The High Court in Embu has dismissed an application by the Agriculture and Food Authority (AFA) to be enjoined in a constitutional petition that is challenging sections of the 2020 Tea Act, saying that the Authority no longer has a mandate for the management of tea matters.
In a ruling on the application, Embu High Court Judge Lucy Njuguna said the new Tea Act had conferred tea management mandate to the Tea Board of Kenya, noting that tea had been delinked from the Crops Act – under which AFA is established.
“The Tea Act 2020 establishes the Tea Board of Kenya. Section five (of the Act) thereof provides for the functions of the Board, and a reading of the said section clearly indicates that all matters to do with regulation of tea industry has been bestowed on the Tea Board. Section 76-81 further provides for transitional clauses and from a reading of the said sections, all the assets, liabilities and staff initially under the Agriculture and Food Authority were transferred to the Board. The two entities are very separate and distinct and have been established under two different Acts of Parliament and their functions are totally different,” she said.
“Section 75 (of the Tea Act) amends the Crops Act of 2013 and whose effect is t remove tea from the schedule of the scheduled crops. It is my view therefore that from the reading of the Tea Act, it is clear that tea was delinked from the Crops Act and thus the Agriculture and Food Authority does not have any responsibility in relation to its management. Even if this court were to enjoin another party to the petition, the right party ought to be the Tea Board and not the applicant herein. It is the (Tea) Board whose presence might have been necessary and not the applicant. In the circumstances, the application herein is misconceived and the same is hereby dismissed with costs,” she added:
The Court also found that the law firm representing AFA , Patricks Law Associates, was not qualified to present the Authority in court after AFA – a public entity funded using taxpayers’ money – failed to show that the company was legally procured.
“It is my considered view that the evidential burden shifted to the applicants (AFA) to prove that the procurement process leading to them (the law firm) coming on record was proper and procedural. Failure to prove compliance with the said legal requirements cannot be ratified by this court by way of letting such an unprocedural act stand. It is my view that on the ground that the law firm of Patricks Law Associates was not qualified, and any document filed herein is a nullity in law,” the judge ruled.
This was after the lawyer representing the 51 Tea Factories, Benson Millimo, challenged the procurement process with which the law firm was acquired in order to represent AFA in the matter.
The judge also found the pleadings by AFA to be “incurably defective” after the Authority failed to show that it had received Authority of its Board to proceed to court to seek to be enjoined in the suit. This followed lawyer Millimo’s assertion that AFA, through its lawyer, had not submitted minutes and resolutions sanctioning AFA’s enjoinder in the proceedings; and that, indeed, AFA did not have a Board that would approve such a move.
In her ruling, Judge Njuguna noted that AFA admitted that its Board had not been constituted, adding that “it would not be possible to know when the Board will be constituted. In the circumstances, it is my finding that the pleadings before me are incurably defective for want of Authority from the applicant’s Board.”
AFA had sought to be enjoined in a constitutional petition by 51 smallholder tea factory companies that moved to court to challenge fifteen sections of the new law. Pending the hearing and determination of the suit, the Court has suspended the implementation of these sections.
