https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12618

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CONSTITUTIONAL PETITION NO. E015 OF 2026** IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF THE CONSTITUTION UNDER ARTICLES 10(2), 118 (1) (b), 210, 225,226 (1)(2) AND 227(1)(2) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: SECTIONS 4,7 AND 9 OF THE FAIR ADMINISTRATIVE ACT NO. 4 OF 2015 AND IN THE MATTER OF: THE EAST AFRICAN COMMUNITY CUSTOMS MANAGEMENT ACT, 2004 AND IN THE MATTER OF: THE GAZETTE NO. 10061 PUBLISHED ON THE 6TH JULY 2026 BETWEEN HON. JAMES KAMAU MURANGO ……………………….............……..…..……PETITIONER AND HON. JOHN MBADI NG’ONGO, THE CABINET SECRETARY, NATIONAL TREASURY AND PLANNING...................................................................................................…1ST RESPONDENT THE CABINET SECRETARY, AGRICULTURE AND LIVESTOCK DEVELOPMENT.............................................................................................................2ND RESPONDENT AGRICULTURE AND FOOD AUTHORITY……………………....………….............3RD RESPONDENT DR. LILIAN NYAWANDA, COMMISSIONER FOR CUSTOMS & BORDER CONTROL…...................................4TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL…………….......................…..............5TH RESPONDENT KENYA NATIONAL TRADING CORPORATION………........…..............................6TH RESPONDENT MR. HUMPHREY WATTANGA COMMISSIONER GENERAL, KRA…..............................................................................................................................7TH RESPONDENT AND AHERO RICE FARMERS ASSOCIATION …………………….........INTENDED INTERESTED PARTY SOUFIANNE BAKKAL ........................................................................INTENDED INTERESTED PARTY **RULING** 1. This is a ruling on an application for reliefs based on a Preliminary Objection dated 22/7/2026 filed by the Counsel for the Attorney General for the 1, 2, 3, 5 & 6 Respondents with specific prayers as follows: *“****ATTORNEY-GENERAL NOTICE OF PRELIMINARY OBJECTION*** *TAKE NOTICE that the Attorney-General is opposed to the Petition herein dated 17th July, 2026 on pure points of law, to be determined on priority basis on account that:-* *1. The Petition herein is barred by the doctrine of sub judice codified under section 6 of the Civil Procedure Act, in light of the pending Kisumu HCPT No. e024 of 2026 which was instituted, in public interest, prior to the present Petition and raising substantially the same facts, issues and reliefs, being the constitutionality of the impugned Gazette Notice No. 10061 dated 6th July, 2026.* *2. If so determined, this Honourable Court be pleased to transfer this Petition to the High Court at Kisumu for consolidation with Kisumu High Court Constitutional Petition No. HCPT E024 of 2026.* *3. Proceeding simultaneously before different courts of concurrent jurisdictions has a grave potential risk of conflicting rulings and judgments on the constitutionality of the impugned Gazette Notice, thus inhibiting fair administration of justice and negatively compounding the very public interest concern regarding addressing the food insecurity situation in the country, which was sought to be addressed by the impugned Gazette Notice.”* 1. The said Respondents seek in alternative in order of gravity of the consequences (a) the dismissal of the Petition herein for being an abuse of the process of the Court; (b) stay of the Petition under the ***sub judice*** rule in terms of section 6 of the Civil Procedure Act; and (c) the transfer of the Petition to the High Court at Kisumu for consolidation with petitions pending hearing before that Court or for hearing alongside other petitions said to have been filed previously before the Court. 2. The 4th and 7th Respondent supports the Preliminary Objection but points that the orders made in the two court are not similar. The 4th respondent has filed Grounds of Opposition to the Petitioner’s *“Application dated 20th July 2026 seeking conservatory orders staying the Implementation of Gazette Notice No. 10061 published on 6th July 2026”* pointing to its purely administrative role in the matter as a state agency and urging that *“in the event the Court finds merit in the Petitioner's application,* ***any orders issued should be directed at the decision-makers (the 1st, 2nd, and 3rd Respondents) and not at the 4th Respondent, whose role is strictly that of a facilitator of lawful trade in accordance with the law, rather than an architect of the policy in question.”*** 3. The Intended Interested Parties supported the Preliminary Objection and the orders, which are to the same effect as their own substantive applications herein, seeking transfer of the Petition to the Kisumu Court for consolidation and hearing with their two petitions pending before that Court. ***Submissions on the Preliminary Objection*** 1. By Submissions dated 22/7/2026 filed on behalf of the Attorney General in support of the Preliminary Objection, it is urged specifically as follows: *“****ATTORNEY-GENERAL SUBMISSIONS*** ***(****In support of Notice of Preliminary Objection dated 22nd July, 2026)* ***Introduction*** *1. Vide Notice of Preliminary Objection dated 22nd July, 2026 the Attorney-General seeks to have this Honourable Court decline to exercise jurisdiction over the instant Petition on account of pending Kisumu HCPT No. e024 of 2026 which was instituted, in public interest, prior to the present Petition and raising substantially the same facts, issues and reliefs, being the constitutionality of the impugned Gazette Notice No. 10061 dated 6th July, 2026. Upon declining jurisdiction, this Honourable Court be pleased to transfer this Petition to the High Court at Kisumu for consolidation with Kisumu High Court Constitutional Petition No. HCPT E024 of 2026.* ***Legal Analysis*** *2. The Attorney-General submits that proceeding with the instant Petition is barred by the doctrine of sub judice codified under section 6 of the Civil Procedure Act, and which is a matter of substantive public policy meant to facilitate fair administration of justice. 3. Proceeding simultaneously before different courts of concurrent jurisdictions has a grave potential risk of conflicting rulings and judgments on the constitutionality of the impugned Gazette Notice, thus inhibiting fair administration of justice and negatively compounding the very public interest concern regarding addressing the food insecurity situation in the country, which was sought to be addressed by the impugned Gazette Notice.* *4. Section 5 of the Civil Procedure Act provides that any court shall, subject to the provisions of the Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. This provision therefore recognizes that not all claims are available for trial by a particular court as a court may be “expressly” or “impliedly barred” from hearing certain claims. 5. The doctrine of sub judice is legislated in section 6 of the Civil Procedure Act in prohibitory mandatory terms as follows:* *No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. Explanation. The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.* *6. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR reiterated the elements and the purpose of* ***sub judice*** *by stating that:* *“(67)...The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”* *7. The fear of the supreme court is now evident in light of two conflicting orders issued by the two courts in light of the Application for conservatory order.* *8. While the Petitioners in the two claims are different, as is expressed under Section 6 of the Civil Procedure Act, sub judice rule applies where … the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title,* *9. The Petitioners in both this Petition and the Kisumu Petition instituted the claims both in public interest. In deed the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR confirmed that a suit filed in a representative capacity raising issues that are substantively and directly in issue in an earlier suit meets the test of sub judice.* *10. Therefore, what counts is litigating under the same title and the issues are substantively and directly in issue. The High Court in Wamunyinyi v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others; Manyonge & 3 others (Interested Parties) (Petition E146 of 2025) [2025] KEHC 8542 (KLR) (Civ) (19 June 2025) (Ruling) on the question of similar parties held that:* *“117.An argument was made that because the Petitioner in PET E065/2024 and the Petitioner in the instant Petition are different, then the plea of res-judicata does not apply. The argument disregards the fact that the previous suit, just like the present one, was filed in public interest and the decision made therein is a decision in rem. In any case, explanation number 6 of the Civil Procedure Act at Section 7 deals with such a situation by elaborating thus:* *“Where persons litigate Bonafide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for purposes of this section, be deemed to claim under the persons so litigating”* *118.The fact that the Petitioner is a different person does not permit him to relitigate the matter camouflaging it as a different Petition. It is my finding that the instant Petition offends the doctrine of res judicata.”* *11. Upon a ruling or judgment being issued after interpartes hearing of the parties, the same would be caught by the doctrine of res judicata.* *12. In the case of Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR it was stated that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit as gleaned from the pleadings of the parties, and that, there can be no justification in having two cases being heard parallel to each other.* *13. Even as we apply for consolidation of the suits, on account of having established that the instant Petition is sub judice, and to the extent that the Petitioner ought to have known the existence of the earlier Petition, having been publicised, and having ignored that and filed this instant Petition, the same amounts to an abuse of the process of this Honourable Court, and therefore the order commending itself is that of striking out of the Petition and not staying it.