High Court rules sale of substandard fertilizer violated farmers’ rights

The High Court has ruled that the sale of substandard NPK fertilizer to farmers under the National Fertilizer Subsidy Programme violated their constitutional rights.

In a judgment issued on Wednesday, the court also found that the failure by the Cabinet Secretary responsible for agriculture to constitute the Fertilizer and Animal Foodstuffs Board of Kenya was unlawful and inconsistent with the Constitution.

"It has also established that the sale to farmers by the 4th Respondent of fertilizer that did not conform to the declared specification and the applicable standard violated the farmers' rights under Article 46(1)(a) and Declarations to that effect are the appropriate relief. The prayer for compensation cannot be granted," court noted.

The case was filed by the Law Society of Kenya (LSK) following complaints in March 2024 that fertilizer being distributed to farmers under the government subsidy programme was substandard or counterfeit.

"The farmers who bought subsidized fertilizer at the 4th Respondent's depots were consumers. They paid for it, and the 4th Respondent, a public entity, offered it to them. This court has found that the fertilizer was not of reasonable quality; it fell far short of the composition declared on the bag and of the specification the 4th Respondent had tendered for, and it was confirmed in writing that all of the Kelgreen NPK 10:26:10 it sold was unfit for distribution. The farmers' economic interests were plainly affected," the judge ruled.

The court found that the NPK 10:26:10 fertilizer sold during the 2024 long-rains season did not conform to its declared composition and the applicable Kenya Standard, KS EAS 912:2019.

The product, sold under the brand name 'Kelgreen,' was manufactured by the 7th Respondent and supplied to the National Cereals and Produce Board (NCPB), the 4th Respondent, by the 8th Respondent.

The court noted that complaints from farmers and the media emerged from about March 18, 2024, prompting the suspension of distribution.

The Kenya Bureau of Standards (KEBS) subsequently suspended the manufacturer’s standardisation mark permits.

Several officials and individuals linked to the supply of the fertilizer were later charged before the Kiambu Chief Magistrate’s Court.

However, the LSK had argued that investigations and prosecutions had been conducted in a piecemeal manner and that not everyone involved had been brought before the courts.

The High Court rejected a request seeking an order compelling investigators and prosecutors to investigate and prosecute all individuals allegedly involved.

The judge held that the decision on whether evidence justified charging additional suspects fell within the mandate of the Director of Public Prosecutions (DPP).

“Nothing in this judgment limits the power of those offices to act on further evidence,” the court said, noting that investigations and prosecutions could continue in relation to persons not yet before the court.

The court also declined to order compensation for all affected farmers.

It said the farmers on whose behalf compensation was sought had not been individually identified, while the losses had neither been proved nor quantified.

The court further noted that NCPB had indicated that affected farmers had been provided with replacement or top-dressing fertilizer.

The court said farmers whose losses had not been made good remained free to pursue individual claims.

The LSK had also sought declarations against senior government officials, an order stopping further implementation of the National Fertilizer Subsidy Programme and findings against a National Assembly Select Committee that had investigated allegations surrounding the programme.

The court stressed that its judgment did not amount to a finding of guilt or innocence against any person facing criminal charges in Kiambu Chief Magistrate’s Criminal Case No. E1240 of 2024.

In its final orders, the court declared that the failure to constitute the Fertilizer and Animal Foodstuffs Board in accordance with sections 2A and 2C of the Fertilizers and Animal Foodstuffs Act was unlawful and inconsistent with Articles 10(2)(c) and 129(2) of the Constitution.

It further declared that the sale of the non-conforming NPK fertilizer to farmers under the 2024 long rains National Fertilizer Subsidy Programme violated farmers’ rights under Article 46(1)(a) and (c) of the Constitution.

The remaining prayers were declined, the court marked the Notice of Motion dated May 31, 2024 as spent, and ordered each party to bear its own costs.