https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11796

Ngari & another v Igembe Tea Factory Co. Ltd & 2 others (Constitutional Petition E007 of 2026) [2026] KEHC 11796 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11796 (KLR) Republic of Kenya In the High Court at Meru Constitutional Petition E007 of 2026 HM Nyaga, J July 23, 2026 IN THE MATTER OF ARTICLE 22, 23, 27 AND 47 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE COMPANIES ACT, 2015 AND IN THE MATTER OF THE DECISION BY THE 1ST RESPONDENT TO INTRODUCE A REQUIREMENT OF 5,000 KILOGRAMS OF TEA IN ONE ELECTROL AREA Between Jonah Mithka Ngari 1st Petitioner Josphat Kirimi Minyori 2nd Petitioner and Igembe Tea Factory Co. Ltd 1st Respondent KTDA Management Services Limited 2nd Respondent Kenya Tea Development Agency (KTDA) 3rd Respondent Ruling 1.The petitioners moved this court with a petition dated 17th February 2026 in which they sought the following prayers:a.A declaration that the introduction and enforcement of the 5000-kilogram requirement for the election scheduled for 25th February 2026 is unlawful, unreasonable, and unconstitutional and court to cancel the same and order for a fresh election in compliance with constitution and law.b.An order of Mandatory Injunction compelling the respondents, jointly and/or severally, whether by themselves, their agents, employees, mangers, committees, or any other persons acting on their behalf, to declare the petitioners duly qualified for nomination for the position of Director in the election scheduled for 25th February 2026, or on such other date as this honourable court may direct, an to allow them to participate in the said election; and further an order quashing Clause 6(i) of the Election Manual on condition of candidacy dated 30th January 2026.c.An order suspending the election and enforcement of the said 5000 kilograms of green leaf requirement for the election scheduled for 25th February 2026.d.In the alternative, an order directing the respondents to consolidate all green leaf deliveries made under the original Kiegoi/Igembe Tea Factory Ltd prior to the split of 28th January 2026 and creation of four new electoral area for purposes of determining eligibility.e.Costs of this petitionf.Any other relief the court deems just. 2.Contemporaneously, they filed the application dated 17th February 2026 in which they sought the following orders:a.Spentb.That pending the inter parties hearing and determination of this application, this honourable court, be pleased to suspend the election of directors of Igembe tea factory company limited scheduled for 25th February 2026 and enforcement of Clause 6(i) of the Igembe Tea Factory Ltd Election Manual on condition of candidacy, dated 30th January 2026, which requires a minimum of 5,000 kilograms of green leaf in one electoral area in the preceding year.c.That pending the hearing and determination of the petition, issue a conservatory order suspending the election of directors of Igembe tea factory company limited scheduled for 25th February 2026 and an order restraining the respondents, whether by themselves, their agents, employees, or any person acting on their behalf, from disqualifying the petitioners on the basis of the impugned 5,000 kilogram of green leaf requirement, and/or from proceeding with the election of directors scheduled for 25th February 2026.d.That the cost of this application be provided for. 3.The gist of the petition and the application is that the applicants are members and shareholders of the 1st respondent and had declared interest in contesting for the position of Zone Director, whose duty is to represent interest of members of a particular zone as created by the 3rd respondent. That the election of Zone Directors is governed by rules made by members. 4.The applicants further state that Igembe Tea Factory Zone was created from an already existing zone, namely Kiegoi Tea Factory Electoral Area. That they have been campaigning in the region and put in considerable resources and manpower. That to their surprise while the elections were just two weeks away, they were given an election manual which was contrary to the earlier requirements that they had been given. That the new requirements are solely meant to lock them out from contesting on the elections. They cited the following reasons:a.That the said manual at Clause 6(i) provides for a candidate to have 5000 kilograms of green leaf in the preceding years in one electoral area. That this is impossible since the subject area is a new one, following the split of Kiegoi/Igembe Factory into 4 regions yet candidates had tea in all the 4 regions their total kilograms weight is spread in the said regions.b.That the new rule was made with the 1st respondent’s full knowledge that the candidates have no chance of harvesting 5000 kilograms from the new electoral area just two weeks for the election and the subject year under consideration is already closed.c.That the said decision was unreasonable, illegal, unprocedural and discriminative and was only meant to silence the petitioner’s rights to offer representation.d.That the petitioners have exhausted all available mechanisms to resolve the dispute to no avail. 5.The petitioners seek an order that the said requirement be suspended and that an order do issue directing the 1st respondent to include all kilograms attributable to the petitioners in the original unit of Kiego/Igembe Tea Factory Zone before the split. 6.The respondents oppose the application vide a replying affidavit sworn by Norah Nyaga on 27th February 2026. The said deponent is the Factory Unit Manager of the 1st respondent. 