Senate applies to be enjoined in case filed by ousted KTDA directors

Kenya Tea Development Agency directors (seated from left) Geoffrey Chege Kirundi, David Muni Ichoho and Wesley Cheruiyot Koech and other stakeholders address a media briefing at their offices in Nairobi. 

Photo credit: Lucy Wanjiru | Nation Media Group

The Senate wants to be enjoined in the court dispute pitting ejected directors of the Kenya Tea Development Agency (KTDA) against their successors who took office two months ago in state-backed reforms.

Through lawyer Job Wambulwa, the Senate says it has a stake in the dispute because it relates to a law (Tea Act No. 23 of 2020) passed by senators last year. The law was a brainchild of Kericho Senator Aaron Cheruiyot.

“The tea reforms law emerged from the Senate. We want to be enjoined because our participation is important given that one aspect of the dispute relate to constitutionality of the law,”Mr Wambulwa told court on Friday.

However, the court told him to make the joinder application once the three-judge bench has been reconstituted following recusal of judge Weldon Korir. The judge disqualified himself from the case, saying, he is known to some of the ejected and current KTDA directors.

The court dispute pits the ousted team of directors led by Nyeri-born tycoon Peter Kanyago against the newly-elected team led by chairman David Ichoho Muni.

“The former and current directors are persons known to me. The issue to be determined by court is whether the elections that brought the current team to office were lawful. The outcome of the case will affect both sides,” explained justice Korir while quitting the case.

Eight cases

The court dispute involves eight cases which have been divided into two clusters.

One cluster, which contains five consolidated cases, relates to petitions that are challenging the constitutionality of various Sections of the Tea Act, No. 23 of 2020 and the constitutionality of The Crops (Tea Industry) Regulations, 2020.

The other set has three cases touching on the ownership, management and operations of KTDA and its subsidiaries.

In the court filings, Agriculture Cabinet Secretary Peter Munya contends that it is in the public interest that the Tea Act, 2020 gets implemented.

He says objects of the Act is to make sure that tea farmers get maximum profits.

“Over the years the tea farmer shouldered the cost burden of production and sale of tea while benefits are taken by middle men and brokers,” says Mr Munya.

He cites Section 34 of the Act, which he says arose from an outcry by tea farmers regarding the unconscionable nature of agreements signed by their factories and KTDA as a management agent.

Contracts

“The agreements are restrictive and lopsided in favour of the management agent at the expense of the tea factory by extension the tea farmer. The management agreements entered with KTDA are standard form contracts prepared by the management agent. The tea factories have no independent legal counsel to advise and to ensure that their interests are protected,” contends the CS.

“There is also no room for the tea factories to evaluate the performance of the management agent or to renegotiate the agreements, since they are self-renewing,” says Mr Munya.

Further that, the provisions of Section 34(6) of the Tea Act (2020) were formulated to shield small-scale tea factories from a group company secretary that doubles up as the director for elections for all smallholder tea factories and the legal advisor to all subsidiary companies under KTDA Holdings Ltd.

There is a clear conflict of interest and in addressing it, the Tea Industry Task Force Report of 2016 recommended that each Tea Factory should retain its own company secretary.

The cases will be mentioned on August 23 to confirm whether the Chief Justice has reconstituted the bench.

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