REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILINMANI LAW COURTS

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO. 244 OF 2018

IN THE MATTER OF  PUBLIC HEALTH ACT

AND

IN THE MATTER OF  FOOD, DRUGS AND CHEMICAL SUBSTANCES (FOOD HYGIENE) REGULATIONS (1978), REGULATION 16, PARAGRAPH (1) (B)

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW IN THE NATURE OF MANDAMUS, CERTIORARI AND PROHIBITION.

BETWEEN

NIGHT ROSE COSMETICS (1972) LTD..............................................APPLICANT

VERSUS

NAIROBI COUNTY GOVERNMENT.........................................1^STRESPONDENT

DIRECTOR, PUBLIC HEALTH,                                                                                   

NAIROBI CITY COUNTY...........................................................2^NDRESPONDENT

AND

COMMISSIONER OF  CUSTOM SERVICES....................INTERESTED PARTY

RULING

The Parties.

1. The ex parte applicant, Night Rose Cosmetics (1972) Limited is a limited  liability company incorporated under the Companies Act.[1]

2. The first and second Respondents are the Nairobi County Government and the Director, Public Health, Nairobi City County. The Interested Party is the Commissioner of Customs Services appointed under section 11(4) of the Kenya Revenue Authority Act[2] and is responsible for Custom Tax Matters.

Factual Matrix.

3. The facts giving rise to this case as far as I can distil them from the  ex parte applicant's statutory statement are that since 1972, the ex parte applicant has engaged in the manufacture of cosmetics for local and export markets in East and Central Africa, that it operates on LR No. 209/8867, along Lunga Lunga Road, Nairobi and employs over 60 persons, and that it has several manufacturing concerns within its premises dealing with various goods and operates under various trade names and Registered Trade Marks.

4. The ex parte applicant also states that on  8^th June 2018, the agents, inspectors and or employees of the  first Respondent  directed by the second Respondent accompanied by the Interested Party inspected its premises and issued it with a notice under the Food, Drugs and Chemical Substances (Food Hygiene) Regulations 1978, Regulation 16 Paragraph (1) (b) (herein after referred to as the Regulations), prohibiting the ex parte applicant from using the plant until the conditions stated in the notice were fulfilled.  Further, the Respondents closed the premised and affixed customs seals.

5. The ex parte applicant also states that  the impugned order requires it to provide protective gears,  repair the floor, provide standard washrooms, separate production area of jelly room from powder room, provide changing rooms for workers, provide sanitary bins for ladies and provide a foot path. It also complains that no notice was served as the Regulations require.

The application.

6. By a chamber summons dated 18^th June 2018, expressed under the provisions of Articles 10, 23, 27, 31, 40 and 47 of the Constitution, Order 53 Rules (1) & (2) of the Civil Procedure Rules, 2010, and the Public Health Act Regulations, the ex parte applicant seeks leave  to file an application for Judicial Review  seeking the following orders of  Certiorari to quash the decision of the Director, Public Health, Department of Environmental Health, The Nairobi  City County made on 8^th June 2018 closing the  applicant's Factory Premises (herein after referred to as the decision), an order of Prohibition   restraining the Respondents from closing the premises of Night Rose Cosmetics (1972) Ltd without first issuing a notice to comply as is required under the Regulations  and an order of mandamus directed at and compelling the second Respondent to remove the seal Nos. K. Customs 5520171 and K. Customs 550173 used by the first and second Respondents to shut  and close the applicants  factory Premises.

7. The ex parte applicant also prays for further and other relief as this honorable court may deem  to quash the decision and that the leave so granted operates as stay of the decision and costs of the application.

8. The core grounds  in support of the application are that the decision requires the applicant to undertake certain positive acts which cannot be done if the premises is closed; that the closure defeats reason; that the first Respondent abdicated its statutory authority and or misinterpreted provisions of the Public Health Act;[3] that Respondents violated the applicants Rights under Articles 27 (1), 31, 40, and 47 of the Constitution; that the Respondents acted unreasonably; that they failed to serve a notice to the applicant; and, that the decision is ultra vires the Respondent's statutory mandate. Also, it is stated, that, the  Interested Party's seals have been used to close the premises, yet  the  Interested Party has no grievances  with the applicant.

Respondent's  Notice of a Preliminary Objection.

9. The Respondent's counsel filed a Notice of a Preliminary Objection on 2^nd July 2018 objecting to this court's jurisdiction. The objection is premised on two grounds, namely:- (a) Article 159 (2) (c) of the  Constitution,  and, Regulation 16 (1), (2) & (3) which provide for a dispute resolution mechanism; and, (b) that the leave sought is frivolous, vexatious and abuse of the court process.

