https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9349

Maelo alias Ambassador v Kenya Sugar Board & 4 others (Constitutional Petition E010 of 2026) [2026] KEHC 9349 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9349 (KLR) Republic of Kenya In the High Court at Kakamega Constitutional Petition E010 of 2026 S Mbungi, J June 24, 2026 Between Eliud Wafula Maelo Alias Ambassador Petitioner and The Kenya Sugar Board & 4 others & 4 others & 4 others Respondent Ruling 1.Before Court is a Notice of Preliminary Objection dated 17th June 2026 by the Respondents seeking the striking out of both the Petition and the Notice of Motion dated 11th June 2026. 2.The Petition is accompanied by a Notice of Motion dated 11th June 2026 seeking conservatory and structural orders in respect of the Kenya Sugar Board Grower Representative Elections scheduled for 25th June 2026. 3.The Petition is premised on the following grounds:a.That the delineation of sugar catchment areas discriminates against Kakamega County, Malava Sub-County, and other affected regions;b.That the First Schedule to the Sugar Act, 2024 was enacted without adequate and meaningful public participation contrary to Articles 10 and 118 of the Constitution;c.That the impugned delineation departs from the repealed Sugar Act framework and disadvantages long-standing sugarcane growers;d.That the Respondents failed to clearly delineate, publish, and communicate lawful boundaries separating the Upper Western and Lower Western Sugar Catchment Areas;e.That the verification of growers’ registers and voter eligibility was conducted in a rushed and restrictive manner contrary to Article 47 of the Constitution and the Fair Administrative Action Act, 2015;f.That the published polling stations do not indicate corresponding catchment areas, thereby creating confusion among voters and candidates;g.That the eligibility criteria requiring proof of historical supply within designated catchment areas risks excluding farmers whose classification is disputed;h.That the Respondents acted ultra vires by implementing or operationalizing contested electoral boundaries without lawful authority;i.That the impugned actions violate or threaten to violate constitutional rights under Articles 10, 35, 38, 47, 50 and 258 of the Constitution;j.That unless restrained, the elections scheduled for 25th June 2026 will proceed on the basis of unresolved boundary disputes, resulting in disenfranchisement of affected farmers. 4.For purposes of the Preliminary Objection, the Respondents rely on the following related constitutional petitions: 5.Constitutional Petition No. E013 of 2025 (Kakamega High Court) which is premised on the following grounds:a.That the First Schedule to the Sugar Act, 2024 is unconstitutional for want of adequate public participation;b.That the delineation of sugar catchment areas is discriminatory and irrational;c.That the legislative process leading to enactment of the First Schedule violated Articles 10 and 118 of the Constitution. 6.Constitutional Petition No. E019 of 2025 (Kakamega High Court):a.That the sugar catchment boundaries are unlawful, unclear, and inconsistently applied;b.That the implementation of sugar regulatory zoning violates the rights of sugarcane farmers;c.That administrative decisions affecting growers were made without fair administrative procedures. 7.Constitutional Petition No. E004 of 2026 (Vihiga High Court):a.That the electoral framework for sugar growers’ representation is unconstitutional;b.That voter eligibility criteria based on catchment areas are discriminatory and exclusionary;c.That the electoral process violates Articles 10, 38 and 47 of the Constitution. 8.The Respondents contend that the issues in the present Petition substantially overlap with the above proceedings and are therefore barred by the doctrines of res judicata and sub judice. 9.The Preliminary Objection is founded on the following grounds:a.That the Petition and Application are res judicata in light of Kakamega High Court Constitutional Petition No. E013 of 2025;b.That the Petition and Application are sub judice in respect of Constitutional Petition No. E019 of 2025 and Constitutional Petition No. E004 of 2026;c.That this Court lacks original jurisdiction due to the statutory dispute resolution mechanism under the Procedure for Election of Grower Representatives;d.That this Court lacks geographical or territorial jurisdiction;e.That the reliefs sought improperly invite the Court to interfere with or amend the First Schedule to the Sugar Act, a legislative function reserved to Parliament. 