* *14. Confronted with the same circumstance, the Court of Appeal in Gathariki v Cheko Plot Owners Association & another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) (21 February 2025) (Judgment) upheld the High Court order for dismissal of a suit on account of sub judice on the premise that the suit was in itself an abuse of the process of the Court. It held that: “21. Even though Section 6 of the Civil Procedure Act provides for stay of subsequent suits, the learned judge dismissed the suit for being an abuse of court process. The question is whether the learned judge erred in so finding. We do not think so. The practice of litigants filing parallel proceedings seeking similar or substantially similar orders arising from the same set of facts and circumstances should be abhorred for obvious reasons. One consequence of the said practice is that it amounts to abuse of court process. As was held by the High Court in Graham Rioba Sagwe & Others vs. Fina Bank Limited & 3 Others, [2017] eKLR, the Court has inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The black's law dictionary, Tenth Edition defines abuse of process as inter alia a wrongful process of law. The situations that may give rise to abuse of court process are in exhaustive. It involves situations where the process of Court has not been or resorted to fairly, properly, honestly to the detriment of the other party. The High Court in Graham Rioba Sagwe & 2 Others vs. Fina Bank Limited & 5 Others (Supra) provided the following examples which constitute abuse of Court process:* *a. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.* *b. Instituting different actions between the same parties simultaneously in different court even though on different grounds.* *c. Where two similar processes are used in respect of the exercise of the same right.* *d. Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.* *e. Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.* *f. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.* *g. where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.* *h. Where two actions are commenced, the second asking for a relief which may have been obtained in the first.* *22. Abuse of Court process creates a scenario where a party is pursuing the same matter in two-court process. A litigant has no right to purse pari pursue two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. In the above High Court decision, it was stated that litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. Pursuing two processes at the same time constitutes and amounts to abuse of court/legal process.* *23.Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of exercising the right to harass, irritate, and annoy the adversary and interface with the administration of justice. In our view, the learned judge correctly termed the filing of two substantially identical suits as an abuse of court process.* *24.The upshot of our above findings is that this appeal is devoid of merit. Accordingly, we dismiss it with no orders as to costs since the respondent did not participate in the appeal.”* *Conclusion* *25. In light of the foregoing, the Attorney-General prays that the present Petition be dismissed with costs. In the alternative, it be transferred for consolidation with Kisumu High Court Constitutional Petition No. HCPT E024 of 2026.”* 1. The petitioner opposes the Preliminary Objection on the grounds that the previous petitions were not exhibited by the Respondents; that the need for ascertainment of the facts of the existence of the petitions took the matter out of the purview of Preliminary Objections; the matter in issue were different in the petitions and this Court’s engagement with the related matter of validity of rice importation under previous Gazette Notices placed the Court in a better position to deal with the this latest dispute in the present petition. 2. The Petitioner’s submissions in full are as follows: ***“Petitioner's Submissions In Opposition To The 5th Respondent's Notice Of Preliminary Objection Dated 22nd July 2026*** *A. INTRODUCTION* *1. These are the Petitioner's submissions in opposition to the Notice of Preliminary Objection dated 22nd July 2026 filed by the 5th Respondent, the Hon. Attorney-General (“the PO”), which contends that the Petition is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act, Cap 21, and prays, in the alternative, for transfer of the Petition to the High Court at Kisumu for consolidation with Kisumu High Court Constitutional Petition No. HCPT E024 of 2026.* *2. The Petitioner rigorously opposes the PO in its entirety. The PO fails (i) as a matter of the settled law on what may competently be raised as a preliminary objection; (ii) on the merits of section 6 of the Civil Procedure Act, none of whose ingredients has been established; and (iii) In the further alternative, as to the remedy sought transfer which finds no basis in law and is, in any event, contrary to the balance of convenience and the interests of justice given the advanced and continuing seisin of this Honourable Court over the very subject matter in issue since 7th August 2025 in HCCHRPET No. E009 of 2025.* *B. THE PRELIMINARY OBJECTION DOES NOT MEET THE THRESHOLD OF A PRELIMINARY OBJECTION KNOWN TO LAW* *3. It is trite law that a preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact requires ascertainment. This is the settled test in the locus classicus on preliminary objections in this region: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Law, JA in* ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*** *[1969] EA 696 at p. 696 “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” Sir Charles Newbold, P. in* ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*** *[1969] EA 696 at p. 701* *4. Ground 1 of the PO asserts that Kisumu HCPT No. E024 of 2026 “was instituted, in public interest, prior to the present Petition and raising substantially the same facts, issues and reliefs.” This is not “a point of law which has been pleaded, or which arises by clear implication out of pleadings” within the Mukisa Biscuit test. It is a bare factual assertion as to the date of institution, the identity of the parties, and the substance of the pleadings in the Kisumu suit. Critically: (a) no copy of the Kisumu petition, its supporting affidavit, or any order of the Kisumu Court is annexed to, or otherwise placed before this Court by, the PO; (b) no affidavit has been sworn verifying the date of institution of the Kisumu suit, so as to establish that it truly is “previously instituted” relative to this Petition (which the PO itself dates to “17th July, 2026”); and (c) the PO does not identify the parties to the Kisumu suit, so as to permit any comparison against the parties to this Petition.* *5. This is, therefore, a fact question ab initio. A court cannot, on a bare and unproven assertion by the objecting party, treat as established the very facts that section 6 of the Civil Procedure Act requires it to find before it may decline to proceed with a suit. The PO ought to fail on this ground alone, without more.* *6. This evidentiary deficiency is not a mere pleading nicety; where the very existence of an earlier suit is disputed, proof of it lies exclusively with the party asserting sub judice and cannot be supplied by unproven assertion in a Notice of Preliminary Objection. In Onyango Odeny (Formerly Victor Onyango Odeny) v Attorney General, the petitioner categorically denied the existence of the earlier suit relied upon by the respondent, who supplied no evidence of it. Mugambi, J dismissed the objection, holding: “The claim was made by the Respondent for the first time in the Notice of Preliminary Objection. The fact that the Court has to ascertain a fact that the Respondent relies on to raise the Preliminary Objection means that the Preliminary Objection does not meet the legal threshold required of a preliminary objection as a preliminary objection cannot be based on a disputed factual matter.” Mugambi, J in Onyango Odeny (Formerly Victor Onyango Odeny) v Attorney General, Petition E415 of 2022 [2024] KEHC 5627 (KLR), paragraph [25] “Without availing the evidence of the previous suit, a factual issue that the Petitioner categorically denied, this Court was denied the opportunity of examining the two pleadings in order to determine if they are identical or substantially similar. In the absence of the evidence, the Court has nothing to assess in order to determine if Section 6 of The Civil Procedure Act was contravened so as to reach a finding on whether or not there is sub-judice.” — Mugambi, J in Onyango Odeny (Formerly Victor Onyango Odeny) v Attorney General, Petition E415 of 2022 [2024] KEHC 5627 (KLR), paragraph [26]* *7. The same evidentiary discipline was affirmed by the Environment and Land Court in Kathumo v Nzuki & another, where a respondent sought to prove sub judice not by a properly constituted application but by annexing purported evidence of the earlier suit to written submissions. The Court held that procedure impermissible, and confined proof of sub judice to sworn evidence properly placed on record: “Submissions are merely persuasions and are incapable of presenting evidence in court. It was therefore improper for the trial court to rely on evidence that was practically sneaked on to the file... My view is that the elements for proof of sub judice as discussed earlier in this judgment can only be properly presented before court by way of Notice of Motion attaching the evidence in support thereof to the supporting affidavit.” A. Nyukuri, J in Kathumo v Nzuki & another, Environment and Land Appeal 37 of 2021 [2023] KEELC 434 (KLR), paragraph [33]* *8. Here, the 5th Respondent has done even less than the impugned procedure condemned in Kathumo: there is no application, no supporting affidavit, and no submissions annexing evidence of the Kisumu suit merely a bare recital in the PO itself. If annexation of evidence to submissions was irregular and insufficient in Kathumo, the wholesale absence of any evidence whatsoever is fatal to the PO a fortiori.