Court suspended Uhuru's orders on tea elections
By Everlyne Kwamboka | March 24th 2021
An executive order directing the Kenya Tea Development Agency Holdings Limited (KTDA) to conduct elections for its directors in 54 factories has been suspended by the court.
The suspension order that is to be in force until when the court hands its final verdict is to give room to KTDA and the national government enough time to legally battle on who should take control of the sector that has 620,000 registered small scale tea growers in Kenya.
The Constitutional Court sitting in Nairobi ruled that the Executive Order issued by President Uhuru Kenyatta on March 12 touched on issues that had been raised in another case that was filed by Attorney General Kihara Kariuki that sought to stop the agency from holding elections last year.
It is in this case the AG had obtained orders suspending elections that had been planned by KTDA in all its 54 factories early last year.
The High Court and Employment and Labour Relations Court had also granted conservatory orders suspending the Crops (Tea Industry) Regulations 2020 that had been issued by the CS Agriculture in April last year.
“The fact that there are lawful orders in place obtained by the AG, staying elections of the petitioner in Mombasa and further the issue whether KTDA and its subsidiaries ought to be aligned, it is for the interim order to be issued,” Justice Anthony Mrima ruled.
The judge also ordered parties in the matter filed by KTDA at the Constitutional and Human Rights Division of the High Court, to file their responses to the issues raised by the corporation within the next 14 days, and the matter is mentioned for further directions on April 20.
In the application in which KTDA through Milimo & Muthomi Company Advocates has named CS Agriculture, CS Interior, and the AG as respondents, the court was told it has the powers and jurisdiction to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
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KTDA argued that her 54 subsidiaries are private person companies undertaking lawfully licensed businesses in the country, adding that the government had no shares in the business.
The president is alleged to have issued the Executive Order that directed the tea board to sanction elections in all the factories within 60 days without affording KTDA a hearing.
The order stated that the Tea Board of Kenya shall cause the development of tea sub-sector (Corporate Governance) regulations/guidelines on directorships; which guidelines shall, inter alia, set term limits for the chairperson and directors of entities involved in the tea value chain.
The order also required the AG, Ministry of Agriculture, Livestock, Fisheries & Co-operatives jointly with and the Ministry of Industrialization, Trade & Enterprise Executive Office of the President Development to take immediate remedial measures to ensure that each of the subsidiaries of KTDA has separate Governance structures.
KTDA yesterday said in its application that the effect of the impugned order as issued by the President, is awash to take over, control, and destroy altogether the management, structure, operations, and business of the agency, her subsidiaries, and her 54 corporate shareholder tea factory companies.
It further argued that the order was issued notwithstanding the serious fundamental constitutionality and legality questions raised as well as the immediate devastating and would-be near-collapse effects it has on the small-scale tea industry in Kenya, and in particular KTDA, her subsidiaries and shareholders.
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