By WAHOME THUKU

A tussle has been going on between chemical manufacturing company Orion East Africa and two public institutions on a very sensitive matter.

The dispute between Orion on the one hand and Pest Control Products Board (PCPB) and Pyrethrum Board of Kenya (PBK) on the other revolves around a lucrative substance called pyrethrin. This is the substance that is extracted from pyrethrum flowers and is used as the main ingredient in the manufacture of pesticides.

Orion has been operating in Kenya for more than 20 years. It is licensed by the PCPB to manufacture, formulate, package, warehouse and distribute pest control products locally and abroad. On September 27, 2006, the company was issued with a Pyrethrum Growers Licence by the PBK. On November 15, 2010 PCPB revoked the registration of Orion’s three products; Pesthrin 60 EC, Pesthrin Public Health EC and Vet Dust 0.4 per cent.

The reason was that Orion had stopped sourcing technical grade pyrethrum from PBK for formulation purpose hence was in breach of the terms of the registration. Orion wrote a protest to PCPB on December 7, 2010.

On January 6, this year Orion sued the two boards demanding that the notification of the revocation be quashed and that PCPB be prohibited from executing it.

In an affidavit Orion Managing Director Ruo Maina argued that the Pest Control Products Act did not grant PCPB powers to revoke or deregister a pest control product.

Mr Maina said Pesthrin 60 EC was registered on July 16, 2004 and the Letter of Access to technical information issued by PBK on April 25, 2005. Sourcing the technical grade could, therefore, not be the basis for the registration of the product.

Wider market

Maina argued that PBK had been hostile to their business demanding that they buy pyrethrum extracts from them yet the Kenyan market was liberalised.

He said for 20 years, they had been buying the extracts from the PBK and the wider market on competitive terms. Maina said PBK had failed to produce reliable and quality pyrethrum extracts, hence affecting their business. He said since 2007, PBK had acknowledged that Orion was extracting pyrethrin with its approval.

"The revocation is actuated by ill will, malice and sheer business rivalry and has nothing to do with breach of any law," he contended.

The Pest Control Products Board CEO Ms Gladys Njeri Maina said Orion had been issued with a licence to trade in pest control products and not a certificate of registration of any product. They were authorised to grow pyrethrum but not to extract or process or deal in its products.

She said since 2007 Orion had been using unlicensed materials to make their products and passing them off as those of PBK.

"The applicant has no registered or licensed active ingredient that would entitle it to formulate the three pest control products in issue," she said adding, "The products are illegal and may endanger human health and environment".

The PBK Managing Director Isaac Mulagoli took the same position.

He said PBK was established under the Pyrethrum Act to promote the industry. It has exclusive mandate to grow, process, market and control all pyrethrum transactions and products in Kenya.

He said though Orion had been licensed to grow pyrethrum, they last delivered it to the board in 2007.

Dr Mulagoli maintained they were the only body legally authorised to process pyrethrum in Kenya hence it was unlawful for Orion to do the extraction and processing.

The company had never been licensed to extract pyrethrum or deal in its products, he argued. Orion had been given authority to access technical data on condition that it would buy pyrethrin from PBK.

The company had breached that condition leading to withdrawal of the authority and deregistration of the products. The MD said they had notified Orion of the intended withdrawal in April 2009 but Orion had not responded. He denied that the pyrethrum market in Kenya had been fully liberalised and that they had failed to extract quality pyrethrin.

Duly registered

High Court Judge Daniel Musinga analysed Sections 6 and 15 of the Pest Control Products Act and held that PCPB had powers to suspend and revoke a certificate of registration but only on grounds set out in Regulations 11(2) under that Act.

He observed that the notice given to Orion did not cite the law under which it had been issued. The reasoning that Orion was no longer sourcing technical grade pyrethrum from PBK was not one that could lead to such revocation.

The judge also analysed the records and concluded that the three products had been duly registered. So only Orion could give notice for intention to suspend the registration.

Justice Musinga said a letter by PBK to PCPB on September 14, 2010 informing them of the withdrawal of their licence was not copied to Orion. The company was not asked to comment on the matter before the revocation. "The rules of natural justice require that before such a drastic action is taken, the applicants be given an opportunity to be heard," the judge said. "The respondents were well aware that the applicant was going to suffer considerable loss as a result of their decision and it was only fair that before any adverse action is taken it be afforded an opportunity to comment on the matter."

He cited article 47 of the Constitution, which grants every person the right to procedurally fair administrative action. "The products have been in the market for a number of years and the applicant, having lawfully procured registration of the pest control products, has invested heavily in the business including production and marketing of the products," the judge said.

Musinga was categorical that he was not deciding on whether Orion had violated provisions of the Pyrethrum Act, as that was the function of the PBK. The board had, however, to act in accordance with the law, including rules of natural justice.

Two weeks ago, Musinga quashed the revocation and prohibited PCPB from enforcing it. He also ordered the two boards to pay costs of the suit to Orion. That meant that the three products remain in the market.

The court decided on the legality of the revocation. Whether or not the products are dangerous to public health and environment as claimed by PCPB must still be determined.

The writer is a court reporter with the Standard Group

Email: wthuku@standardmedia.co.ke