A constitutional court has thrown out a case filed by Brookside Kenya Limited against Nyali MP Mohamed Ali.
The milk processor had sued the MP saying that his claims that it has been exploiting farmers had infringed on its right to do business.
However, Justice Hedwig Ong'udi in her ruling read on her behalf by Justice Mugure Thande said the firm's case was on defamatory statements and ought to be filed before the Civil Division of the High Court.
She struck out the case and ordered the firm to pay Ali the cost of the case.
"In conclusion, I find the case offends the doctrine of avoidance and does not constitute a constitutional question. The PO is merited and the case is struck out with costs. Let the petitioner file the case at the right court," said Justice Ong'undi.
In the case, the processor told the court that filing a defamation case against Ali would not offer a remedy on the rights it claimed were infringed by his statement that it has been exploiting farmers and consumers.
While urging the court to dismiss Ali's objection, Brookside's lawyer Desterio Oyatsi asserted that the law on defamation deals with reputation while the case before the court was on the rights to do business and not to be subjected to public resentment.
"The law of defamation does not contain sufficient remedies for vilification. The law of defamation is an enabling statute on the protection of reputation and human dignity which are different rights specifically are provided in Article 28 and reputation is protected under Article 33 (3). Which is a different thing from vilification. Defamation on its own does not provide sufficient remedies of vilification. On those grounds, I urge that this preliminary objection be dismissed with costs," said Oyatsi.
He also argued that the issue of whether Brookside is a natural person who can claim rights under the constitution cannot be dealt with at a preliminary stage.
In response, Ali's lawyers Adrian Kamotho and Elias Mutuma argued that the constitutional court had no powers to hear the case. According to the two lawyers, Brookside had not disclosed its directors to determine whether they enjoy the rights provided by Kenyans.
Mutuma told Justice Hedwig Ong'undi that there was no evidence that Brookside's rights were infringed.
"The petitioner has failed to demonstrate which right has been violated to warrant its day in court. They were under that obligation and has not done that. They argue that their case is anchored on Article 33 which is on Freedom of expression. It is not true that the law governing defamation does not contain enough remedies," he argued.
On the other hand, Kamotho argued that for Brookside to claim that its constitutional rights were infringed, it has to show that it is a human being.
"What is the gender of Brookside, what is the race, the color, the marital status? Can the petitioner be discriminated based on pregnancy? The drafters of the constitution did not envision that petitions brought by corporates," said Kamotho.
In the case, Brookside claimed that on March 3 this year, Ali at a public rally in Nyeri said that 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.
According to him, Ali claimed that the president comes and buys milk at Sh 20, boils it, and sells it back at Sh 120.
"The said words were understood in the public to refer to the petitioner, its business practices, and its products. In particular, the petitioner represented to the public by implication or otherwise that the petitioner carried on its business unlawfully or fraudulently by exploiting and underpaying farmers who supply milk to it as its raw material," said Brookside's company secretary Jacob Ombongi.
According to Brookside, its license obligates it to uphold the rights of persons it purchases raw products from and consumers of its products.
At the same time, it argued that it has a task of ensuring that the products sold under its name meet the health, safety, and economic requirements set by law.
"In relation to the milk products purchased from the farmers or its suppliers as raw products, the petitioner is also obligated under the constitution to protect the suppliers' interests and not subject the farmers or suppliers to exploitation or unfair treatment," Brookside said in its court papers.
It states that Ali was inciting the public to cause economic harm or loss.
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.
