High Court Declares Failure to Form Fertiliser Board Unlawful, Finds Sale Violated Farmers' Rights

Justice Gregory Mutai of the High Court ruled that the Agriculture Cabinet Secretary’s failure to set up the Fertiliser and Animal Foodstuffs Board of Kenya was unlawful and that the sale of substandard fertiliser under the 2024 National Fertiliser Subsidy Programme breached farmers’ constitutional consumer rights.

The petition, filed by the Law Society of Kenya, challenged the design, procurement and rollout of the subsidy after complaints emerged about NPK 10:26:10 fertiliser branded Kelgreen supplied through National Cereals and Produce Board depots during the 2024 long-rains season.

Kenya Bureau of Standards laboratory reports dated 27 and March 28, 2024 recorded nitrogen at 9.2 percent, phosphorus at 15.4 percent and potassium at 1.98 percent, with moisture at 6.6 percent, falling short of the declared 10:26:10 formulation and the one-percent moisture limit set by KS EAS 912:2019.

Mutai held that the farmers who purchased the subsidised input were consumers under Article 46 of the Constitution and that the fertiliser’s failure to meet reasonable quality standards violated their rights to goods of reasonable quality and protection of economic interests.

The judge further declared that the Cabinet Secretary’s omission to constitute the Fertiliser and Animal Foodstuffs Board, required by the Fertilizers and Animal Foodstuffs Act, Cap 345, contravened Articles 10(2)(c) and 129(2) of the Constitution.

The court dismissed LSK’s request for a declaration of personal liability against any individual office-holder, noting that no specific person had been named in the petition, and also declined to make findings against the parliamentary Select Committee or the National Assembly.

Claims that the programme breached Article 35 on access to information, Article 43 on freedom from hunger and Article 227 on public procurement were rejected for lack of supporting evidence.

A blanket compensation order was refused because the farmers on whose behalf compensation was sought had not been individually identified and their losses were not quantified, although NCPB indicated in a letter dated June 13, 2024 that affected farmers had received replacement or top-dressing fertiliser.

Mutai stressed that the constitutional judgment did not determine the outcome of criminal or commercial proceedings already pending, including Kiambu Criminal Case No. E1240 of 2024 and commercial case HCCOMM No. E350 of 2024, and that investigators remained free to pursue further evidence.

The court ordered each party to bear its own costs.