Kavulavu v Mudete Tea Factory Ltd (Commercial Suit E001 of 2026) [2026] KEHC 11614 (KLR) (27 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **COMMERCIAL SUIT NO. E001 OF 2026** **RAJAB ARADI KAVULAVU………………………………..PLAINTIFF/APPLICANT** **=VERSUS=** **MUDETE TEA FACTORY LTD……………………………DEFENDANT/APPLICANT** **Coram: Before Justice R. Nyakundi** **Marision Luchivya & Co. Advocates** **Kipkorir Tele & Kitur Advocates** **RULING** 1. Before this Court is an application dated 12th February 2026 brought under Sections 3 & 3A of the Civil Procedure Act, which seeks the following orders: 2. *Spent.* 3. *THAT pending the hearing of this application inter partes a mandatory order of injunction do issue directing the Respondent to resume collection of the Applicants tea leaves from Keseve tea buying Centre.* 4. *THAT pending the hearing of this suit a mandatory order of injunction do issue directing the Respondent to resume collection of the Applicant’s tea leaves from Keseve tea buying Centre.* 5. *THAT Costs hereof be provided for;* 6. Which application is grounded on the following grounds: 7. *THAT the Applicant is a founder member of the defendant* 8. *THAT the Applicant has developed more than 2000 tea bushes and his buying center is at Keseve Centre* 9. *THAT the Applicant has been engaged in tea farming since 1998* 10. *THAT on 2/12/2026 the Applicant as usual took his leaves at Keseve tea buying Centre for collection by the defendant* 11. *THAT the defendant's agents without any explanation declined to collect the leaves* 12. *THAT the Applicant had supplied leaves throughout 2025 and January 2026* 13. *THAT the Applicant went up to the factory but the defendant declined to have the leaves accepted* 14. *THAT this was repeated on 4th and 6th of February 2026 when the Applicant tea was declined leading to the loss of the leaves,* 15. *THAT the defendant has not given any explanation for its action.* 16. *THAT the Applicant is being discriminated against contrary to Article 27 of the Constitution actions* 17. *That the defendant is bound by the Constitution and therefore its present actions are against are the Constitution Articles 10, 27, 40, 43, and 47 of the Constitution* 18. *THAT farming is the livelihood of the Applicant and the Respondent's action has driven him out of an economic activity hence infringing on his economic right* 19. *THAT the tea now growing on the farm risks being wasted as the Applicant is afraid of the quality of tea that would flow from the failure to pluck the tea leaves.* 20. *THAT the rejection has caused psychological trauma as the rejection was loud in the presence of the other farmers.* 21. *THAT the loss of a livelihood cannot be quantified.* 22. *THAT the Respondent is acting illegally and this Court has jurisdiction to grant the orders sought* 23. *THAT the Applicant has a prima facie cause with high chances of success* 24. *THAT it is in the interest if justice that the orders sought be granted.* 25. In support of the application is the annexed affidavit of Rajab Aradi Kavulavu who deponed as follows: 26. *That I am the Applicant herein and hence competent to make this oath.* 27. *THAT am a member and shareholder of the defendant herein.* 28. *THAT I am a tea grower and I have over 2000 tea bushes and supply my tealeaves at Keseve Tea Buying Centre.* 29. *THAT I have been a farmer of the tea since 1998.* 30. *THAT on 2nd February 2026 I supplied tea plucked from my farm to Keseve Tea Buying Centre* 31. *THAT was shocked when the agent of the Respondent announced publicly that my tea shall not be collected* 32. *THAT I inquired from the agents why this was so and was told that I communicate directly to the management at the headquarters* 33. *THAT I proceeded to the factory and I was informed that the management had made the decision* 34. *THAT I was psychologically affected by the actions of the agents of the defendant* 35. *THAT I supplied tea the whole of last year and in January this year.* 36. *THAT I was not given any reasons before the action of declining to collect my tea was undertaken* 37. *THAT I am advised that all persons including the defendant are bound by the Constitution* 38. *THAT therefore they are bound by Articles 10, 27, 40 and 47 of the Constitution.* 39. *THAT the Respondents are acting in breach of the Constitution and therefore their actions are illegal* 40. *THAT I depend on the tea for my livelihood* 41. *THAT this denial is infringing on my economical rights under Article 43 of the Constitution* 42. *THAT the tea now growing on my farm is ready for plucking but am afraid that I will not be in position to do so as the leaves shall be declined* 43. *THAT I risk losing the whole crop for failure to pick the leaves when they are ready.* 44. *THAT the loss of the crop means the loss of my livelihood which is irreparable* 45. *THAT I have a prima facie case with high chances of success* 46. *THAT the defendant is acting illegally and this Court can issue a mandatory injunction.