[1] The 1 st petitioner, William Wachiuri Wanjohi , is a resident of the County of Mombasa. He is a dealer and a small scale assembler of motorcycles, trading as Dice Motorcycles Limited. The 2 nd respondent, John Macharia , is a resident of the Nairobi City County. He is also motorcycle dealer and a small scale assembler of motorcycles. They approached the Court vide their Petition dated 18 th September 2022 for the following reliefs:
[a] A declaration that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 violate their rights under Articles 2, 10(1)(a), (b), (c) and (2), 19, 20, 21, 23, 24, 27, 28, 33, 35, 36, 43, 46, 47 and 118 of the Constitution of Kenya and therefore are inconsistent with the Constitution.
[b] A declaration that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 were passed and enacted devoid of Public Participation and therefore inconsistent with Articles 10(2)(a) & (c) and 118 of the Constitution.
[c] A declaration that Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution of Kenya and therefore are unconstitutional, null and void.
[d] An order that each party bears their own costs, this being a matter of public interest.
[e] Such further order as the Court may deem just and expedient for the ends of justice.
[2] The factual basis of the Petition, as pleaded by the petitioners, was that, on 3 rd July 2020, the Cabinet Secretary for National Treasury and Planning drafted and presented to the National Assembly the Tax Procedures (Unassembled Motorcycles) Regulations, 2020, dated 24 th June 2020 (the Regulations). The said Regulations were thereafter discussed and approved by the National Assembly and came into force on 24 th December 2020.
[3] The petitioners further averred that, on 17 th September 2021, the Cabinet Secretary for National Treasury and Planning gazetted the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations 2021, vide Legal Notice No. 192, seeking to extend the time for implementation of the requirement for manufacturing of parts named under Regulation 14(2) by excluding them from the completely knocked down kits for motorcycles. They explained that Regulation 14(2) initially required some 7 named parts to be removed from the completely knocked down kits; and that the net effect of the removal of the 14 parts from the list of completely knocked down parts was that it would be illegal to import the said parts.
[4] The petitioners further averred that on 10 th February 2022, almost two years later, the National Assembly invited the petitioners as relevant stakeholders for a stakeholders’ engagement on the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations 2021 , Legal Notice No. 192, but that their views were not taken into account. They were concerned that the 2020 Regulations and the subsequent amendments thereto were not subjected to adequate public participation before implementation.
[5] In particular, the petitioners were aggrieved about the following aspects and implications of the Regulations:
[a] That the Regulations require a local assembler to have an assembly plant which is interpreted by the Regulations to mean a bonded warehouse facility with plant and equipment for assembling motorcycles operated by an authorized assembler.
[b] That the cost of putting up a bonded warehouse and an assembly plant is extremely high and out of reach of most of the local assemblers.
[c] That the requirements for a bonded warehouse and an assembly plant are discriminatory in nature and violate Article 27 of the Constitution given the expenses involved.
[d] That since the impugned Regulations came into force the cost of a motorcycle went up from an average of Kshs. 70,000/= in 2019 to an average of Kshs. 130,000/= in 2022.
[e] That since the impugned Regulations came into force, motorcycle sales had dropped significantly, which is a violation of the socio-economic rights of Kenyans under Article 46 of the Constitution.
[f] That the Regulations have led to massive loss of employment in the motorcycle assembly sector since they have led to closure of several local assembly plants.
[6] In terms of particulars of unconstitutionality, the petitioners averred that the 2020 Regulations were passed by the National Assembly despite not having been subjected to public participation as required by Articles 10 and 118 of the Constitution. The further contended that the involvement of Kenya Association of Manufacturers as the only stakeholder in the formulation of the Regulations was discriminatory and in violation of Article 27 of the Constitution. They also alleged violation of the socio-economic rights safeguarded under Article 43 of the Constitution, among other violations.
[7] In response to the Petition, the 1 st , 3 rd and 4 th respondents relied on the Replying Affidavit sworn on 14 th October 2022 by the Principal Administrative Secretary of the National Treasury, Mr. Amos Njoroge Gathecha . They averred that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 were developed as a result of the need to provide a legal framework to guide the assembly of motorcycles locally taking into account the need to integrate the assembly of motorcycles with local parts manufacturers.
[8] The 1 st , 3 rd and 4 th respondents further averred that the development of the Regulations started with a draft being submitted to the National Assembly by the State Department of Industrialization; and that thereafter, a technical team comprising of officers from National Treasury, State Department of Industrialization and the Kenya Revenue Authority was constituted which reviewed the draft Regulations and proposed changes. The revised draft was thereafter shared with stakeholders, including assemblers of motorcycles and parts manufacturers through the Kenya Association of Manufacturers for comments.
[9] It was further the contention of the 1 st , 3 rd and 4 th respondents that, after gazettement, the Regulations were submitted to the National Assembly for scrutiny by the Committee on Delegated Legislation. They mentioned that, one of the key issues that the Committee considered during the scrutiny was compliance with the Constitution and the Statutory Instruments Act, 2013 in terms of stakeholder engagement. It was further averred by the 1 st , 3 rd and 4 th respondents that the Clerk to the National Assembly communicated to the National Treasury the decision of the National Assembly to accede to the 2020 Regulations vide a letter date 5 th November 2020.
[10] The 1 st , 3 rd and 4 th respondents justified the salient features of the 2020 Regulations and averred that:
[a] Under the Regulations, an assembler is allowed to import Completely Knocked Down Kits (CKDs) at a duty rate of 10%; while the finished locally assembled motorcycles is exempt from excise duty. According to them, the effect is that the locally assembled motorcycles are cheaper than imported complete units of similar make.
