High Court finds 2024 subsidised fertiliser sale violated farmers’ rights

NAIROBI, Kenya, Oct 7 — The High Court has ruled that the sale of substandard fertiliser to farmers under the 2024 National Fertilizer Subsidy Programme violated their constitutional consumer rights.

Justice Gregory Mutai also declared unlawful the failure by Agriculture Cabinet Secretary to constitute the Fertilizer and Animal Foodstuffs Board of Kenya as required by law.

In a judgment delivered at the Milimani High Court on Tuesday, Justice Mutai said the sale of the substandard fertiliser was no longer seriously in dispute, having been established by the respondents’ own documents.

“The sale of substandard fertilizer to farmers under the National Fertilizer Subsidy Programme is no longer seriously in dispute; it is established by the Respondents’ own documents,” the judge said.

The case was filed by the Law Society of Kenya (LSK), which challenged the procurement and implementation of the subsidy programme following complaints over fertiliser supplied to farmers during the 2024 long rains.

The court found that the NPK 10:26:10 fertiliser sold through National Cereals and Produce Board (NCPB) depots did not conform to its declared composition or the applicable KS EAS 912:2019 standard.

Farmers’ rights violated

Justice Mutai found that farmers who purchased the subsidised fertiliser were consumers protected under Article 46 of the Constitution.

“The farmers who bought subsidized fertiliser at the 4th Respondent’s depots were consumers,” the judge said, noting that they paid for the product and that it was offered by a public entity.

The judge noted the fertiliser “was not of reasonable quality” and had fallen short of both the composition declared on the bag and the specification in the tender.

The court further found that all the Kelgreen NPK 10:26:10 sold had been confirmed in writing as unfit for distribution.

“The farmers’ economic interests were plainly affected. They paid for a planting input that did not deliver what it promised during a planting season,” Justice Mutai said.

He consequently found that the affected farmers’ rights under Article 46(1)(a) and (c) had been violated.

Board was not constituted

The court also faulted the government for failing to constitute the Fertilizer and Animal Foodstuffs Board of Kenya, established under the Fertilizers and Animal Foodstuffs Act.

Justice Mutai said the failure by the office of the Cabinet Secretary for Agriculture to constitute the Board was unlawful and inconsistent with Articles 10(2)(c) and 129(2) of the Constitution.

“The duty is owed by the office, not by any particular holder of it,” the judge said.

The court rejected, however, LSK’s argument that NCPB had no mandate to procure or distribute subsidised fertiliser.

Justice Mutai said the law gave the Board an advisory role on procurement and distribution but did not make it the procuring entity.

“Nothing in the Act forbids the Government from procuring and distributing subsidized fertilizer through another public entity,” he ruled.

No compensation

LSK had sought compensation for farmers who suffered losses from the substandard fertiliser.

The court declined to issue a blanket compensation order, saying the farmers on whose behalf compensation was sought had not been identified and their losses had not been proved or quantified.

The judgment noted that affected farmers had been provided with replacement or top-dressing fertiliser.

“Any farmer whose loss has not been made good remains free to pursue an individual claim,” Justice Mutai said.

The judge was careful to distinguish the constitutional findings from the criminal proceedings arising from the fertiliser scandal.

Several people had already been charged in connection with the matter, but Justice Mutai stressed that his judgment did not determine their criminal responsibility.

“Nothing in this judgment constitutes a finding on the guilt or innocence of any person charged” in the related criminal case, the judgment states. 270 jdt

The court noted that investigators and prosecutors remained free to act on further evidence.

“The duty to investigate and prosecute offences does not end with the first charge,” Justice Mutai said.