The High Court has ruled that the government’s failure to constitute the Fertilizer and Animal Foodstuffs Board was unlawful and inconsistent with the Constitution, in a case arising from complaints over subsidised fertiliser sold to farmers.
In his judgment dated 6 October, Justice Gregory Mutai said the failure by the Cabinet Secretary responsible for agriculture to constitute the board under the Fertilizers and Animal Foodstuffs Act was unlawful and inconsistent with Articles 10(2)(c) and 129(2) of the Constitution.
The judge also found that the sale of NPK fertiliser that did not conform to its declared composition and the applicable standard violated the constitutional rights of farmers.
The ruling follows a petition by the Law Society of Kenya challenging the conception, procurement and implementation of the National Fertilizer Subsidy Programme.
The programme was introduced in September 2022, with subsidised planting and top-dressing fertiliser sold to registered farmers through National Cereals and Produce Board depots.
For the 2024 long rains, NCPB procured NPK 10:26:10 fertiliser sold under the brand Kelgreen. Complaints emerged in March 2024 that some fertiliser supplied under the programme was substandard or counterfeit, prompting the suspension of distribution.
Justice Mutai declared that the sale of fertiliser that did not conform to its declared composition and KS EAS 912:2019 “violated the rights of those farmers under Article 46(1)(a) and (c)” of the Constitution.
However, the court declined to award compensation to affected farmers, saying those on whose behalf the claim was made had not been identified and their losses had not been proved or quantified.
The court noted that an NCPB letter of June 13 ,2024 recorded that affected farmers had been given replacement or top-dressing fertiliser.
“Any farmer whose loss has not been made good remains free to pursue an individual claim,” Justice Mutai said.
The LSK had also asked the court to direct the relevant agencies to investigate and prosecute everyone involved in the fertiliser programme.
But Justice Mutai declined, saying the Director of Public Prosecutions and the Inspector-General of Police had constitutional independence in decisions on prosecution and investigations.
“The decision whether the evidence justifies charging others is the DPP's to make,” he said.
The court noted that six people had already been charged in connection with the fertiliser case, including the then NCPB managing director, within seven weeks of the first complaints.
Justice Mutai said the judgment did not constitute a finding on the guilt or innocence of anyone facing charges in the Kiambu Chief Magistrate's Court.
Each party was ordered to bear its own costs.