The recent dispute between Unilever Kenya Limited and Colgate Palmolive East West Africa Region (Pty) Limited HCCA/E297/2025 has quietly produced one of the most interesting discussions on jurisdiction within Kenya’s system of industry self-regulation.
At the centre of the dispute was a seemingly ordinary advertising claim. Unilever marketed its Pepsodent Cavity Fighter toothpaste using a “10X cavity-fighting” claim. Colgate challenged the claim before the Advertising Standards Committee (ASC), arguing that it was misleading and lacked adequate substantiation.
What followed, however, was far from an ordinary advertising dispute. Instead, the matter evolved into a significant jurisdictional issue which ultimately touched on two key issues:
- whether a party can escape their jurisdiction mid-proceedings; and
- the authority of industry-created adjudicative bodies.
The case ultimately travelled through three levels of adjudication:
- the Advertising Standards Committee;
- the Standards Appeal Council; and
- the High Court of Kenya, which affirmed the decisions of the industry bodies.
Together, these decisions provide important guidance on the jurisdictional foundations of Kenya’s advertising self-regulatory system.
The Architecture of Advertising Self-Regulation
Unlike statutory regulators created by legislation, Kenya’s advertising standards framework is largely industry-driven.
Kenya’s advertising industry operates under the Code of Advertising Practice (the Code), a self-regulatory framework first introduced in 1992 through the initiative of the Marketing Society of Kenya and the Association of Practitioners in Advertising to maintain ethical, truthful, and fair standards in advertising amid an increasingly competitive communications environment.
The Code is based on the International Code of Advertising Practice (ICAP) of the International Chamber of Commerce and applies across all forms of media, binding advertisers, agencies, media owners, and other industry participants who subscribe to it.
To administer the Code, the industry established the Advertising Standards Body of Kenya (ASBK), whose dispute-resolution structure provides that complaints are heard in the first instance by the Advertising Standards Committee (ASC), with appeals lying to the Standards Appeal Council, thereby creating an industry-led self-regulatory system intended to resolve advertising disputes efficiently while safeguarding the public interest and maintaining confidence in the advertising sector.
Membership to the Code is typically tied to industry organisations such as:
- the Marketing Society of Kenya
- the Association of Practitioners in Advertising
- the Media Owners Association
- Any other individuals or organizations whose names appear in the subscribers’ books of registry at the secretariat
Subscribers to the Code are required to adhere to its standards and submit to the dispute resolution mechanisms provided under it.
In effect, the ASC functions as a quasi-judicial tribunal created by industry participants themselves, designed to resolve advertising disputes quickly, efficiently, and with sector expertise.
It was within this self-regulatory structure that the dispute between Unilever and Colgate raised important jurisdictional questions concerning the scope and effect of the ASC’s authority under the Code.
First, whether jurisdiction can be defeated where a party withdraws from proceedings after the same has already commenced.
Second, whether the ASC has authority to determine complaints against parties who have agreed to be bound by the Code.
The Jurisdictional Twist
The key jurisdictional issue arose midway through the proceedings.
When Colgate lodged its complaint in June 2023, Unilever was a member of the Marketing Society of Kenya and therefore a subscriber to the Code. The ASC consequently assumed jurisdiction over the complaint.
However, following the hearing of the complaint, Unilever withdrew its membership from the Code and informed the ASC that it would no longer participate in the proceedings.
Unilever’s position was straightforward: since the ASC’s jurisdiction was derived from membership to the Code, withdrawal from that membership meant the Committee no longer had authority over it.
In other words, the argument was that jurisdiction evaporated once membership ceased.
The ASC’s Approach
The ASC rejected that argument.
It held that its jurisdiction had already been properly invoked at the commencement of the complaint. Once a party had subjected itself to the Code’s dispute resolution mechanism and participated in the proceedings, the tribunal retained authority to determine the dispute.
To hold otherwise would undermine the entire purpose of self-regulation by allowing parties to strategically withdraw from the Code whenever proceedings turned unfavourable.
The ASC therefore proceeded to determine the complaint on the merits and ordered the removal of the disputed claim.
The Appeal Before the Standards Appeal Council
Unilever appealed the decision to the Standards Appeal Council, raising essentially the same jurisdictional argument.
The Standards Appeal Council framed the central question as whether the ASC had erred in concluding that its jurisdiction persisted despite the appellant’s withdrawal from the Code.
The Council’s answer was unequivocal.
Jurisdiction, the Council held, is determined at the inception of the proceedings. Once properly established, it does not fluctuate based on subsequent developments, including a party’s withdrawal from the governing regulatory framework.
The Council relied heavily on established Kenyan jurisprudence on jurisdiction, including the well-known principle from Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd that jurisdiction is the foundation upon which any adjudicative authority rests.
The Council also invoked the doctrine articulated in Pollak on Jurisdiction, which states that:
“Jurisdiction, once established, continues to exist until the end of the proceedings even if the ground upon which it was founded later ceases to exist.“
Since Unilever was unquestionably a member of the Code when the complaint was filed and remained so during the hearing, the ASC’s jurisdiction was properly invoked and persisted until final determination.
The Council therefore dismissed the Appeal and affirmed the ASC’s decision.
Judicial Confirmation by the High Court
The dispute did not end there.
Unilever subsequently appealed the SAC decision to the High Court, once again challenging the jurisdiction of the ASC and the Council.
The High Court ultimately agreed with the reasoning of the industry bodies and dismissed the Appeal.
In doing so, the Court reaffirmed a key principle: jurisdiction attaches at the time proceedings are properly commenced and generally continues until the matter is concluded unless expressly terminated by law.
Allowing parties to escape proceedings through mid-stream withdrawal would create a dangerous precedent capable of undermining the integrity of regulatory and quasi-judicial processes.
Why the Case Matters
Beyond the immediate advertising dispute, the case addressed a key matter regarding whether industry self-regulation and jurisdiction in Kenya.
- Recognition of Industry-Created Adjudicative Bodies
The decisions collectively affirm that self-regulatory bodies created by industry participants can exercise legitimate adjudicative authority, provided their jurisdiction is grounded in an agreed regulatory framework.
This reinforces the role of industry expertise in resolving technical disputes such as advertising claims.
- ASC authority to determine complaints against parties who have agreed to be bound by the Code
Perhaps most importantly, the case strengthens the credibility of advertising self-regulation in Kenya.
By upholding the decisions of the ASC and the Standards Appeal Council, the High Court recognised that the ASC derives its jurisdiction from the parties’ voluntary submission to the Code, and that disputes arising under that framework are properly within the competence of the self-regulatory bodies established by the industry.
A Quiet but Important Development
The Unilever-Colgate dispute may have begun as a disagreement over toothpaste advertising but it ultimately evolved into an important discussion on jurisdiction, regulatory legitimacy and the functioning of industry-driven dispute resolution systems.
In doing so, it highlights a broader truth about modern regulatory governance:
in many sectors, effective oversight increasingly relies not only on statutory regulators but also on robust systems of industry self-regulation.
And as this case demonstrates, those systems can command real authority; both within the industry and in the courts.