Judge faults gov’t for failing to form fertilizer board

The High Court has faulted the government for failing to constitute the Fertilizer and Animal Foodstuffs Board of Kenya and found that farmers who bought substandard fertilizer under the National Fertilizer Subsidy Programme had their constitutional consumer rights violated.

Justice Gregory Mutai ruled that the failure by the Cabinet Secretary responsible for agriculture to establish the statutory board was unlawful and inconsistent with the constitutional principles of good governance and the exercise of public authority.

The judge also declared that the sale of NPK 10:26:10 fertilizer that failed to meet its declared composition and the applicable Kenya Standard violated farmers’ rights under Article 46 of the Constitution.

The findings were made in a petition filed by the Law Society of Kenya (LSK) over the distribution of substandard fertilizer during the 2024 long rains season.

The case, The Law Society of Kenya v Director of Criminal Investigations and Ministry of Agriculture, Livestock and Fisheries & 6 Others (HCCHRPET/E270/2024), arose after complaints emerged over the quality of NPK 10:26:10 fertilizer branded Kelgreen and distributed through the National Cereals and Produce Board (NCPB) depots.

The court heard that the National Government introduced the National Fertilizer Subsidy Programme in September 2022, under which registered farmers could purchase subsidised planting and top-dressing fertilizer through NCPB depots.

For the 2024 long rains season, NCPB procured, among other products, NPK 10:26:10 fertilizer manufactured by the seventh respondent and supplied by the eighth respondent under Tender No. NCPB/FERT/23/2023-2024.

However, from March 18, 2024, complaints began emerging from farmers and the media over the quality of the fertilizer.

The distribution was subsequently halted after tests raised concerns about its composition, while the Kenya Bureau of Standards suspended the manufacturer’s standardisation mark permits.

Several individuals and companies connected to the supply of the fertilizer were later charged before the Chief Magistrate’s Court at Kiambu.

In its petition dated May 31, 2024, LSK challenged the conception, procurement and implementation of the subsidy programme, arguing that the State had violated various constitutional and statutory obligations.

Justice Mutai found that the evidence established, on a balance of probabilities, that the fertilizer supplied to farmers was substandard.

Kenya Bureau of Standards laboratory reports dated March 27 and 28, 2024 showed that the fertilizer contained 9.2 per cent nitrogen, 15.4 per cent phosphorus and 1.98 per cent potassium, instead of the declared NPK composition of 10:26:10.

The product also recorded moisture content of 6.6 per cent against a maximum permitted level of one per cent.

The court further found that the defective fertilizer had reached farmers through NCPB.

In a letter dated June 13, 2024, the NCPB indicated that all Kelgreen planting fertilizer labelled NPK 10:26:10 manufactured by Kel Chemicals Limited and distributed through its stores had been established to be substandard and unsuitable for distribution to the public.

The judge also found that the Fertilizer and Animal Foodstuffs Board had not been constituted as required by the Fertilizers and Animal Foodstuffs Act, Cap 345.

During proceedings before a parliamentary Select Committee, the then Cabinet Secretary responsible for agriculture had acknowledged that establishment of the board was still a “work in progress”, with interim administrative arrangements being used instead.

Justice Mutai said the failure to constitute the board amounted to a breach of the law and was inconsistent with Articles 10(2)(c) and 129(2) of the Constitution.

The court also found that farmers who purchased the subsidised fertilizer were consumers for purposes of Article 46 of the Constitution.

“The farmers who bought subsidized fertilizer at the 4th Respondent’s depots were consumers,” Justice Mutai held.

“They paid for it, and the 4th Respondent, a public entity, offered it to them.”

The judge said the fertilizer was not of reasonable quality and its sale therefore violated the farmers’ rights under Article 46(1)(a) and (c).

Article 46 guarantees consumers the right to goods and services of reasonable quality, information necessary to gain full benefit from goods and services, protection of their health, safety and economic interests, and compensation for loss or injury arising from defects in goods or services.

However, the court rejected several other claims advanced by LSK.

Justice Mutai declined to make findings of personal culpability against the first and second respondents, holding that declarations concerning personal liability or suitability to hold public office under Chapter Six of the Constitution must relate to identifiable individuals.

The court held that no individual office holder had been named or served in a personal capacity in the petition.

The judge also declined to make a declaration concerning the parliamentary Select Committee, saying that neither the National Assembly, its Speaker nor the committee had been joined as parties.

The court held that it could not determine the validity of the conduct of a body that had not been given an opportunity to be heard.

LSK’s claim that the respondents had violated Article 35 on access to information also failed after the court found that no request for information had been made to any of the respondents.

The court similarly declined to find a violation of Article 43, which guarantees the right to freedom from hunger.

Justice Mutai said no evidence had been presented to demonstrate that farmers missed a planting cycle or that the country was exposed to food shortages as a result of the defective fertilizer.

The judge also declined to issue a broad declaration that the fertilizer procurement process violated Article 227 of the Constitution, which governs public procurement.

The court said that the former NCPB managing director had already been charged under Section 45(2)(b) of the Anti-Corruption and Economic Crimes Act over the same supplies.

Justice Mutai said making findings on the legality of the procurement process in the constitutional petition could affect issues pending determination in the criminal proceedings.

The court also declined to award compensation to the affected farmers.

Justice Mutai said the farmers for whom compensation had been sought had not been individually identified and that the alleged losses had neither been proved nor quantified.

The judge further noted that the NCPB had indicated in its June 13, 2024 letter that affected farmers had been provided with replacement or top-dressing fertilizer.

“Any farmer whose loss has not been made good remains free to pursue an individual claim,” ruled the court.

“The Petitioner has not proved the other violations alleged, and the declarations sought against named offices and the Select Committee of the National Assembly cannot be issued in these proceedings.”

The court also addressed the doctrine of constitutional avoidance, ruling that criminal and commercial proceedings arising from the fertilizer scandal were already pending before other courts.

A criminal case, Kiambu Criminal Case No. E1240 of 2024, will determine whether the accused persons committed the offences with which they have been charged, while a commercial case, HCCOMM No. E350 of 2024, will address contractual liability.

Justice Mutai, however, said those proceedings would not determine the constitutional questions raised in the petition.

“None of those forums will determine whether the Cabinet Secretary was obliged to constitute the Board under Cap 345, whether farmers’ rights under Article 46 were violated by goods sold to them by a public entity, or whether the State’s response to those violations is constitutionally adequate,” the judge held.

The court nevertheless cautioned that it could not make findings that would prejudge the pending criminal case.

It therefore made no determination on who was responsible for the fertilizer being substandard or whether any person acted with criminal intent.

In its final orders, the court declared unlawful the failure by the Cabinet Secretary responsible for agriculture to constitute the Fertilizer and Animal Foodstuffs Board in accordance with sections 2A and 2C of the Fertilizers and Animal Foodstuffs Act.

It also declared that the sale of NPK fertilizer that did not conform to its declared composition and KS EAS 912:2019 to farmers under the 2024 long-rains subsidy programme violated their rights under Article 46(1)(a) and (c) of the Constitution.

All other prayers in the petition were declined, while the Notice of Motion dated May 31, 2024 was marked as spent.

The court ordered each party to bear its own costs.

“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,” ruled the court.