* 47. *In Kenya Breweries-VS-Washington Okeyo the Court of Appeal cited with approval VOL 24 of Halsbury's laws of England 4th edition paragraph 948which reads: "A mandatory injunction application as well as at the hearing, but in the absence of special circumstances it will not normally be granted. However, if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied or if the or if the defendant attempted to steal a march on the plaintiffs.....a mandatory injunction will be granted on an interlocutory application."* 48. *THAT the Respondent is in breach of Articles 10, 27, 40, 43 and 47 and hence acting illegally and blatantly so* 49. *THAT it is therefore in the interest of justice that the orders sought be granted* 50. In response to the application is the replying affidavit of Bwari Roselyne Bosire; 51. *That I am the Acting Factory Unit Manager of the Defendant, charged with its overall management and for the purposes of this suit duly authorized to make depositions on its behalf; hence competent to make this affidavit.* 52. *THAT I have read and understood the Plaintiff's Plaint dated 12th February, 2026 and accompanying application dated 11th February,2026 and I now wish to respond as hereunder:* 53. *THAT it is indeed true that the Plaintiff is a registered tea grower with the Defendant company under grower number Md0620150* 54. *THAT the Plaintiff delivers his green leaf for weighing just like other tea farmers registered in Md062 (Keseve Tea Buying Centre)* 55. *THAT the Defendant company has 75 registered tea buying centres where weighing of tea is done in accordance with the company's binding standard operating procedures and as per the tea buying centre By laws which elaborate on leaf quality standards.* 56. *THAT I am well aware that rejection of poorly plucked tea leaves is usually conducted at the buying centre level and in the presence of duly elected tea buying centre committee members who also ascertain whether the tea is indeed of poor quality before the Company's tea buying clerks make a decision to reject the same.* 57. *THAT as such contrary to the Plaintiffs allegation that he was discriminated against on 20th, 4th and 6th February, 2026. I wish to reiterate that the Plaintiff's green leaf delivery was rejected owing to its quality which was not commensurate with the well-known leaf quality standards* 58. *THAT admittedly the Plaintiff has been a green leaf supplier from the year 1998. ln that regard. It is safe to presume that the Plaintiff is well versed with the By laws which impose an obligation to him to remit green leaf of the required quality.* 59. *THAT in response to the Plaintiff's assertion that the tea growing on the farm risks being wasted. I wish to aver that the Plaintiff's Tea Grower Account is still active. Nothing precludes him from delivering Green leaf to the factory.* 60. *THAT in any event green leaf quality standards apply to all tea growers. Furthermore, the company's binding tea buying centre by-laws and standard operating procedures cut across all 12,045 registered shareholders.* 61. *THAT in that regard, I know for a fact that on occasions when tea growers deliver substandard tea leaves, the Plaintiff included, the Defendant Company's tea buying clerks advise the respective tea growers to adhere to proper plucking standards and subject their leaves for resortation before weighing. It is only in instances where a tea grower's green leaf delivery is beyond resortation when the same is rejected.* 62. *THAT in instances where a tea grower's green leaf delivery is rejected, the Plaintiff included, there is usually a significant improvement in the next batch of green leaf delivery* 63. *THAT with absolutely no prejudice, on the three occasions mentioned by the Plaintiff am well informed that the Plaintiff instead of improving the quality of his green leaf deliveries, resorted to lodging complaints about the company's tea buying clerks, committee members of Keseve tea buying centre and the company management.* 64. *THAT the Plaintiff at one point went as far as proceeding to deliver his poorly plucked tealeaves at the factory gate.* 65. *THAT nevertheless, his green leaf delivery tea quality was still re-ascertained and reasons provided for rejection, if at all. In the premise. The Plaintiff's claim that he was discriminated against and that he was never provided with reasons for rejection of his green leaf deliveries is only aimed at misleading this Honorable Court.* 66. *THAT in response to paragraphs e-g and h, I wish to reiterate that the company tea buying clerks were left with no choice but to reject the Plaintiff's green leaf delivery in compliance with clause 17 of the said By-laws having noted, in the presence of committee members, that the Plaintiff's tea leaves' quality on the specific dates was poor.* 67. *THAT I also note with concern that the Plaintiff seeks injunctive orders to compel the Defendant company to resume collection of his tea leaves when in essence the company neither singled out the Plaintiff nor declined to weigh his green leaf delivery whenever the same was of the required quality.