1. The Petitioners/Applicants moved this court by Way of Notice of Motion dated 6th October 2024, the application is premised on the provisions of Articles 1, 2, 10(1), 20(1) 22(1)&35 of the constitution of Kenya 2010, Rules 19, 20,23,24,25 and 26 of the constitution of Kenya 2010, (Protection of rights & fundamental freedom practices and procedure rules 2013), , Sections 4, 5, 7, 8, &11 Access to Information Act and the Company Act, seeking the following orders THAT:
a. Spent
b. Spent
c. Pending the hearing and determination of this instant application, the Honourable court be pleased to direct the CEO of the 10th respondent (KTDA) to supply the court and petitioners /Applicants with information pertaining how much each kilogram of green tea leaves they sold and to who in specific on behalf of the farmers of Ogembo tea Factory , Nyamache Tea Factory and Kiamokama Tea Factory and all the satellites respectively unconditionally within the next 21 days from the date of issue of the direction of the court.
d. Pending the hearing and determination of this instant application, the Honourable court be pleased to direct the CEO of the 10th Respondent to supply the court and the petitioners with all vouchers, cheques, and the funds wired to the 10th Respondents Account in respect of payment of green tea leaves sold on behalf of the farmers of Ogembo Tea Factory, Nyamache Tea Factory and Kiamokama Tea Factory and all the satellite respectively for the financial year 2023-2024 for the bonus they are anticipating.
e. Pending the hearing and determination of this instant application, the honourable court be pleased to direct the factory managers of the 1st, 4th, and 7th Respondents, together with all the satellites respectively to supply the court and petitioners with the audit report of 9 months account audited by the qualified auditors.
f. Pending the hearing and determination of this instant application, the honourable court be pleased to grant an interim order of injunction restraining the respondents herein, either by themselves, agents, servants, or employees, from disbursing the bonus scheduled on earlier in October 2024 to farmers of zone 11 K.T.D.A factory (Ogembo, Nyamache, & Kiamokama), together with the satellites until review of the bonus is jointly done fairly by the respondents herein.
g. Pending the hearing and determination of this instant application, the honourable court be pleased to grant a temporary injunction under Article 23 (3) of the constitution 2010, prohibiting and or restraining the CEO of KTDA and all of the factory unit managers of the 1st 4th and 7th Respondents herein from releasing funds for the bonus for the farmers of Ogembo Tea Factory, Nyamache Tea Factory and Kiamokama Tea and all the satellite respectively anticipated this month of October 2024 anytime from now until the review done by the board of the 10th respondent herein.
h. The costs of this application be in the cause.
2. The Petitioner/Applicant in support of the Application averred that;
a. The amount paid to the farmers as a monthly green leaves payment is deducted and the balance is then multiplied by the total kilograms of green tea leaves supplied by each farmer over the year and the sum is paid out as bonus, which is typically declared in September and paid out with monthly payments in October to the farmers more particularly Zone 11 K.T.D.A factories within the Kisii County government.
b. The Farmers within the 1st, 4th &7th respondents were keen to continue following the best agronomical practices and maintained high quality tea peaking and that the said respondents have declared their payments to the 10th Respondents board who had released the cumulative payouts and have published it in Kenyan Media for all the 54 K.T.D.A factories.
c. The 10th Respondent Calculates annual bonuses based on a factory’s total earning from tea sales over the past 12 months, other deductions, Operational and overhead costs and that the remaining earning per kilogram are determined, and that this years production was expected to be higher due to increased rainfall in this first half of the year and the Governments fertilizer subsidy program.
d. He avers that the 3rd, 8th&9th Respondents promised the farmers that they should be paid Ksh. 40.00 per kilogram of green tealeaves, but they were shocked when the factory Management released Ksh. 20.00 which was lower than the Ksh. 40.00 declared by the management last year and lower than the Ksh. 60.00 offered by other Factories in Kenya.
e. He avers that there is fraud, and that’s why both factories of zone 11 K.T.D.A factories, have set the same flat rate of Ksh 20.00 and paid farmers the lowest under the leadership of the Board Member by the name James Ombasa Omweno, who represents the farmers in the headquarters.
f. Also that the board of Directors of the 1st, 4th & 7th Respondents referred the audit report of the 9 months of the financial year 2023/2024 that it was over 35-40 to the farmers and that production and traveling costs will never be the same, and that the decision ff the respondents deliberated by the purported resolution were indeed malicious, with impunity, sideshows without the involvement of the Farmers.