[b] For assemblers to benefit from the Duty Remission Scheme (DRS), they are required to get approval from the Cabinet Secretary for the National Treasury and Planning. They added that, as of June 2022, seventeen (17) motorcycle assemblers had complied with the requirement and were subsequently published in an EAC Gazette as the approved importers of CKDs for assembly of motorcycles under the EAC Duty Remission Scheme (DRS).
[c] The Duty Remission Scheme for motorcycles is intended to promote local assembly of motorcycles while at the same time encouraging development of local companies that manufacture motorcycle parts; with attendant value addition and job creation for the benefit of Kenyans.
[d] The Regulations are also meant to prevent abuse of the window for the importation of CKDs under the DRS; and therefore the requirement for a bonded warehouse is justified to ensure proper regulation of the scheme.
[e] The objective of DRS is not only to facilitate the affordability of motorcycles but to also promote growth of parts manufacturing sector in the country in line with Vision 2030.
[11] Accordingly, the 1 st , 3 rd and 4 th respondents denied that the Regulations have had a negative impact on the price of motorcycles, or loss of jobs in the sector as alleged. To the contrary, they submitted that the effect of the orders sought would be far reaching and would destabilize the entire manufacturing sector of the country’s economy. The respondents relied on several documents as annexures to their affidavit and on the basis thereof they prayed for the dismissal of the Petition with costs.
[12] On behalf of the National Assembly (the 2 nd respondent), a Replying Affidavit was filed herein on 15 th February 2023, sworn by its Deputy Clerk, Mr. Jeremiah Ndombi . The Deputy Clerk explained the mandate of the 2 nd respondent as set out in Articles 94, 95 and 109 of the Constitution of Kenya and the Statutory Instruments Act, 2013 . Thus, the 2 nd respondent averred that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020, the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations, 2021 and the Tax Procedures (Unassembled Motorcycles) (Amendment) (No. 2) Regulations, 2021 were processed and approved by the National Assembly in accordance with the requirements of the Constitution, the Statutory Instruments Act and the National Assembly Standing Orders ; which include the requirement for public participation and stakeholder engagement.
[13] The 2 nd respondent relied on a number of documents to buttress its assertions. It averred that the petitioners are merely out to interfere with or question its mandate and should not be countenanced in the absence of proof of any flaw or omission on its part.
[14] On behalf of the Kenya Revenue Authority (the 5 th respondent), a Replying Affidavit was sworn by Josephine Mugure , on 2 nd December 2022. She likewise explained the mandate of the 5 th respondent and averred that, in March 2019, the Government constituted a taskforce to oversee policy, legal and administrative reforms in the public service motorcycle transport sector. The main mandate of the taskforce was to examine the existing policy, compile data regarding the safety, reliability of the motorcycle transport sector and recommend strategies for immediate and long reforms in the motorcycle transport (also known as boda boda ) sector.
[15] The 2 nd respondent averred, based on information received, that the impugned Regulations were formulated by the 3 rd respondent with the involvement of the concerned stakeholders who were likely to be affected by them and were subjected to public participation as required by Article 10 of the Constitution. They were thereafter published vide Legal Notice No. 112 dated 24 th June 2020 before being tabled before the National Assembly for consideration and approval.
[16] It was further the contention of the 5 th respondent that, at all material times, the respondents engaged the Motorcycle Assemblers Association of Kenya (MMAK) and the Automotive Parts Manufacturers Association (APMA) in the enactment and implementation of the Regulations. They urged the Court to note the following pertinent developments since the impugned Regulations came into force:
[a] Motorcycle registrations rose by 53%, highlighting the growing popularity of boda boda as a means of transport and a source of income.
[b] The National Transport and Safety Authority (NTSA) registered 285,203 motorcycles in 2021 compared to 186,434 registered in 2017; that the highest growth was recorded between 2019 and 2020 when 36,603 motorcycles were registered.
[c] Boda bodas continue to gain popularity among Kenyans because of their versatility.
[d] Increased demand for motorbikes has also attracted several companies that have set up assembly plants in Nairobi and Mombasa for imported CKDs.
[e] A recent study by the listed firm, Car & General, shows that boda boda sector supports 6 million livelihoods indirectly, which translates to about 10% of the country’s population.
[f] The boda boda sector provides one million direct jobs for riders earning Kshs. 1 billion daily underlining its importance to Kenya’s economy.
[17] In terms of enforcement of the Regulations, the 5 th respondent averred that the 3 rd and 4 th respondents are aware of the challenges faced by the local assemblers. Consequently, the 3 rd respondent adopted a progressive implementation approach, to enable them put in place the necessary infrastructure for full compliance. In the view of the 5 th respondent, the petitioners have not sufficiently demonstrated the alleged violations of the Constitution to the requisite standard and therefore they are undeserving of the orders sought by them.
[18] The Petition was canvassed by way of written submissions, pursuant to the directions given herein on 23 rd October 2023. In their written submissions dated 18 th March 2024, the petitioners reiterated the factual basis of their Petition and proposed the following issues for determination:
[a] Whether the Regulations met the threshold required for public participation;
[b] Whether Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution;
[c] Whether it is in public interest that the Petition be allowed and orders granted as sought.