* *C. The Doctrine Of Sub Judice Under Section 6 Of The Civil Procedure Act Is Inapplicable On The Merits (i) The ingredients of section 6 are cumulative and the burden lies on the objector 9. Section 6 of the Civil Procedure Act bars trial of a suit only where (a) the parties are the same, or claim under the same title, (b) the matter in issue is directly and substantially in issue in a previously instituted suit, and (c) that suit is pending before a court of competent jurisdiction. These ingredients are cumulative; failure to establish any one is fatal to the plea, and the burden lies squarely on the 5th Respondent, who has discharged none of them. (ii) No identity of parties or privity of title has been demonstrated* *10. The Petitioner, Hon. James Kamau Murango, is the substituted Petitioner recognised by this very Court in HCCHRPET E009/2025 as possessing expanded locus standi: “Apart from their personal interest and the public interest in the matter, the Intended Petitioners/Applicants have as ‘the duly elected Senator, Kirinyaga County and elected Member of County Assembly (MCA), Baragwi Ward, Kirinyaga County, respectively’ locus standi to pursue the rights of their constituents, the rice farmers of the Kirinyaga County and relevant County Ward in terms of Article 22(2)(a) and (b) of the Constitution.” Ruling of 22nd December 2025, HCCHRPET E009/2025 (KER260/2025), paragraph [34]* *11. This Court went on to hold, adopting the Donde case, that public-interest standing rests on a minimal personal interest and does not require a litigant to be more affected than the rest of the population: “As a general principal relating to this type of public interest litigation, we wish to state, that what gives the locus standi is a minimal personal interest, and such interest gives a person a standing even though it is quite clear that he would not be more affected than any other number of the population.” Donde case (Albert Ruturi, J.K. Wanywela & Kenya Bankers Association v Minister of Finance, AG & Central Bank of Kenya), quoted at KER260/2025, paragraph [35]* *12. It does not follow, and the 5th Respondent has not shown, that a different public-interest litigant challenging a rice-importation gazette notice at Kisumu whoever that may be is the “same party” as, or is “litigating under the same title” as, this Petitioner. Absent proof of identity or privity, the first ingredient of section 6 fails.* *13. This is not a novel proposition confined to ordinary civil suits; it applies with equal force to constitutional petitions in which a preliminary objection of sub judice is raised against parallel proceedings said to concern the same underlying question. In Kina v Lengeju & 3 others, a constitutional petition, the 1st Respondent raised an identical objection asking the Court to compare the petition before it with an earlier suit between the same parties. Dismissing the objection, Kariuki, J held: “the objection invites the Court to compare the Petition with [the earlier suit] to ascertain the similarity of issues and parties. However, no pleadings or record of the alleged suit were placed before the Court to enable such comparison. Determining whether the issues are “directly and substantially the same” would therefore require factual interrogation, which falls outside the scope of a pure point of law.” Kariuki, J in Kina v Lengeju & 3 others, Constitutional Petition E002 of 2025 [2026] KEHC 5468 (KLR), paragraph [74] 14. The parallel to the present PO is exact. The 5th Respondent likewise invites this Court to compare the Petition with the Kisumu suit for identity of parties and sameness of subject matter, without placing a single page of the Kisumu pleadings before the Court. As in Kina, that comparison cannot be undertaken on a pure point of law, and the objection must fail on that ground alone. (iii) No proof that the matter in the Kisumu suit is directly and substantially the same 15. Even taking the AG's own characterisation at its highest – that the common question is the constitutionality of the manner in which Government gazettes duty-free rice imports; that question has already been extensively ventilated before this Court across two successive Gazette Notices. This is confirmed by this Court's own record. The letter of Musyoki Musango Advocates of 23rd/24th July 2026 to the Kenya Revenue Authority records that, in HCCHRPET E009/2025, orders of this Court dated 29th June 2026; predating Gazette Notice No. 10061 itself, which was only published on 6th July 2026; already directed the Commissioner for Customs & Border Control and the Kenya National Trading Corporation to report on clearances “under the Court-sanctioned importation programme in HCCHRPET No. E009 of 2025 and/or under any subsequent Gazette Notice, including Gazette Notice No. 10061 of 6th July 2026.” GN 10061 was, therefore, already within this Court's supervisory purview before either the Kisumu suit or the present Petition addressed it.* *(iv) This Honourable Court, not the High Court at Kisumu, is the court of prior and continuing seisin, and is already at an advanced stage of hearing* *16. This Court's seisin of the rice-importation gazetting regime is not nominal. It has, since the interim conservatory order of 19th August 2025, issued three substantive Rulings (KER260/2025, KER003/2026, KER044/2026), and had, as early as December 2025, already fixed the matter for full hearing: “Directions as to the full hearing of the Petition shall be taken on 29/1/2026.” Ruling of 22nd December 2025, HCCHRPET E009/2025 (KER260/2025), Order 8* *17. By the Ruling of 27th March 2026, this Court had built a detailed, evidence-tested remedial architecture, including a Monitoring, Evaluation and Review framework: “In the interests of protection of the adverse consequences of abrupt drop in price/demand of locally produced rice, the Court shall impose a suitable Monitoring, Evaluation and Review (ME&R) framework where the 3rd Respondent shall file in Court and serve on the parties monthly reports on the implementation and the effect on prices/demand on local price for possible correction of the importation quotas and Schedule.” Ruling of 27th March 2026, HCCHRPET E009/2025 (KER044/2026), paragraph [35]* *18. If, as the 5th Respondent frames it, the true controversy concerns the manner in which the State gazettes duty-free rice imports a systemic and recurring question, not one confined to a single notice then judicial economy and the avoidance of duplicated factfinding both point overwhelmingly to Kerugoya, the court that has already received the evidence, tested the Government's mop-up compliance, and built the operative monitoring regime, rather than to a court starting from a blank record. 19. It would invert the very purpose of the sub judice doctrine – avoidance of a multiplicity of conflicting decisions – to displace the court with the longer, deeper and continuing seisin in favour of one that came to the same general subject matter later. The 5th Respondent has, moreover, been a party to HCCHRPET E009/2025 throughout, represented at every recorded hearing, and never once raised sub judice in nearly a year of litigation on this precise subject matter notwithstanding the existence (on its own case) of the supposedly “prior” Kisumu suit. It cannot now approbate and reprobate. (v) No evidence of what, if anything, has been ordered at Kisumu the alleged risk of conflict is unproven 20. The PO's stated rationale is the risk of “conflicting rulings and judgments” as between courts of concurrent jurisdiction. Yet the PO discloses nothing about the procedural posture of the Kisumu suit: whether any interim or conservatory orders have been sought or granted there, and if so, what they require. This Court's own interim regime is extensive and specific the 19th August 2025 conservatory order, the phased-tranche order of 29th January 2026 (KER003/2026), and its revision at KER044/2026. Without any evidence of a competing Kisumu order, there is, on the present record, nothing for this Court's regime to conflict with. 21. A risk of conflict cannot be found to exist in the abstract; it must be demonstrated by placing the terms of the supposedly competing order before the Court. The 5th Respondent has not done so, and the Petitioner reserves the right to interrogate this further by way of requisition or further affidavit should the PO survive this stage. 22. This construction of section 6 that the remedy for an established sub judice plea is confined to a stay, and does not extend to striking out or transferring the later suit — was recently confirmed on directly analogous facts by the Environment and Land Court. In Kathumo v Nzuki & another, the trial court had struck out a suit on the footing that it was sub judice; on appeal, Nyukuri, J set that order aside and held: “Even where all the elements of the sub judice rule are proved, the only decision the court can make is to stay the proceedings as what section 6 of the Civil Procedure Act requires is that the court is barred from proceeding with the trial of a second similar suit. The court has no jurisdiction under section 6 of the Civil Procedure Act to strike out a suit on the basis of the sub judice rule. It can only stay the proceedings... The power to strike out a suit only comes into play where a former suit having all the elements stated in section 6, has now been determined conclusively; and that is defined under section 7 of the Civil Procedure Act.” A. Nyukuri, J in Kathumo v Nzuki & another, Environment and Land Appeal 37 of 2021 [2023] KEELC 434 (KLR), paragraph [35]* *23. If the Civil Procedure Act confines even a fully-proved sub judice plea to a stay, it follows a fortiori that section 6 affords no jurisdictional basis whatsoever for the further-reaching remedy of transfer to another High Court station, a remedy the 5th Respondent seeks without any statutory or case-law foundation.* *E. IN THE ALTERNATIVE: THE PETITION SHOULD NOT BE TRANSFERRED TO THE HIGH COURT AT KISUMU* *(i) No properly constituted application for transfer is before the Court* *24. Transfer between High Court stations is not achieved by preliminary objection; it requires a substantive application supported by evidence addressing convenience and the interests of justice again, matters of fact incapable of resolution as a “pure point of law.” The transfer prayer, being parasitic on the sub judice ground, falls with it, and is in any event incompetent as framed. (ii) The balance of convenience and the interests of justice favour retention at Kerugoya* *25. Without prejudice to the foregoing, should the question of forum nonetheless arise, every relevant consideration favours Kerugoya: (a) Situs of the harm: the rice-farming communities whose rights under Articles 27, 40 and 47 of the Constitution are engaged are concentrated in Mwea, Kirinyaga County, within this Court's ordinary territorial jurisdiction, as reflected in the mopup order directed at “the rice producing areas of Mwea, Bura, Ahero, Nyatike, Bunyala, Kuja and Kano” (KER003/2026, Order [10](1)). (b) The Petitioner's own standing is geographically anchored to Kirinyaga, as this Court itself found (KER260/2025, paragraph [34], quoted above) transferring the matter away from the elected representatives and the community they represent would be inimical to the very access-to-justice rationale under which standing was recognised. (c) Institutional memory and avoidance of duplicated effort: this Court has, in three Rulings, built a carefully calibrated remedial architecture reconciling food security with farmers' livelihoods, is already fixed for full hearing, and has taken judicial notice, under section 60(o) of the Evidence Act, of matters directly relevant to the continuing dispute: “there is ongoing armed conflict in the Middle East involving Iran and Israel and affiliated hostilities which have materially affected maritime security conditions, shipping routes, and vessel schedules in and around key corridors, thereby increasing unpredictability of transit and arrival timing for cargo destined for the region, including East African routes.” Ruling of 27th March 2026, HCCHRPET E009/2025 (KER044/2026), paragraph [16], applied at paragraph [27]* *26. Transferring the matter now would not avoid duplication of judicial effort; it would guarantee it, requiring a different court to reconstruct from a cold record an institutional understanding this Court already possesses. If consolidation is truly the objective, the sound course is to seek transfer of the Kisumu suit to Kerugoya, not the reverse a course this Court has ample power to facilitate in the interests of substantive justice: “Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way... Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order, the courts culled out such power to avoid abuse of process or miscarriage of justice.” — Rupa Ashok Hurra v Ashok Hurra; Writ Petition (Civil) 509 of 1997, quoted at KER044/2026, paragraph [15] “[The Court may] make any essential or ancillary orders such as will enable it to sustain its constitutional mandate as the ultimate judicial forum.” — Board of Governors, Moi High School, Kabarak & another v Bell & 2 others [2013] KESC 12 (KLR), quoted at KER044/2026, paragraph [28]* *27. Nor is the safeguard against withdrawal or dilution of public-interest litigation a oneway street protecting only petitioners. This Court has already recognised, in the context of this very rice-importation litigation, that public-interest suits are vulnerable to manipulation and must be jealously guarded by the Court itself: “The jurisprudence coming through is that public interest litigation is not a party's private suit which he may withdraw or discontinue at whims. Any withdrawal or discontinuance of such proceedings as constitutional petitions, must be sanctioned by a Court. The requirement of leave of the court also protects public interest litigation from abuse by parties for ulterior or personal motives... The threshold, therefore is that, public litigation should not be withdrawn for ulterior motive or for personal gain or upon collusion between the parties. And, presence of the ills stated above, the court should consider proceeding with the hearing of the public litigation.” — Luka v Narok Bursaries Management Board & 6 others [2024] KEHC 2523 (KLR), quoted at KER260/2025, paragraph [25]* *28. By parity of reasoning, a Respondent's attempt to remove well-advanced public-interest litigation from the court that has invested a year's continuous supervisory oversight in it, and relocate it to a forum of unknown and unproven procedural status, engages precisely the vigilance this Court exercised when guarding against improper withdrawal of the original Petition. Procedural safeguards protecting the integrity of public-interest constitutional litigation are, as the Court of Appeal has held, “not a mere technicality”: “We are satisfied that the right of a petitioner to withdraw a constitutional petition is circumscribed by rule 27; that rule 27 like all the other rules enshrined in the 2013 rules, is constitutionally underpinned and is not a mere technicality; and that the rule is justified granted the public significance of an application alleging violation of the Bill of Rights, literally the heart of the Constitution.” — Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others [2016] KECA 141 (KLR), quoted at KER260/2025, paragraph [26]* *29. The same constitutional seriousness that circumscribes a petitioner's freedom to withdraw a constitutional petition must equally circumscribe a respondent's freedom to relocate one by way of an unparticularised preliminary objection.* *(iii) Article 159(2) of the Constitution and the avoidance of undue technicality* *30. Article 159(2)(b) and (d) of the Constitution direct that justice be administered without undue regard to procedural technicalities and without unreasonable delay. A transfer at this stage would occasion precisely the delay and loss of institutional memory Article 159(2) guards against, particularly given the urgency of the outstanding compliance issues raised in the letter of 23rd/24th July 2026 concerning Gazette Notice No. 10061.* *31. This Court's own approach in these very proceedings declining to let technical objections defeat substantive constitutional adjudication of food security and farmers' livelihoods counsels the same approach here. As this Court held when facing a comparable invitation to let rigid form defeat substance: “The Court must facilitate the implementation of its own orders and when it is demonstrated that the implementation of the order is impractical in the form and nature it is ordered, it is incumbent on the Court... to accede to requests for amendment, reviews and alterations as are necessary... The Court is not functus officio.” — Ruling of 27th March 2026, HCCHRPET E009/2025 (KER044/2026), paragraph [28] F. A Note On the Identity Of The Petition Addressed by the Preliminary Objection* *32. For completeness, the Petitioner records that the PO is captioned “CONSTITUTIONAL PETITION NO. 15 OF 2026” and recites that it opposes “the Petition herein dated 17th July, 2026.” The Petitioner will confirm, by reference to the Petition as filed and the court registry record, that these particulars correspond precisely to the Petition on behalf of which these submissions are made, and reserves the right to raise any discrepancy that may emerge on that comparison.* *G. CONCLUSION AND PRAYERS* *33. For the foregoing reasons, the Petitioner submits that the Notice of Preliminary Objection dated 22nd July 2026 is incompetent, unsustainable in law, and ought to be dismissed with costs. In the alternative, this Honourable Court should decline to transfer the Petition to the High Court at Kisumu, whether for consolidation with Kisumu HCPT E024 of 2026 or otherwise.* *34. The Petitioner prays that this Honourable Court be pleased to: (a) Dismiss the 5th Respondent's Notice of Preliminary Objection dated 22nd July 2026 with costs; (b) In the alternative, decline the prayer for transfer of the Petition to the High Court at Kisumu; (c) Direct that the Petition proceeds to be heard and determined on its merits before this Honourable Court; and (d) Make such further or other orders as this Honourable Court may deem fit in the interests of justice. DATED at NAIROBI this 30th day of July, 2026.”* 1. The Counsel for the Intended Interested Party ***Ahero Farmers Association*** with leave of court filed submissions on the Attorney General’s Preliminary Objection as follows: *“****SKELETAL SUBMISSIONS IN SUPPORT OF THE ATTORNEY GENERAL’S NOTICE OF PRELIMINARY OBJECTION*** *A. INTRODUCTION* *Your Lordship,* *1. These submissions are made in support of the Attorney-General's Notice of Preliminary Objection dated 22nd day of July 2026.* *2. The Preliminary Objection raises a pure point of law, namely that this Petition is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act, there being an earlier constitutional petition pending before the High Court at Kisumu concerning substantially the same subject matter, issues and reliefs. 3. Consequently, this Honourable Court lacks jurisdiction to proceed with the hearing of the present Petition until the earlier suit is determined or, alternatively, ought to transfer the matter for consolidation with the earlier petition.* *B. ISSUES FOR DETERMINATION* *The Preliminary Objection raises the following issues; a) Whether the Petition offends the doctrine of sub judice under section 6 of the Civil Procedure Act. b) Whether the Petition ought to be stayed or transferred to the High Court at Kisumu for consolidation with Kisumu HCCRPET No. E024 of 2026.* *C. THE LAW* *Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of any suit in which 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 before a court of competent jurisdiction. The doctrine exists to: a) prevent multiplicity of proceedings; b) avoid conflicting judicial pronouncements; c) protect judicial economy; d) uphold orderly administration of justice. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR explained that sub judice applies where: a) there are two or more suits; b) the matters in issue are directly and substantially the same; c) the suits are between the same parties or parties litigating under the same title; and d) the earlier suit is pending before a competent court.* *D. THE PRESENT PETITION IS BARRED BY THE DOCTRINE OF SUB JUDICE* *We respectfully submit that all the ingredients of section 6 have been satisfied. (a) There exists an earlier suit Prior to the institution of this Petition, Kisumu HCCRPET No. E024 of 2026 had already been filed challenging the constitutionality and legality of Gazette Notice No. 10061 dated 6th July 2026. The earlier Petition remains pending before a court of competent jurisdiction. (b) The issues are substantially identical Both proceedings challenge the same Gazette Notice. Both invite the High Court to determine: • the legality of the Gazette Notice; • its constitutionality; • whether the Respondents acted lawfully; and • whether the Gazette Notice ought to be quashed or suspended. The mere addition of different constitutional provisions or slight variations in pleadings cannot disguise that the core controversy remains identical. Courts consistently look at the substance rather than the form of pleadings. (c) The parties litigate under the same title Although the named petitioners may differ, both proceedings are public interest constitutional petitions litigated against Government agencies concerning the same executive action. The parties therefore litigate under the same title within the meaning of section 6. The Supreme Court has recognised that strict identity of parties is unnecessary where the parties represent the same legal interests. (d) Risk of conflicting decisions If this Court proceeds independently while the Kisumu Court simultaneously determines the same constitutional questions, there exists a real possibility of contradictory findings on the validity of the Gazette Notice. Such an outcome would undermine certainty, public confidence and the orderly administration of justice.