Nyali MP Mohamed Ali urges court to dismiss Brookside case

Nyali Member of Parliament Mohamed Ali has urged the High Court to dismiss a case filed by milk processor Brookside Limited over claims that the company, which is associated with President Uhuru Kenyatta’s family, has allegedly been exploiting milk farmers and consumers.

Mr Ali in his objection filed before Justice Hedwig Ong’undi said that the rights claimed by the company are meant for natural persons and not companies.

The MP’s lawyer Adrian Kamotho asserted that the court has no powers to entertain the case, adding that Brookside does not disclose any claim against Ali. In his objection, Ali, however, asserts that the firm exploits farmers, a claim which is at the heart of the dispute.

“The petition herein is fatally defective and militates against the time honored doctrine of ex tupi causa non oritur (Latin meaning from a dishonorable cause an action does not arise) action affirmed by the Court of Appeal ... to the extent that the petitioner continues to oppress Kenyan farmers in utter disregard of the Dairy Industry (Pricing of Dairy Produce) Regulations, 2021.

“The Bill of Rights affords protection and guarantees of natural persons as individuals, which protection does not extend to limited liability companies such as the petitioner herein,” claimed Ali in his court papers.

The case is a first for a company seeking the court’s interpretation of its constitutional rights to do business and not to be subjected to commercial harm.

In the case, Brookside said the allegations by the former journalist, which were made on March 3 at a public rally in Nyeri, were meant to ignite public resentment against it.

Brookside claims that Ali said the firm buys milk at Sh20, boils it and sells it to suppliers at Sh120. This statement, according to the milk processor, was false and a violation of its rights under Article 20, Article 33(2)(d), and Article 27 of the Constitution.

Article 20 of the Constitution provides that every person has a right to enjoy fundamental freedoms in the Bill of Rights. In addition, Article 33(2)(d) limits the freedom of expression by providing that this right does not extend to the advocacy of hatred. The Article states that hatred constitutes ethnic incitement, vilification of others, or incitement to cause harm, or is based on any ground of discrimination specified in Article 27. Article 27 stipulates that all persons are equal before the law and have a right not to be discriminated against. This equality includes equal treatment and the right to equal opportunities in political, economic, cultural, and social spheres. The case will be heard today. [Kamau Muthoni]

“The statements were meant to and did cause public resentment against the petitioner, its business practice, and the products which the petitioner manufactures and sells as part of its business. The statement was meant to and did cause economic and commercial harm to the petitioner and its business,” read court papers filed on Brookside’s behalf by Shapley Barret & Co Advocates.

Brookside Company Secretary Jacob Ombongi, in his supporting affidavit, also said that contrary to allegations that the firm is wholly owned by the Kenyatta family, it has both local and international investors and shareholders.

In the case where Attorney General Kihara Kariuki is named as a second respondent, Mr Ombongi said that international shareholders own 40 per cent of the company.

The local shareholders, the company secretary states, includes some members of the first president’s family. 

“H.E Uhuru Kenyatta, the President of the Republic of Kenya, is a member of the Kenyatta family. Brookside Dairy Limited is the only company operating the above milk processing business with which H.E Uhuru Kenyatta is associated through ownership by some of his family members,” says Mr Ombongi.

According to Brookside, its license obligates it to uphold the rights of persons it purchases raw products from and consumers of its products.

The firm wants the court to bar Ali from inciting the public against it. Brookside is also seeking an order that the politician respects its rights and reputation, and pays compensation for harm.

The case will be heard today.