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Court upholds Sh50,000 fish farming permit, 5pc levy
The court found that the contested charges apply only to commercial aquaculture enterprises because the Fisheries Management and Development Act exempts non-commercial and subsistence fish farmers from licensing requirements.
The High Court has upheld new government charges on commercial fish farming, including a Sh50,000 annual licence fee on aquaculture establishments operating in public waters and a five percent levy on landed fish.
In a judgment delivered in Nairobi on Monday, the court rejected a constitutional challenge arguing that the charges would harm Kenya's fish farming industry and small businesses.
The regulations - Fisheries Management and Development (Aquaculture) Regulations, 2024- had been suspended in December 2024 following a petition filed by the Lake Victoria Aquaculture Association. They were to take effect on January 1, 2025.
In the judgment, the court held that the regulations were lawfully made by the Ministry of Mining, Blue Economy and Maritime Affairs, followed proper public participation and parliamentary scrutiny and did not violate the Constitution. It dismissed the petition after finding that the association lacked the legal capacity to sue in its own name because it had not filed the case through its officials.
However, the court proceeded to determine the substantive constitutional issues and concluded that the challenge lacked merit.
"I have found that the petitioner herein has no locus standi and I would have stopped there. But I have gone further, and there is good reason for that," the court said while delivering judgment.
The dispute centred on the Fisheries Management and Development (Aquaculture) Regulations, 2024, which introduced a flat Sh50,000 licensing fee for aquaculture establishments operating in public water bodies and a five percent ad valorem levy on the value of landed fish.
The association, representing fish farmers around Lake Victoria, argued that the charges were arbitrary, punitive and would raise production costs, discourage investment and undermine Kenya's growing aquaculture sector.
It also claimed the regulations breached constitutional requirements on public participation, equality, food security and devolution.
The petitioner further claimed that the regulations could lead to job losses in an industry that directly supports more than 500,000 households.
The association further argued that aquaculture is largely a devolved function and that the national government had unlawfully created a parallel licensing regime that could expose farmers to overlapping charges.
The regulations establish a national framework for licensing and regulating commercial aquaculture, including registration of operators, licensing conditions, fish health standards, disease control, monitoring and enforcement.
They also prescribe fees and levies for commercial aquaculture operators, while exempting non-commercial and subsistence fish farmers from licensing requirements under the Fisheries Management and Development Act.
The State Law Office and the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs, Hassan Joho, opposed the petition.
They maintained that the Cabinet Secretary acted within powers granted under the Fisheries Management and Development Act and that the regulations followed all statutory procedures before publication. The court agreed with the government, finding that extensive stakeholder consultations had been conducted before the regulations were finalised.
"From the above documentation, it is clear that relevant stakeholders in the aquaculture industry were consulted. The regulations were subjected to parliamentary scrutiny," it said.
The court added: "The public participation was real and not illusionary."
It rejected claims that the regulations became unconstitutional because Parliament introduced the fee schedule after public participation had ended.
"I have therefore concluded that it was not necessary to subject the schedule of the proposed fees to public participation again," the judge ruled.
On devolution, the court found no evidence that the national government had usurped county functions.
"The ministry did not encroach on the mandate of the county governments or abrogate the principles of devolution," said the court.
Also rejected were arguments that the licence fee and levy discriminated against smaller operators or threatened food security.
The court found that the contested charges apply only to commercial aquaculture enterprises because the Fisheries Management and Development Act exempts non-commercial and subsistence fish farmers from licensing requirements.
"The petitioner has not demonstrated how the licensing fees and the ad valorem fee violate the provisions of Articles 27, 43 and 46 of the Constitution," it said.
It further held that the Fisheries Management and Development Act expressly authorises the Cabinet Secretary to make regulations governing aquaculture, prescribe licensing conditions and impose fees.
"In the view of this court, I am satisfied that the first respondent acted within his mandate," the judge ruled.
The court concluded that the petitioner had failed to prove entitlement to any of the constitutional remedies it sought.
"I find that the petitioner has not demonstrated that it is entitled to any of the reliefs sought and therefore the petition is not allowed," added the judge.