* *E. CONSOLIDATION IS THE APPROPRIATE REMEDY* *Where proceedings concern the same legal questions and arise from the same impugned decision, consolidation best serves the overriding objective of the Court. Consolidation would: a) avoid duplication of judicial effort; b) reduce litigation costs; c) prevent inconsistent judgments; d) promote expeditious disposal; e) safeguard public resources. Since the Kisumu Petition was instituted first, that Court should remain the forum for determination of the consolidated proceedings. F. CONCLUSION The present Petition squarely falls within the ambit of section 6 of the Civil Procedure Act. Proceeding with parallel constitutional litigation over the same Gazette Notice would defeat the very purpose of the doctrine of sub judice and expose the judicial process to conflicting determinations.* *G. PRAYERS Intended Interested Party,* ***Ahero Rice Farmers Association*** *respectfully prays that this Honourable Court be pleased to:* *1. Uphold the Preliminary Objection dated 22nd day of July 2026.* *2. Find that this Petition is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act.* *3. Stay further proceedings herein and transfer this Petition to the High Court at Kisumu for consolidation with Kisumu HCCRPET No. E024 of 2026. DATED AT NAIROBI this 29th day of July 2026.”* 1. The Counsel for the Intended Interested Party **Soufianne Bakkal**, supported the Attorney General’s Preliminary Objection without filing any written submissions. *Principles for the raising of Preliminary Objections* 1. The principles for the grant of Preliminary Objections as set out in ***Mukisa Biscuits*** case (***Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd*** *[1969] EA 696*) require a pure point of law argued on the basis that the facts set out by the other party are agreed as correct, and Preliminary Objection should not be raised where any facts are to be ascertained. *Need to ascertain dispute facts* 1. The Petitioner in response to the Preliminary Objection cited the decision of the Court in ***Kathumo v Nzuki & another*** (Environment and Land Appeal 37 of 2021) [2023] KEELC 434 (KLR) (1 February 2023) (Judgment), which held as follows: *“31. Before I determine whether the suit before the trial court was sub judice or not, it is instructive to note that the respondent raised the issue of sub judice by way of a preliminary objection and purported to demonstrate the same by filing submissions on which he attached a copy of the ruling of the court in Machakos Succession Cause No. 12 of 2006 and No. 13 of 2006 (consolidated). It is that annexure to the submissions, that the trial court referred to and relied upon in finding that the preliminary objection led in the Succession Cause on jurisdiction of that court was still pending and the trial court also made a finding that the High Court was not functus officio. I have highlighted this issue because it is now settled law that a preliminary objection can only be raised on pure points of law in regard to pleadings where facts are not in contention.* *32. In the case of* ***Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd*** *[1969] EA 696, the court held as follows:* *“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose o the suit. Examples are an objection to the jurisdiction of the court ora plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”* *33. The issue raised before the trial court was a question of sub judice. The 1 st respondent purported to prove the same by attaching his evidence on his submissions. That piece of “evidence” is what the trial court relied on in arriving at its conclusions. Can a party lawfully prove sub judice by way of a preliminary objection and attach the evidence on the submissions? My view is that the elements for proof of sub judice as discussed earlier in this judgment can only be properly presented before court by way of Notice of Motion attaching the evidence in support thereof to the supporting affidavit. In this case the 1 st defendant purported to attach his evidence on his submissions. That procedure is strange and cannot be countenanced by this court. Submissions are merely persuasions and are incapable of presenting evidence in court. It was therefore improper for the trial court to rely on evidence that was practically sneaked on to the file. While this court is acutely aware that its interest should be to facilitate substantive justice rather than technical justice, it is my considered view that substantive justice is made complete with procedural justice, as the rules of procedure are the handmaids of substantive justice. I take this view because the question then would be that how does the opposite party respond to “evidence” produced as an attachment to submissions? Do they file replying submissions with their own documents, or a replying affidavit or just bring other documents without any form of presentation to court?”* 1. This Court has also respectfully noted the caselaw authority cited by the Petitioner of ***Odeny (Formerly Victor Onyango Odeny) v Attorney General*** (Petition E415 of 2022) [2024] KEHC 5627 (KLR) (Constitutional and Human Rights) (23 May 2024) (Ruling) as follows: *“24. Despite the Respondent stating that the issue as to the existence of another suit by the petitioner is not in dispute, the Petitioner categorically denied that assertion. The Respondent only stopped at mentioning the case number, it did not provide any evidence of that other case it alleged the Petitioner had filed for the examination by the Court.* *25. Two clear observations emerge. First is that the Respondent relied on a contested factual matter to raise the instant Preliminary objection. For this Court to decide on the instant Preliminary Objection, it would first have to inquire into the existence of the alleged suit by the Petitioneras this is not admitted by the Petitioner and cannot be confirmed from the Petitioner’s pleadings. The claim was made by the Respondent for the first time in the Notice of Preliminary Objection. The fact that the Court has to ascertain a fact that the Respondent relies on to raise the Preliminary Objection means that the Preliminary Objection does not meet the legal threshold required of a preliminary objection as a preliminary objection cannot be based on a disputed factual matter.* *26. The second conclusion is that without availing the evidence of the previous suit, a factual issue that the Petitioner categorically denied, this Court was denied the opportunity of examining the two pleadings in order to determine if they are identical or substantially similar. In the absence of the evidence, the Court has nothing to assess in order to determine if Section 6 of The Civil Procedure Act was contravened so as to reach a finding on whether or not there is sub-judice.* *27. The inescapable conclusion is that this Preliminary Objection lacks merit and must therefore inevitably fail. Accordingly, the Respondent’s Preliminary Objection dated 7th June 2023 is hereby dismissed with costs.”* 1. In the present petitions, the existence of the previous petition cannot be in serious dispute. The availability of CTS access to all cases filed in the courts removes the potency of the objection on failure to attach the pleadings in the previous suit, if it were only a question of establishing the existence of the previous petition. 2. It was also urged that the pending applications for transfer of the Petition herein by the Intended Interested Parties have set out the pleading in the previously filed petitions pending hearing at Kisumu Court. 3. It is not accurate that a court may be able to access the filings in other court on the Court’s Tacking System (CTS). Without appropriate mapping the one court/judge or judicial officer cannot access the filings in another court. An applicant who wishes to have the court consider pleadings or affidavits filed in other courts would be obliged at least for expeditious disposal of the case to attach certified copies for examination by the court. 4. Even if the Court is mapped to be able to access the records of another court, or as in this case, the pleadings in the other cases have been attached in other pending applications, the consideration of ***Mukisa Biscuits*** is that preliminary Objections are not suitable procedure for determination of matters which require ascertainment of facts. Preliminary Objection should be taken on the basis of undisputed or indisputable facts. 5. In this case, however, the petitions and applications in the previous petitions are before the Court as attachments to the applications for joinder of the Interested parties in this Petition, and the Court will access them for purposes of determining the nature of the disputes in the Petition. *Principles for grant of dismissal for abuse of process* 1. In ***Praful*** case (Court of Appeal CIVIL APPEAL NO. 70 OF 2017 ***Praful Chandra Bharmal v. The Chief Magistrate Kibera & 3 Others*** (Koome, (as she then was), Musinga & Gatembu, JJA.), the Court of Appeal observed the open multiple nature of abuse of process and its relation to the circumstances of the case as follows: *“We are aware that the categories of abuse of process are not limited. Whether or not an abuse of power of criminal process has occurred ultimately depends on the circumstances of each case.”* See also ***Gathariki v. Cheko Plot Owners Association & another****,* supra,cited by the Respondents. 1. Such circumstances of the case will naturally depend on the ascertainment of the facts of the case upon examination of a replying affidavit/oral testimony taken for the respondents, something that the ***Mukisa Biscuits*** case held to be improper use of preliminary Objection. There is no evidence that the Petitioner filed the Petition with full knowledge of the alleged petitions and that the present petition is a repetition of the matters raise in the other petitions. This contention of abuse of process of the Court is rejected. *Stay of proceedings for* ***sub judice*** 1. Section 6 of the Civil Procedure Act provides for the *sub judice* principle as follows: *“****6. Stay of suit*** *No court shall proceed with the trial of any suit or proceeding in which* ***the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title,*** *where such* ***suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.