Mungania Tea Factory Co Ltd & 51 others v Attorney General & 6 others

KINORO TEA FACTORY CO LTD .............................................. 20TH APPLICANT THETA TEA FACTORY CO LTD .................................................. 21ST APPLICANT IMENTI TEA FACTORY CO LTD ................................................ 22ND APPLICANT MATAARATEA FACTORY CO LTD ............................................ 23RD APPLICANT GITHONGO TEA FACTORY CO LTD ........................................ 24TH APPLICANT NGERE TEA FACTORY CO LTD ................................................. 25TH APPLICANT MICHIMIKURU TEA FACTORY CO LTD ................................. 26TH APPLICANT NJUNU TEA FACTORY CO LTD ................................................. 27TH APPLICANT KIEGOI TEA FACTORY CO LTD ................................................. 28TH APPLICANT GITUGI TEA FACTORY CO LTD ................................................ 29TH APPLICANT SANGAIIYI TEA FACTORY CO LTD .......................................... 30TH APPLICANT IRIA-INI TEA FACTORY CO LTD ............................................... 31ST APPLICANT TOMBE TEA FACTORY CO LTD ................................................ 32ND APPLICANT RAGATI TEA FACTORY CO LTD ............................................... 33RD APPLICANT KEBIRIGO TEA FACTORY CO LTD ........................................... 34TH APPLICANT NDIMA TEA FACTORY CO LTD ................................................. 35TH APPLICANT OGEMBOTEA FACTORY CO LTD ............................................... 36TH APPLICANT MUNUNGA TEA FACTORY CO LTD ......................................... 37TH APPLICANT NYAMACHE TEA FACTORY CO LTD ........................................ 38TH APPLICANT KANGAITA TEA FACTORY CO LTD ......................................... 39TH APPLICANT KIAMOKAMA TEA FACTORY CO LTD .................................... 40TH APPLICANT KIMUNYE TEA FACTORY CO LTD ............................................ 41ST APPLICANT CHEBUT TEA FACTORY CO LTD .............................................. 42ND APPLICANT THUMAITA TEA FACTORY CO LTD ......................................... 43RD APPLICANT MUDETE TEA FACTORY CO LTD .............................................. 44TH APPLICANT GIANCHORE TEA FACTORY CO LTD ...................................... 45TH APPLICANT MOMUL TEA FACTORY CO LTD ............................................... 46TH APPLICANT KIONYO TEA FACTORY CO LTD ............................................... 47TH APPLICANT WERU TEA FACTORY CO LTD .................................................. 48TH APPLICANT KATHANGARIRI TEA FACTORY CO LTD ............................... 49TH APPLICANT KAPSARA TEA FACTORY CO LTD ............................................ 50TH APPLICANT GACHEGE TEA FACTORY CO LTD ............................................ 51ST APPLICANT https://new.kenyalaw.org/akn/ke/judgment/keca/2022/718/eng@2022-07-22 2

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NDUTI TEA FACTORY CO LTD ................................................. 52ND APPLICANT AND ATTORNEY GENERAL ................................................................ 1ST RESPONDENT CABINET SECRETARY, MINISTRY OF LIVESTOCK, FISHERIES & COOPERATIVES ........................................................................... 2ND RESPONDENT NATIONAL ASSEMBLY ............................................................... 3RD RESPONDENT AGRICULTURE & FOOD AUTHORITY .................................. 4TH RESPONDENT KENYA TEA GROWERS ASSOCIATION ................................. 5TH RESPONDENT EAST AFRICAN TEA TRADE ASSOCIATION ....................... 6TH RESPONDENT COUNTY GOVERNMENT OF BOMET .................................... 7TH RESPONDENT (Application for stay of execution and further proceedings pending the hearing and determination of appeal against the Orders and Directions of the High of Court of Kenya at Nairobi (Ong’udi, Mrima & Nyagah, JJ.) dated 21st October 2021 in HC. Pet No. E254 of 2020, consolidated with HC. Pet. Nos. E243 of 2020 and E083 of 2021) RULING ****ARGUMENTS 1. The 52 applicants herein are duly registered tea factory companies in the Republic of Kenya. Following the enactment of the Tea Act, 2020 and implementation of a raft of reforms in the tea industry in the country, three separate petitions were led by the applicants and others challenging various aspects of the reforms. Due to the importance of the tea industry to the national economy and the need to hear and determine the dispute with due dispatch, the Hon. the Chief Justice constituted an expanded uneven bench of the High Court comprising Ong’undi, Mrima and Nyagah, JJ. to hear and determine the petitions. 2. In a bid to expedite the hearing and determination of the petitions, on 21st October 2021, the High Court bench issued several directions pertaining to the conduct of the proceedings, which aggrieved the applicants. Appreciating that they did not have an automatic right of appeal to this Court from directions of the High Court, on 18th February 2022 the applicants applied and obtained leave from the High Court to appeal against the said directions. They have duly led and served a notice of appeal and we are satised that they are properly before us under rule 5(2) (b) of the Rules of this Court. 3. In their motion on notice dated 27th April 2022, the applicants seek an order of stay of execution and further proceedings in three consolidated petitions before the High Court of Kenya at Nairobi, pending the hearing and determination of their intended appeal from the orders and directions of the said court issued on 21st October 2021. The orders and directions in question provided as follows: “(i) All interlocutory applications to be subsumed into the main petitions. The applications are mainly on: Representation Contempt Conservatory orders https://new.kenyalaw.org/akn/ke/judgment/keca/2022/718/eng@2022-07-22 3

