The government is at liberty to import 125,000 metric tonnes of cheap edible oil after the High Court lifted the orders that suspended the importation.
Justice John Chigiti ruled that the suit filed by the Law Society of Kenya (LSK) challenging the importation and distribution of duty-free edible oils was premature and premised on illegally acquired confidential government documents.
“I am satisfied that the case is premature because a court that admits and determines a dispute based on illegally obtained evidence is a court that acts without jurisdiction. The court lacks jurisdiction on that premise and strikes out the suit,” ruled Chigiti.
Justice Chigiti ruled that LSK cannot be allowed to challenge the government’s decision to allow duty-free oils based on a letter by Treasury CS Njuguna Ndungu on January 20 to Kenya Revenue Authority Commissioner General Githii Mburu with instructions to allow the importation.
He further set aside his earlier ruling allowing the lawyer’s body to challenge a circular by Director of Customs and Border Control Nancy Ngetich instructing customs officials to permit entry of the edible oils into the country.
According to the judge, the two were confidential cabinet dispatches allowing Kenya National Trading Corporation (KNTC) to import duty-free oil to help lower the cost of living
He stated that since the two exhibits were confidential government documents, LSK should have followed the correct procedure by writing a formal request to the relevant government authorities for access instead of obtaining them through the back door.
“LSK did not demonstrate that it made a request to be formally furnished with the two documents or that the request was declined. This would have probably made the court to change its mind in admitting the documents as evidence,” ruled Chigiti.
The judge added that since LSK’s case was based on two controversial documents, the court was left with no choice but to dismiss the case.
LSK filed the suit claiming that the duty-free importation of edible oil into the Kenyan market will drive local manufacturers out of business.
The society faulted the government for taking administrative actions and decisions without consulting or involving local edible oil manufacturers.
According to LSK, it was ironical and absurd for the government to hike the cost of other basic commodities like electricity which increases the cost of production while running abroad for cheaper options.
LSK added that there was no state emergency to warrant importation of the duty-free edible oil since the local supply was sufficient.
However, in opposing the suit, the government argued that LSK filed the case based on irregularly acquired documents and that the case was premature since the society had not exhausted alternative dispute resolution.
The Attorney General and KNTC told the court that the case should have been filed before the Tax Appeals Tribunal since it involved tax exemption on edible oils.