*** *Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.* *[Act*[*No. 10 of 1969*](https://new.kenyalaw.org/akn/ke/act/1969/10)*, Sch.]”* 1. The Court has considered the three-fold considerations of the ***sub judice*** principles as follows: 1. ***That the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding;*** 2. ***That the suit or proceeding is between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and*** 3. ***That the suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.*** 2. See the Supreme Court decision in the ***Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)*** [2020] eKLR setting out the ingredients of ***sub judice*** as follows: “*A party that seeks to invoke the doctrine of res sub-judice must therefore establish that;* ***there is more than one suit over the same subject matter****;* ***that one suit was instituted before the other****;* ***that both suits are pending before courts of competent jurisdiction*** *and lastly;* ***that the suits are between the same parties or their representatives.****”* 1. There is no question of the petitions before the Kisumu Court having been filed earlier in time and the Court jurisdiction is not in dispute. The contest between the parties revolved around the matter in issue in the petitions and the parties in the suits. ***Matter in issue is also directly and substantially in issue in a previously instituted suit*** 1. While the Petitions challenge the validity and implementation of Gazette Notice No. 10061 of 6th July 2026, the causes of action are different and the Court observes that the issues and factual background of the cases are different. 2. The Kisumu Pet. E024 of 2026 ***Ahero Rice Farmers Association v. Cabinet Secretary for Treasury & 4 others*** set out the factual background of the Petition datd 8/7/2026 as follows: *“D. FACTUAL BACKGROUND* *18. Rice farming is one of Kenya's most important agricultural enterprises and directly supports thousands of farming households, workers, transporters, millers, traders and other participants within the agricultural value chain.* *19. Over the years, successive Governments have encouraged increased domestic rice production through irrigation schemes, public investment, farmer support programmes and policies intended to reduce dependence on imported rice while improving national food security.* *20. In response to those policy commitments, local rice farmers have invested heavily in land preparation, irrigation infrastructure, certified seed, fertiliser, labour, mechanisation, harvesting and milling with the legitimate expectation that Government policy would promote, rather than undermine, domestic agricultural production.* *21. On 6th day of July 2026, the 1 st Respondent published Gazette Notice No. 10061 authorizing the duty-free importation of approximately 490,000 metric tonnes of Grade One Milled White Rice into Kenya on or before 30th November 2026.* *22. The impugned Gazette Notice followed Gazette Notice No. 10353 of 28th day of July 2025 and Gazette Notice No. 262 of 9th day of January 2026, which had previously authorized and extended duty-free rice importation into Kenya.* *23. The cumulative effect of the successive Gazette Notices has been the continued introduction of substantial quantities of imported rice into the Kenyan market under preferential customs treatment, with significant implications for domestic rice producers.* *24. Despite the profound economic consequences of the impugned policy, neither the Petitioner nor its members were consulted before the publication of Gazette Notice No. 10061.* *25. The Petitioner is unaware of any public notice inviting representations from farmers, any stakeholder consultative forum, any regulatory impact assessment, any socio-economic analysis or any report demonstrating compliance with the constitutional requirement of meaningful public participation before the impugned decision was made.* *26. The Petitioner further avers that no information has been disclosed demonstrating the methodology used to determine the quantity authorized for importation, the projected deficit in local rice supply, the economic impact of the decision upon domestic producers or the alternatives considered before granting extensive duty exemptions to imported rice.* *27. The exclusion of local rice farmers from a decision directly affecting their livelihoods, investments and economic survival amounts to constitutional disenfranchisement and violates the participatory governance framework established by the Constitution.* *28. The Petitioner contends that the impugned decision confers substantial benefits upon rice importers while imposing a disproportionate economic burden upon local farmers, many of whom depend entirely on seasonal rice production for their income and livelihood.* *29. Unless restrained by this Honorable Court, implementation of Gazette Notice No. 10061 will continue to distort the domestic rice market, depress farm-gate prices, undermine local production and occasion irreparable prejudice to thousands of Kenyan rice farmers before the constitutional issues raised herein can be determined.”* 1. Kisumu Pet. No. E026 ***Soufianne Bakkal v. John Mbadi & 4 Others*** (formerly Kiambu Pet. E070 of 2026) while seeking implementation of the Gazette Notice No. 10061 of 6th July 2026, the Petitioner who describes herself as ***a Kenyan citizen acting in public interest under articles 22 and 258 of the Constitution*** seeks transparent allocation and supervision of the duty-free import process. 2. In this Petition, the Gazette Notice No. 10061 of 2026 is challenged on the basis of want of public participation and for violation of the rights of rice farmers and applicable East African Community legislation against the backdrop of continuing litigation in the Kerugoya Petition No. E009 of 2025, which is pending hearing of the main petition before the Court, as shown in facts supporting the Petition as follows: *“C. FACTS GIVING RISE TO THE PETITION* * + 1. *The Court’s Continuing Supervisory jurisdiction in HCCHRPET No. E009 of 2025* *14. That the Honourable Court in HCCHRPET E009 of 2025 has since 19th August 2025 exercised continuous supervisory jurisdiction over duty-free importation into kenya, having found on a prima facie basis that the importation of 500,000 MT under the earlier Gazette Notice No. 10353 of 28th July 2025 raised serious constitutional questions concerning public participation, discrimination against local farmers, and the improper invocation of the emergency relief exemption and the EACCMA.* *15. THAT by It subsequent Rulings of 29th January 2026, 27th March 2026 and 20th April 2026, this Court permitted importation of a further balance not exceeding 254,000 MT in phased tranches, subject to a final completion deadline of 30th June 2026, and expressly directed the 4th and 7th Respondents to file monthly flows and compliance report disclosing among other things, the volumes of rice actually imported and cleared, the tax due and declared thereon, and whether any additional rice had entered the country outside the sanctioned tranches.* *16 THAT in it’s Ruling of 20th April 2026, this court further noted, as a matter of record, the 7th Respondent’s material non-disclosure regarding detained consignments and directed that the contempt proceedings arising therefrom be held in abeyance pending the outcome of a related appeal, with the substantive matter fixed for mention on 30th June, 2026.* *17. THAT as at the date of this Petition, and to the best of the Petitioner’s knowledge, no comprehensive status or compliance report addressing the full particulars ordered by this court –namely, the aggregate tonnage imported, the customs duty foregone or collected, and the existence of any additional or undeclared rice consignments – has been filed by either the 6th or the 7th Respondent, notwithstanding that the Petitioner is informed that a fresh application seeking such reports has since been lodged in HCCHRPET No. E009 of 2025.* *ii. Publication of the Impugned Gazette Notice No. 10061* *18. THAT despite the Petition in HCCHRPET No. E009 of 2025 remaining pending and fixed for hearing on 1st October, 2026, and mere days after the expiry of the court supervised import window on 30th June, 2026, the 1st Respondent, upon the recommendation on the 2nd Respondent, published Gazette Notice No. 10061 on 6th July, 2026 authorising the duty-free importation of a further 490,000 metric tonnes of Grade 1 Milled White Rice on or before 30th November, 2026.* *19. THAT the 4th and 7th Respondents commenced clearing rice consignments under Gazette Notice No. 10061 on or about 17th July, 2026 at the Port of Mombasa and other points of entry without any prior public announcement, without any parliamentary or stakeholder consultation, and without any demonstrated proof of an emergency or disaster preceding the decision.* *20. THAT the timing, structure and content of Gazette notice No. 10061 mirror in every material respect the previous Gazette Notices No. 10353 of 2025 and No. 262 of 2026 – the latter having already been declared null and void by this court on 13th February 2026 for the same defects now repeated – giving rise to a reasonable and calculated scheme to circumvent this court’s supervisory jurisdiction by successive re-issuance of substantively identical unlawful notices.* *ii. Absence of Extinguishment of Previously Imported Rice* *21. THAT the Respondents have not demonstrated, whether in the proceedings in HCCHPET No. E009 of 2025 or otherwise that the rice previously imported under the Court –supervised programme (up to 254,000MT) has been extinguished from the market through sale, distribution or consumption, such that a fresh importation window of 490,000MT could conceivably be justified on grounds of scarcity.* *22. THAT the Petitioner is informed, and verily believes, that unsold stock of both locally produced and previously imported rice continuous to be held at the paddy, in private granaries, and in KNTC and private warehouse, a fact which, if established, would be fatal to any claim of an anticipated shortfall warranting further duty-free importation.* *iv. The Structural Rice Deficit Per KNBS Data Does Not Without More Establish an Emergency* *23. THAT according to the Kenya National Bureau of Statistics Economic Survey 2025, national rice paddy production from irrigation schemes across the country stood at approximately 282,152 metric tonnes for the 2023/24 crop year, against Kenya’s estimated national rice consumption of approximately 1.3 million metric tonnes annually – a structural deficit of over one million metric tonnes that has persisted for years and is met routinely through ordinary duties commercial imports.