3. The Respondents opposed the application vide a replying affidavit sworn by James Omweno Ombasa on 29th November 2024. He avers that there was no complaint from any farmer about the bonuses paid and that the petitioner is a busybody with no locus standi to sue the respondent companies also he is neither a farmer nor a shareholder of any of the companies listed as the respondents or their satellite factories and has no authority from any of the farmers.
4. The respondent averred that the contents of paragraph 18 of the petition are false misleading inaccurate and a fiction of the petitioner's infantile imagination and the allegations of deductions are therefore false and the petitioner is put to strict proof. The respondent also argued that the bonuses are revenues in excess of expenses at the end of the financial year also known as second payment, being payment to monthly payout. He termed the allegations of Deductions are therefore false and the petitioner is put to strict proof. Also that it virtually impossible to pre-empt the amount of bonuses to be paid to farmers until all the factors are included in calculating the bonuses. The respondent told this court that the information sought was on how much the tea was sold per kilogram, who the tea was sold to and the earnings made are in public domain and the information is published weekly and that the tea Auction is a public event that can followed by any farmer or citizen should they deem fit to do so. He also averred that the allegations in the petition were not substantiated and it is based on misinformation and baseless allegations as the petitioner has not shown in any way that the Director acted ultra vires.
5. The respondents also filed a notice of preliminary objection dated 3rd December 2024 on the grounds that :
a. The Petition is incompetent, misconceived and otherwise an abuse of the due process of the court;
b. The Petition is fatally incompetent as the Petitioners lack locus standi to institute the Petition. The dispute disclosed involves tea factories which are limited Companies pursuant to Section 22 of the Tea Act Cap 343 Laws of Kenya and its shareholders.
c. The Petitioner has no locus standi as he has not obtained explicit Authority to institute a Petition on behalf of the tea farmers and shareholders of the Respondents as required by Order 1, Rule 13 of the Civil Procedure Rules 2010.
d. The Petition is fatally incompetent as it contravenes the provisions of Section 780 of the Companies Act;
e. The Petition is improperly before this Court as all disputes arising between farmers and other crop dealers ought to be referred to Arbitration pursuant to Section 41 of the Crops Act Cap 318 Laws of Kenya and Regulation 45(2) of The Crops (Tea Industry) Regulations of 2020;
f. The Petition filed herein discloses a shareholders dispute which is disguised as a constitutional issue contrary to the clear statutory procedures laid down in the Companies Act and the Civil Procedure Act and it is an abuse of the court process;
g. Civil remedies would be available to the shareholders of the Respondent companies and the Petitioners have not contended that this Court in exercise of its civil Jurisdiction is unable to award the shareholders any remedy at all should they
be successful or that the remedies known in law are either inadequate or nonexistent or unconstitutional;
h. The Petition is misconceived and premature as the Petitioners have not exhausted the remedies available to the tea farmers under the provisions Of the Tea Act before approaching this Honourable Court.
6. The Petitioner relied on Nairobi Law Monthly v Kenya electricity Generating Company &2 Others (Supra) on the issue right to access information. He urges that the right to access information is inviolable because it is neither granted nor grantable by the state and that the right granted by the constitution and is protected by the same constitution and reaffirmed the position in the case of Trusted society of Human Rights Alliance & 3 others v Judicial service commission(2016) eKlr.
