• The Senate committees said the regulations should have clearly provided for the role of the counties since agriculture is a devolved function.
• Last month, governors said the process of the regulations development was illegal and unconstitutional.
Two Senate committees have declined to accede to the Crops (Tea Industry) Regulations 2020, saying some particulars are not in the interest of the counties.
The sessional Committee on Delegated Legislation and the standing Committee on Agriculture, Livestock and Fisheries recommended their annulment.
Senator Mohammed Faki, the chair of the Sessional Committee on Delegated Legislation, said on Wednesday the regulations should have clearly provided for the role of the counties since agriculture is a devolved function.
Faki said the committees had noted that some of the functions assigned to the Agriculture and Food Authority are devolved functions under the Fourth Schedule of the Constitution.
“In particular, the committee observed that registration of warehouses by the Agriculture and Food Authority flies in the face of the law, noting that the Warehouse Receipts System Act, 2019 has tasked county governments, through the respective county executive committee members, to register and license all warehouse operating within respective counties,” he told the House.
County tea inspectors and dispute resolution mechanisms at the county level with regard to registration and licences were not provided for.
Additionally, the registration of tea packers should be assigned as a county government function.
The committee pointed out that while the regulations seek to address problems faced by small-holder farmers and to increase direct control of the industry by the farmers, they had left out other players in the industry.
“The regulations are generally too prescriptive as they are aimed at controlling one industry player instead of providing incentives for other industry players to grow. They should therefore be reviewed with a holistic view of the industry and especially noting the interests of county governments,” the committees said.
The Senate teams appreciated that significant public participation was conducted on the regulations, but some stakeholders, including county governments felt that their views were ignored.
"Agriculture is a devolved function under the Fourth Schedule of the Constitution and the regulations should include the views of all County Governments pursuant to section 40 (1) of the Crops Act."
Some of the stakeholders the committees engaged were farmers from Nandi, Bomet, Kericho and Murang’a, the Kenya Tea Development Agency and its subsidiary companies and their representatives, the East African Trade Association, and the Council of Governors.
According to the committees, the regulations will interfere with the internal affairs of private companies and may amount to over-regulation of the industry, thus stifling growth.
They noted that the corporate veil of a company is protected and a regulation cannot purport to pierce the corporate veil without going through courts and establishing the legal requirements for piercing the corporate veil.
“After careful consideration of the Crops (Tea Industry) Regulations, 2020, the Sessional Committee on Delegated Legislation and the Standing Committee on Agriculture, Livestock and Fisheries do not accede to the Crops (Tea Industry) Regulations, 2020 and recommends that the statutory instrument be annulled,” the report tabled in the Senate concluded.