* *24. THAT the existence of this long-standing structural deficit, being a matter of established and predictable national economic fact rather than a sudden, unforeseen calamity, cannot in law found an invocation of the emergency relief exemption under Section 114(2) of the EACCMA, which by its express terms is confined to relief goods imported for emergency use in specific areas where a normal disaster or calamity has occurred in a Partner State.* *25. THAT the proper legislative avenue for addressing a persistent structural deficit or genuine price volatility in an essential commodity such as rice is a Ministerial declaration under Section 2 of the Price Control (Essential Commodities) Act No. 26 of 2021, made in consultation with the industry – a materially more accountable and transparent process which the Respondents have, on this occasion as on the last deliberately bypassed in favour of the EACCMA’s emergency exemption regime.* *v. Absence of Any Declared Disaster or Emergency Justifying the Notice* *26. THAT no drought, famine or food security emergency has, as at the date of this Petition, been declared in respect of rice by the National Security Council, the National Disaster Management Authority, the national Environment Management Authority (NEMA) OR THE Ad Hoc Committee of Cabinet Secretaries constituted under the National Disaster Risk Management Strategy 2025 – 2030, as would be legally required to properly invoke the emergency relief exemption under Section 114(2) of the EACCMA and Item 20 of Part B of the Fifth Schedule thereto.* *27. THAT the Petitioner has made diligent inquiry, including through publicly available disaster-monitoring bulletins, and is unable to identify any public communication, alert, or advisory from NEMA, the National Drought Management Authority, or any other competent disaster-management body indicating an impending, current, or anticipated calamity of a nature or scale that would justify the importation of 490,000 metric tonnes of rice on an emergency basis.* *28. THAT the absence of any such declaration is nor a mere technicality but goes to the very jurisdictional foundation of the impugned Gazette Notice. Section 114(2) of the EACCMA permits duty waivers only for goods imported for emergency use in specific areas where a disaster or calamity HAS OCCURRED, and further requires that importation be made within six months of such occurrence (or such extended period not exceeding twelve months as the Commissioner may permit), and that a notification of the exemption be submitted to the East African Community Directorate for circulation to Partner States - none of which conditions precedent have been shown to exist in the present case.* *vi. Absence of Public Participation* *29. THAT no public participation exercise of any kind - whether through Parliament. The Senate, county assemblies, or direct stakeholder consultation with rice farmers, farmer cooperatives, or consumer associations - preceded the publication of Gazette Notice No. 10061. in flagrant disregard of Article 10(2) of the Constitution and the doctrine of legitimate expectation.* *30. THAT, as in the case of the earlier Gazette Notice No. 10151 of 2025, the only emit) every State Corporation designated as the bcneficiary anchor importer under the impugned Notice a circumstancw which by itself raises a strong inference of conflict of interest and self-dealing.* *vii. Repetition of the Edible Oils Modus Operandi* *31. That the pattern exhibited in Gazette No. 10061 mirrors, in structure and effect the conduct earlier documented by the Auditor general in the Special Report on Edible Oils at the Kenya National Trading Corporation Ltd. Dated July 2024 in which the 6th Respondent was found ot have violated Article 227 of the Constitution and the Public Procurement and Asset Disposal Act No. 33 of 2015 through uncompetitive, non-transparent outsourcing arrangements that benefited a narrow class of suppliers to the detriment of the public.* *32. TI IAT the recurrence of an identical modus operandi - an exclusive, non-competitive importation mandate vested in the 6th Respondent, ahs mr competitive bidding or transparent supplier selection - raises a well-founded and reasonable apprehension that Gazette Notice No, 10061 is not a bona fide emergency intervention but a further reiteration of the same scheme previously exposed by the Auditor-General.* *viii. Without Prejudice to the Republic* *33. THAT the 7th Respondent, the Kenya Revenue Authority, has on multiple prior occasions publicly acknowledged [hat duty-free importation waivers of this nature adversely affect its revenue collection targets, and Article 210 of the Constitution provides thar no tax or licensing fee may be imposed, waived or varied except as provided by legislation a requirement which, tor the reasons set out above, the impugned Gazette Notice does not properly satisfy.* *34. THAT the Petitioner is unaware or any notification submitted hy the 4th Respondent to the East African Community Directorate required under Section 114(2) of the EACCMA disclosing the description and quantities of goods exempted under Gazette No. 10061A further indicator of the unlawfulness of the process followed.”* 1. The present Petition herein dated 20/7/2026 was filed on 21/7/2026 seeking specific reliefs *inter alia:* *1. A declaration that Gazette Notice No. 10061 published on 6th July 2026 is unconstitutional, unlawful, null and void ah initio (or want of public participation, absence of a declared emergency, and improper invocation of Section 114(2) of the East African Community Customs Management Act, 2004.* *2. An order of certiorari quashing Gazette Notice No. 10061 published on 6th July 2026 in its entirety.* *3. An order of prohibition restraining the 1st, 2nd, 3rd, 4th, 6th and 7th Respondents, their agents, servant: or any person acting on their behalf,* ***from importing, clearing, releasing, or otherwise dealing with any nee consignment under Gazette Notice No. 10061 or any successor or similar notice issued in circumvention of this Court's supervisory jurisdiction****....* *4. A permanent injunction restraining the Respondents from further duty free importation of rice absent full compliance with Article 10 of the Constitution (public participation) a valid declaration of emergency under the applicable disaster risk management framework, and/or compliance with Price Control (Essential Commodities) Act No. 26 of 2011, as the case may be.* *5. THAT this Honourable Court be pleased to give such directions as it considers just and appropriate on teh consolidation of this Petition with HCCHRPET No. E009 of 2025 and on framing of a hearing timetable for such matters, without prejudice to the right of the Respondents to be heard on the propriety, scope, and timing of any such consolidation or timetable.* *6. A declaration that the Petitioner's rights, and those of rice farmers in Kirinyaga Country and across the Republic, under Articles 10,26,27,40,43 and 47 of the Constitution have been violated.* *7. Costs of the Petition be borne by the Respondents.”* 1. In ***Pet. E024 of 2026 Ahero Farmers Association v. Cabinet Secretary, The National Treasury & Economic Planning & 5 others,*** the Petitioner challenges only the mechanics of the formulation of the present Gazette Notice No. 10061 of 6th July 2026 for want of public participation, fair administrative action and alleged exclusion of the Petitioner in the formulation of the policy, among other grounds set out in the Facts of the case as set out in the Petition: *“****D. FACTUAL BACKGROUND*** *18. Rice farming is one of Kenya's most important agricultural enterprises and directly supports thousands of farming households, workers, transporters, millers, traders and other participants within the agricultural value chain.* *19. Over the years, successive Governments have encouraged increased domestic rice production through irrigation schemes, public investment, farmer support programmes and policies intended to reduce dependence on imported rice while improving national food security.* *20. In response to those policy commitments, local rice farmers have invested heavily in land preparation, irrigation infrastructure, certified seed, fertiliser, labour, mechanisation, harvesting and milling with the legitimate expectation that Government policy would promote, rather than undermine, domestic agricultural production.* *21. On 6th day of July 2026, the 1st Respondent published Gazette Notice No. 10061 authorizing the duty-free importation of approximately 490,000 metric tonnes of Grade One Milled White Rice into Kenya on or before 30th November 2026.* *22. The impugned Gazette Notice followed Gazette Notice No. 10353 of 28th day of July 2025 and Gazette Notice No. 262 of 9 th day of January 2026, which had previously authorized and extended duty-free rice importation into Kenya.* *23. The cumulative effect of the successive Gazette Notices has been the continued introduction of substantial quantities of imported rice into the Kenyan market under preferential customs treatment, with significant implications for domestic rice producers.* *24. Despite the profound economic consequences of the impugned policy, neither the Petitioner nor its members were consulted before the publication of Gazette Notice No. 10061.* *25. The Petitioner is unaware of any public notice inviting representations from farmers, any stakeholder consultative forum, any regulatory impact assessment, any socio-economic analysis or any report demonstrating compliance with the constitutional requirement of meaningful public participation before the impugned decision was made.* *26. The Petitioner further avers that no information has been disclosed demonstrating the methodology used to determine the quantity authorized for importation, the projected deficit in local rice supply, the economic impact of the decision upon domestic producers or the alternatives considered before granting extensive duty exemptions to imported rice.* *27. The exclusion of local rice farmers from a decision directly affecting their livelihoods, investments and economic survival amounts to constitutional disenfranchisement and violates the participatory governance framework established by the Constitution.