10.The Petitioner opposes the Preliminary Objection on the following grounds:a.That the Petition raises fresh constitutional grievances arising from the 2026 electoral process;b.That the causes of action are distinct from those in earlier petitions;c.That the internal dispute resolution mechanism lacks jurisdiction to determine constitutional questions;d.That the Preliminary Objection does not meet the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Issues for Determination 11.The following issues arise for determination:i.Whether the Preliminary Objection satisfies the Mukisa Biscuit threshold.ii.Whether the Petition and Application are res judicata.iii.Whether the Petition and Application are sub judice.iv.Whether the doctrine of exhaustion deprives this Court of jurisdiction.v.Whether this Court lacks geographical or territorial jurisdiction.vi.Whether the Petition impermissibly invites the Court to perform a legislative function reserved for Parliament. Analysis and Determination. i. Whether the preliminary objection satisfies the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696biscuit threshold 12.In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the court stated that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the opposite party are correct. 13.The Supreme Court and superior courts have consistently held that questions of jurisdiction, res judicata and sub judice are proper points capable of being raised by way of preliminary objection because they go to the competence of proceedings. 14.The Court therefore finds that the objection, insofar as it raises questions of jurisdiction, res judicata, sub judice and exhaustion, is properly before Court. ii. Whether the petition is res judicata 15.The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act. 16.The Supreme Court in John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR held that the elements of res judicata are:i.Identity of parties or parties litigating under the same title;ii.Identity of subject matter;iii.Identity of issues;iv.Final determination by a court of competent jurisdiction. 17.Similarly, the Supreme Court in IEBC v Maina Kiai & 5 Others [2017] eKLR emphasized that all elements must be present before the doctrine can apply. 18.The Court has considered the pleadings before it although Constitutional Petition No. E013 of 2025 concerns the constitutionality of the First Schedule to the Sugar Act and issues surrounding sugar catchment delineation, the present Petition is anchored upon events arising in 2026, including voter registration, voter verification, growers’ registers, nomination processes and the impending elections scheduled for 25th June 2026. 19.The Petitioner herein is different from the Petitioner in Petition No. E013 of 2025. 20.More significantly, the factual foundation of the present Petition includes implementation decisions and electoral processes which crystallized after the institution of Petition No. E013 of 2025. 21.The Court agrees with the Supreme Court’s caution in John Florence Maritime Services that res judicata should not be applied mechanically in constitutional litigation where fresh violations and new factual circumstances are alleged. 22.The Court therefore finds that the Respondents have not demonstrated identity of issues and causes of action sufficient to sustain a plea of res judicata against the Petition as a whole. 23.The plea of res judicata fails. iii. Whether the petition is sub judice 24.Section 6 of the Civil Procedure Act prohibits a court from proceeding with a matter where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. 25.The Supreme Court in Kenya National Commission on Human Rights v Attorney General & Others [2020] eKLR stated that the purpose of the doctrine is to prevent multiplicity of suits and avoid conflicting decisions. 26.The Court has considered Petition No. E013 of 2025, Petition No. E019 of 2025 and Petition No. E004 of 2026 as referenced by the parties. 27.A substantial portion of the grievances raised in the present Petition relate to the legality and constitutionality of the First Schedule to the Sugar Act, the delineation of Upper Western and Lower Western Catchment Areas, and allegations regarding public participation. 28.Those issues are demonstrably pending before courts of concurrent jurisdiction. 29.The Court therefore finds that, to the extent that the Petition seeks determination of the constitutionality of the First Schedule and the legality of the catchment delineation, those issues are directly and substantially in issue in previously instituted proceedings. 30.However, the present Petition also raises implementation issues arising from voter registration, growers’ registers, nominations and elections scheduled for 25th June 2026.Those implementation issues are not identical in all respects to the issues raised in the earlier Petitions. 31.Accordingly, the Court finds that the doctrine of sub judice partially applies to the constitutional challenge against the First Schedule but does not necessarily bar consideration of distinct grievances arising from implementation of the electoral process. iv. Whether the doctrine of exhaustion applies 32.The Respondents argue that disputes relating to growers’ registers and electoral eligibility ought first to have been presented before the Dispute Resolution Committee established under the election regulations. 33.In Speaker of the National Assembly v Karume [1992] KLR 21, the Court held that where a statute provides a dispute resolution mechanism, that procedure ought generally to be followed. 34.Similarly, in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the Court of Appeal emphasized that courts should encourage utilization of statutory dispute resolution mechanisms. However, the doctrine is not absolute. 