Issues for Determination
7. From my analysis of the Petition by the Petitioner, the Preliminary Objection dated 3rd December 2024, by the Respondent, the written submissions filed by the parties, I deduce that the issues for determination are;
a. Whether the Petitioner has locus standi to file this suit.
b. Whether the petitioners have On whether the petitioner/applicant , failed to comply with the provisions of Section 780 of the companies Act, Section 41 of the Crops Act and Section 69 of the Tea Act and regulation 45 (2) of the (Tea Industry )regulations 202
c. Whether this is a dispute between directors and the management of the tea factories disguised as a constitutional petition
d. Whether the respondent failed to give the petitioners Access information regarding tea bonuses .
e. Whether the Respondents should be compelled to provide the information sought pending hearing and determination of the petition.
f. Whether the petition meets the threshold set in the case of Anarita Karimi Njeru .
Analysis And Determination of the Issues
Whether the Petitioner has locus standi to institute this suit
8. The Respondent submitted that the Petitioner has no locus standi to institute legal proceedings against the Respondents on behalf of the farmers as particularized in Order 13 of the Civil procedure rules. They argued that the petitioner has not demonstrated that he is a farmer of any respondent Tea Companies., and that the companies are limited liability companies pursuant to section 22 of the Tea Act cap 343 and the companies Act No of 2015, that they are not public entities as the petitioner wrongly believes.
9. In the case of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] KEHC 7697 (KLR) it was held that
‘’ I am of the view that Article 22(1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. The same provides that:
-“22.(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–a person acting on behalf of another person who cannot act in their own name;
a person acting as a member of, or in the interest of, group or class of persons; a person acting in the public interest;
or an association acting in the interest of one or more of its members.”
10. Also in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) it was noted that;
“ Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that:
“258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
a) a person acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.”
(28) It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.
(29) It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution…………….
However, we must hasten to make it clear that the person who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice. Where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be seized at the instance of such person and must reject their application at the threshold. The time is now propitious at this stage of our constitutional development where we can state as was stated by the Supreme Court of India in the case of S.P. Gupta v President of India & Others AIR [1982] SC 149 that:
“The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and can thereby improve the administration of justice. Lord Diplock rightly said in Rex v Inland Revenue Commrs. [1981] 2 WLR 722 at p. 740.
‘It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by a outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped… It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.’
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose, or else the law would remain merely a paper parchment, a teasing illusion, and a promise of unreality. It is only by liberalizing the rule of locus standi that it is possible to effectively police the corridors of power and prevent violations of law.”
11. In light of Articles 22 and 258 of the Constitution, every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interest.
12. Section 2 of the NGO Act defines a non-governmental organization as:
“a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services. It is to be noted that such a statutory definition, when read together with Article 260 of the Constitution, will justify the categorization of a ‘non-governmental organization’ as a “person”, as it is “…an association…whether incorporated or unincorporated.”
In the context of this case, we find the Petitioners foregoing argument to have clear merits, it is my perception that in this particular case, it involves public-interest litigation, we take cognizance of the history of locus standi in Kenya. Locus standi had operated, in the earlier constitutional dispensation, to limit the scope for litigants to pursue causes in the public interest. Articles 22 and 258 of the current Constitution opened the doors for such litigants to lodge causes on constitutional matters. In order to avoid frivolous suits, Courts in cases such as John Wekasa Khaoya v. Attorney-General, High Ct. Pet. No. 60 of 2012 have set out parameters to guide the filing of causes in the public interest. These include (paragraphs 18 to 20):
(i) the intended suit must be brought in good faith, and must be in the public interest; and (ii) the suit should not be aimed at giving any personal gain to the applicant.
13. Guided by Articles 22 and 258 of the constitution of Kenya and case law cited herein above , it is my finding that the 1st Petitioner is a citizen of Kenya and privileged by Article 1 of the Constitution of Kenya and the 2nd petitioner is a registered organization under Section 10 of the non-governmental organization coordination Act an thus had locus standi to file the petition herein .
14. On whether the petitioner/applicant , failed to comply with the provisions of Section 780 of the companies Act, Section 41 of the Crops Act and Section 69 of the Tea Act and regulation 45 (2) of the (Tea Industry )regulations 2020, Section 780 of the companies Act provides that ;
(1) A member of a company may apply to the Court by application for an order under section 782 on the ground—
(a) that the company's affairs are being or have been conducted in a manner that is oppressive or is unfairly prejudicial to the interests of members generally or of some part of its members (including the applicant); or
(b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be oppressive or so prejudicial.