[19] The petitioners submitted that the 2020 Regulations were not subjected to public participation and were therefore passed in blatant contravention of Articles 10, 118 and 124 of the Constitution. They conceded that only the Amendments were brought to the attention of some stakeholders, but insisted that this was inadequate from the standpoint of the six elements set out in Nairobi High Court Petition No. 532 of 2017: Okiya Omtatah Okoiti v The Commissioner General, Kenya Revenue Authority & the Cabinet Secretary . The petitioners also relied on Robert N. Gakuru & others v Governor Kiambu County & 3 others [2014] eKLR and urged the Court to find that no evidence of public participation was availed by the respondents.
[20] The petitioners also submitted that the process leading to the enactment of the impugned Regulations was procedurally unfair in that it failed to collect and factor in the effects it would cause to the whole chain of motorcycle assemblers, distributors and users in the country. They submitted therefore that the Regulations, particularly Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution and ought to be declared null and void.
[21] On whether it is in the public interest that the orders sought be allowed, the petitioners submitted that the motorcycle sector has for a long time been an integral part of Kenya’s economy and therefore any adverse effects in the sector would have repercussions on the entire economy. In particular, the petitioners posited that the Regulations have had the effect of causing the general cost of local transport to go up, and by extension the cost of doing business. They relied on Dindi Oscar Okumu v Robert Pavel Oimeke & 5 others [2021] eKLR to underscore their argument that this suit has been brought in the interest of the general vulnerable public who use the cheapest mode of transport that boda boda is.
[22] On behalf of the 1 st , 3 rd and 4 th respondents, written submissions dated 14 th March 2024 were filed herein by Ms. Kiti for the Attorney General. They proposed the following issues for determination:
[a] Whether there was public participation in the enactment of the Tax Procedures (Unassembled Motorcycles) Regulations, 2020;
[b] Whether the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 are discriminatory on the basis of Article 43 of the Constitution;
[c] Whether the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 contravene consumer rights of Kenyans and whether the matter is justiciable.
[23] According to the 1 st 3 rd and 4 th respondents, the formulation of the impugned Regulations started off with draft Regulations being submitted to the National Treasury by the State Department of Industrialization. Thereafter a technical team was formed to review the draft Regulations before they were shared with the stakeholders through the Motorcycles Assemblers Association of Kenya and the Kenya Association of Manufacturers. They reiterated the steps taken thereafter, upon the draft being presented to the National Assembly and the role played by the Committee on Delegated Legislation pursuant to Section 5 and 13 of the Statutory Instruments Act.
[24] It was therefore the submission of the Attorney General, on behalf of the 1 st 3 rd and 4 th respondents, that public participation being an integral part of law-making process, was duly undertaken in connection with the 2020 Regulations. Reliance was placed on Kiambu County Government & 3 others v Robert N. Gakuru & others [2017] eKLR and Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others [2013] eKLR for the proposition that what matters is that at the end of the day, a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have a say in the process.
[25] It was further the submission of the 1 st , 3 rd and 4 th respondents that the fact that someone was not heard is not enough to annul the Regulations. They relied on the decision of the Supreme Court in Petition No.5 of 2017: British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health as to the various modes of public participation, including written memoranda. Hence, the 1 st , 3 rd and 4 th respondents refuted the petitioners’ allegations and urged the Court to find that adequate public participation was conducted prior to the approval and coming into force of the impugned Regulations.
[26] Regarding the petitioners’ allegations that the Regulations are discriminatory, the 1 st , 3 rd and 4 th respondents relied on Gabriel Nyabola v Attorney General & 2 others [2014] eKLR for the proposition that not all forms of discrimination are outlawed. They argued that there can be sound basis for legitimate differentiation and relied on R M v Attorney General [2008] 1 KLR (G & F) 574 to justify the Duty Remission Scheme.
[27] The 1 st , 3 rd and 4 th respondents refuted the petitioners’ assertion that the Regulations have had the effect of abrogating the consumer rights of Kenyans. Counsel submitted, with reference to the preamble to the Consumer Protection Act , enacted under Article 46(2) of the Constitution, that the concept of consumer protection is not to have low prices for goods but to protect the consumer from exploitation, unfair practices and unjust trade practices. On the authority of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others, the Attorney General urged the Court to exercise judicial restraint by dismissing this Petition, there being no proof of the allegations levelled against the respondents by the petitioners.
[28] The 2 nd respondent relied on his written submissions dated 15 th March 2024. He proposed the following issues for determination:
[a] Whether the National Assembly’s Committee on Delegated Legislation satisfied itself that adequate public participation was conducted; and,
[b] Whether the impugned Regulations are unconstitutional for violating Articles 27, 35, 43 and 46 of the Constitution.
[29] The 2 nd respondent was resolute that the impugned Regulations were procedurally approved and brought into force. He urged the Court to believe the averments set out in the Replying Affidavit of the Deputy Speaker, Mr. Ndombi , evidencing the steps taken prior to the approval of the Regulations. The 2 nd respondent urged the Court to note that, among those who were given an opportunity to submit views during the public participation exercise conducted by its Committee on Delegated Legislation was the 1 st petitioner.
[30] The 2 nd respondent pointed out that the role of the National Assembly, under Part IV of the Statutory Instruments Act , was limited to scrutinizing the draft Regulations to ensure that they met the requirements set out in Section 13 of the Act and the British American Tobacco Ltd case. He submitted that the burden of ensuring public participation was on the regulatory authority. Additionally, the 2 nd respondent relied on the decision of the Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, as well as the decisions of the Court of Appeal in Katiba Institute v Attorney General & 9 others [2020] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for an exposition on the doctrine of separation of powers and submitted that the role of the Court is simply to ensure that the National Assembly acted in accordance with the Constitution.
