Agriculture Cabinet Secretary Mithika Linturi has been convicted for disobeying a court order to stop interfering with the operations and leadership of Agro-Chemical Food and Company Limited.
The CS was convicted alongside the company's Board Chair Mohamed Bulle and the suspended Acting Managing Director Timothy Ogwang’ for the same offence.
The trio is accused of failing to allow Ashok Agarwal and Mehta International Ltd to resume their responsibilities as technical adviser and chief executive officer of the company, respectively.
Although the court order had been issued to former Cabinet Minister for Agriculture Peter Munya on June 39, 2022, the court found Linturi guilty of contempt for failing to execute the order.
Justice Ngung'u further ordered that the three convicted contemnors CS Linturi, Bulle and Ogwang' personally appear in court on February 21 2023 for sentencing, which may include a possible jail term or a cash fine to be paid from their personal resources or both.
The three are also liable to removal from office and a bar from assuming appointive or elective public office under the provisions of the Leadership and Integrity Act as read in Chapter six of the Constitution.
"The CS, Bulle and Ogwang’ are in contempt of the orders of this court issued on June 30, 2022. I order they appear in person before this court on February 21, 2023, to confirm the purging of the contempt in default of which they are to be sentenced in accordance with the law. In default of appearance, a warrant of arrest to issue," Justice Ndung'u ordered.
Judge Ndung'u noted that there is no evidence that was tabled before him by Agriculture CS and the two others showing that the order dated June 30 last year has been set aside or varied by the High court of the Court of appeal, therefore the order remains in force.
While convicting them, the judge stated that the three failed to give sufficient reasons as to why they have failed to comply with the court orders.
"This court has stated before and it has behoves repeating that any lapse in the enforcement of court orders is a sure invitation to a total breakdown of the law and order and the rule of law as we know it. The inevitable results would be anarchy and an erosion of our social fabric," Justice Ndung'u noted.
"The court has an obligation to stand firm and guard against such an eventuality. This would achieve, by strict enforcement of its orders. Any court that fails to enforce its orders in a previous matter has no business conducting any other trial as, of what use would such a trial be if the outcome is Pyrrhic?" the judge posed.
The contempt springs from a case filed by Mehta International Limited the implementation of an "unreasonably biased, unlawful, and unfair administrative decision" by the Agriculture CS to refuse to approve a resolution to renew the management contract for the year 2022.
The court noted that in a letter on November 8, 2021, the Agriculture CS directed the board of directors not to renew the management contract.
The board was also directed to recruit a managing director internally with the concurrence of the Ministry and review the memorandum and articles of association.
It is also contended that the main concern of CS Agriculture is the loss of the annual management fee of USD 250,000 equivalent to 31,076,575 which is the net of taxes as was previously provided in the management contract for its management which was paid even though the company has made losses for years at the expense of the other two shareholders (Agriculture Development Corporation and Kenya Development Corporation) who have not received any dividends since the inception of the company.
"The CS’s impugned administrative action stands to not only arbitrarily disposes of the petitioners of their lawful property, but also grossly interfere with the operations at the Agro-Chemical and Food Company Limited (ACFC) exposing the company to management uncertainties which are likely to lead to shareholders value and loss of business, and consequently lead to employees losing their gainful employment and their livelihood, as well negatively impacting the general populace residing within the Muhoroni area and who depend on ACFC," the court papers read in part.
While opposing the contempt of court allegations, CS Linturi contended that since 2008, the management contract between The Mehta International Limited and Agro Chemical and food company limited was renewed on a yearly basis by the board of directors of the company.
"Once approved by the board, a letter would be written from the chairman of the board to the Board to the Cabinet Secretary of Agriculture and Livestock Development requesting for renewal of the management contract for another year or until privatization whichever came earlier. This went on for several years, " Linturi stated in his replying affidavit.
He adds that the last letter that his office received from the parent Ministry approving the renewal of the management contract was for the year 2021.
The court heard that the board of directors pursuant to a decision of the majority of the government shareholders has refused to approve a resolution to renew the management contract for the year January to December 2022
Further, the three informed the court that they should not be held in contempt as the orders issued on June 30, 2022, were issued through non-disclosure of key issues to the court.
On his side, Ogwang' stated that he is an employee of the Ministry of Agriculture and was seconded by the CS and the Managing Director of the company and therefore cannot be held in contempt of the said court order.
Previously, Justice Antony Mrima had sentenced the former DCI, Director, George Kinoti to 6 months imprisonment at Kamiti, which jail term he is yet to serve on account of a pending appeal at the Court of Appeal.
The courts have taken a firm stance against disregard of its Orders, cautioning that it threatens the country’s stability and the rule of law. In a terse decision by the Court of Appeal involving former senior CS, for Interior Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government VS Miguna Miguna and four others, the Court noted that this Court has itself set its face firmly against granting contemnors audience until and unless they first purge their contempt and it shall continue to do so in such cases as evidence a headstrong contumaciousness proceeding from bold impunity, open defiance or cynical disregard for the authority of the Court and the integrity of the judicial system.
Such pernicious conduct cannot be countenanced, and those hell-bent on it will find neither help nor refuge under a convenient and self-serving appeal to natural justice where their impudent conduct threatens the very foundation of the rule of law.