The High Court has ruled that the sale of substandard NPK fertiliser to farmers under the 2024 National Fertiliser Subsidy Programme violated their constitutional consumer rights, after finding that the fertiliser failed to meet its declared composition and the applicable Kenya Standard. The judgment also declared unlawful the failure by the Cabinet Secretary responsible for agriculture to constitute the Fertilizer and Animal Foodstuffs Board as required by law.
The case was filed by the Law Society of Kenya (LSK) following complaints in March 2024 that fertiliser distributed through the government subsidy programme was substandard or counterfeit.
The court found that NPK 10:26:10 fertiliser sold under the brand name Kelgreen did not conform to its declared specifications or Kenya Standard KS EAS 912:2019. The product was manufactured by the seventh respondent and supplied to the National Cereals and Produce Board (NCPB), which distributed it to farmers.
According to the judgment, complaints from farmers and the media emerged from around March 18, 2024, leading to the suspension of distribution. The Kenya Bureau of Standards later suspended the manufacturer's standardisation mark permits.
The court said farmers who purchased the fertiliser were consumers protected under Article 46 of the Constitution because they paid for a product that was found not to be of reasonable quality.“the sale to farmers ... of fertilizer that did not conform to the declared specification and the applicable standard violated the farmers' rights,” the court stated.
However, the court declined to award compensation, noting that the farmers seeking compensation had not been individually identified and that their losses had not been proved or quantified. It noted that NCPB had indicated that affected farmers were provided with replacement or top-dressing fertiliser.
The court also declined to compel investigators and prosecutors to charge all individuals allegedly involved in the fertiliser matter, saying decisions on whether evidence supports additional charges fall within the mandate of the Director of Public Prosecutions.
The court further declared the failure to constitute the Fertilizer and Animal Foodstuffs Board unlawful and inconsistent with the Constitution. Each party was ordered to bear its own costs.