[31] On whether the impugned Regulations are discriminatory from the perspective of Article 27, the 2 nd respondent submitted that, other than general assertions, no discrimination, as understood in law, was disclosed by the petitioner. He submitted that the requirement for an assembly plant or a bonded warehouse facility has nothing to do with economic status of the industry players, but simply sets standards for the proper running of the business for all persons interested in the business of assembling motorcycles. The case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR was relied on as to what amounts to discrimination as opposed to differentiation.
[32] The 2 nd respondent also drew attention of the petitioners to the provisions of Article 119 and submitted that any concerns could still be brought to the attention of the National Assembly for amendment or repeal. He denied the petitioners’ allegations at paragraphs 56 and 57 of their Petition and submitted that, to the contrary, the impugned Regulations do not restrict citizens from importing unassembled motorcycles; but rather require that such person be registered as authorized assemblers for purposes of ensuring compliance with the law.
[33] In terms of Articles 46 and 47, the 2 nd respondent submitted on the full tenor and effect of Regulations 3(1) and 15 and urged the Court to find that their intention is to provide for a transition period of three months whereby the motorcycle assemblers could have the opportunity to apply for necessary approvals to continue in business. It was therefore the submission of the 2 nd respondent that violation of either Articles 46 or 47 was not proved. Similarly, the 2 nd respondent did not think that the petitioners proved violation of Article 35 of the Constitution, contending that Hansard Reports are available to members of the public through the website of the National Assembly. It relied on Section 6(5) of the Access to Information Act, which provides that a public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.
[34] Lastly, the 2 nd respondent submitted that no nexus was established by the petitioners between the enforcement of the impugned law and the alleged violation of Article 43(1)(c) of the Constitution. He relied on Christian Juma Wabwire v Attorney General [2019] eKLR for the proposition that it is incumbent upon the petitioners to avail tangible evidence of violation of rights. Accordingly, the 2 nd respondent urged for the dismissal of this Petition.
[35] The 5 th respondent filed written submissions dated 12 th March 2024. It relied on their Replying Affidavit sworn by Josephine Mugure and proposed the following issues for determination:
[a] Whether the respondents lawfully enacted amendments to the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 ; and,
[b] Whether the respondents violated the petitioners’ constitutional rights in enacting the Regulations.
[36] Broadly stated, the submission of the 5 th respondent was that the impugned Regulations underwent the proper law-making process before implementation. The 5 th respondent explained that the Regulations were formulated as a response to a policy statement to support local manufacturing as one of the pillars of the government’s Big Four Agenda. It reiterated the position taken by the other respondents that the Regulations were duly subjected to public participation before their approval for implementation. In this regard, the 5 th respondent made reference to paragraph 29 of the 2 nd respondent’s Replying Affidavit where the list of stakeholders who submitted comments was set out and pointed out that the list includes the name of the 1 st petitioner. Thus, the 5 th respondent urged the Court to dismiss as false, the assertion by the petitioners that only two stakeholders were involved in the public participation exercise.
[37] The 5 th respondent also made submissions on the constitutional doctrine of separation of powers, with specific reference to the role of the National Assembly under Article 94 and the decision of the Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora & another (supra) as well as the decision of the Court of Appeal in Pevans East Africa Limited & another v Chairman, Betting Control and Licensing Board and 7 others [2013] eKLR.
[38] The 5 th respondent also addressed the petitioners’ allegations of violations of their rights, contending that the violations were not pleaded with the requisite specificity as required. In this regard, the 5 th respondent relied on Anarita Karimi Njeru v Republic [1979] KLR 154, High Court Constitutional Petition No. 479 of 2013: Dr. Rev. Timothy Njoya v the Attorney General and Kenya Revenue Authority , and Kariithi & another v Attorney General & another [2021] KEHC 308 (KLR) (23 November 2021) (Judgment).
[39] The 5 th respondent further submitted that the petitioners’ allegations are mere statements devoid of tangible proof. It placed reliance on the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR in which it was held that decisions on violation of constitutional rights cannot be made in a factual vacuum. Consequently, the 5 th respondent joined the other respondents in seeking for the dismissal of this Petition.
[40] I have given careful consideration to the Petition, the averments set out in the Replying Affidavits filed as well as the written submissions filed on behalf of the parties by their counsel. I propose to first handle the technical objection raised by the 5 th respondent, namely that the Petition was not pleaded with the requisite specificity expected of constitutional petitions. It relied on the case of Anarita Karimi Njeru v Republic [1979] eKLR in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[41] The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:
“(42)…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[42] It was therefore imperative for the petitioners to plead their case with the precision recommended in the Anarita Karimi case. I have looked at the Petition and note that the petitioners made specific references to the provisions of the Constitution on which his Petition is hinged. In particular, they set out the particulars of unconstitutionality at paragraphs 40 to 68 of the Petition under Part E thereof and set out the specific Articles of the Constitution on which they premised their case and the manner of the alleged violations. Accordingly, not much turns on the 5 th respondent’s contention that the Petition does not meet the requisite threshold is unfounded.
[43] The Court was also addressed on the doctrine of Separation of Powers and urged to employ judicial restraint and refrain from interfering in what is within the constitutional mandate of the National Assembly.
