Milk processor Brookside Limited has sued Nyali Member of Parliament Mohamed Ali over his claims that the firm associated with President Uhuru Kenyatta’s family has allegedly been exploiting milk farmers and consumers.
The case is a landmark and a first for a company to seek a court’s interpretation of its constitutional rights to do business and not to be subjected to commercial harm.
In the case filed before High Court judge Anthony Mrima, Brookside says that the allegations by the former journalists were meant to ignite public resentment against it.
Brookside in its papers claims that on March 3 this year, Mohamed Ali at a public rally in Nyeri said that the firm buys milk at Sh20 goes and boils it, and then sells it back to the suppliers at Sh120.
This statement, according to the milk processor was false and a violation of its rights under Article 20, Article 33 (2) (d), and Article 27 of the Constitution.
Article 20 of the Constitution provides that every person has a right to enjoy fundamental freedoms on the bill of rights.
In addition, Article 33 (2) (d) limits the freedom of expression by providing that this right does not extend to the advocacy of hatred. The Article states that hatred constitutes ethnic incitement, verification of others, or incitement to cause harm or is based on any ground of discrimination specified in Article 27.
Meanwhile, Article 27 stipulates that all persons are equal before the law and have a right not to be discriminated against.
This equality includes equal treatment, the right to equal opportunities in political, economic, cultural, and social spheres.
“The statements were meant to and did cause public resentment against the petitioner, its business practice, and the products which the petitioner manufactures and sells as part of its business. The statement was meant to and did cause economic and commercial harm to the petitioner and its business,” court papers filed on its behalf by Shapley Barret and company advocates read in part.
Brookside’s company secretary Jacob Ombongi in his supporting affidavit says that contrary to the allegation that the firm is wholly owned by the Kenyatta family, it has both local and international investors and shareholders.
In the case where Attorney General Kihara Kariuki is named as a second respondent, Ombongi says that international shareholders own 40 per cent shares.
According to him, the local shareholders include some of the members of Kenya's first president’s family.
“H.E Uhuru Kenyatta, the President of the Republic of Kenya is a member of the Kenyatta family. Brookside Dairy Limited is the only company operating the above milk processing business with which H.E Uhuru Kenyatta is associated through ownership by some of his family members,” says Ombogi.
According to him, Ali claimed that the president comes and buys milk at Sh20, boils it, and sells it back at Sh120.
“The said words were understood in the public to refer to the petitioner, its business practices, and its products. In particular, the petitioner represented to the public by implication or otherwise that the petitioner carried on its business unlawfully or fraudulently by exploiting and underpaying farmers who supply milk to it as its raw material,” he states.
According to Brookside, its license obligates it to uphold the rights of persons it purchases raw products from and consumers of its products.
At the same time, it argues that it has a task of ensuring that the products sold under its name meet the health, safety, and economic requirements set by law.
“In relation to the milk products purchased from the farmers or its suppliers as raw products, the petitioner is also obligated under the constitution to protect the suppliers' interests and not subject the farmers or suppliers to exploitation or unfair treatment,” Brookside says.
It states that Ali was inciting the public to cause economic harm or loss.
The firm wants the court to bar Ali from inciting the public against it. Brookside is also seeking an order that the politician respects its rights and reputation and pays compensation for harm.