High Court Suspends President Kenyatta’s Executive Order on KTDA managed Factory Elections, Subsidiaries

The High Court in Nairobi has this afternoon issued a conservatory order suspending the implementation of President Uhuru Kenyatta’s Executive Order on KTDA Tea Factory elections and the re-alignment of KTDA subsidiaries until a matter before it challenging the Order has been heard and determined. 

“Pending the hearing and determination of the Notice of Motion, dated 17th of March 2021 a conservatory order be, and is hereby, issued staying the parts of the Executive Order Number 3 of 2021, dated 12th of March 2021, ordering and directing that the petitioner and its subsidiaries be re-aligned and that the Tea Board of Kenya sanctions elections within sixty days,” ruled Judge Anthony Mrima.

On the 12th of March 2021, President Uhuru Kenyatta issued an Executive Order directing the Tea Board of Kenya jointly with other stakeholders to “sanction immediate elections in all tea-factories; to enable farmers to freely elect their Board Members within 60 days from the date hereof.” 

In his ruling, Judge Mrima noted a court order, which the Attorney General obtained, stopping elections in the tea sector, remains in force. 
“I have taken into account the fact that there are lawful orders of the court obtained by the Honorable Attorney-General staying elections in the tea sector in the former Mombasa Petition 87 of 2020. The orders, as said, are still in force, and in fact, the Attorney General has taken out contempt of court proceedings against some parties,” he said.

He also added that the President’s Order contained issues that have been challenged in court under the Tea Regulations of 2020 and the Tea Act, 2020, which are yet to be determined. 

“It is also an important step that the two pending petitions variously challenge the tea regulations and that several of those challenges are now part of the Executive Order under challenge in this petition. I am also aware that some petitions were filed challenging several provisions of the Tea Act. In those matters, there are orders staying the operationalization of some sections of the Tea Act,” he said.

Following President Kenyatta’s Executive Order on Tea Factories elections, Agriculture Cabinet Secretary, Peter Munya, issued a schedule on the 19th of March providing a timetable for tea factory companies to conduct meetings geared towards holding the elections.

“In order to facilitate the tea farmers’ meetings and in line with the Executive Order issued by the President on Friday 12th March 2021, I hereby issue the attached timetable to enable tea farmers plan and hold their meetings,” said Munya.

In a statement to newsrooms, KTDA contested the directive, arguing that the Cabinet Secretary of Agriculture lacked powers to direct private companies on how to conduct their elections. 
“The Law does not provide a line Minister and, in this case, the CS Agriculture, with authority to interfere in privately owned company affairs such as those of Tea Factories. Should this be the case, then no privately owned company in Kenya would be safe from unlawful external interference,” the company said. 

Regarding the President’s Order directing the Attorney General to work with the Ministries of Agriculture and Industrialization to re-align KTDA subsidiaries, Judge Mrima ruled that this remains a “hotly-contested issue” in the ongoing court proceedings against both the Tea Regulations.  

“On the issue of whether the petitioner and the subsidiaries ought to be re-aligned is one of the hotly-contested issues in the petitioners challenging that regulations without going deep into the matters and pending determination here in it is in the interest of good order and the administration of justice that some interim reliefs be issued,” he said.

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