The High Court in Nairobi on Monday (April 26, 2021) issued orders restraining the Attorney General (AG) from proceeding with an ongoing investigation into the operations of the East African Tea Trade Association (EATTA) and the Kenya Tea Development Agency (KTDA) until a matter challenging the move is heard and determined. The injunction follows a notice of motion jointly filed by KTDA Holdings Limited, KTDA Management Services and Chai Trading Limited and EATTA following the raid by a Government multi-agency team on its headquarters in Nairobi, Chai Trading offices in Mombasa and the Tea Trade offices.
Upon review of the notice, Criminal High Court Judge, Jessie Lessit, directed that ex-parte orders, which had been granted to the AG by the Chief Magistrate’s Court in Milimani, stood suspended until the matter had been heard and determined. “This Honourable Court has hereby issued an Order staying the ex-parte Orders issued on 15th April 2021 in Nairobi Milimani Law Courts Chief Magistrate’s Court Miscellaneous Criminal Application No. E1248 of 2021… pending the hearing and determination of this application inter partes and/or until further orders of the Honourable Court,” the High Court directed.
Further, the court restrained the AG from “invading, ingressing, breaking into or remaining in the premises and places of operation” of KTDA Holdings, KTDA Management Services and Chai Trading Limited. “This Honourable Court has hereby issued an Order restraining the Respondent by himself, his officers, servants, agents, Investigators, Inspectors or representatives otherwise howsoever from invading, ingressing, breaking into or remaining in the premises and places of operations of the Applicants herein that are located along Moi Avenue, KTDA Farmers House in Nairobi and in Miritini, Mombasa or any of its other offices within the Republic of Kenya and taking possession of the Applicants’ properties pending the hearing and determination of this application inter parties and/or until further orders of the Honourable Court.” The court also restrained the AG from enforcing and/or continuing to enforce the Chief Magistrate’s Court Order until the matter is heard and determined.
In a certificate of urgency filed by High Court advocate James Ochieng’ Oduol, senior partner at law firm TripleOKLaw LLP Advocates – which is representing KTDA and Chai Trading Limited, it was argued that the raid on both firms’ premises was based on an illegally obtained court order wherein the AG “hoodwinked the court with exaggerated investigative powers under Section 800 of the Companies Act 2015.” The lawyer further stated that the AG illegally appointed an investigator whose scope exceeded the “required statutory standard under Section 800 (1) read together with Section 802 (2) of the Companies Act.
It was further argued that the search warrants that the investigator sought were obtained in breach of an existing court order – which bars any form of order touching on KTDA and Chair Trading’s property – from a superior court.
The lawyer argues that the AG usurped existing constitutional offices and their procedures; saying that it is the Ethics and Anti-Corruption Commission that has the investigative powers on matters touching on abuse of office and conspiracy to commit economic crimes. He further states that it is the Office of the Director of Public Prosecution which is constitutionally mandated with the role of investigating criminal cases for the state and has powers to direct the police to investigate any alleged conduct of criminal offence.
KTDA argues that section 800 of the Companies Act 2015 recognizes the High Court as the court of competent jurisdiction and not the Magistrate’s Court. It also lays down very strict procedures in event of an inquiry. None of which were followed. It adds that tea farmers are yet to be paid their green leaf due to delay of return of the servers which were confiscated during the raid on KTDA headquarters.
The matter will come up for direction as to hearing on the 29th of April 2021.