I find that the said Section 41 of the crops Act provides for arbitration of disputes between the grower member and the dealer. while Section 69 of the tea Act provides for arbitration of disputes between the company and crop dealers respectively . At this stage the petitioner /applicant has established that it is neither a share holder in the tea factories nor a tea farmer but a human rights defender and thus the said provisions do not apply to it . In any event the issues raised in the petition allege constitutional violations which the Arbitrators do not have the jurisdiction to determine . Article 165 (3 )(b ) gives this court Jurisdiction to determine whether fundamental rights and freedoms have been violated, denied , infringed or threatened . I find that the petition is properly before this court .
On whether this is a dispute between directors and the management of the tea factories disguised as a constitutional petition , this was the averment of the respondents. The petitioners pleaded that they human rights defenders and not tea growers and the respondent alleged that they can see the hand of their members in this petition. Tis is a matter of fact which can only be determined on full trial . The preliminary objection is thus devoid of merit and is overruled.
Motion dated 6.10.2024
Having determined the preliminary objection, I now turn to the motion dated 6.10.24. Prayers a and b of the application are spent. Prayers f and g have been overtaken by events. That leaves us with prayers c, d, and e ,
Whether the Respondents failed to supply the petitioners with the information
15. The right to access information is provided for in the Constitution under Article 35. It provides as follows:
1.Every citizen has the right of access to-
-a.information held by the State; and
b.information held by another person and required for the exercise or protection of any right or fundamental freedom.
2.Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
3.The State shall publish and publicize any important information affecting the nation.
16. To give effect to this right, the Access to Information Act (No 31 of 2016) was enacted. This Act in essence provides the process to be followed in order to obtain information held by the State or another person. Section 4 provides as follows:
1.Right to information Subject to this Act and any other written law, every citizen has the right of access to information held by—
a) the State; and
b) another person where that information is required for the exercise or protection of any right or fundamental freedom.
2.Subject to this Act, every citizen's right to access information is not affected by—
a. any reason the person gives for seeking access; or
b. the public entity's belief as to what the person's reasons are for seeking access.
3. Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
4. This Act shall be interpreted and applied on the basis of a duty to disclose, and non-disclosure shall be permitted only in circumstances exempted under section 6.
5. Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
17. The exemptions under Section 6 (1) of the Act are as follows:
Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—
a. undermine the national security of Kenya;
b. impede the due process of law;
c. Endanger the safety, health or life of any person;
d. involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;
e. substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
f. cause substantial harm to the ability of the Government to manage the economy of Kenya;
g. significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
h. damage a public entity's position in any actual or contemplated legal proceedings; or
i. infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.
18. This right has been discussed by the High Court on numerous occasions. In the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR)
the Court held as follows:“
31.The Constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state officer or public body… It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information… The…consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicise any important information affecting the nation’, but also to provide open access to such specific information as people may require from the State…”
Likewise, in Khalifa & another (supra) it was held that:
“A reading of the provisions of Access to Information Act leaves no doubt that the Act was enacted to give effect to the constitutional right of access to any information held by the State. And the formulation of the sections casts the exercise of this right in peremptory terms – the requester must be given access to the information so long as the request does not fall within the exceptions in section 6 of the act. Under our law, therefore, the disclosure of information is the rule and exemption from disclosure is the exception.
85. A reading of section 6 reveals that there are reasonable and justifiable limitations on the right of access to information. The purpose of section 6 is to protect from disclosure certain information that, if disclosed, could cause material harm to, amongst other things: the defence, security and international relations of the Republic; the economic interests and financial welfare of the Republic and commercial activities of public bodies; and the formulation of policy and taking of decisions by public bodies in the exercise of powers or performance of duties conferred or imposed by law.