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ii. Those who have not led responses to the applications and the petitions to do so within 14 days; iii. Leave is granted to the petitioners to le any further questions adavits within 7 days upon service of the responses; iv. All petitioners and any other party in support of the petitions to le and serve their submissions on the petitions and applications within 21 days; v. Respondents and any other parties opposed to the petitions to le their submissions to the petitions and applications as the case may be within 21 days; vi. Mention on 20.12.21 at 11.00 am to conrm compliance and further directions; vii. All orders in force remain extended till then; and viii. Any party not satised with the directions is at liberty to apply. Further Order:- ix. These directions to apply to Petition No. E016 of 2021 as consolidated.” 4. The applicants complain that the above orders and directions were issued without aording the parties an opportunity to be heard. They add that there were pending applications which needed to be resolved in limine, among them an application for joinder of parties. Their biggest grouse however is that harmless and well-meaning as the orders and directions may appear at rst glance, they have made it literally impossible for the petitions to be heard smoothly because one of the live and pending preliminary issues that the court did not address was legal representation of the parties. The applicants cannot perceive how the petitions can proceed to hearing without rst resolving the question of legal representation. 5. It is the applicants’ contention that previously they were represented by Messrs. Millimo & Muthomi Advocates who led the petitions in question. However, subsequently the applicants changed their advocates and instructed Messrs Gwandaru Thuita & Company Advocates who duly led notices of appointment of advocates and notices of change of advocates. Upon appointment, the applicants instructed the new advocates to withdraw some pending applications and to enter consent orders in others. However, the former lawyers led an application to strike out all the documents led by the new advocates, resulting in a conundrum where the former rm of advocates wished to proceed with the petitions while the later ones had the applicants’ instructions to withdraw the same. 7. On the basis of the foregoing, the applicants contend that they have an arguable appeal because their right to be heard were violated when the court issued the orders and directions without hearing them. They also contend that it is an arguable point whether the applicants should be represented in the petitions by an advocate of their own choice and in that regard they rely on the decisions in Tom Kusienya & Others v. Kenya Railways Corporation & Others [2013] eKLR and Delphis Bank Ltd v. Channan Singh Chatty & 6 Others [2005] eKLR. They add that it is an arguable point whether the petitions pending before the High Court can be heard without rst resolving the question of legal representation, and rely on the decisions in Law Society of Kenya v. Attorney General & 3 Others [2021] eKLR and Republic v. Committee on Senior Counsel & Another ex parte Allen Wanyeki Gichuhi [2021] eKLR to the eect that contested legal representation should be determined rst. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/718/eng@2022-07-22 4

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8. The applicants also contend that their intended appeal will be rendered nugatory if it succeeds after the petitions have already been heard pursuant to the unilateral and unsatisfactory directions issued by the court and further that they risked being saddled with unnecessary astronomical costs for two sets of advocates. These arguments were reiterated in the applicants’ written submissions and oral highlights made by Prof Githu Muigai, SC, who lead Mr. Imende and Mr. Thuita, learned counsel Mr. Wachira, learned counsel for the 1st and 2nd respondents, Ms Kinyenje, learned counsel for the 5th respondent, Ms Kiuluku, learned counsel for the 6th respondent and Ms Tusiime, learned counsel for the 7th respondent did not oppose the application. Indeed, the 5th respondent led an adavit in support of the application. The 3rd and 4th respondents did not appear, even though they were duly served with the hearing notice. 9. Having carefully considered the application, we are satised that it meets the twin principle under rule 5(2) (b), namely, that the intended appeal is arguable and that it stands to be rendered nugatory if proceedings in the High Court are not stayed. The grounds that we have set out above are clearly not frivolous and ought to be fully ventilated before this Court. If the petitions will have been heard before those issues are addressed, the intended appeal will be completely overtaken by events and the applicants risk ending up with nothing but a paper victory, should their appeal succeed. 10. All the parties are in agreement that the intended appeal touches on an important pillar of the national economy. It remains important that the dispute should be resolved as quickly as possible. In these circumstances, we can only issue a conditional stay of proceedings to ensure that this dispute does not drag on endlessly. If the applicants have not already done so, they must le and serve the record of appeal within 45 days from the date of this ruling and the appeal should be fast-tracked for hearing and determination. In default of ling and serving the record of appeal as directed, the orders of stay of execution and of proceedings shall stand discharged. Costs will abide the outcome of the intended appeal. It is so ordered. DATED AT NAIROBI THIS 22ND DAY OF JULY, 2022 ASIKE-MAKHANDIA ................................... JUDGE OF APPEAL K. M’INOTI ................................... JUDGE OF APPEAL S. ole KANTAI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/718/eng@2022-07-22 5

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