Court delivers blow to Kenyatta family's Brookside Dairy in Mohamed Ali suit
Brookside Dairy wanted the High Court to order Nyali MP Mohamed Ali (inset) to pay an unspecified amount in damages after he alleged the firm was exploiting and financially oppressing dairy farmers.
Brookside Dairy Limited, a milk processing company owned by the family of former President Uhuru Kenyatta, has lost its bid to be paid damages by Nyali MP Mohamed Ali for allegedly inciting the public to cause economic and commercial harm on its business.
The processor wanted the High Court to order the MP to pay unspecified amount of damages after he alleged that it was exploiting and financially oppressing dairy farmers. It also sought a permanent order barring the lawmaker from advocating the alleged public hatred against it or inciting the public.
But Justice Hedwig Ong’undi has struck out the petition after finding that it was filed in the wrong forum – the Constitutional and Human Rights Division of the High Court.
Upholding a preliminary objection raised by Mr Ali against the suit, she ruled that the dispute should have been lodged at the civil court. This is because the issues raised in the dispute involved defamation. She struck out the case with costs to the milk processor.
In the objection, Mr Ali argued that the suit was incompetent and that the company’s intention was to gag him.
Through his lawyer Adrian Kamotho Njenga, the lawmaker downplayed claims that he had violated the company’s Constitutional rights. He argued that the rights enshrined in the Constitution, under the Bill of Rights, are to be enjoyed by natural persons and not corporate entities.
“The Bill of Rights affords protections and guarantees for natural persons as individuals which protection does not extend to limited liability companies such as Brookside,” said Mr Njenga.
He added that according to Article 19 (3) (a) of the Constitution, the rights and fundamental freedoms in the Bill of Rights belong to individuals and are incapable of being granted to a limited liability company.
Mr Njenga said the court lacked powers to determine the issues raised by the company since the suit failed to disclose, with precision and particularity, any constitutional or human rights violations, as is legally mandatory.
“The power of this court has been improperly invoked since it’s expressly ousted by virtue of Brookside being a corporate entity. Brookside is not lawfully capable of petitioning the High Court for violation of own fundamental rights and freedoms under Articles 22 and 23 of the Constitution as purported,” said Mr Njenga.
The lawsuit arose from remarks the MP allegedly made on March 3, 2022 at a political rally in Nyeri town. He alleged that Brookside was exploiting farmers by buying raw milk for Sh20 and reselling it at Sh120 after processing.
Court papers show that Mr Ali said “Uhuru Kenyatta comes here, he buys milk at Sh20, he goes and boils it and then sells it back to you at Sh120”.
“The statement meant that the company exploits the dairy farmers who sell and supply milk to it as raw material for its business. The said statement also meant that the company subjects farmers or suppliers to unfair treatment,” the company said in its petition.
'Vilifying its products'
In relation to its consumers, the company said the MP’s statement meant that it sells milk products that were not processed or manufactured to the required health or safety standards and are of substandard quality.
“The statement was meant to and did cause economic or commercial harm to the company and its business,” said the company, adding that its rights under Article 20, 33(2) and 27 of the Constitution were violated by the MP’s advocating public hatred against it.
By vilifying its products, the company argued, Mr Ali violated its constitutional right to a good reputation.
Brookside had also alleged violation of its rights as stipulated in Articles 20, 27 and 33 of the Constitution (on the Bill of Rights).
Article 20 provides that The Bill of Rights applies to all law and binds all State organs and all persons and that every person should enjoy the rights and fundamental freedoms in the Bill of Rights. Article 27 talks about equality and freedom from discrimination. It provides every person is equal before the law and has the right to equal protection and equal benefit of the law.
It also provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Article 33 talks about freedom of expression. It provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas; freedom of artistic creativity and academic freedom and freedom of scientific research.
The Constitution says the right to freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm.
It also adds that the freedom of expression should not be based on any ground of discrimination and that in the exercise of the right to freedom of expression, every person should respect the rights and reputation of others.
