The directive recently issued to the Attorney General and other state organs to oversee the elections of factory directors for factories managed by the Kenya Tea Development Agency (KTDA) is contrary to the rule of law.
This is according to lawyer Benson Milimo, of Millimo Advocates, who notes that the directive, contained in Executive Order no. 3 of the 2021, breaches the rule of law and particularly the Companies Act.
The order, among other directives, seeks to direct how smallholder farmers should conduct elections of their factory directors. Every year, tea farmers conduct elections of directors to sit in the tea factory company boards to oversee the running of the factory.
Addressing media during a press conference in Nairobi, the lawyer has said the order to conduct elections is also in contempt of a court order that was given by Mombasa High Court in October 2020.
“In the Mombasa High Court petition that was filed by the East African Tea Trade Association (EATTA) in October 2020, the Cabinet Secretary for Agriculture and the Attorney General filed a counter application that expressly sought to stop the elections of the tea factory directors. The High Court granted the order stopping the tea factory director’s elections. The court order is still in force,” he said.
“Therefore the order directing tea factory companies to immediately conduct elections and that the government is going to preside over the elections is not valid,” added Millimo.
“Nowhere is it provided, either in the constitution or any of the laws in this country that a government can direct a private company on matters on election of directors. It has never happened and this is the first time we are seeing the government saying that it wants a private company to conduct elections and the government will supervise,” the lawyer added.
Under the Companies Act, only the shareholders of a company can permit such an election in compliance to their Articles of Association.
The lawyer was speaking in light of reports that a number of factories are planning to carry out special Annual General Meetings (AGM) with the aim of conducting elections of directors.
He added, “Kenya is a country that is governed by the rule of law. This means that everybody must act under the law, including State Officers and state organs. Any decisions that are made by the government is assessed as against the constitution and any other existing laws