Kenya: CJ Koome to Form Bench to Hear Cases on Tea Sector Reforms

Tea farmers and other stakeholders are hoping Chief Justice Martha Koome will appoint a bench of at least three judges to determine eight cases related to recent policy changes.

The cases were forwarded to the CJ by High Court Judge Anthony Mrima following a finding that the disputes raise substantial questions of law that can be better dealt with by an expanded bench.

Justice Mrima divided the cases into two clusters. One contains five consolidated petitions challenging the constitutionality of various sections of the Tea Act, No. 23 of 2020 and of The Crops (Tea Industry) Regulations, 2020.

The other set has three cases touching on the ownership, management and operations of the Kenya Tea Development Agency (KTDA) and its subsidiaries.

Judge Mrima said it is prudent that the two sets of matters be dealt with separately.

Pillar of the economy

In the directions, the judge noted that the tea sector is not only one of the main pillars of the economy, but also a key foreign exchange earner, with Kenya rated second to China in tea exports.

He observed that a considerable fraction of Kenya's population is involved in the tea production value chain.

"The sector includes many players, among them farmers, factory owners, workers, agents, brokers, tea auctions, and many others. It is, therefore, on the foregoing basis that any intended reforms in the tea sector must be carefully undertaken," he observed.

The reforms, he said, had sparked several court cases and his court had taken note of the number of lawsuits filed and the magnitude of the issues raised.

"The matters are of immense public interest and the issues raised are not only weighty, but also complex," said Justice Mrima when he forwarded the files to the Chief Justice.

He also directed that another petition from some directors of KTDA factories and tea tasters challenging the Tea Act, 2020 be returned to the Employment and Labour Relations Court in Nakuru.

The workers say the new Act could lead to the termination of their contracts without a hearing, reduce their salaries or change their terms of employment.

They argue that sections 34(5) and (6) of the Tea Act, 2020 breach their labour rights under the Constitution by abolishing their offices without the holders getting an opportunity to be heard.

Orders in force remain

The judge also said all orders now in force will remain until the expanded bench issues further directions.

The main parties in the cases include former and current KTDA board members, the Attorney-General, the National Assembly, the Cabinet secretaries for Agriculture and Interior, the Directorate of Criminal Investigations, the Inspector-General of Police, the East African Tea Trade Association and the Agriculture and Food Authority.

The interested parties include the Kenya Small Tea Holders Growers Association, the Council of Governors and tea sector activist and Murang'a politician Irungu Nyakera.

In the court filings, Agriculture Cabinet Secretary Peter Munya contends that it is in the public interest that the Tea Act, 2020 be implemented.

Get maximum profits

He says the objective of the Act is to ensure that tea farmers get maximum profits.

"Over the years the tea farmer shouldered the cost burden of production and sale of tea while benefits are taken by middle men and brokers," he says.

He cites Section 34 of the Act, which he says arose from the outcry of tea farmers regarding the unconscionable nature of agreements signed by their factories and KTDA as a management agent.

"The agreements are restrictive and lopsided in favour of the management agent at the expense of the tea factory by extension the tea farmer," he says.

"The management agreements entered with KTDA are standard form contracts prepared by the Management Agent. The tea factories have no independent legal counsel to advise and to ensure that their interests are protected."

"There is also no room for the tea factories to evaluate the performance of the management agent or to renegotiate the agreements, since they are self-renewing," he says.

The cases will be fixed for mention before the expanded bench on July 22 or earlier on notice to parties.

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