by an affidavit of Peter Ondeng sworn on even date. The petitioner challenges the constitutionality of the Fisheries Management and Development (Aquaculture) Regulations, 2024 (the Regulations) published by the 1 st respondent through Legal Notice No. 126. The Regulations were to take effect on 1 st January 2025.
3. The petitioner contends that the Regulations impose among others, a Kshs. 50,000 licensing fee for all aquaculture establishments operating in public water bodies, irrespective of size and a 5% ad valorem fee on the value of landed fish.
4. The Petitioner avers that the said licensing and ad valorem fees introduced under the Regulations are arbitrary and punitive and will have an adverse effect on the aquaculture sector and its value chain by raising the cost of doing business, discouraging investment among others.
5. The Petitioner contends that the Regulations are, punitive, disproportionately affecting aquaculture operators as well as small and medium enterprises (SMEs); detrimental to Kenya’s aquaculture industry and its competitiveness and inconsistent with Kenya’s constitutional and statutory framework, including; the principles of devolution and public participation.
6. The petitioner maintains that the imposition of a flat fee of Kshs. 50,000 licensing fee and 5% ad valorem fees under the Regulations are arbitrary, unreasonable and violates Articles 6, 27, 43, 46, 47, and 174 of the Constitution. According to the petitioner, the flat licensing fee of Kshs. 50,000 fails to consider the operational scale and capacity of aquaculture establishments. It disproportionately impacts small and medium enterprises as well as enterprises that are operating within the aquaculture value chain.
7. The petitioner pleads that the 5% ad valorem fee offends the principle of certainty in law. It fails to specify how the value of landed fish is to be calculated, creating ambiguity and leaving industry players uncertain about compliance obligations. It further exposes aquaculture operators to discretionary and potentially unfair enforcement practices which may lead to inconsistent and discriminatory application of the fee. In addition, it does not resonate with the dictates of Public Finance Management Act and the requirements of Section 5 of the Statutory Instruments Act, 2013.
8. It is the petitioner’s case that the 5% ad valorem fee is punitive and undermines food security goals by raising the cost of fish and pricing it out of reach for most Kenyans. It disincentives investment in the sector contrary to the Big Four Agenda. That in totality, the licensing fees and ad valorem fees make aquaculture economically unviable, threatening the livelihoods of thousands of small-scale fish farmers and aquaculture operators. This will lead to massive job losses within the aquaculture value chain, contrary to the right to livelihood and right to fair labour practices.
9. The petitioner avers that impugned fees were imposed without proper public participation or consultation with industry stakeholders. That despite aquaculture being a devolved function, the 1 st respondent did not meaningfully engage County Governments and other stakeholders in formulating the Regulations, violating Articles 10 and 118 of the Constitution as well as sections 4, 5, 6, 7, and 8 of the Statutory Instruments Act.
10. The petitioner states that prior to the promulgation of Legal Notice No. 126, the 1 st respondent had published these Regulations under Legal Notice No. 62. It did not contain the Sixth Schedule now contained in the Legal Notice No. 126 that seeks to impose the Kshs. 50,000 licensing fee and the 5% ad valorem fees on landed fish.
11. The petitioner therefore contends that the licensing fee and the ad volarem fee were introduce in the new set of Regulations under Legal Notice No. 126 under the Sixth Schedule without consultation or prior notice to stakeholders thereby, undermining the principles of transparency and accountability.
12. The petitioner pleads that the Government has over the years held out the aquaculture sector as a priority area for investment and sustainable development, going so far as to roll out an Aquaculture Business Development Program and providing incentives such as subsidized inputs. This representation created a legitimate expectation among industry players that the regulatory environment would be fair, predictable, and consistent with Blue Economy goals.
13. The petitioner avers that by imposing the arbitrary, discriminatory, and punitive fees under the impugned Regulations, the respondents have breached this legitimate expectation and dealt a devastating blow to investor confidence in the sector.
