Trade Cabinet Secretary Moses Kuria's proposal to remove the 35 per cent duty on cooking oil has continued to draw criticism, with a Mombasa resident filing a suit to block its implementation.
Activist Julius Ogogoh on Tuesday filed a suit in the Mombasa High Court seeking to quash the proposal, which is aimed at supporting local producers, saying it will have a negative impact on companies that have invested in the sector.
In his court papers, Mr Ogogoh has challenged the notion that imported and manufactured crude edible oil is detrimental to local food production, saying there are no proven statistics to support the claim.
"Mr Kuria's actions are arbitrary, ill-advised and malicious. This court has no option but to set them aside and make an order restraining such further illegalities," the plaintiff said.
Mr Ogogoh is suing Mr Kuria and the Cabinet Secretary for Finance, Prof Njuguna Ndung'u.
The plaintiff wants the court to issue an order quashing the policy directive as drafted by Mr Kuria and another restraining Prof Ndungu from acting on the said proposal.
Mombasa High Court judge Olga Sewe certified the matter as urgent and ordered that the respondents be served with the court papers.
"That leave be and is hereby granted to Mr Ogogoh to apply for judicial review orders of certiorari and prohibition. The substantive application shall be filed within 21 days from the date of this order," the judge said.
Mr Ogogoh argues in court papers that the tax regime will have a direct impact on the pricing of refined edible oils in the local market, thereby affecting the cost of living in the country, which he says is already high, placing a heavy burden on the ordinary mwananchi (citizen).
Describing Kuria's actions as beyond his legal powers, the plaintiff insisted that the court must set aside the proposal and prohibit any further illegalities.
"Justice would be better served by setting aside the draft policy directive and restraining Prof Ndungu from implementing the proposed abolition of the 35% duty," he said.
The plaintiff is seeking an order restraining Prof Ndungu from implementing the proposal and replacing it with a 10 per cent export and investment promotion levy.
Mr Ogogoh's case stems from Mr Kuria's letter to Prof Njuguna dated 20 June. In the letter, CS Kuria proposed to remove the 35 per cent duty on edible oils and replace it with a 10 per cent export and investment promotion levy on imported crude oil.
The petitioner has said that if the proposal is not challenged, it will jeopardise the rights of the larger citizenry and undermine the sanctity of the rule of law.
Mr Ogogoh further contends that relying on the Fifth Schedule of the East African Community Customs Management Act, as the Kenyan government has done, is discriminatory.
"The duty-free importation of refined edible oil should not be limited to the Kenya National Trading Corporation (KNTC), but should apply to all importers to avoid harming the importing industry," he said.
According to Ogogoh, this move by the government lacks fairness, reasonableness, neutrality and proportionality in taxation.
He has argued that all decisions by public bodies and officials should go through rigorous public participation exercises and adhere to the principles of natural justice, adding that Mr Kuria is pressuring other state agencies and officials to impose draconian tax burdens on local importers and manufacturers.
