Miller suffers blow after court declines to stop destruction

Wednesday, February 3rd, 2021 00:00 |
Justice Patrick Kiage. Photo/PD/FILE

United Millers, a consumer goods company, yesterday suffered a blow after the Court of Appeal declined to stop Kenya Bureau of Standards (Kebs) from destroying 29,714 bags of sugar which were seized in 2018.

Justices Asike Makhandia, Patrick Kiage and Sankale ole Kantai dismissed the appeal by the company saying it was not disputed that Kebs had the authority to test the sugar or destroy the same if it did not meet the required standards.

“It was not proved that in taking the decision, the first respondent (Kebs) acted unreasonably, capriciously or arbitrarily or that it failed to give reasons for arriving at the decision,” ruled the Judges.

United Millers moved to the court of appeal after the High Court concluded that the decision by a multi-agency team was not influenced by other considerations nor was it made in utter abuse of power and discretion.

The multi-agency team consisted of Kebs, Directorate of Criminal Investigations, KRA Commissioner General, Public Health Director, Anti-Counterfeit Authority Director General  and Department of Health Services.

The company sought an order restraining them from destroying the subject bags of sugar and Kebs be directed to release the seized bags of sugar.

United Millers argued that it had been granted a licence to import sugar from Mauritius and proceeded to import 997.7 metric tonnes of brown sugar having complied with all import procedures and requirements.

It contended that despite having obtained a Certificate of Conformity from South Africa, Kebs issued a seizure notice in respect of the said sugar and wrote a letter to the other state agencies conveying its decision to destroy the sugar.

United Millers argued that decision was unreasonable, arbitrary and irrational since the sugar had been tested prior to shipment as was evidenced by the Certificate of Conformity.

Kebs filed a preliminary objection in which it raised the issue of the jurisdiction of the court to entertain the proceedings.

It was the Kebs view that United Miller’s motion was incurably defective as it had not exhausted the remedies provided by the said sections of the Act.

It also argued that it was its duty to test, monitor and inspect products at the port of entry into Kenya to provide assurance as to quality and also prevent harmful products from entering the Kenyan market.

According to Kebs it was in exercise of those statutory powers that its officers collected samples of sugar from United Millers consignment on June 26, 2018 for purposes of establishing its quality and safety

“The said samples were tested in their accredited laboratory where they failed to comply with the set standard in relation to parameters of yeast and moulds, that is, the sugar had a yeast and mould content of 200 against the legal requirement of 50.

That this information was conveyed to the appellant and the relevant authorities by the impugned letter,” stated Kebs.

According to the bench the miller failed to demonstrate how by ordering the destruction of the sugar in September 2018, Kenya Bureau of Standards (Kebs) acted arbitrarily.

“The court cannot be faulted for reaching this conclusion on account of capriciousness or unreasonableness.

There was no proof that the sixth respondent (Anti-Counterfeit Agency) was an accredited body as well,” ruled the Judges.

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