A distilling company wants the Kenya Bureau of Standards (KeBS) compelled to lift it’s suspension of the manufacturer and sale of their three products.
The alcoholic products include Diamond Ice and Flying Horse.
In a petition lodged before the High Court Judicial Review division on Wednesday, Patiala distillers want the court to restrain anyone under the agency’s instructions from engaging in any manner of disruption or obstructions of the manufacture of the said products in guise of the suspension.
“….restraining the respondents by themselves, their agents or anyone else under its instructions from engaging in any manner of disruption or obstruction of the operations of the applicants standardization mark permit numbers 26666, 27247 and 27253 under the guise of effecting the enforcement of the 1st respondent’s suspension communicated in the said letter dated the 27th February, 2024,” read the court papers.
According to the distillers, no summons were issued to them by any investigative agency to aid in any form of investigation into the alleged violation of the standard act and alcohol drinks control act prior to the suspension.
This they argue was done in malice, bad faith and lawlessness.
Patiala now wants the agency’s decision to suspend the manufacture and sell of the products be temporarily stopped.
“The leave so granted do operate as a stay of the 1st Respondent’s decision to suspend the applicants standardization mark permit numbers 26666, 27247 and 27253.”
The managing director, Mary Muthoni allege that she received a letter from KeBS on February 27, communicating the immediate suspension of the three products following complaints.
This is after angry Nyeri residents led by a section of their leaders broke into Mathira East acting Deputy County Commissioner’s office had on February 26, accessed the lawfully stored alcohol and proceeded to destroy 34,000 bottles worth Sh6 million.
The alcohol had been confiscated by the Deputy County Commissioner and District Officer on February 21, from a licenced distributor on grounds that it was unfit for human consumption.
This was rubbished by the company lawyer Danstan Omari who said the products are above board as the Kenya Revenue Authority, KeBS and Anti Counterfeit had cleared them upon analysis.
“Following nationwide complaint, you are hereby instructed with immediate effect to suspend the manufacture and sale of the above three products.”
Subsequently KeBS ordered the distillers to recall and withdraw the said products from the market and to provide records of the distribution and the quantities.
The distillers are also to institute comprehensive measures to counter any manufacture of the alleged substandard products and counterfeiting of the same.
Muthoni, however alleges that the move by the KeBS is meant to frustrate and obstruct her operations maintaining that hers is a genuine business.
She called upon the court to issue the sought orders, lest she’ll be occasioned to irreparable harm and loss.
The petition alleges breach of the constitution, illegality for being ultra vires (acting beyond one’s legal power or authority), irrationality and unreasonableness.
The company says it was unreasonable that the suspension notice was effective immediately and did not consider the plight of Kenyans who rely on the company to sustain themselves and their families.
“It loses sense and rationality when such an action is done haphazardly without following due process enacted by the law. Nothing prevented the 1st respondent (KeBS) to summon nor warn the applicant of any suspected violations of laid down regulations,” the lawyer argued.
“The law is a shield to the applicant and when the same law is broken by the government agencies, it raises many unanswered issues with how the law should be enforced.”
KeBS, the Attorney General, the Inspector General of police, Commissioner General- KRA and chief executive officer- National Authority for the Campaign Against Alcohol and Drug Abuse have been sued.