86. However, the burden of establishing that the refusal of access to information is justified rests on the state or any other party refusing access. As was held in President of the Republic of South Africa & others v M & G Media Limited CCT 03/11 [2011] ZACC 32:“The imposition of the evidentiary burden of showing that a record is exempt from disclosure on the holder of information is understandable. To place the burden of showing that a record is not exempt from disclosure on the requesting party would be manifestly unfair and contrary to the spirit of... the Constitution. This is because the requester of information has no access to the contents of the record sought and is therefore unabl
[...truncated]
a. Spent
b. Spent
c. Pending the hearing and determination of this instant application, the Honourable court be pleased to direct the CEO of the 10th respondent (KTDA) to supply the court and petitioners /Applicants with information pertaining how much each kilogram of green tea leaves they sold and to who in specific on behalf of the farmers of Ogembo tea Factory , Nyamache Tea Factory and Kiamokama Tea Factory and all the satellites respectively unconditionally within the next 21 days from the date of issue of the direction of the court.
d. Pending the hearing and determination of this instant application, the Honourable court be pleased to direct the CEO of the 10th Respondent to supply the court and the petitioners with all vouchers, cheques, and the funds wired to the 10th Respondents Account in respect of payment of green tea leaves sold on behalf of the farmers of Ogembo Tea Factory, Nyamache Tea Factory and Kiamokama Tea Factory and all the satellite respectively for the financial year 2023-2024 for the bonus they are anticipating.
e. Pending the hearing and determination of this instant application, the honourable court be pleased to direct the factory managers of the 1st, 4th, and 7th Respondents, together with all the satellites respectively to supply the court and petitioners with the audit report of 9 months account audited by the qualified auditors.
f. Pending the hearing and determination of this instant application, the honourable court be pleased to grant an interim order of injunction restraining the respondents herein, either by themselves, agents, servants, or employees, from disbursing the bonus scheduled on earlier in October 2024 to farmers of zone 11 K.T.D.A factory (Ogembo, Nyamache, & Kiamokama), together with the satellites until review of the bonus is jointly done fairly by the respondents herein.
g. Pending the hearing and determination of this instant application, the honourable court be pleased to grant a temporary injunction under Article 23 (3) of the constitution 2010, prohibiting and or restraining the CEO of KTDA and all of the factory unit managers of the 1st 4th and 7th Respondents herein from releasing funds for the bonus for the farmers of Ogembo Tea Factory, Nyamache Tea Factory and Kiamokama Tea and all the satellite respectively anticipated this month of October 2024 anytime from now until the review done by the board of the 10th respondent herein.
h. The costs of this application be in the cause.
2. The Petitioner/Applicant in support of the Application averred that;
a. The amount paid to the farmers as a monthly green leaves payment is deducted and the balance is then multiplied by the total kilograms of green tea leaves supplied by each farmer over the year and the sum is paid out as bonus, which is typically declared in September and paid out with monthly payments in October to the farmers more particularly Zone 11 K.T.D.A factories within the Kisii County government.
b. The Farmers within the 1st, 4th &7th respondents were keen to continue following the best agronomical practices and maintained high quality tea peaking and that the said respondents have declared their payments to the 10th Respondents board who had released the cumulative payouts and have published it in Kenyan Media for all the 54 K.T.D.A factories.
c. The 10th Respondent Calculates annual bonuses based on a factory’s total earning from tea sales over the past 12 months, other deductions, Operational and overhead costs and that the remaining earning per kilogram are determined, and that this years production was expected to be higher due to increased rainfall in this first half of the year and the Governments fertilizer subsidy program.
d. He avers that the 3rd, 8th&9th Respondents promised the farmers that they should be paid Ksh. 40.00 per kilogram of green tealeaves, but they were shocked when the factory Management released Ksh. 20.00 which was lower than the Ksh. 40.00 declared by the management last year and lower than the Ksh. 60.00 offered by other Factories in Kenya.
e. He avers that there is fraud, and that’s why both factories of zone 11 K.T.D.A factories, have set the same flat rate of Ksh 20.00 and paid farmers the lowest under the leadership of the Board Member by the name James Ombasa Omweno, who represents the farmers in the headquarters.
f. Also that the board of Directors of the 1st, 4th & 7th Respondents referred the audit report of the 9 months of the financial year 2023/2024 that it was over 35-40 to the farmers and that production and traveling costs will never be the same, and that the decision ff the respondents deliberated by the purported resolution were indeed malicious, with impunity, sideshows without the involvement of the Farmers.