The  Interested Parties Replying Affidavit.

10. Victor Kihumba Ndung'u, an officer in the Intelligence and Strategic Operations at the Kenya Revenue Authority swore the Replying Affidavit dated 16^th July 2018. He averred that a Multi-agency team comprising of the Kenya Revenue Authority, the National Police Service and Pharmacy and Poisons Board  received information to the effect that the ex parte applicant was operating without the relevant licenses, authorizations and failed to pay taxes.

11. He averred that upon investigating, the agency concluded that the ex parte applicant was manufacturing excisable products which require an excise license pursuant to section 15 (1) of the Excise  Duty Act.[4]  He also averred that the applicant  was found in possession of raw materials for manufacturing powder and body lotion without import documents, that it was manufacturing baby powder with expired standardization permits, and that it was packaging expired drugs.

12. Mr. Ndung'u also averred that the ex parte applicant  was notified about the findings, and that the agency visited the premises to  ascertain the same. Further, the agency issue a notice to the applicant not to use the premises for violating various statutory requirements, among them, lack of protective gears, chipped floors, lack of proper storage of raw materials. He also averred that the ex parte applicant's directors were charged at the Makadara Law Courts with criminal offences.

13. Mr. Ndungu averred that the Respondent's decision is justified, lawful and commensurate with the allegations, and, that the process conformed to the rules of natural justice. He also averred that the prayers sought offend public policy in that they usurp the constitutional, statutory and administrative mandate of the various government agencies, and are meant to serve the ex parte applicants' narrow interests, and will promote impunity. Lastly, he averred that that this case is premature since  the ex parte applicant has not exhausted the laid down internal mechanisms.

Court's Directions.

14. Even though Preliminary Objections ordinarily take precedent, in order to save judicial time, on 2^nd July 2018, I directed that the Preliminary Objection be deemed to be the Respondents' Reply to the application and that the same be argued together with the applicant's application seeking leave and whether the leave if granted shall operate as stay. The rationale for these directions was that in the event the Preliminary Objection does not succeeded, then the Court would proceed to determine the question of grant of leave.

Determination.

15. I now proceed to address the Preliminary Objection first. The issue that best describes the Preliminary objection  under consideration is  whether this suit is bad in law under the doctrine of exhaustion.

16. Counsel for the Respondent's, cited Article 159 (2) (c) of the Constitution which provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles— (a)--- (b)------ (c) alternative forms of dispute resolution including reconciliation. He also cited Regulation 16 (1) (b) of the Regulations reproduced below which provides that once a notice is issued, an aggrieved person ought to appeal to the Minister whose decision is final. Further, counsel cited section 9 (2) (3) and (4) of the Fair Administrative Action Act[5] which provides that where a statute prescribes a procedure, it must be followed. Counsel invited this court to decline jurisdiction.

17. To buttress his arguments, counsel relied on Speaker of the National Assembly vs Karume[6]where the court held that where a statute has established a dispute resolution mechanism, it ought to be followed. He also cited Samson Chembe Vuko vs Nelson Kilumo & 2 Others[7] where the Court  citing inter alia the above decision upheld a similar objection as in this case. He also cited Mutanga Tea & Coffee Company Ltd vs Shikara Limited  & Another[8] where the Court of Appeal  re-stated  the same position.[9]

18. The Interested Party's position on the issue under consideration is expressed in the Replying Affidavit of Mr. Ndungu referred to above in which he averred that this case is premature since  the ex parte applicant has not exhausted the laid down internal mechanisms. Mr. Naeku, counsel for the Interested Party in his submissions adopted the said Affidavit and the Respondents'  Advocates' submissions.

19. Despite the fact that the issue under consideration is fairly dispositive, Mr. Mogeni, the ex parte applicant's counsel's rejoinder on this particular issue was brief. He submitted that there is no alternative remedy available to the ex parte applicant, hence, the Preliminary Objection must fail, and, in any event, he argued that the alternative remedy does not oust this court's jurisdiction.

20. Regulation 16 (2) provides that "any person, on whom a notice is served under paragraph (1) may, within fourteen days from the date he receives such notice, appeal to the Minister who shall make such order thereon as he thinks fit and whose decision shall be final." It is common ground that the notice was issued pursuant to the Regulations and that the Regulations were enacted pursuant to the Food, Drugs and Chemical Substances Act.[10] The long title to the act provides that it is an Act of Parliament to make provision for the prevention of adulteration of food, drugs and chemical substances and for matters incidental thereto and connected therewith. There is no argument before me that the act does not apply to the premises.

21. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine is now of esteemed juridical lineage in Kenya.[11]It was perhaps most felicitously stated by the Court of Appeal[12] in Speaker of National Assembly vs Karume[13] in the following words:-

"Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

22. Even though the above case was decided before the Constitution of Kenya, 2010 was promulgated, many cases decided after 2010 have followed the reasoning and provided justification and rationale for the doctrine under the 2010 Constitution.[14] The Court of Appeal provided the Constitutional rationale and basis for the doctrine   in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others,[15] where  it stated that:-

"It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked.  Courts ought to be fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

23. In the Matter of the Mui Coal Basin Local Community,[16] the High Court stated the  rationale  for the doctrine of exhaustion follows:-

"The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country.  Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.”  The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

24. At least two principles emerge from our jurisprudence in these cases:- First, while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.[17] However, the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.

25. In the instant case, other that the assertion by Mr. Mogeni that there is no available alternative remedy without expounding, no argument was presented before me to demonstrate that the exhaustion requirement would not serve the values enshrined in the Constitution.

26. The ex parte applicant has invoked the provisions of Article 47 of the Constitution. Flowing from Article 47 is the Fair Administrative Acton Act.[18]Section 9 (2) of the Fair Administrative action Act[19] provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

27. The Fair Administrative Action Act[20] defines an “administrative action” as follows:-includes— (i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. In my view, the impugned decision is an administrative action as envisaged in the above definition.

28. I should emphasize that the use of the word shall in section 9 of the Act cited above is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions.[21]There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory.[22] The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.

29. It is the duty of courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered. Courts have pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.

30. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.[23] The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory.[24] Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.

31. My construction of section 9 (2)  & (3) cited above leads to the irresistible conclusion that they are couched in mandatory terms. The  only way out is the exception provided by 9 (4) which provides that:- "Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above sub-section. First, the applicant must demonstrate  exceptional circumstances. Second, on application by the applicant, the court may grant the exemption. No argument was presented before me inviting me to invoke the said exception.

32. A stated above, the impugned decision constitutes an administrative action as defined in  section 2 of the Fair Administrative Action Act.[25] Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.[26]What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.[27] Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct.[28] An internal remedy is adequate if it is capable of redressing the complaint.[29]

33. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.  Indeed, in this case, no such argument was advanced before me nor can I discern any virgin argument touching on constitutional interpretation.

34. The principle running through  decided cases is that where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the  internal appeal mechanism is the real issue to be determined and whether the appeal  mechanism is suitable to determine it. In the case before me, no argument was advanced that the appeal mechanism was not adequate nor do I find any reason to find or hold so.

35. The second principle suggested by case law for limiting the applicability of the doctrine of exhaustion in appropriate cases is that a statutory provision providing an alternative forum for dispute resolution must be carefully read so as not to oust the jurisdiction of the Court to consider valid grievances from parties who may not have audience before the forum created, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit. The rationale behind this reasoning is that statutory provisions ousting courts jurisdiction must be construed restrictively. This argument was not advanced before me nor do I discern it from the facts of this case.

36. The question that begs for an answer is whether the dispute resolution mechanism established under the Act and the Regulations is competent to resolve the issues raised in this application. Except the submission that there is no alternative remedy, no argument was presented before me that the mechanism is not competent to resolve the dispute.

37. Our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute.[30] It is also settled that the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.[31]

38. Having fully considering the dispute disclosed in this Petition and the Regulations, I am clear in my mind that the mechanism established under the Act and the Regulations can afford the ex parte applicant an effective remedy. In any event, the ex parte applicant has not demonstrated that it cannot get an effective remedy under the dispute resolution mechanism established under the statute. A remedy will be effective if it is objectively implemented, taking into account the relevant principles and values of administrative justice present in the Constitution and our law. The “deepest norms” of the Constitution should determine whether the dispute involves explicit constitutional adjudication, or whether it could safely be left to the statutory provisions.  In this regard, I am persuaded beyond doubt that the adjudication of the issues complained herein can safely be left to the statutory provisions.

39. In view of my analysis herein above, it is my conclusion that the  ex parte applicant's has not satisfied the exceptional circumstances requirement under subsection (4) above. It is also my finding that the ex parte applicant ought to have exhausted the available mechanism before approaching this court. On this ground alone, I find that this case offends section 9 (2) of the Fair Administrative Action Act.[32] It also offends the doctrine of exhaustion. The upshot is that the Preliminary Objection succeeds.

40. Having up held the Preliminary Objection as herein explained, I find no reason to address the issue whether or not the application satisfies the tests for granting leave and whether if granted the leave shall operate as stay.

41. Consequently, the ex parte applicant's application dated 18^th June 2018 is hereby dismissed with no orders as to costs.

Orders accordingly.

Signed, dated and delivered  at Nairobi this 8^th day of October 2018

John M. Mativo

Judge