[44] Additionally, Section 11 of the County Assemblies Powers and Privileges Act provides: -
(1) No civil or criminal proceeding
[...truncated]
[a] A declaration that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 violate their rights under Articles 2, 10(1)(a), (b), (c) and (2), 19, 20, 21, 23, 24, 27, 28, 33, 35, 36, 43, 46, 47 and 118 of the Constitution of Kenya and therefore are inconsistent with the Constitution.
[b] A declaration that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 were passed and enacted devoid of Public Participation and therefore inconsistent with Articles 10(2)(a) & (c) and 118 of the Constitution.
[c] A declaration that Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution of Kenya and therefore are unconstitutional, null and void.
[d] An order that each party bears their own costs, this being a matter of public interest.
[e] Such further order as the Court may deem just and expedient for the ends of justice.
[2] The factual basis of the Petition, as pleaded by the petitioners, was that, on 3 rd July 2020, the Cabinet Secretary for National Treasury and Planning drafted and presented to the National Assembly the Tax Procedures (Unassembled Motorcycles) Regulations, 2020, dated 24 th June 2020 (the Regulations). The said Regulations were thereafter discussed and approved by the National Assembly and came into force on 24 th December 2020.
[3] The petitioners further averred that, on 17 th September 2021, the Cabinet Secretary for National Treasury and Planning gazetted the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations 2021, vide Legal Notice No. 192, seeking to extend the time for implementation of the requirement for manufacturing of parts named under Regulation 14(2) by excluding them from the completely knocked down kits for motorcycles. They explained that Regulation 14(2) initially required some 7 named parts to be removed from the completely knocked down kits; and that the net effect of the removal of the 14 parts from the list of completely knocked down parts was that it would be illegal to import the said parts.
[4] The petitioners further averred that on 10 th February 2022, almost two years later, the National Assembly invited the petitioners as relevant stakeholders for a stakeholders’ engagement on the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations 2021 , Legal Notice No. 192, but that their views were not taken into account. They were concerned that the 2020 Regulations and the subsequent amendments thereto were not subjected to adequate public participation before implementation.
[5] In particular, the petitioners were aggrieved about the following aspects and implications of the Regulations:
[a] That the Regulations require a local assembler to have an assembly plant which is interpreted by the Regulations to mean a bonded warehouse facility with plant and equipment for assembling motorcycles operated by an authorized assembler.
[b] That the cost of putting up a bonded warehouse and an assembly plant is extremely high and out of reach of most of the local assemblers.
[c] That the requirements for a bonded warehouse and an assembly plant are discriminatory in nature and violate Article 27 of the Constitution given the expenses involved.
[d] That since the impugned Regulations came into force the cost of a motorcycle went up from an average of Kshs. 70,000/= in 2019 to an average of Kshs. 130,000/= in 2022.
[e] That since the impugned Regulations came into force, motorcycle sales had dropped significantly, which is a violation of the socio-economic rights of Kenyans under Article 46 of the Constitution.
[f] That the Regulations have led to massive loss of employment in the motorcycle assembly sector since they have led to closure of several local assembly plants.
[6] In terms of particulars of unconstitutionality, the petitioners averred that the 2020 Regulations were passed by the National Assembly despite not having been subjected to public participation as required by Articles 10 and 118 of the Constitution. The further contended that the involvement of Kenya Association of Manufacturers as the only stakeholder in the formulation of the Regulations was discriminatory and in violation of Article 27 of the Constitution. They also alleged violation of the socio-economic rights safeguarded under Article 43 of the Constitution, among other violations.
[7] In response to the Petition, the 1 st , 3 rd and 4 th respondents relied on the Replying Affidavit sworn on 14 th October 2022 by the Principal Administrative Secretary of the National Treasury, Mr. Amos Njoroge Gathecha . They averred that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 were developed as a result of the need to provide a legal framework to guide the assembly of motorcycles locally taking into account the need to integrate the assembly of motorcycles with local parts manufacturers.
[8] The 1 st , 3 rd and 4 th respondents further averred that the development of the Regulations started with a draft being submitted to the National Assembly by the State Department of Industrialization; and that thereafter, a technical team comprising of officers from National Treasury, State Department of Industrialization and the Kenya Revenue Authority was constituted which reviewed the draft Regulations and proposed changes. The revised draft was thereafter shared with stakeholders, including assemblers of motorcycles and parts manufacturers through the Kenya Association of Manufacturers for comments.
[9] It was further the contention of the 1 st , 3 rd and 4 th respondents that, after gazettement, the Regulations were submitted to the National Assembly for scrutiny by the Committee on Delegated Legislation. They mentioned that, one of the key issues that the Committee considered during the scrutiny was compliance with the Constitution and the Statutory Instruments Act, 2013 in terms of stakeholder engagement. It was further averred by the 1 st , 3 rd and 4 th respondents that the Clerk to the National Assembly communicated to the National Treasury the decision of the National Assembly to accede to the 2020 Regulations vide a letter date 5 th November 2020.
[10] The 1 st , 3 rd and 4 th respondents justified the salient features of the 2020 Regulations and averred that:
[a] Under the Regulations, an assembler is allowed to import Completely Knocked Down Kits (CKDs) at a duty rate of 10%; while the finished locally assembled motorcycles is exempt from excise duty. According to them, the effect is that the locally assembled motorcycles are cheaper than imported complete units of similar make.
