High Court upholds LSK challenge over National Fertiliser Subsidy Programme

NAIROBI, Kenya, Oct 8 – Former Law Society of Kenya (LSK) President Faith Odhiambo has welcomed the High Court judgment upholding the legal challenge against the National Fertiliser Subsidy Programme, describing it as a victory for the rule of law.

Odhiambo said the judgment delivered on October 6 addressed two critical issues, including the failure by the government to constitute the Fertilizer and Animal Foodstuffs Board and the alleged violation of farmers’ consumer rights by the National Cereals and Produce Board (NCPB) through the sale of non-conforming fertiliser.

She said the court rejected objections challenging its jurisdiction on the basis that criminal proceedings relating to the fertiliser scandal were already ongoing.

According to Odhiambo, the court affirmed that the existence of a criminal prosecution does not relieve the State of its constitutional obligations.

“The judgment draws a firm line against government by convenience,” Odhiambo said, arguing that statutory duties cannot be suspended by restructuring plans or replaced by administrative arrangements.

She said the court had affirmed that the Executive remains bound by the law and that failure to act can be subjected to constitutional scrutiny.

On farmers’ rights, Odhiambo said the judgment affirmed that consumer protections apply to the quality of goods supplied to farmers regardless of the eventual outcome of any criminal proceedings.

She said the NCPB’s responsibility to provide fertiliser of reasonable quality did not depend on establishing who introduced the alleged defect or proving criminal intent.

Odhiambo cited Article 46 of the Constitution, which provides consumer protection safeguards, saying farmers do not have to wait for a criminal conviction before the State can be held accountable for violations of their rights.

However, she noted that the judgment did not award compensation or set a deadline for the constitution of the Fertilizer and Animal Foodstuffs Board.

She urged the government to comply with its statutory obligations and called on farmers who suffered losses to pursue properly documented claims.

Odhiambo said the judgment had established that public authorities have enforceable duties and that compliance with the law cannot be treated as optional.

The case arose amid controversy surrounding the supply of substandard fertiliser under the government’s subsidy programme, which triggered investigations and criminal proceedings.

The High Court’s decision is expected to renew debate over government accountability, consumer protection and the statutory oversight of agricultural inputs.