3. The Respondents opposed the application vide a replying affidavit sworn by James Omweno Ombasa on 29th November 2024. He avers that there was no complaint from any farmer about the bonuses paid and that the petitioner is a busybody with no locus standi to sue the respondent companies also he is neither a farmer nor a shareholder of any of the companies listed as the respondents or their satellite factories and has no authority from any of the farmers.
4. The respondent averred that the contents of paragraph 18 of the petition are false misleading inaccurate and a fiction of the petitioner's infantile imagination and the allegations of deductions are therefore false and the petitioner is put to strict proof. The respondent also argued that the bonuses are revenues in excess of expenses at the end of the financial year also known as second payment, being payment to monthly payout. He termed the allegations of Deductions are therefore false and the petitioner is put to strict proof. Also that it virtually impossible to pre-empt the amount of bonuses to be paid to farmers until all the factors are included in calculating the bonuses. The respondent told this court that the information sought was on how much the tea was sold per kilogram, who the tea was sold to and the earnings made are in public domain and the information is published weekly and that the tea Auction is a public event that can followed by any farmer or citizen should they deem fit to do so. He also averred that the allegations in the petition were not substantiated and it is based on misinformation and baseless allegations as the petitioner has not shown in any way that the Director acted ultra vires.
5. The respondents also filed a notice of preliminary objection dated 3rd December 2024 on the grounds that :
a. The Petition is incompetent, misconceived and otherwise an abuse of the due process of the court;
b. The Petition is fatally incompetent as the Petitioners lack locus standi to institute the Petition. The dispute disclosed involves tea factories which are limited Companies pursuant to Section 22 of the Tea Act Cap 343 Laws of Kenya and its shareholders.
c. The Petitioner has no locus standi as he has not obtained explicit Authority to institute a Petition on behalf of the tea farmers and shareholders of the Respondents as required by Order 1, Rule 13 of the Civil Procedure Rules 2010.
d. The Petition is fatally incompetent as it contravenes the provisions of Section 780 of the Companies Act;
e. The Petition is improperly before this Court as all disputes arising between farmers and other crop dealers ought to be referred to Arbitration pursuant to Section 41 of the Crops Act Cap 318 Laws of Kenya and Regulation 45(2) of The Crops (Tea Industry) Regulations of 2020;
f. The Petition filed herein discloses a shareholders dispute which is disguised as a constitutional issue contrary to the clear statutory procedures laid down in the Companies Act and the Civil Procedure Act and it is an abuse of the court process;
g. Civil remedies would be available to the shareholders of the Respondent companies and the Petitioners have not contended that this Court in exercise of its civil Jurisdiction is unable to award the shareholders any remedy at all should they
be successful or that the remedies known in law are either inadequate or nonexistent or unconstitutional;
h. The Petition is misconceived and premature as the Petitioners have not exhausted the remedies available to the tea farmers under the provisions Of the Tea Act before approaching this Honourable Court.
6. The Petitioner relied on Nairobi Law Monthly v Kenya electricity Generating Company &2 Others (Supra) on the issue right to access information. He urges that the right to access information is inviolable because it is neither granted nor grantable by the state and that the right granted by the constitution and is protected by the same constitution and reaffirmed the position in the case of Trusted society of Human Rights Alliance & 3 others v Judicial service commission(2016) eKlr.
Issues for Determination
7. From my analysis of the Petition by the Petitioner, the Preliminary Objection dated 3rd December 2024, by the Respondent, the written submissions filed by the parties, I deduce that the issues for determination are;
a. Whether the Petitioner has locus standi to file this suit.
b. Whether the petitioners have On whether the petitioner/applicant , failed to comply with the provisions of Section 780 of the companies Act, Section 41 of the Crops Act and Section 69 of the Tea Act and regulation 45 (2) of the (Tea Industry )regulations 202
c. Whether this is a dispute between directors and the management of the tea factories disguised as a constitutional petition
d. Whether the respondent failed to give the petitioners Access information regarding tea bonuses .
e. Whether the Respondents should be compelled to provide the information sought pending hearing and determination of the petition.
f. Whether the petition meets the threshold set in the case of Anarita Karimi Njeru .
