https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12362

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CONSTITUTIONAL PETITION E010 OF 2026.** **ELIUD WAFULA MAELO ALIAS AMBASSADOR (Suing on his behalf and behalf of the sugar farmer of the Mumias area) ................................................................................................PETITIONER** **VERSUS** **KENYA SUGAR BOARD………………………………...……..….....……………...…1ST RESPONDENT** **THE CABINET SECRETARY AGRICULTURE AND LIVESTOCK DEVELOPMENT………………………………………………..........…...…………….2ND RESPONDENT** **THE PERMANENT SECRETARY AGRICULTURE AND LIVESTOCK DEVELOPMENT………………………………...………………............………………3RDRESPONDENT** **THE SPEAKER NATIONAL ASSEMBLY……………….…..............………………….4TH RESPONDENT** **THE HON ATTORNEY GENERAL……………………………..………...…….…..…...5TH RESPONDENT** **AND** **MOSES JUMA SIKUTA.........................................................................................1ST INTERESTED PARTY** **DAVID OPALA………......................................................................................2ND INTERESTED PARTY** **RASTO OJAGO..................................................................................................3RD INTERESTED PARTY** **GEOFFEY NABUKWESI........................................................................................4TH INTERESTED PARTY** **MICHAEL BARASA.............................................................................................5TH INTERESTED PARTY** **(On the Petitioner’s application dated 13th July,2026)** **RULING** 1. Before this court for determination in this matter is the Petitioner/Applicant’s application dated 13th July,2026 seeking the following orders;- *1. This Application be certified urgent and service thereof be dispensed with in the first instance. (spent)* *2. Pending the hearing and determination of this Application, there be a stay of all further proceedings in this Petition and M/s Prof. Tom Ojienda & Associates Advocates, M/s J. Ogola & Associates Advocates, or any other person purporting to act on behalf of the 1st Respondent be restrained from filing any further pleadings, affidavits, submissions or applications or taking any further step in these proceedings. (spent)* *3. This Honourable Court be pleased to find and hold that the 1st Respondent has failed to demonstrate that—* *a) the Kenya Sugar Board was lawfully constituted at the material time to authorize the engagement of external advocates;* *b) A lawfully constituted Kenya Sugar Board resolved to appoint M/s Prof. Tom Ojienda & Associates Advocates and M/s J. Ogola & Associates Advocates to represent the 1st Respondent in these proceedings;* *c) Mr. Jude Chesire was lawfully appointed as the Chief Executive Officer in accordance with Section 14 of the Sugar Act, No. 11 of 2024, or otherwise possessed lawful authority to exercise the powers of that office at the material time;* *d) Mr. Jude Chesire possessed lawful authority to swear affidavits, instruct external advocates or otherwise bind the Kenya Sugar Board; and* *e) the engagement of the said firms complied with the Constitution, the Office of the Attorney General Act, the Sugar Act, the State Corporations Act, the Public Procurement and Asset Disposal Act and all other applicable law.* *4. This Honourable Court be pleased to find and hold that the purported approval issued by the Honourable Attorney General dated 18th June 2026 could not retrospectively authorize, validate or regularize the Notices of Appointment, affidavits and other pleadings filed by M/s Prof. Tom Ojienda & Associates Advocates and M/s J. Ogola & Associates Advocates on 17th June 2026.* *5. THAT consequently, this Honourable Court be pleased to strike out and expunge from the Court record the Notices of Appointment, the Replying Affidavit, the Further Affidavit, all affidavits sworn by Mr. Jude Chesire, every pleading, application, and document filed by M/s Prof. Tom Ojienda & Associates and M/s J. Ogola & Associates Advocates on behalf of the 1st Respondent.* *6. THAT the costs of this Application be awarded to the Petitioner/Applicant and this Honourable Court be pleased to grant such further, consequential or other orders as it may deem fit, just and expedient for the ends of justice.* 1. In a nutshell, the Petitioner/Applicant contends that the advocates on record for the 1st Respondent were not properly instructed in the first instance and the pleading and/or all documents filed by the advocates M/s Prof. Tom Ojienda & Associate Advocate and M/s J.Ogola & Associates Advocates be struck out or expunged from record. 2. The Application is supported by an affidavit sworn by the Petitioner/Applicant on the even date of the application. 3. The Application is opposed by way of a replying affidavit sworn on 16th July,2026. 4. This Court is has duly considered the application, the responses and the submissions filed by thereto. **Analysis and determination** 1. The Court formulates two issues determination; Whether the 1st Respondent is properly represented by the advocates on record and whether the documents filed the advocates should be struck out or expunged from record**.** **Whether the 1st Respondent is properly represented by the advocates on record** 1. Without doubt, the Applicant sued the 1st Respondent in this petition. It is anticipated that as a party to this suit, the 1st Respondent was to enter appearance and file a response to this petition. The right to choose a legal representative(s) enshrined in our Constitution of Kenya, 2010. 