NAIROBI, Kenya, Feb 5 – Smallholder Tea Factory Companies are justified to seek legal redress against sections of the new Tea Act, which they believe infringe on their constitutional rights as business owners; a lawyer representing them in court has said.
Dismissing claims by Cabinet Secretary Peter Munya that courts are being used to frustrate Government’s reform agenda in the tea Sub-Sector, lawyer Benson Millimo said tea factories, like any other entity, are merely following a constitutional process by challenging sections of the new law.
CS Munya had on Wednesday this week accused the Kenya Tea Development Agency (KTDA) – the smallholder tea farmers organization owned by farmers through their factories – of using courts to stop the Government from implementing the new law, saying that Government will intervene to ensure that the law is implemented.
This comes after 51 smallholder tea factory companies were enjoined in a constitutional petition at the Embu High Court challenging the Attorney General over several sections of the Tea Act – which was assented to by President Uhuru Kenyatta in December last year. The court consequently suspended the implementation of sections of the new law pending hearing and determination of the matter.
In a rejoinder to CS Munya’s statement, Lawyer Millimo said:
“It is not true that when a party goes to court, they do so to frustrate a process. If a tea farmer feels aggrieved by a decision of the National Government, then the only recourse that farmer has is to go to court. That is what the rule of law dictates: that one goes to court and place before it the grievances and ask the court to look at them. If they are merited, the court will decide in favour of the petitioner and, if not, dismiss the case.”
He encouraged the Government to use the occasion to make a case for itself and leave the court to decide.
“The Government itself has an opportunity to come to court and present their side of the story; if they disagree with what the farmer has said, then they will present that version to the satisfaction of the court, and it will make a determination,” he said.
CS Munya had also stated that Tea Factory Directors who had gone to court lacked the mandate to do so as their term had lapsed; an assertion which Millimo rejected saying that the said directors remained in office legally.
“It cannot be true that these directors are not in office procedurally or regularly. They are in office regularly as nobody has removed them from office. It cannot be a Government directive that a term of a company director has come to an end. The directors who are currently in office in the Tea Factory Companies are holding their offices legally; none of them is improperly in office. Therefore, that announcement by the Minister that directors of these factory companies are illegally in office is not right,” he said.
He added that it is not the Government’s place to proclaim that directors are improperly in office, adding that if that were the case, the Government out to challenge the same in court.
“The entities which have gone to court are tea factory companies which are owned by the tea farmers who are the shareholders. They have gone to court through their elected directors who make decisions for, and on behalf of, the electorate who are the tea farmers. Therefore, it cannot be true that these directors do not have the mandate. They have the mandate of their electorate who are the tea farmers,” he said.
Other institutions, including the Kenya Tea Growers Association (KTGA) and the East African Tea Trade Association (EATTA), have gone to court to challenge sections of the new law and similarly gotten courts to issue injunctions against the implementation of the challenged sections.