Farmers can seek compensation for fake subsidised fertiliser, court rules

The High Court in Nairobi has opened the door for all farmers who were affected by poor-quality fertiliser that was provided at a subsidised cost by the government to pursue the Ministry of Agriculture, National Cereals and Produce Board (NCPB), and the suppliers for compensation.

In a major indictment that now dents a rather noble exercise to cushion Kenyans from hunger, Justice Gregory Mutai found that the then Cabinet Secretary failed to appoint a board to advise on the right fertiliser to buy, and that the fertiliser's quality did not match its labels.

This, the Judge said, was against the Constitution, adding that the violation lay at the NCPB door as it offered the fertiliser.

 He observed that although there was a criminal case before the Kiambu Law Court over the same fertiliser, it was clear that farmers missed the planting season and incurred losses owing to the actions by the government agencies entrusted with ensuring that they got quality products.

He, however declined to put the monkey on the laps of those involved, saying that his judgment did not render them guilty.

The judge was of the view that any affected farmer can pursue the government for the losses incurred.

He added that the indemnity signed could not cover farmers as they were not party to the same.

“A declaration is hereby issued that the failure by the Cabinet Secretary responsible for agriculture to constitute the Fertilizer and Animal Foodstuffs Board of Kenya in accordance with sections 2A and 2C of the Fertilizers and Animal Foodstuffs Act, Cap 345, was unlawful and inconsistent with Articles 10(2)(c) and 129(2) of the Constitution of Kenya, 2010,” he continued.

The Law Society of Kenya filed the case arguing that the Agriculture CS and PS a stake in what transpired and is equally to blame.

 LSK’s lawyer Okoth Ogola said that the Parliamentary probe was a sham as it never got to the bottom of who was to blame for the fertiliser saga.

According to the select committee, it took Kenyans for a ride by making rulings that were meant to in the end close the case without apportioning responsibility to the persons who it claims were culpable.

 The lawyers' lobby sued the Agriculture CS, the Agriculture Principal Secretary, Ministry of Agriculture, the National Cereals and Produce Board, and the Kenya Bureau of Standards.

Others in the case are Kel Chemicals, Mem Distributors Limited, the Director of Public Prosecutions and the Director of Criminal Investigations.

The lawyers' body argued that the Naomi Waqo-led committee should have summoned Agriculture PS and Kel Chemicals Chief Executive Officer to shed light on what exactly transpired.

Ogola claimed that then CS and PS allegedly ran the subsidised fertiliser programme in haste and violated the law.

"The parliamentary proceedings on the proposed impeachment of the first respondent did not in any way alleviate the situation. The nuanced approach taken by the select committee, non-publication of the documents assessed or relied on in making its determination, and the failure to admit key witnesses in the proceedings denied Kenyans the opportunity to understand the full extent of the NFSP scam," Ogolla argued.

"As it stands, it remains unclear how much fake fertiliser made its way into farms, how much money was lost both by government and by farmers, or who exactly was behind the manifestly fraudulent scheme that the NFSP was reduced to," he added

LSK wanted Linturi and Rono to be held liable for the saga personally.

LSK Chief Executive Officer Florence Muturi swore an affidavit in support of the case.

She said the role of implementation of the subsidised fertiliser ought to have been a preserve of Fertiliser and Animal Foodstuffs Board but Linturi has not established or appointed such a board to-date.

"In the haste and chaos of implementing the NFSP prematurely, the first respondent (Linturi) abdicated his duty under Section 2C of the Fertiliser and Animal Foodstuffs Board CAP 345 of the Laws of Kenya by failing and/or neglecting to appoint and/or set up the Fertiliser and Animal Foodstuffs Board established under section 2A of the said Act with the mandate of regulating the fertilisers and animal foodstuffs industry in Kenya, including the production, manufacture, packaging, importation and marketing of fertilisers and animal foodstuffs," said Muturi.

According to her, the ministry had no framework for the implementation of the program and left NCPB to call the shots

In response, KEBS, NCPB, the CS, PS, Kel, MEM, the DPP opposed the case.

Kel claimed that all fertilizer supplied had been tested by KEBs and the same was collected by Mems. It argued that none of the farmers raised an issue.  it also stated that it ceased production on March 22, 2024 as its premises was declared a crime scene.

MEMs on the other hand through its MD Collins Kipchumba said that it had delivered the entire batch of fertilizer before the complaints.

He said that Kel attributed the adulteration to an imported formulation added without approval.

Kipchumba told the court that his company was a mere purchaser of goods as the manufacturer was Kel.