[b] For assemblers to benefit from the Duty Remission Scheme (DRS), they are required to get approval from the Cabinet Secretary for the National Treasury and Planning. They added that, as of June 2022, seventeen (17) motorcycle assemblers had complied with the requirement and were subsequently published in an EAC Gazette as the approved importers of CKDs for assembly of motorcycles under the EAC Duty Remission Scheme (DRS).
[c] The Duty Remission Scheme for motorcycles is intended to promote local assembly of motorcycles while at the same time encouraging development of local companies that manufacture motorcycle parts; with attendant value addition and job creation for the benefit of Kenyans.
[d] The Regulations are also meant to prevent abuse of the window for the importation of CKDs under the DRS; and therefore the requirement for a bonded warehouse is justified to ensure proper regulation of the scheme.
[e] The objective of DRS is not only to facilitate the affordability of motorcycles but to also promote growth of parts manufacturing sector in the country in line with Vision 2030.
[11] Accordingly, the 1 st , 3 rd and 4 th respondents denied that the Regulations have had a negative impact on the price of motorcycles, or loss of jobs in the sector as alleged. To the contrary, they submitted that the effect of the orders sought would be far reaching and would destabilize the entire manufacturing sector of the country’s economy. The respondents relied on several documents as annexures to their affidavit and on the basis thereof they prayed for the dismissal of the Petition with costs.
[12] On behalf of the National Assembly (the 2 nd respondent), a Replying Affidavit was filed herein on 15 th February 2023, sworn by its Deputy Clerk, Mr. Jeremiah Ndombi . The Deputy Clerk explained the mandate of the 2 nd respondent as set out in Articles 94, 95 and 109 of the Constitution of Kenya and the Statutory Instruments Act, 2013 . Thus, the 2 nd respondent averred that the Tax Procedures (Unassembled Motorcycles) Regulations, 2020, the Tax Procedures (Unassembled Motorcycles) (Amendment) Regulations, 2021 and the Tax Procedures (Unassembled Motorcycles) (Amendment) (No. 2) Regulations, 2021 were processed and approved by the National Assembly in accordance with the requirements of the Constitution, the Statutory Instruments Act and the National Assembly Standing Orders ; which include the requirement for public participation and stakeholder engagement.
[13] The 2 nd respondent relied on a number of documents to buttress its assertions. It averred that the petitioners are merely out to interfere with or question its mandate and should not be countenanced in the absence of proof of any flaw or omission on its part.
[14] On behalf of the Kenya Revenue Authority (the 5 th respondent), a Replying Affidavit was sworn by Josephine Mugure , on 2 nd December 2022. She likewise explained the mandate of the 5 th respondent and averred that, in March 2019, the Government constituted a taskforce to oversee policy, legal and administrative reforms in the public service motorcycle transport sector. The main mandate of the taskforce was to examine the existing policy, compile data regarding the safety, reliability of the motorcycle transport sector and recommend strategies for immediate and long reforms in the motorcycle transport (also known as boda boda ) sector.
[15] The 2 nd respondent averred, based on information received, that the impugned Regulations were formulated by the 3 rd respondent with the involvement of the concerned stakeholders who were likely to be affected by them and were subjected to public participation as required by Article 10 of the Constitution. They were thereafter published vide Legal Notice No. 112 dated 24 th June 2020 before being tabled before the National Assembly for consideration and approval.
[16] It was further the contention of the 5 th respondent that, at all material times, the respondents engaged the Motorcycle Assemblers Association of Kenya (MMAK) and the Automotive Parts Manufacturers Association (APMA) in the enactment and implementation of the Regulations. They urged the Court to note the following pertinent developments since the impugned Regulations came into force:
[a] Motorcycle registrations rose by 53%, highlighting the growing popularity of boda boda as a means of transport and a source of income.
[b] The National Transport and Safety Authority (NTSA) registered 285,203 motorcycles in 2021 compared to 186,434 registered in 2017; that the highest growth was recorded between 2019 and 2020 when 36,603 motorcycles were registered.
[c] Boda bodas continue to gain popularity among Kenyans because of their versatility.
[d] Increased demand for motorbikes has also attracted several companies that have set up assembly plants in Nairobi and Mombasa for imported CKDs.
[e] A recent study by the listed firm, Car & General, shows that boda boda sector supports 6 million livelihoods indirectly, which translates to about 10% of the country’s population.
[f] The boda boda sector provides one million direct jobs for riders earning Kshs. 1 billion daily underlining its importance to Kenya’s economy.
[17] In terms of enforcement of the Regulations, the 5 th respondent averred that the 3 rd and 4 th respondents are aware of the challenges faced by the local assemblers. Consequently, the 3 rd respondent adopted a progressive implementation approach, to enable them put in place the necessary infrastructure for full compliance. In the view of the 5 th respondent, the petitioners have not sufficiently demonstrated the alleged violations of the Constitution to the requisite standard and therefore they are undeserving of the orders sought by them.
[18] The Petition was canvassed by way of written submissions, pursuant to the directions given herein on 23 rd October 2023. In their written submissions dated 18 th March 2024, the petitioners reiterated the factual basis of their Petition and proposed the following issues for determination:
[a] Whether the Regulations met the threshold required for public participation;
[b] Whether Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution;
[c] Whether it is in public interest that the Petition be allowed and orders granted as sought.
[19] The petitioners submitted that the 2020 Regulations were not subjected to public participation and were therefore passed in blatant contravention of Articles 10, 118 and 124 of the Constitution. They conceded that only the Amendments were brought to the attention of some stakeholders, but insisted that this was inadequate from the standpoint of the six elements set out in Nairobi High Court Petition No. 532 of 2017: Okiya Omtatah Okoiti v The Commissioner General, Kenya Revenue Authority & the Cabinet Secretary . The petitioners also relied on Robert N. Gakuru & others v Governor Kiambu County & 3 others [2014] eKLR and urged the Court to find that no evidence of public participation was availed by the respondents.