14. The petitioner states that aquaculture being a devolved function under the Fourth Schedule of the Constitution, the imposition of fees by the national government, as prescribed in the Sixth Schedule of the Regulations, amounts to an encroachment on county government functions in violation of under Articles 186 and 189 of the Constitution. In addition, the Regulations create an unconstitutional and unlawful duplication of fees and levies between the national and county governments regarding the licensing and regulation of aquaculture.
15. The petitioner pleads that the Kshs. 50,000 licensing fee for all aquaculture establishments is arbitrary and disproportionate. The 5% ad valorem fee on the value of landed fish imposes a recurring cost that threatens local aquaculture enterprises’ commercial viability and sustainability, already struggling against cheaper fish imports. It further constitutes a tax due to its broad applicability and lack of direct correlation to specific services, contravening Articles 114 and 210 of the Constitution.
16. It is the petitioner’s case that these fees therefore impose an unsustainable burden on local producers, already grappling with high input costs, limited access to financing, and narrow profit margins. If implemented, the regulations risk jeopardizing the government’s own Blue Economy strategy, which identifies aquaculture as a cornerstone for food security and economic development.
17. The petitioner contends that the punitive fees do not align with the national development goals. They have far-reaching socio-economic consequences for the aquaculture sector and the broader economy.
Responses to the petition
18. In response, the 1 st respondent filed replying affidavit sworn by Hassan Ali Joho on 12 th March 2025 opposing the petition on several grounds. The 1 st respondent asserts that he is empowered under sections 74 (1) and (2) and 208 of Fisheries Management and Development Act, Cap 378 to make Aquaculture Regulations.
19. The 1 st respondent pleads that in compliance with those sections, he constituted a Technical Committee to develop Aquaculture Regulations. The Technical Committee comprised of Fisheries Officers from State Department for the Blue Economy and Fisheries and the Semi- Autonomous Government Agencies (SAGAs), State Counsel from the Ministry, Legislative Drafters from the Office of the Attorney General and the Kenya Law Reform Commission among others.
20. It is asserted that the Regulations underwent stakeholder consultations and public participation before being finalized as shown by the attached attendance lists and supporting documents. In addition, the Ministry forwarded the Regulations to the Office of the Attorney General and Department of Justice for legal scrutiny, concurrence and retuning them to the Ministry for Cabinet Secretary’s signature before the same could be transmitted to the Government for publication in the Gazette.
21. That on 13 th February, 2024 the then Cabinet Secretary published in the Gazette the Fisheries Management and Development (Aquaculture) Regulations, 2024 under Legal Notice No. 62 of 2024. The Cabinet Secretary in compliance with section 11 (1) of the Statutory Instruments Act, 2013 through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13 th March, 2024, transmitted the published Regulations to the Clerks of the National Assembly and the Senate for purposes of tabling them before the relevant committee of the House.
22. That in compliance with section 7 (3) of the Statutory Instruments Act through a letter Ref No. MIBEMA/SDBE&F/LEG/VOL 1.1 dated 14 th March 2024, transmitted the Proposed Draft Regulatory Impact Statement to the Chief Executive Officer for the Kenya Law Reform Commission for independent advice on the adequacy of the Regulatory Impact Statement. The Chief Executive Officer for the Kenya Law Reform Commission through a letter Ref No. KLRC/8/81 VOL III dated 14 th March 2024 responded approving the proposed draft Regulatory Impact Statement.
23. It is deponed that the National Assembly invited the Ministry for a Parliamentary scrutiny of the Regulations by their Delegated Legislation Committee through a letter from the Clerk Ref No. NA/DAA&GPC/CDL/2024/(034) dated 16 th April, 2024 and another Ref No. NA/DAA&GPC/CDL/2024/(040) dated 24 th April, 2024. The Delegated Legislation Committee of the National Assembly scrutinized the Regulations and made the comments.
