Court of Appeal reinstates farmers' Sh376m crop damage case

The Court of Appeal has reinstated a case filed by 1,598 farmers against a firm over alleged wheat damage by a pesticide.

The case against Farmland Aviation and its employees Marco Dunn and Toby Dunn, involving Sh376 million, had been thrown out by the High Court.

However, Court of Appeal judges Philip Waki, Roselyn Nambuye and Patrick Kiage reversed the orders, ruling that the opposition raised before the lower court could not have warranted dismissal of the case.

"Thus, strictly speaking, the respondent's preliminary objection did not meet the requisite threshold and should not have been allowed," the second highest Court in the land found.

In the case, the court was told the aviation firm was hired to aerial-spray large-scale wheat farms in Multok, Narok County in a bid to kill weeds. This was sometime in January 2010.

The farmers, through lawyer Oyugi Ombui, complained that the firm carried out the exercise in a careless manner as a big drift of pesticide was applied, resulting in massive damages in farms within the area.

The court heard that crops such as maize, beans, sweet potatoes and peas wilted and dried up as a result. The pesticide in question was allegedly confirmed to be glycel and weedol.

Other than damage to plants, the said pesticide allegedly affected both animal and human health, with the animals experiencing miscarriages; and people complaining of irritation, coughing and pain to the skin.

On the other hand, Farmland through lawyer Mukite Musangi poked holes on the suit, arguing that the complainants were wrongly enjoined in the suit as they had separate and different claims in the suit. The firm also denied the damage claimed.

Musangi's submissions were: "Every person with a claim had to prove it; the length of the trial was not an extraneous issue."

The Appellate Court found the preliminary objections by Farmland were not based purely on the law as required, but basically dealt on the case filed and the number of people involved.

"Even if for a moment, and for argument's sake, we were to take the subject of misjoinder as a pure point of law, the accuracy of the respondent's pleadings in this regard cannot be vouched for in the absence of a trial.

Most critically, Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that mis-joinder or non-joinder of parties cannot be a ground to defeat a suit," the court ruled.