[20] The petitioners also submitted that the process leading to the enactment of the impugned Regulations was procedurally unfair in that it failed to collect and factor in the effects it would cause to the whole chain of motorcycle assemblers, distributors and users in the country. They submitted therefore that the Regulations, particularly Regulations 3(1), 5(b), 7 and 15 are inconsistent with Articles 24, 27, 43, 46 and 47 of the Constitution and ought to be declared null and void.
[21] On whether it is in the public interest that the orders sought be allowed, the petitioners submitted that the motorcycle sector has for a long time been an integral part of Kenya’s economy and therefore any adverse effects in the sector would have repercussions on the entire economy. In particular, the petitioners posited that the Regulations have had the effect of causing the general cost of local transport to go up, and by extension the cost of doing business. They relied on Dindi Oscar Okumu v Robert Pavel Oimeke & 5 others [2021] eKLR to underscore their argument that this suit has been brought in the interest of the general vulnerable public who use the cheapest mode of transport that boda boda is.
[22] On behalf of the 1 st , 3 rd and 4 th respondents, written submissions dated 14 th March 2024 were filed herein by Ms. Kiti for the Attorney General. They proposed the following issues for determination:
[a] Whether there was public participation in the enactment of the Tax Procedures (Unassembled Motorcycles) Regulations, 2020;
[b] Whether the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 are discriminatory on the basis of Article 43 of the Constitution;
[c] Whether the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 contravene consumer rights of Kenyans and whether the matter is justiciable.
[23] According to the 1 st 3 rd and 4 th respondents, the formulation of the impugned Regulations started off with draft Regulations being submitted to the National Treasury by the State Department of Industrialization. Thereafter a technical team was formed to review the draft Regulations before they were shared with the stakeholders through the Motorcycles Assemblers Association of Kenya and the Kenya Association of Manufacturers. They reiterated the steps taken thereafter, upon the draft being presented to the National Assembly and the role played by the Committee on Delegated Legislation pursuant to Section 5 and 13 of the Statutory Instruments Act.
[24] It was therefore the submission of the Attorney General, on behalf of the 1 st 3 rd and 4 th respondents, that public participation being an integral part of law-making process, was duly undertaken in connection with the 2020 Regulations. Reliance was placed on Kiambu County Government & 3 others v Robert N. Gakuru & others [2017] eKLR and Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others [2013] eKLR for the proposition that what matters is that at the end of the day, a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have a say in the process.
[25] It was further the submission of the 1 st , 3 rd and 4 th respondents that the fact that someone was not heard is not enough to annul the Regulations. They relied on the decision of the Supreme Court in Petition No.5 of 2017: British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health as to the various modes of public participation, including written memoranda. Hence, the 1 st , 3 rd and 4 th respondents refuted the petitioners’ allegations and urged the Court to find that adequate public participation was conducted prior to the approval and coming into force of the impugned Regulations.
[26] Regarding the petitioners’ allegations that the Regulations are discriminatory, the 1 st , 3 rd and 4 th respondents relied on Gabriel Nyabola v Attorney General & 2 others [2014] eKLR for the proposition that not all forms of discrimination are outlawed. They argued that there can be sound basis for legitimate differentiation and relied on R M v Attorney General [2008] 1 KLR (G & F) 574 to justify the Duty Remission Scheme.
[27] The 1 st , 3 rd and 4 th respondents refuted the petitioners’ assertion that the Regulations have had the effect of abrogating the consumer rights of Kenyans. Counsel submitted, with reference to the preamble to the Consumer Protection Act , enacted under Article 46(2) of the Constitution, that the concept of consumer protection is not to have low prices for goods but to protect the consumer from exploitation, unfair practices and unjust trade practices. On the authority of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others, the Attorney General urged the Court to exercise judicial restraint by dismissing this Petition, there being no proof of the allegations levelled against the respondents by the petitioners.
[28] The 2 nd respondent relied on his written submissions dated 15 th March 2024. He proposed the following issues for determination:
[a] Whether the National Assembly’s Committee on Delegated Legislation satisfied itself that adequate public participation was conducted; and,
[b] Whether the impugned Regulations are unconstitutional for violating Articles 27, 35, 43 and 46 of the Constitution.
[29] The 2 nd respondent was resolute that the impugned Regulations were procedurally approved and brought into force. He urged the Court to believe the averments set out in the Replying Affidavit of the Deputy Speaker, Mr. Ndombi , evidencing the steps taken prior to the approval of the Regulations. The 2 nd respondent urged the Court to note that, among those who were given an opportunity to submit views during the public participation exercise conducted by its Committee on Delegated Legislation was the 1 st petitioner.
[30] The 2 nd respondent pointed out that the role of the National Assembly, under Part IV of the Statutory Instruments Act , was limited to scrutinizing the draft Regulations to ensure that they met the requirements set out in Section 13 of the Act and the British American Tobacco Ltd case. He submitted that the burden of ensuring public participation was on the regulatory authority. Additionally, the 2 nd respondent relied on the decision of the Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, as well as the decisions of the Court of Appeal in Katiba Institute v Attorney General & 9 others [2020] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for an exposition on the doctrine of separation of powers and submitted that the role of the Court is simply to ensure that the National Assembly acted in accordance with the Constitution.