Analysis And Determination of the Issues
Whether the Petitioner has locus standi to institute this suit
8. The Respondent submitted that the Petitioner has no locus standi to institute legal proceedings against the Respondents on behalf of the farmers as particularized in Order 13 of the Civil procedure rules. They argued that the petitioner has not demonstrated that he is a farmer of any respondent Tea Companies., and that the companies are limited liability companies pursuant to section 22 of the Tea Act cap 343 and the companies Act No of 2015, that they are not public entities as the petitioner wrongly believes.
9. In the case of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] KEHC 7697 (KLR) it was held that
‘’ I am of the view that Article 22(1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. The same provides that:
-“22.(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–a person acting on behalf of another person who cannot act in their own name;
a person acting as a member of, or in the interest of, group or class of persons; a person acting in the public interest;
or an association acting in the interest of one or more of its members.”
10. Also in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) it was noted that;
“ Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that:
“258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
a) a person acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.”
(28) It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.
(29) It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution…………….
However, we must hasten to make it clear that the person who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice. Where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be seized at the instance of such person and must reject their application at the threshold. The time is now propitious at this stage of our constitutional development where we can state as was stated by the Supreme Court of India in the case of S.P. Gupta v President of India & Others AIR [1982] SC 149 that:
“The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and can thereby improve the administration of justice. Lord Diplock rightly said in Rex v Inland Revenue Commrs. [1981] 2 WLR 722 at p. 740.
‘It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by a outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped… It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.’
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose, or else the law would remain merely a paper parchment, a teasing illusion, and a promise of unreality. It is only by liberalizing the rule of locus standi that it is possible to effectively police the corridors of power and prevent violations of law.”
11. In light of Articles 22 and 258 of the Constitution, every person has the right to institute proceedings claiming that the Constitution has been contravened; and “person” in this regard, includes one who acts in the public interest.
12. Section 2 of the NGO Act defines a non-governmental organization as:
“a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services. It is to be noted that such a statutory definition, when read together with Article 260 of the Constitution, will justify the categorization of a ‘non-governmental organization’ as a “person”, as it is “…an association…whether incorporated or unincorporated.”
In the context of this case, we find the Petitioners foregoing argument to have clear merits, it is my perception that in this particular case, it involves public-interest litigation, we take cognizance of the history of locus standi in Kenya. Locus standi had operated, in the earlier constitutional dispensation, to limit the scope for litigants to pursue causes in the public interest. Articles 22 and 258 of the current Constitution opened the doors for such litigants to lodge causes on constitutional matters. In order to avoid frivolous suits, Courts in cases such as John Wekasa Khaoya v. Attorney-General, High Ct. Pet. No. 60 of 2012 have set out parameters to guide the filing of causes in the public interest. These include (paragraphs 18 to 20):
(i) the intended suit must be brought in good faith, and must be in the public interest; and (ii) the suit should not be aimed at giving any personal gain to the applicant.
13. Guided by Articles 22 and 258 of the constitution of Kenya and case law cited herein above , it is my finding that the 1st Petitioner is a citizen of Kenya and privileged by Article 1 of the Constitution of Kenya and the 2nd petitioner is a registered organization under Section 10 of the non-governmental organization coordination Act an thus had locus standi to file the petition herein .
14. On whether the petitioner/applicant , failed to comply with the provisions of Section 780 of the companies Act, Section 41 of the Crops Act and Section 69 of the Tea Act and regulation 45 (2) of the (Tea Industry )regulations 2020, Section 780 of the companies Act provides that ;
(1) A member of a company may apply to the Court by application for an order under section 782 on the ground—
(a) that the company's affairs are being or have been conducted in a manner that is oppressive or is unfairly prejudicial to the interests of members generally or of some part of its members (including the applicant); or
(b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be oppressive or so prejudicial.