24. It is pleaded that the Delegated Legislation Committee recommended that for Regulation 13 (1) (b) there was a compelling need to indicate in the schedule the fees chargeable and which were to be reviewed by the Cabinet Secretary from time to time. Further that in doing so, the members of the National Assembly for the Delegated Legislation Committee were exercising their power under Article 1 (2) and (3) (a) of the Constitution.
25. That in compliance with the provisions of Article 1(3) (a) of the Constitution the National Assembly therefore advised on the inclusion of fees in the proposed draft Regulations. The National Assembly Delegated Legislation Committee acceded to the Regulations vide letter Ref No. No. NA/DAA&GPC/CDL/2024/ (106) dated 2 nd October, 2024. The Regulations were similarly tabled before the Senate which acceded to them through letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3 rd July, 2024. This aligned with Parliament’s mandate stipulated under section 16 of the Statutory Instruments Act.
26. It is deponed that in line with the provisions of the Statutory Instruments Act, the Ministry through the Kenya Fisheries Service (Regulator of the Fisheries and Aquaculture sector) opted for the proposed levies as provided for in the schedule and incorporated the same in the Proposed Draft Regulations and forwarded to the Office of the Attorney General for action. In so doing, the Ministry was guided by section 3 of the Income Tax Act to impose the said charges. It was further guided by the Third Schedule, Head B Regulation 5(g) on rates of Tax to be charged.
27. The 1 st respondent posits that on 30 th December, 2024, the petitioner through a letter dated the same date and referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislation, requested the Ministry to initiate a comprehensive review of both the Regulations and the Act. The Ministry was to meet with the petitioner and other stakeholders in the Fisheries and Aquaculture Sector with the intent to discuss and review the fees as provided in the schedule.
28. The 1 st respondent asserts that the Regulations as approved is meant to create opportunities for jobs, and to an extent generate revenue to the state. That based on the foregoing, the Ministry conducted a Regulatory Impact Assessment; developed and prepared an explanatory Memorandum in line with the provisions of section 5A of the Statutory Instruments Act and engaged County Governments as evidenced by letters dated 16 th May, 2024 and 29 th April, 2024 and 11 th June 2024.
29. The 1 st respondent pleads that the Ministry revoked Legal Notice No 62 of 2024 and replaced them with Legal Notice No.126 of 2024 after guidance from Parliament and in line with the provisions of section 19 of the Statutory Instruments Act. Legal Notice No 126 of 2024 had the fees as guided and advised by parliament and the fees is only being applied upon Commercial Aquaculture Fish Farmers and not the Small Scale and Medium-Scale Fish Farmers.
30. It is contended lastly contended that contrary to the assertion by the petitioner, section 116 to section 123 of the Fisheries Management and Development Act has granted the regulation of Commercial Aquaculture to the Director General of the Kenya Fisheries Service. Further that section 25 of the Statutory Instruments Act, provides that a statutory Instrument may provide for the imposition of fees and charges in respect of any matter with regard to which provision is made in the enabling legislation.
The Interested party’s response
31. The interested party supported the petition through replying affidavit sworn by Mary Mwiti, EBS on 14 th November 2025. It confirms the function of fisheries is assigned to county governments pursuant to Part 2, section 1 (e) of the Fourth Schedule and reiterates the facts as pleaded in the petition regarding the enactment of the Fisheries Management and Development (Aquaculture) Regulations, 2024 through Legal Notice No. 126 of 2024 and its impact.
32. It is claimed that the licensing fees and ad volarem fee is a substantive change to the impugned Regulations with far reaching implication on aquaculture stakeholders and as such ought to have been subjected to public participation. This was however not done as the same were arrived upon without due consideration of views and memoranda received during public participation exercise of the initial Fisheries Management and Development (Aquaculture) Regulations through Legal Notice No. 62 of 2024.
33. It is asserted that this was a violation of Articles 10(2) (a) and 118(1 (b) of the Constitution, the disposition in Petition No. 5 of 2017 British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 4 others and section 5(3) (a) of the Statutory Instrument’s Act. There was also an absence of the regulatory impact statement and compliance certificate as envisage by section 7(5) of the Statutory Instrument’s Act.