[31] On whether the impugned Regulations are discriminatory from the perspective of Article 27, the 2 nd respondent submitted that, other than general assertions, no discrimination, as understood in law, was disclosed by the petitioner. He submitted that the requirement for an assembly plant or a bonded warehouse facility has nothing to do with economic status of the industry players, but simply sets standards for the proper running of the business for all persons interested in the business of assembling motorcycles. The case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR was relied on as to what amounts to discrimination as opposed to differentiation.
[32] The 2 nd respondent also drew attention of the petitioners to the provisions of Article 119 and submitted that any concerns could still be brought to the attention of the National Assembly for amendment or repeal. He denied the petitioners’ allegations at paragraphs 56 and 57 of their Petition and submitted that, to the contrary, the impugned Regulations do not restrict citizens from importing unassembled motorcycles; but rather require that such person be registered as authorized assemblers for purposes of ensuring compliance with the law.
[33] In terms of Articles 46 and 47, the 2 nd respondent submitted on the full tenor and effect of Regulations 3(1) and 15 and urged the Court to find that their intention is to provide for a transition period of three months whereby the motorcycle assemblers could have the opportunity to apply for necessary approvals to continue in business. It was therefore the submission of the 2 nd respondent that violation of either Articles 46 or 47 was not proved. Similarly, the 2 nd respondent did not think that the petitioners proved violation of Article 35 of the Constitution, contending that Hansard Reports are available to members of the public through the website of the National Assembly. It relied on Section 6(5) of the Access to Information Act, which provides that a public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.
[34] Lastly, the 2 nd respondent submitted that no nexus was established by the petitioners between the enforcement of the impugned law and the alleged violation of Article 43(1)(c) of the Constitution. He relied on Christian Juma Wabwire v Attorney General [2019] eKLR for the proposition that it is incumbent upon the petitioners to avail tangible evidence of violation of rights. Accordingly, the 2 nd respondent urged for the dismissal of this Petition.
[35] The 5 th respondent filed written submissions dated 12 th March 2024. It relied on their Replying Affidavit sworn by Josephine Mugure and proposed the following issues for determination:
[a] Whether the respondents lawfully enacted amendments to the Tax Procedures (Unassembled Motorcycles) Regulations, 2020 ; and,
[b] Whether the respondents violated the petitioners’ constitutional rights in enacting the Regulations.
[36] Broadly stated, the submission of the 5 th respondent was that the impugned Regulations underwent the proper law-making process before implementation. The 5 th respondent explained that the Regulations were formulated as a response to a policy statement to support local manufacturing as one of the pillars of the government’s Big Four Agenda. It reiterated the position taken by the other respondents that the Regulations were duly subjected to public participation before their approval for implementation. In this regard, the 5 th respondent made reference to paragraph 29 of the 2 nd respondent’s Replying Affidavit where the list of stakeholders who submitted comments was set out and pointed out that the list includes the name of the 1 st petitioner. Thus, the 5 th respondent urged the Court to dismiss as false, the assertion by the petitioners that only two stakeholders were involved in the public participation exercise.
[37] The 5 th respondent also made submissions on the constitutional doctrine of separation of powers, with specific reference to the role of the National Assembly under Article 94 and the decision of the Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora & another (supra) as well as the decision of the Court of Appeal in Pevans East Africa Limited & another v Chairman, Betting Control and Licensing Board and 7 others [2013] eKLR.
[38] The 5 th respondent also addressed the petitioners’ allegations of violations of their rights, contending that the violations were not pleaded with the requisite specificity as required. In this regard, the 5 th respondent relied on Anarita Karimi Njeru v Republic [1979] KLR 154, High Court Constitutional Petition No. 479 of 2013: Dr. Rev. Timothy Njoya v the Attorney General and Kenya Revenue Authority , and Kariithi & another v Attorney General & another [2021] KEHC 308 (KLR) (23 November 2021) (Judgment).
[39] The 5 th respondent further submitted that the petitioners’ allegations are mere statements devoid of tangible proof. It placed reliance on the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR in which it was held that decisions on violation of constitutional rights cannot be made in a factual vacuum. Consequently, the 5 th respondent joined the other respondents in seeking for the dismissal of this Petition.
[40] I have given careful consideration to the Petition, the averments set out in the Replying Affidavits filed as well as the written submissions filed on behalf of the parties by their counsel. I propose to first handle the technical objection raised by the 5 th respondent, namely that the Petition was not pleaded with the requisite specificity expected of constitutional petitions. It relied on the case of Anarita Karimi Njeru v Republic [1979] eKLR in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[41] The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:
“(42)…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[42] It was therefore imperative for the petitioners to plead their case with the precision recommended in the Anarita Karimi case. I have looked at the Petition and note that the petitioners made specific references to the provisions of the Constitution on which his Petition is hinged. In particular, they set out the particulars of unconstitutionality at paragraphs 40 to 68 of the Petition under Part E thereof and set out the specific Articles of the Constitution on which they premised their case and the manner of the alleged violations. Accordingly, not much turns on the 5 th respondent’s contention that the Petition does not meet the requisite threshold is unfounded.
[43] The Court was also addressed on the doctrine of Separation of Powers and urged to employ judicial restraint and refrain from interfering in what is within the constitutional mandate of the National Assembly.
[44] Additionally, Section 11 of the County Assemblies Powers and Privileges Act provides: -
(1) No civil or criminal proceeding
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