I find that the said Section 41 of the crops Act provides for arbitration of disputes between the grower member and the dealer. while Section 69 of the tea Act provides for arbitration of disputes between the company and crop dealers respectively . At this stage the petitioner /applicant has established that it is neither a share holder in the tea factories nor a tea farmer but a human rights defender and thus the said provisions do not apply to it . In any event the issues raised in the petition allege constitutional violations which the Arbitrators do not have the jurisdiction to determine . Article 165 (3 )(b ) gives this court Jurisdiction to determine whether fundamental rights and freedoms have been violated, denied , infringed or threatened . I find that the petition is properly before this court .
On whether this is a dispute between directors and the management of the tea factories disguised as a constitutional petition , this was the averment of the respondents. The petitioners pleaded that they human rights defenders and not tea growers and the respondent alleged that they can see the hand of their members in this petition. Tis is a matter of fact which can only be determined on full trial . The preliminary objection is thus devoid of merit and is overruled.
Motion dated 6.10.2024
Having determined the preliminary objection, I now turn to the motion dated 6.10.24. Prayers a and b of the application are spent. Prayers f and g have been overtaken by events. That leaves us with prayers c, d, and e ,
Whether the Respondents failed to supply the petitioners with the information
15. The right to access information is provided for in the Constitution under Article 35. It provides as follows:
1.Every citizen has the right of access to-
-a.information held by the State; and
b.information held by another person and required for the exercise or protection of any right or fundamental freedom.
2.Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
3.The State shall publish and publicize any important information affecting the nation.
16. To give effect to this right, the Access to Information Act (No 31 of 2016) was enacted. This Act in essence provides the process to be followed in order to obtain information held by the State or another person. Section 4 provides as follows:
1.Right to information Subject to this Act and any other written law, every citizen has the right of access to information held by—
a) the State; and
b) another person where that information is required for the exercise or protection of any right or fundamental freedom.
2.Subject to this Act, every citizen's right to access information is not affected by—
a. any reason the person gives for seeking access; or
b. the public entity's belief as to what the person's reasons are for seeking access.
3. Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
4. This Act shall be interpreted and applied on the basis of a duty to disclose, and non-disclosure shall be permitted only in circumstances exempted under section 6.
5. Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
17. The exemptions under Section 6 (1) of the Act are as follows:
Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—
a. undermine the national security of Kenya;
b. impede the due process of law;
c. Endanger the safety, health or life of any person;
d. involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;
e. substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
f. cause substantial harm to the ability of the Government to manage the economy of Kenya;
g. significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
h. damage a public entity's position in any actual or contemplated legal proceedings; or
i. infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.
18. This right has been discussed by the High Court on numerous occasions. In the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR)
the Court held as follows:“
31.The Constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state officer or public body… It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information… The…consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicise any important information affecting the nation’, but also to provide open access to such specific information as people may require from the State…”
Likewise, in Khalifa & another (supra) it was held that:
“A reading of the provisions of Access to Information Act leaves no doubt that the Act was enacted to give effect to the constitutional right of access to any information held by the State. And the formulation of the sections casts the exercise of this right in peremptory terms – the requester must be given access to the information so long as the request does not fall within the exceptions in section 6 of the act. Under our law, therefore, the disclosure of information is the rule and exemption from disclosure is the exception.
85. A reading of section 6 reveals that there are reasonable and justifiable limitations on the right of access to information. The purpose of section 6 is to protect from disclosure certain information that, if disclosed, could cause material harm to, amongst other things: the defence, security and international relations of the Republic; the economic interests and financial welfare of the Republic and commercial activities of public bodies; and the formulation of policy and taking of decisions by public bodies in the exercise of powers or performance of duties conferred or imposed by law.
86. However, the burden of establishing that the refusal of access to information is justified rests on the state or any other party refusing access. As was held in President of the Republic of South Africa & others v M & G Media Limited CCT 03/11 [2011] ZACC 32:“The imposition of the evidentiary burden of showing that a record is exempt from disclosure on the holder of information is understandable. To place the burden of showing that a record is not exempt from disclosure on the requesting party would be manifestly unfair and contrary to the spirit of... the Constitution. This is because the requester of information has no access to the contents of the record sought and is therefore unabl
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