34. The interested party pleads that the success of devolution requires that the national government enacts policies and legal instruments to promote, nurture and support the devolved governance system. This among others entails revising existing statutes to align them with devolved functions. Accordingly, it is required that the national government amend and/ or revises the provisions of the Fisheries Management and Development Act Cap 378 Laws of Kenya and its attendant Regulations.
The Petitioner’s submissions
35. The petitioner’s written submissions are dated 7 th February, 2025. The petitioner cites Articles 10 (2) , 118 and 232 of the Constitution, sections 5 and 6 of the Statutory Instruments Act and the decision in Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR and British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR for the contention that the threshold for public participation was not met; it was not real but illusory. This is because, the 1 st respondent published initial draft regulations (Legal Notice No. 62 of 2024) without indicating any licensing or ad valorem fees; subsequently introduced the fees through the Legal Notice No. 126 without any further consultation or stakeholder engagement and revoked Legal Notice No. 62 through Legal Notice No. 126, effectively ambushing stakeholders who had participated in the earlier process that did not discuss or debate these fees.
36. The petitioner cites Articles 174, 186 and 189 of the Constitution that provide for devolution. It further submits that Part 2 of the Fourth Schedule explicitly devolves “County fisheries” functions, including aspects of aquaculture and maintains that by imposing new licensing and ad valorem fees through the national framework, the 1 st respondent encroaches on the mandate of the counties and established a parallel regulatory regime, which will lead to double or overlapping charges. Reliance is placed on the decision in Council of Governors & 47 others v Attorney General & 3 others [2020] KEHC 4 and The Supreme Court’s Advisory Opinion Reference No. 2 of 2013
37. The petitioner therefore urges that the Regulations create a situation where aquaculture operators face, double taxation; administrative confusion and Fiscal Overreach. Hence undermining the Constitution’s design that empowers counties to regulate matters intimately connected with local needs and development priorities. Further that the 5% ad valorem charge imposed by the Regulations is not a mere regulatory fee; it has the characteristics of a tax; it has a broad application; it is for revenue raising purposes and lacks a clear nexus and that therefore, this is an affront to the provisions of Articles114, 209 and 210 of the Constitution.
38. The petitioner relies on the decision in Mount Kenya Bottlers Limited & 3 Others v The Honourable Attorney General & 3 Others [2019] to argue that there is no express statutory authority under the Fisheries Management and Development Act, 2016, permitting the 1 st respondent to impose a 5% ad valorem fee on fish produce. The said fee unconstitutionally expands beyond the notion of cost recovery and thereby morphs into taxation without adherence to Articles 209 and 210.Moreover, the 5% fee is likely to be passed on to consumers, functioning akin to a consumption or excise tax, thereby affecting the final prices of fish and undermining the right to affordable protein.
39. The petitioner contends that the Kshs. 50,000 flat licensing fee fails to account for the vast differences in the scale of aquaculture operations. It is, therefore, prima facie discriminatory and contravenes Article 27 of the Constitution, which guarantees equality and non-discrimination. Reliance is placed on the decision in Kenya Flower Council v Meru County Government [2019] eKLR.
40. It is submitted that for fish farmers, producing a few hundred kilograms of fish per year, the Kshs. 50,000 represents a crippling burden, inhibiting their ability to remain viable. This fee locks out new entrants and entrenches inequality in the sector. It further violates the provisions of Article 56 of the Constitution.
41. The petitioner relies on the decisions in Kenya Association of Manufacturers & 2 others v Cabinet Secretary - Ministry of Environment and Natural Resources & 3 others [2017] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2014] eKLR for the contention that the Government, through: Blue Economy Agenda, Vision 2030, Big Four Agenda and Official Policy Statements has consistently portrayed aquaculture as a priority sector, encouraging both local and foreign investment. Therefore, Aquaculture stakeholders reasonably expected a supportive framework, minimal or proportionate regulatory fees, and consistent policy. The sudden and punitive nature of the 5% ad valorem fee and KES 50,000 licensing fee shatters these expectations. Further reliance is placed on Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR).
