The eight court cases relating to government's decision to reform the tea sector and the management of Kenya Tea Development Agency (KTDA) have been thrown into a spin following recusal of Justice Weldon Korir from a three-judge bench formed by the Chief Justice a fortnight ago.
Justice Korir, whose elevation to the Court of Appeal was turned down by President Uhuru Kenyatta, disqualified himself from the KTDA disputes on Friday on account of his close relationship with the warring parties.
The judge disclosed that he is known to some of the ousted and current directors of KTDA, thus there is likely to be a perception of biasness on his involvement in the legal dispute.
The court dispute pits the ousted team of directors led by Peter Kanyago against the newly-elected team led by Chairman David Ichoho Muni.
The ejected team still believes it is validly in office and its decisions are legally binding because their removal was contrary to a court order.
Mr Kanyago's group has already filed a contempt case against Agriculture Cabinet Secretary Peter Munya and his Interior counterpart Fred Matiang'i for disobedience of a court order that had halted their removal from office.
But the new team believes the removal of their counterparts was legal and court should throw out the contempt application.
"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. He had been appointed by CJ Martha Koome to the bench alongside Justices Anthony Mrima (the presiding judge) and Jesse Nyagah.
Following the development, Justice Mrima said the file will be returned to the Chief Justice for reconstitution of the bench to replace Judge Korir. The cases were filed by various parties within the tea value chain including workers of tea factories.
At the same time the Senate sought to join the dispute since the law amendments that occasioned reforms emanated from the Senate. The cases are divided into two clusters.
Through lawyer Job Wambulwa, the Senate told court that its participation is crucial since one cluster, which contains five consolidated cases, relate 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.
However, the court told the Senate lawyer to make the joinder application once the bench has been reconstituted.
Among the preliminary issues that will be determined by the bench before settling down to the hearing, is on the legal representation of KTDA and its subsidiary firms in court.
Four advocates are on record in the case with each claiming to have instructions from the KTDA.
On one side are the law firms of Guandaru Thuita & Company Advocates, Munyao Muthama and Kashindi Advocates and Kale Maina and Bundotich Advocates instructed by the newly-elected KTDA board of directors to represent the tea agency.
The other side has Millimo, Muthomi & Co advocates and lawyer James Ochieng' Oduol, a senior counsel. They were instructed by the ousted board.
The legal teams are also embroiled in a fight over attempt by the new board to withdraw court cases filed by the ousted management team against government over the reforms in the tea sector.
The cases will be mentioned on August 23 to confirm whether the Chief Justice has reconstituted the bench.
In the court filings, the Cabinet Secretary for Agriculture Peter Munya contends that it is in the public interest that the Tea Act, 2020 is implemented.
He says objects of the Act is to make sure that the 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 outcry by tea farmers regarding the unconscionable nature of agreements signed by their factories and KTDA - as a management agent.
"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.