35.The Court of Appeal in Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR and numerous subsequent decisions recognized exceptions where constitutional questions arise or where the alternative forum lacks jurisdiction to grant the remedies sought. 36.The Petition before Court seeks declarations concerning constitutional rights under Articles 10, 38, 47 and 258 of the Constitution. 37.The Dispute Resolution Committee established under the election procedures lacks jurisdiction to issue constitutional declarations, interpret the Constitution or grant conservatory orders of the nature sought herein. 38.The Court therefore finds that the doctrine of exhaustion does not bar the Court from entertaining constitutional questions properly falling within Articles 22, 23 and 165 of the Constitution. 39.The objection based on exhaustion fails. v. Whether this court lacks geographical jurisdiction 40.The Respondents argue that the dispute concerns Bungoma County and should not be heard in Kakamega. This argument is without merit. 41.The High Court established under Article 165 of the Constitution is one Court with nationwide jurisdiction. Administrative stationing of judges does not create separate High Courts or limit the constitutional jurisdiction of the Court sitting at any station. 42.In numerous decisions, the superior courts have affirmed that territorial allocation of matters is primarily an administrative question aimed at promoting convenience and efficient case management and does not constitute a jurisdictional limitation. 43.In the present case, the Petitioner alleges violations affecting sugarcane farmers within the Mumias Area and the Lower Western Sugar Catchment Area. The Court takes judicial notice that Mumias falls within Kakamega County and within the territorial area ordinarily served by the High Court at Kakamega. Further, even assuming that some of the affected farmers are resident in neighbouring Bungoma County, such litigants would ordinarily be at liberty to institute proceedings either before the courts serving Bungoma County or before the courts serving Mumias, depending on the nature of the dispute and the convenience of the parties. 44.The fact that some of the affected farmers may reside in Bungoma County does not oust the jurisdiction of the High Court sitting at Kakamega, particularly where part of the cause of action arises within Kakamega County and where the dispute concerns the status of the Mumias Area, which is situated within Kakamega County. 45.The Court therefore finds that the Petition has been properly instituted before the High Court at Kakamega and that the objection based on geographical or territorial jurisdiction is misconceived and devoid of merit. The same is accordingly dismissed. vi. Whether the petition invites the court to perform a legislative function reserved for parliament 46.The Respondents submit that the reliefs sought would effectively amend the First Schedule to the Sugar Act, a function reserved to Parliament. Articles 94 and 109 of the Constitution vest legislative authority in Parliament. However, Articles 22, 23 and 165 confer upon the High Court authority to determine the constitutionality of statutes and statutory provisions. 47.The Court is not being asked to legislate. Rather, the Petition challenges the constitutionality and implementation of statutory provisions. That falls squarely within the Court’s constitutional mandate. 48.Whether the Petitioner ultimately proves the alleged constitutional violations is a matter for determination at the substantive hearing. The jurisdictional objection on this ground therefore fails. 49.Having considered the Preliminary Objection and the parties’ submissions, the Court reaches the following conclusions:a.The plea of res judicata is not established and is dismissed.b.The plea of exhaustion is not established and is dismissed.c.The plea based on geographical jurisdiction is dismissed.d.The plea alleging that the Court is being invited to perform a legislative function is dismissed.e.The Court finds that issues concerning the constitutionality of the First Schedule to the Sugar Act and the delineation of catchment areas substantially overlap with matters pending in Constitutional Petition No. E013 of 2025, Constitutional Petition No. E019 of 2025 and Constitutional Petition No. E004 of 2026.f.Accordingly, the Preliminary Objection succeeds only to the limited extent of the sub judice objection regarding those issues.g.The remaining issues concerning implementation of the 2026 electoral process, voter registration, growers’ registers, nominations and alleged violations arising therefrom shall proceed to hearing on their merits.h.Costs of the Preliminary Objection shall be in the cause. 50.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 24th DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaMr. Olendo for the Interested party present.Ms. Odawo and Mr. Awuor present for the 1st Respondent.Mr. Kiilu and mr. Otieno fort he 4th Respondent present online.Mr. Kamunya for the Petiitoner present online.