42. The petitioner urges that contrary to the dictates of Articles 43 and 46 of the Constitution, the 5% ad valorem fee will escalate production costs, ultimately translating to higher retail fish prices and undermining food security. It forecasts price hikes of up to 15% for fish and fish products due to cumulative licensing and ad valorem charges; likely reduction in fish farming activities—operators may scale down to avoid the punitive fees, leading to supply constraints and adverse effects on 500,000+ households who rely on aquaculture for their livelihoods, affecting children’s nutrition and educational prospects in these communities.
The Respondents’ submissions
43. The respondents’ submissions are darted 10 th February, 2025. They maintain that the Ministry complied fully with constitutional and statutory requirements for public participation in the entire exercise of promulgating the Regulations. Reliance is placed on Articles 10 (2) (a), 118 (1) (b) and 232 (1) (d) of the Constitution and sections 5 and 5A of the Statutory Instruments Act, 2013.
44. The respondents contend that the applicable test is whether a reasonable opportunity was afforded to the public to be heard rather than by actual participation of every affected person. They rely on the decisions in British American Tobacco Kenya, PLV v Cabinet Secretary for the Ministry of Health & 2 others (supra); Small Scale Farmers Forum & 6 others v Republic of Kenya and 2 others [2013] eKLR and North Rift Motor Bike Taxi Association v Uasin Gishu County Government [2015] eKLR for the proposition that parliament enjoys discretion on the modalities through which public participation is conducted, provided the process fits into the essential ingredients of public participation.
45. The respondents submit that the Ministry’s documented consultations, including JASCCOM engagements and direct correspondence with the Council of Governors; copies of attendance lists in the exhibit marked HAJ1 and the and the Ministry’s openness to further engagements as evidenced by its commitment to convene a stakeholder forum following the petitioner’s letter dated 30 th December 2024 referenced Call for a Stakeholder Forum to Review Aquaculture Regulations and Legislations demonstrates that public participation was undertaken.
46. The respondents further rely on Doctors for Life International v Speaker of the National Assembly and others [2006] ZACC 11 and Minister for Health v New Clicks South Africa (PTY) Ltd to submit that public participation does not require the law maker to accord a personal hearing to every individual affected by regulations that are being made. It is argued that what is required is the provisions of a reasonable opportunity for members of the public and all interested parties to be informed about the proposed legislation and to have an adequate say. This was done by the Ministry publishing the Regulations in the Gazette and in consultation with the various experts.
47. They reiterate that the Ministry constituted a Technical Committee comprising Fisheries Officers, State Counsel from the Office of the Attorney General and officers from the Kenya Law Reform Commission to develop the Regulations. It is contended that that the Committee conducted extensive stakeholder consultations, as evidenced by attendance lists and supporting documents annexed to the replying affidavit and marked as HAJ1. According to them, consultations were undertaken in key aquaculture hubs including Kisumu, Mombasa, Homa Bay and Busia, thereby affording fish farmers and other stakeholders an opportunity to provide input into the regulatory process. It is further submitted that concerns raised during those engagements, including issues relating to licensing fees and sustainable aquaculture practices, were considered and incorporated into the final Regulations.
48. The respondents submit that county governments were engaged through Joint Agricultural Sector Consultation and Cooperation Mechanism (JASSCOM) ensuring devolved interests were represented. The Council of Governors submitted comments on 29 th April and 16 th May 2024 which Ministry addressed through letters dated 11 th June 2024. This demonstrates inclusivity across governance levels, aligning emphasis on stakeholder involvement. Reliance was placed on Peter Makau Musoka and Award of Mining Concessionary Rights to the Mui Coal Basin Deposits [2015] eKLR and Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentists Council & another (Interested Parties) [2024] KEHC 8255 (KLR).
