- High Court finds farmers’ consumer rights were breached over defective subsidy fertiliser
- Court faults Agriculture CS for failing to establish the Fertiliser and Animal Foodstuffs Board
- Farmers with unrecovered losses can still pursue individual claims for compensation
Farmers who paid for poor quality fertiliser under the government’s subsidy scheme were denied their consumer rights, the High Court has found, even as it turned down a blanket compensation order.
Delivering its judgment on Wednesday, the court also took issue with the Agriculture Cabinet Secretary. By never setting up the Fertiliser and Animal Foodstuffs Board of Kenya, the minister had broken the law and acted against the Constitution, the judge said.
At the heart of the dispute was a batch of NPK 10:26:10 fertiliser, branded Kelgreen, which reached farmers during the 2024 long rains. According to the court, what was inside the bags bore little resemblance to what was printed on them. The product also failed the Kenya Standard KS EAS 912:2019. Even the National Cereals and Produce Board (NCPB), which sold it through its depots, had admitted in writing that the whole consignment should never have gone out.
Farmers had raised the alarm from about March 18, 2024, after which distribution stopped. Soon afterwards, the Kenya Bureau of Standards (KEBS) froze the manufacturer’s standardisation mark permits, and a number of people tied to the supply chain were charged in Kiambu.
The Law Society of Kenya (LSK) took the matter to court, arguing that those prosecutions were incomplete. In its view, others who played a part had escaped scrutiny. The judge was unmoved, ruling that it was not the court’s place to direct who should be investigated or charged. That decision belongs to the Director of Public Prosecutions (DPP). The judgment, the judge added, leaves the door open for further action against anyone not yet before the courts.
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On compensation, the court declined to make a blanket award. It noted that the farmers the LSK spoke for had not been individually named, and nobody had shown how much they lost. NCPB had also told the court that affected farmers were given replacement or top dressing fertiliser. However, the judgment does not close the matter for those still out of pocket. Farmers whose losses were never made good remain free to pursue the Ministry of Agriculture, NCPB and the suppliers through their own claims.
Several other demands also failed. The court refused to make declarations against senior officials, to halt the subsidy programme, or to fault the parliamentary committee that had probed the matter.
The judge was careful to say the ruling did not decide whether any accused person was guilty. Those individuals face trial in Kiambu Chief Magistrate’s Criminal Case No. E1240 of 2024.
In its closing orders, the court declared that failing to establish the board contravened sections 2A and 2C of the Fertilisers and Animal Foodstuffs Act and Articles 10(2)(c) and 129(2) of the Constitution. It further declared that selling the non conforming fertiliser under the 2024 long rains subsidy breached farmers’ rights under Article 46(1)(a) and (c). The LSK’s motion of May 31, 2024 was marked spent, and each side was left to pay its own legal costs.
By Benedict Aoya
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