“No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.”- Article 94(5), Constitution of Kenya, 2010
Law Society of Kenya v Principal Secretary, State Department for Industry & 4 others, Petition No. E654 of 2025 [2026] KEHC 10133 (KLR), High Court (Constitutional & Human Rights Division), Aburili J, 29 June 2026.
One Memo, Two Statutes Rewritten
On 30th September 2025, the Principal Secretary, State Department for Industry, directed the Managing Director of the Kenya Industrial Property Institute (“KIPI”) that, with immediate effect, no trademark, patent or industrial design be registered, renewed or revoked without the prior approval of the KIPI Board. No notice. No reasons. No amendment to the statutes that place those functions elsewhere.
The Law Society of Kenya moved the Constitutional and Human Rights Division. On 29th June 2026, Aburili J quashed the directive in its entirety and permanently restrained its enforcement. The judgment restates the outer limits of executive power over statutory institutions and reaches well beyond intellectual property.
Governance Is Not Registration: The Line the Directive Erased
The Trade Marks Act (Cap. 506) makes the Managing Director of KIPI the Registrar of Trademarks and vests registration, renewal and revocation in that office. The Industrial Property Act (Cap. 509) draws the same line: the functions of the Institute (section 5) and of the Managing Director (sections 11 and 12) are technical and operational; the Board’s mandate under section 7 is governance and finance; assets, banking, investments and expenditure. Under the First Schedule, the Board sits no more than four times a year.
The directive collapsed that distinction, transferring the Registrar’s daily statutory functions to a quarterly governance body without a single line of amending legislation.
The Court’s Verdict: Five Fatal Flaws
a. Legislation by Memorandum
Article 94(5) vests law-making in Parliament alone; Article 155(2) confines a Principal Secretary to policy implementation and oversight. By reassigning statutory functions, the PS had in substance amended both Acts by fiat, offending Articles 1(3), 2(1), 3(1) and 10.
b. Statutes Overridden Without Authority
Neither Act had been amended. The directive therefore violated section 3(1) of the Trade Marks Act and sections 5, 7, 11 and 12 of the Industrial Property Act. Elementary law, restated with necessary clarity.
c. No Notice, No Reasons, No Hearing
Applying Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR), the Court confirmed that the common law rule dispensing with reasons no longer holds in Kenya. Article 47(2), with sections 4 and 5 of the Fair Administrative Action Act, 2015, demands reasons, consultation and a hearing. The directive offered none and was procedurally invalid.
d. Expectation Defeated, Property Imperilled
On the Supreme Court’s formulation in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), applicants legitimately expect the officers designated by statute to process their applications expeditiously. Routing them through a Board sitting four times a year, with delays of up to three months per file, defeated that expectation. Article 260 defines property to include intellectual property, so Article 40 protection attached without awaiting actual violation; the delays also breached Article 41(2) of TRIPS.
e. A Nullity Must Be Quashed
Citing Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 3 others Ex Parte Mwalulu & 8 others [2004] KEHC 1337 (KLR), to leave a nullity standing would be a serious abdication of judicial function. Certiorari issued; a permanent injunction followed against the PS and the Board.
What It Means on Monday Morning
- Registration reverts to statute. The Registrar and Managing Director resume full authority; applications stalled during the directive’s currency fall to be processed on the pre-directive footing.
- Directives cannot redraw statutory mandates. Where Parliament vests a function in a named officer, only Parliament can move it, a principle that travels to every regulatory regime run on ministerial instruction.
- Article 47 is not optional. Immediate-effect decisions that skip notice, views and written reasons remain vulnerable however sound their merits.
- Treaty obligations bite domestically. Articles 2(5) and (6) render TRIPS and comparable ratified instruments enforceable before Kenyan courts.
- Institutional independence is protected. Boards govern; they do not register or license. The two cannot be conflated by instruction.
The Bottom Line
The power to register, renew or revoke intellectual property rights belongs to the Registrar of Trademarks and the Managing Director of KIPI, not the Board. Neither a Principal Secretary nor a Cabinet Secretary can move it without going to Parliament. Statutory institutions are not reorganised by memo.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the Intellectual Property Department at Wamae & Allen LLP: WAIPLaw@wamaeallen.com.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Peris is a results-driven and disciplined legal professional committed to delivering exceptional value to clients. With expertise across various legal fields, she provides strategic legal solutions tailored to diverse client needs. Her strong interpersonal skills, dedication, and meticulous approach to legal practice enable her to navigate complex legal matters effectively.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