7.It is deponed that the petitioners are shareholders of Kiegoi Tea Factory Limited and that the electoral areas in which they seek to contend as directors were recently created out of the tea catchment area of Kiegoi Tea Factory Co. Ltd. That Igembe Tea Factory Co. Ltd is owed by Kiegoi Tea Factory Co. Ltd and Kenya Tea Development Authority, the 3rd respondent. That the 1st respondent is undergoing segregation from its other company as approved by the shareholders of Kiegoi Tea Factory Co. Ltd. 8.It is further averred that being a new area, there has never been an eligibility criterion and the one applicable is the one applicable to Kiegoi Tea Factory Co. Ltd the mother company. 9.It is further deponed that the elections to the mother company are guided by Election Manual which are similar to the conditions set out in the Articles of Association of Kiegoi Tea Factory Co. Ltd. That as such the allegations that new rules were introduced do not arise. That the existing conditions have been known to the candidates all along and have not changed. 10.The deponent further avers that the condition that a candidate must have delivered not less than 5000 kilograms of green leaf from one election area is already in existence and it is meant to ensure even and fair representation of shareholders by persons who are bona fide and genuine farmers. 11.The respondents further aver that the petition is an attempt by the petitioners to assert themselves in electoral areas that they do not meet the required green leaf weight. The respondents attached a confirmation of the total green leaf weight of the petitioners as annexture NN9. 12.As regards the allegation that there were pending appeals, it is deponed that the internal Appeals Committee made a decision on 6th February 2026 addressing the issues raised. 13.The parties filed their respective submissions which I will not rehash. I will refer to them where necessary. 14.The petitioners have sought inter alia conservatory orders. 15.The nature of conservatory orders was discussed in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR, where the Supreme Court stated as follows: -(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay. 27.In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR the Court stated the following about the nature of conservatory orders: -Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person. 16.It is thus the duty of the court to determine if there are sufficient grounds to warrant an issuance of the orders sought. 17.The following facts are not in dispute:a.The petitioners are members of Kiegoi Tea Factory Limited.b.Igembe Tea Factory Limited has been carved out of a catchment area formerly under Kiegoi Tea Factory Ltd.c.The creation of Igembe tea Factory Limited was duly approved by the members of Kiegoi Tea Factory Limited. 18.If I get the petitioners correctly, their concern is that the requirement of minimum weight of green leaf in the new electoral area is unreasonable in that their delivery was spread across the areas previously covered by Kiegoi Tea Factory Limited. That such delivery was over and above the required weight set for qualification to be a candidate, that is 5000 kilograms. 19.The respondent’s position is that the petitioner’s total delivery weight failed to meet the threshold. 20.From the annexture NN9, tendered by the 1st respondent, the 1st petitioner is said to have delivered a total of 3670.6 kilograms for the year between July 2024 and June 2025. 21.The 2nd petitioner is said to have delivered 5154 kilograms during the same period. 22.I have looked at the material placed before me by the petitioners. They have not countered the documents showing the total weight delivered made for the period in question. 23.The KTDA advice slips filed by the petitioners show that the first petitioner’s total weight delivery as at September 2025 was 5,705 kilograms. However, the relevant period according to the Articles of Association and the Electoral Manual is the period between July 2024 and June 2025. Any delivery made outside those periods would thus not count. 24.I find that the 1st petitioner has failed to establish that he had met the minimum weight delivery for the relevant period. If he had delivered to any other factory, nothing would have been easier than to exhibit the same. 25.As for the 2nd petitioner, the material he exhibited shows that as at September 2025, the total weight delivered by him was 5,464 kilograms. 26.Similarly, he did not show that he met the weight threshold for the relevant period, that is from July 2024 to June 2025. If he had made any other delivery during that period, nothing would have been easier than to exhibit the same. 27.After analyzing the documents tendered by the parties, I am not satisfied that the petitioners met the threshold for candidature in the impugned elections. 28.It is further noted from the response by the respondents that the weight that is considered is that of the former unit, namely Kiegoi/Igembe Tea Factory Co. Ltd and not the sub-unit that was created. 29.The existence of the provisions of Article 88(4) of the Articles of Association of Kiego/Igembe Tea Factory Co. Ltd which require the minimum weight of delivery, are not new. In fact, from the material before the court, the petitioner were fully aware of them and duly subscribed for them. 30.As such, I do not see anything new introduced by the Electoral Manual and the Articles of Association. 31.It is also noted that the internal Appeals Committee also deliberated on the issue and gave its verdict. 32.Having considered the matter, I am satisfied that the petitioners have not presented a case that shows:a.That they met the minimum weight delivery.b.That there were new rules introduced that were prejudicial to the petitioners.c.That the Internal Dispute Resolution Mechanism was not invoked. 33.In the upshot, I find that the application lacks merit and it is dismissed with costs to the respondents. 34.Having found the above, the respondents are now at liberty to implement the outcome of the elections that were held, if so held. 35.The Registrar of Companies is authorized to effect the resolutions relating thereto. DATED, SIGNED AND DELIVERED AT MERU ON THIS 23RD DAY OF JULY, 2026HON. H. M. NYAGAJUDGE