* 68. *THAT in the circumstances, it is my humble plea to this honorable Court that it considers the Plaintiff's case in its totality and the deleterious effects of sanctioning his improper conduct by allowing his application for injunctive orders at the detriment of other members who strictly comply with green leaf quality standards.* 69. *THAT further. I am advised by our Advocates on record that the Plaintiff has not satisfied the requirements necessary for grant of a mandatory injunction.* 70. *THAT also know for a fact that the Defendant Company has internal dispute resolution mechanisms and/or disciplinary processes in place, as observed in the Bylaws. which processes ought to be exhausted prior to one approaching this Honorable Court.* 71. *THAT in that regard, it is my humble contention backed by our advocates' advice that the suit herein constitutes an utter abuse of the Court process.* 72. *THAT in the backdrop of the foregoing. I urge this honorable Court to dismiss the instant application with costs.* 73. In addition the Respondent field a notice of preliminary objection couched in the following language: *TAKE NOTICE that before the hearing of this suit the Defendant/Respondent shall raise a Preliminary Objection seeking that the Plaintiff’s/Applicant’s suit be dismissed on the following grounds: -* 1. *THAT this Honourable Court lacks the jurisdiction to entertain this suit by virtue of sections 44, 45 of the KTDA Management Services (KTDA MS) Managed Tea Factories' Buying Centre’ By-Laws.* 2. *THAT this suit filed herein is an abuse of the Court process as the Plaintiff/Applicant being a member of a Tea Buy-Centre is required to refer any and all matters relating to the Tea Buy Centre through the prescribed dispute resolution process under sections 44, 45 of the KTDA Management Services (KTDA MS) Managed Tea Factories' Buying Centre’ By-Laws.* 3. *THAT the suit herein is vexatious, scandalous, and frivolous.* 4. *THAT this suit is incompetent and bad in law.* 5. *REASONS WHEREFORE the Defendant/Respondent prays that this suit be struck out with costs.* 6. This application was canvased by way of written submissions, on the part of the Plaintiff/Applicant Learned Counsel took the Court through the chronology of legal and policy framework on the relationship governance structure between the two parties in so far as the promotion and the growth of the tea industry is concerned. It was learned Counsel contention that this is a fit case for grant of mandatory injunction as set out in the case of *Kenya Breweries-VS- Washington Okeyo* the Court of Appeal cited with approval VOL 24 of Halsbury’s laws of England 4th edition paragraph 948 which reads: *"A mandatory injunction application as well as at the hearing, but in the absence of special circumstances it will not normally be granted. However, if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied or if the or if the defendant attempted to steal a march on the plaintiffs......a mandatory injunction will be granted on an interlocutory application."* It is from this contention the learned Counsel submitted that the Court disregards the objection and proceed to make a determination of the plaint on the merits. 1. That typology and perspective of the law was strongly opposed by the Defendant/Respondent Learned Counsel as he reflected in his written submissions dated 9th day of March 2026. The view taken by the learned Counsel is that there is an already established dispute resolution mechanism within the Tea Factories which are independent factories managing operations of various Tea Buying Centers which are under their governance within the statutory and regulatory framework enacted by the legislature of the Republic of Kenya. According to the Learned Counsel of Defendant/Respondent it is true it appears to be some form of dispute around the delivery of tea leaves by the Applicant/Plaintiff to the Defendant/Respondent factory. In this respect, Learned Counsel contended that the dispute has not ripened for the High Court to exercise jurisdiction in view of the provision of Sections 43 and 44 of the KTDA Management Service (KTDA MS) Managed Tea Factories Buying Centre By-Laws. In his further submissions Learned Counsel cited the principles in *Owners of Motor Vessel “Lillians” vs Caltex Oil (K) Ltd (1989) KLR 1, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others (2015) eKLR and William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR.* 2. It is from this legal background Learned Counsel submitted that the application and the dispute be first subjected to the existing mechanism provided in the legislative scheme governing the management and operations of the Tea Factories and the on boarded Tea Buying Centers. **Decision** 1. The question is who between the two Learned Counsels is right in so far as the typology of the law is concerned. The first question of fundamental importance even before the merits of the notice of motion is whether this Court has jurisdiction to entertain the main dispute or interlocutory stage of the proceedings. I therefore venture into the landscape of the doctrine of exhaustion. This doctrine requires litigants to use available internal or statutory resolution bodies before coming to Court. The carrier principles of the doctrine of exhaustion include *inter alia* the following: * ***Primary Jurisdiction:****Courts must postpone action and respect alternative dispute systems set up by law.* * ***Constitutional Backing:****Grounded in Article 159(2)(c) of the Constitution, promoting alternative dispute resolution.* * ***Statutory Rule:****Section 9 of the Fair and Administrative Act stops Courts from hearing matters where internal remedies were ignored.* 1. The Superior Courts have spoken loudly in various decisions on the justiciability of the doctrine of exhaustion as demonstrated herein below: *In William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR.* The Court stated as follows: - *52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:* *42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.* *Similarly, in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR,* where the Court of Appeal stated that: *It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.* 1. On the same breadth, the Supreme Court of Kenya made entry on this issue in the case of *Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others* *[2014] eKLR* had the following on Constitutional Petitions: *- Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the Constitutional process of dispute settlement.* 2. This is the basic argument raised by the Defendant/Respondent legal team that the jurisdiction of the High Court ripens upon the exhausting the laid down statutory regulatory framework under Sections 43 & 44 with the following essentials: *“43. Disciplinary Processes/Disciplinary Committee Tribunal All disputes in relation to the Company Business of management and collection of Greenleaf under these by-laws shall be handles through the disciplinary process enumerated herein at the first instance.* * + *The buying centre committees shall separately sit as disciplinary Committee in reference to the issues relating to errant grower members ad may mete out the prescribed penalties.* + *The Chairman of the committee shall be the Chairman of the Tribunal. Chairmen of all the Buying Centre Committee within the electoral areas(Catchment). Shall sit as the disciplinary Committee in reference to a disciplinary process against a member of a buying centre committee within the catchment. In this event the Chairmanship shall be on a rotational basis.* + *Decisions of the Tribunals shall be decided by a simple majority.* + *Management will sit in all the disciplinary sessions and record the proceedings.* + *Every person shall be given an opportunity to be heard before any disciplinary action is taken against them. Such opportunity may be oral or written presentation.* + *The grower/committee member accused of violating the by-laws, will at the first instance receive communication requesting him/her to remedy the violation not to be remedies a date will be set for the Tribunal to sit and a written summon to appear before the respective committee will be sent to the grower/committee member. The summons should be sent at least seven (7) days before the sitting.* + *In the event of a person being found guilty of violating the by-laws, he may be condemned to pay the cost of the tribunal sitting.* + *In the event of willful absence the grower/committee member from the sessions of the disciplinary tribunal, the FUM shall communicate the decision in writing to the grower/member and cause the same to be delivered by way of delivery note/registered post.* + *The record I should reflect the communication was delivered. Failure of the recipient to acknowledge receipt of delivery would be deemed received.* *44. Appeal Tribunal* *The Board of Directors shall sit as the Appeal Tribunal* * *Any grower/member may lodge an appeal against a decision of the disciplinary tribunal.* * *The Tribunal shall be chaired by the Chairman of the Board of Directors* * *All Appeals must be lodged with the office of the FUM addressed to the Chairman Appeals Tribunal not letter than fourteen (14) days after the decision. The Appeal should be in writing.* * *Upon receipt of an Appeal, the FUM in consultation with the Appeal Tribunal Chairman set a date for the appeal. The date shall be communicated to the appellant in writing giving him five days to the date of Tribunal Sitting, (Day of sending and day of sitting inclusive)* * *Meetings of the tribunal may be organized alongside board meetings* * *The Appellant will be given an opportunity to summarize his appeal in person and cannot be represented by anyone else, unless he is indisposed as a result of illness. In the event the appellant cannot appear in person he may have another grower/member represent him. Appearance at the tribunal is optional on the part of the Appellant.