49. It is contended that the documented consultations including JASSCOM and direct engagement with the Council of Governors, meet this standard. Particular emphasis was placed on the petitioner's letter dated 30 th December 2024 requesting a stakeholder forum and the Ministry's commitment to convene such a forum as evidence of its openness to further consultation and engagement.
50. The respondents have further submitted that the Regulations underwent thorough parliamentary scrutiny, which itself constituted an important component of public participation. The Regulations were transmitted to the National Assembly and the Senate on 13 th March 2024 for consideration. The National Assembly’s Delegated Legislation Committee subsequently scrutinized them 16 th and 24 th April 2024 and recommended, among others, the inclusion of fees in the schedule, which was incorporated into Legal Notice No. 126.
51. It is further contended that the Senate approved the Regulations on 3 rd July 2024 while the National Assembly approved them on 2 nd October 2024. Reliance is placed on Attorney General & 2 Others v Ndii & 79 Others [2022] KESC 8 (KLR) for the proposition that parliamentary deliberations constitute an important avenue through which public participation is realized. The respondents therefore rejected the petitioner's allegation that the fees were covertly introduced, arguing that the fees were incorporated following parliamentary guidance under section 19 of the Statutory Instruments Act
52. Additionally, it is submitted that the Ministry complied with the requirements of the Statutory Instruments Act by preparing a Regulatory Impact Assessment and an Explanatory Memorandum, both of which were approved by the Kenya Law Reform Commission. It is argued that these steps ensured the Regulations’ socio-economic implications were evaluated with stakeholder input, as required by law.
53. Addressing the contention that the Regulations encroach on devolved functions, it is submitted that county governments were adequately consulted and that county interests were protected through both JASCCOM engagements and Senate participation as evidenced by letter referred No. MIBEMA/SDBE&F/LEG /VOL 1.1 and exhibit marked HAJ 15 and letter dated 11 th June 2024Ref. NO. MIBEMA/SDB& E/LEG/VOL.1.1.
54. Reliance is placed on Kenya Flower Council v Meru County Government [2019] KEHC 1523 (KLR) for the proposition that legislative mandate is delegated sovereign power of the people and therefore must be exercised in a manner that facilitates public participation. The Ministry’s engagement with county stakeholders and parliamentary oversight fully addressed these constitutional requirements, refuting the Petitioner’s devolution-based objections. The Ministry’s consultations, parliamentary scrutiny and statutory compliance demonstrate intentional public participation in the promulgation of the regulations. Articles 10(2)(a), 118(1)(b), and 232(1)(d) of the Constitution of Kenya, alongside Sections 5, 5A, and 7 of the Statutory Instruments Act, were adhered to.
55. The respondents cite the case of Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR and Speaker of the Senate & another v Attorney General & another; Law Society of Kenya & 2 Others (Amicus Curiae) [2013] KESC 7 (KLR), that speak to the issue of Article 110(3) of the Constitution on concurrence and assert that indeed this was done as augmented by letters Ref. No MIBEMA/SDBE&F/LEG/VOL 1.1 dated 13th March, 2024 (HAJ 4); Ref No. NA/DAA&GPC/CDL/2024/ (106) dated 2 nd October, 2024(HAJ10) and letter of Accession Ref No. SEN/DGAC/CDL/CORR/2024/16(2) dated 3 rd July, 2024 (HAJ11).
56. The respondents assert that fees in Legal Notice No. 126 were specified in the Sixth Schedule under Regulation 13 (1) (b) following scrutiny and approval by the National Assembly and Senate, ensuring transparency. Inclusion of fees was in tandem with the provisions of sections 74 (1) and (2) (a) and 208(1) and (2) (b) of the Fisheries Management and Development Act, section 16 and 19 of the Statutory Instruments Act. The fees were therefore not covertly introduced and the 1 st respondent acted within the law. Reliance is placed on the decision in Aura v Cabinet Secretary, Ministry of Health & 11 others;
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