2. It is also trite in law that he who alleges facts ought to ordinarily provide proof the same. 3. The Court has considered the material before and finds that; - 4. The Applicant has not substantiated his allegations that the 1st Respondent was not properly/lawfully constituted at the time the external advocates were instructed and/or came on record. 5. The Applicant has not demonstrated that Mr. Jude Chesire had no lawfully authority to represent the 1st Respondent. 6. The Applicant has not demonstrated that there is any other advocates on record, purporting to also represent or vested with proper instructions to represent the 1st Respondent in this Petition besides the two law firms that are adversely mentioned in this application. 7. The 1st Respondent has not disputed that the said a firm of advocates are on record without their instructions. 8. At the centre of this application is a letter from the Office of the Attorney General approving the appointment of external counsel to represent the 1st Respondent in this petition and related matters albeit dated the day following the advocates on record in this Petition came on record. 9. On the date difference between the dates on 17th June,2026 when the advocates for the 1st Respondent came on record and 18th June,2026 that is on the face of the letter of approval to procure external advocates, the court notes that the approval letter indicates that the approval was sought on 17th June, 2026. The court is minded that the date or time difference here is so negligible at negate or fatally compromise the authority of the advocates on record to represent the 1st Respondent. Am persuaded by the findings of this court in **Republic v Attorney General; Law Society of Kenya (Interested Party); Moriasi (Ex parte) [2019] KEHC 7013 (KLR)** cited by the 1st Respondent wherein is ably observed that;- ***“Therefore the Respondent (the office of the Attorney General) in this respect acts as an agent of the national Government entities upon instruction, and its functions of representing the national Government cannot be interpreted to extend to being the originator of the instructions by national Government entities, and certainly does not include or involve procurement of legal services for the other national Government entities. Section 17(1) of the Office of the Attorney General Act must also be read and interpreted in this context.”*** 1. The Constitution of Kenya mandates court of law to serve substantive justice without giving undue regard to procedural technicalities. In my view, the contention of the Applicant herein in the above premises edges on a technically which should not override legal representation on the part of the 1st Respondent herein. 2. Without prejudice to the foregoing, it should be appreciated that justice must dispense without undue delays. The court should not issue academic orders at the expense of delaying a matter before it. It will not serve any meaningful purpose to hold that M/s Prof. Tom Ojienda & Associate Advocates, M/s J.Ogola & Associates Advocates, the advocates on record are not properly on record in the circumstances. This will only delay this matter. 3. Since Petitioner/Applicant cannot ultimately dedicate who should represent the 1st Respondent, the 1st Respondent can still retain the two firm of advocates to represent them even in due course. 4. In the upshot, the court finds that the Applicant has not demonstrated that the advocates for the 1st Respondent are not properly on record thus the application fails on this aspect. **Whether the documents filed the advocates should be struck out or expunged from record.** 1. On striking out of pleadings, the superior courts have held that striking out pleadings is a rather draconian measure which out to be exercised by a court of law in the clearest of cases/ circumstances. I’m guided by the Court of Appeal decision in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR)** wherein it is also ably observed that;- *“The general trend, following the enactment of****Sections 1A and 1B****of the Civil Procedure Act,****Sections 3A and 3B****of the Appellate Jurisdiction Act and****Article 159****of the Constitution, is that courts today strive to sustain rather than to strike out pleadings on purely technical grounds as will shortly be demonstrated.”* 1. In this Petition, this Court find no legal basis to strike out the pleadings filed on behalf of the 1st Respondent more so in view of the court’s findings that representation of the 1st Respondent by the advocates on record does not prejudice the Applicant’s petition herein or affect the merits of the Petition in any way. This Court is therefore inclined to focus on render substantive justice by hearing and determining the main Petition on its merits. 2. Accordingly, the Court makes the following orders; - 3. The Petitioner/Applicant’s application dated 13th June,2026 therefore is not merited and is hereby dismissed 4. Each party to bear their own costs of the application 5. 30 days right of appeal explained 6. It is hereby so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 31ST DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda MS. KAMUNYA: We can take directions on parties filing responses , ruling on the notice of motion dated 11.6.2026