* * *The decision of the tribunal will be communicated to the appellant in writing by the FUM* * *The cost of the Appeal Tribunal shall be borne by the company.”* 1. The Applicant/Plaintiff’s learned Counsel submission are to the effect that these are the provisions of by-laws and therefore subordinate to the provisions of Article 43 on Economic and Social Rights of the Applicant/Plaintiff in so far as the production and sale of his tea leaves to the Defendant/Respondent in this dispute. The question of jurisdiction is a subject great controversy in any dispute and in most cases even where the law is very clear, the Court has been called upon to make a determination on whether it has a jurisdiction at the preliminary stage of the proceedings. Indeed, in the application before me that is how the Defendant/Respondent moved the Court to first determine the life wire and bloodline of this dispute by raising a preliminary objection on jurisdiction. That is how the importance of the jurisdictional question is that a Court properly constituted under Article 50 (1) of the Constitution is obliged to decide the issue based on the material placed before it in the first instances and right away without any hesitation. If this Court is persuaded by the submissions by the Learned Counsel for the Defendant/Respondent that it has no jurisdiction without further ado it must down its tools and discontinue the proceedings. 2. Evidently the facts of this case are in consonant with the principles on jurisdiction on the case of *Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR)* in which the Court remarked as follows: *A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a Court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.* *Where the Constitution exhaustively provided for the jurisdiction of a Court of law, the Court must operate within the Constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.* 1. The doctrine of exhaustion on alternative forums and alternative remedies is one of the remarkable features in the functioning of our legal system. The doctrine is bolstered on the principles that a litigant must approach the lowest forum that has been provided for in the legislative scheme in the hierarchy of judicial structure so as to ensure that exquisite judicial resources at the higher level and the lower level as well as at the specialized level are not squandered in the wake of a forum shopping exercise. This doctrine brings in the scope of administration of justice which one can describe as self-imposed limitation on the jurisdiction of powers of Court. The statutory and regulatory framework on the establishment of such forums is to ensure that justice is delivered by a forum in a meticulous manner without usurping the jurisdiction of other Courts. 2. However, in these proceedings the Applicant seems to think otherwise about the usage of the doctrine of alternative forum for alternative remedies provided for in Sections 43 & 44 of the KTDA Management Service (KTDA MS) Managed Tea Factories Buying Center By-Laws by making reference to the fundamental rights being infringed or violated by the Respondent. It is generally provided for in the legal framework that the High Court would not entertain questions arising between the two parties as outlined in the abiding instruments before the duly constituted Tribunal under Section 43 & 44 of the Operative Act and Rules has been fully invoked by the Applicant to determine the questions of facts which may form the bedrock of the dispute. In my considered view, there is existence or availability of an alternate, suitable, adequate and equally effective remedy to the distress Applicant before the tribunal. This right on delivery of plucked tea leaves to the Respondent Tea Factory or through the recognized Buying Tea Centers is neither fundamental right nor the one which falls within Chapter 4 on the Bill of Rights of our Constitution. It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. 3. I therefore concur with the Defendant/Respondent that the preliminary objection on jurisdiction of this Court has not ripened based on the doctrine of exhaustion of alternative forum and alternative remedies which is a rule of prudence and convenience. In general, no necessity has been shown why this Court should usurp that jurisdiction while under the preserve of the law any aggrieved party from the decision of the tribunal has a right of appeal to the High Court. As a consequence, both notice of motion and the plaint are not maintainable as pleaded by the Plaintiff/Applicant for the Court to grant any prerogative writs of mandamus. The Applicant shall pay costs to the Respondents. Orders accordingly. **DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JULY 2026** **…………………………………….** **R. NYAKUNDI** **JUDGE**