* *28. The Petitioner contends that the impugned decision confers substantial benefits upon rice importers while imposing a disproportionate economic burden upon local farmers, many of whom depend entirely on seasonal rice production for their income and livelihood.* *29. Unless restrained by this Honorable Court, implementation of Gazette Notice No. 10061 will continue to distort the domestic rice market, depress farm-gate prices, undermine local production and occasion irreparable prejudice to thousands of Kenyan rice farmers before the constitutional issues raised herein can be determined.”* 1. The specific reliefs sought in the ***Ahero Farmers Association*** Petition No. E024 of 2026 are as follows: *“a) A Declaration that the decision of the 1st Respondent contained in Gazette Notice No. 10061 dated 6th day of July 2026 authorizing the duty-free importation of 490,000 Metric Tonnes of Grade One Milled White Rice* ***without meaningful public participation, stakeholder consultation and procedural fairness violates Articles 1, 2, 3, 10, 27, 35, 40, 43, 47, 201 and 232 of the Constitution*** *and is therefore unconstitutional, unlawful, null and void;* *b) A Declaration that* ***the exclusion of the Petitioner, local rice farmers and their representative organizations from the formulation of the impugned policy constitutes a violation of the constitutional principles of public participation,*** *inclusiveness, transparency, accountability and good governance;* *c) A Declaration that the Respondents violated the* ***Petitioner's and its members' right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act by issuing Gazette Notice No. 10061 without prior notice, disclosure of relevant information, consultation or an opportunity to be heard****;* *d) A Declaration that the Respondents violated Article 35 of the Constitution by failing to disclose the factual, economic and policy information relied upon in determining the necessity, scope and implementation of the impugned duty-free rice importation programme;* *e) A Declaration that the Respondents acted in breach of the Petitioner's and its members' legitimate expectation that policy decisions affecting the rice sector would be formulated transparently, fairly and following meaningful stakeholder engagement.* *f) An* ***Order of Certiorari removing into this Honourable Court for purposes of being quashed, and quashing Gazette Notice No. 10061 dated 6th day of July 2026 together with all approvals, allocations, permits, licences, customs clearances, tax exemptions and administrative decisions issued pursuant thereto****;* *g) An* ***Order of Prohibition restraining the Respondents, whether jointly or severally, from implementing, enforcing or giving any further effect to Gazette Notice No. 10061 or any substantially similar duty-free rice importation programme unless and until full compliance has been made with the Constitution and all applicable statutory requirements;*** *h) An* ***Order of Prohibition restraining the Respondents from issuing any further duty-free importation approvals, customs exemptions, import permits or allocations relating to Grade One Milled White Rice without first undertaking meaningful public participation****, stakeholder consultation and publication of the information relied upon in arriving at such decision;* *i) An Order of Mandamus compelling the Respondents to develop, publish and implement, within ninety [90] days, a transparent constitutional framework governing stakeholder engagement and meaningful public participation before making future policy decisions relating to duty-free agricultural imports affecting local producers;* *j) An Order directing that any future decision relating to large-scale duty-free importation of rice or any other agricultural commodity affecting domestic producers shall only be undertaken after; i. adequate public notice; ii. publication of all relevant policy information; iii. meaningful stakeholder consultation; iv. consideration of the socio-economic impact upon local producers; and v. full compliance with Articles 10, 35, 47, 201 and 232 of the Constitution.* *k) An Order directing the Respondents to file before this Honourable Court, within ninety [90] days, a compliance report demonstrating implementation of the orders issued herein. l) Costs of this Petition;* *m) Such further, consequential or other relief as this Honourable Court shall deem just, appropriate and expedient for the protection and enforcement of the Constitution.”* 1. ***Petition No. E024 of 2026*** was shown by order of the Court (Mabeya, J.) dated 9/7/2026 to have been presented for directions in court on 9/7/2026 when the Court made orders as follows: *“****ORDERS (COURT DOCUMENT)*** *BEFORE HON. JUSTICE ALFRED MABEYA* *THIS MATTER coming up on 9/7/2026 on the Notice of Motion dated 8/7/2026 before Honourable Justice A. Mabeya. AND UPON READING the supporting affidavit thereto, IT IS HEREBY ORDERED:* *1. THAT the application is certified urgent and for reasons set out in the Certificate, the same is heard ex-parte in the first instance.* *2. THAT the application be served forthwith and be responded to for directions on 20/7/2026.* ***3. THAT in the meantime, prayer no.2 is granted as prayed.*** *GIVEN under my hand and seal of the Honourable court this 9th day of July, 2026.”* 1. The prayer No. 2 of the Notice of Motion in Pet. No. E024 of 2026 granted by the Court was in terms as follows: *“2. THAT the 1st, 2nd, 3rd and 5th Respondents do, within seven (7) days, file in Court and serve upon the Petitioner:* *a) the complete list of all approved importers, and of all licensed and prequalified importers;* *b) the quantities allocated to each importer, and the quantities already imported and cleared;* *c) the customs entry numbers relating to each consignment, and all duty exemptions granted;* *d) all import permits and approvals issued, and the criteria applied in approving each importer;* *e) the balance of the authorised quota of 490,000 Metric Tonnes remaining under Gazette Notice No. 10061 of 6th July 2026;* *f) the Cabinet Memoranda, policy papers, stakeholder-consultation reports, records of public participation and economic-impact assessments, if any, preceding the issuance of the said Gazette Notice”* 1. Petition No. E026 of 2026 ***Soufianne Bakkal*** supports the publication of the Gazettement and is only concerned with alleged secrecy and fraud in the allocation of the importation licences and seeks court supervision of the process of implementation of the Gazette Notice. Without challenging the validity, ***Petition No. E026 of 2026 -*** in fact accepting the validity - of the Gazette Notice No.10061 of 6th July 2026 seeks reliefs in the nature of declarations and orders for purposes of participating in the implementation of the Gazette Notice as follows: *“a. A Declaration that the objective of Gazette Notice No. 10061 of 6th July 2026 authorising duty-free importation of rice is consistent with Articel 43 and 46 of the Constitution insofar as it seeks to promote food security, consumer welfare and affordability of food.* *b. A Declaration that all allocations, licences, permits, quotas, approvals or authorizations arising from gazette Notice No. 10061 of 6th July 2026 must be undertaken in a transparent, equitable, objective and non-discriminatory manner.* *c. An order directing the Respondents to publish and maintain a publicly accessible register containing details of approved suppliers, quantity allocated and applicable conditions together with running total against authorised ceiling of 490,000 Metric Tonnes.”* 1. The Nairobi Petition, Nairobi High Court Constitutional Petition No. HCCHRPET No. E461 of 2026 by CENTER FOR LITIGATION TRUST (CLT) was filed on 13/7/2026 which was said to have been transferred to Kisumu Court was in the same terms to challenge the transparency of the making of the gazette Notice as the ***Ahero Farmers Association*** Pet. No. E024 of 2026 as shown in the grounds supporting its interlocutory motion for the same reliefs as sought in the Pet. No. E2024 of 2026: *“1. THAT rice farming is one of Kenya's most important agricultural enterprises and directly supports thousands of farming households, workers, transporters, millers, traders and other participants within the agricultural value chain.* *2. THAT over the years, successive Governments have encouraged increased domestic rice production through irrigation schemes, public investment, farmer support programmes and policies intended to reduce dependence on imported rice while improving national food security.* *3. THAT on or about 6th day of July 2026, the Government by Gazette Notice No. 10061 authorized and allowed the duty-free importation into Kenya of up to 490,000 Metric Tonnes of Grade I Milled White Rice on or before 30th day of November 2026.* *4. THAT the Gazette Notice aforesaid followed Gazette Notice No. 10353 of 28th day of July 2025 and Gazette Notice No. 262 of 9th day of January 2026, which had previously authorized and extended duty-free rice importation into Kenya.* *5. THAT it is imperative to note that your Petitioner does not per se challenge the Government's power to import rice to secure national food security, nor does it seek to halt the whole the duty-free rice importation programme established under Gazette Notice No. 10061 of 6 July 2026 but a programme involving the waiver of substantial public revenue and the conferment of valuable benefits on private importers must be run transparently and within its lawful limits.* *6. THAT your Petitioner thereby seeks that the duty-free rice importation programme established under Gazette Notice No. 10061 of 6 July 2026 be implemented transparently, accountably, and within the authorized ceiling of 490,000 Metric Tonnes. An uncontrolled influx of duty-free imported rice without transparent allocation mechanisms and effective monitoring is likely to depress farmgate prices, reduce demand for locally produced rice and occasion substantial financial loss to rice farmers.* *7. THAT the cumulative effect of the successive Gazette Notices has been the continued introduction of substantial quantities of imported rice into the Kenyan market under preferential customs treatment, with significant implications for domestic rice farmers.* *8. THAT the impugned decision confers substantial benefits upon rice importers while imposing a disproportionate economic burden upon local farmers, many who depend entirely on seasonal rice production for their income and livelihood.* *9. THAT despite the profound economic consequences of the impugned policy, local rice farmers were not consulted before the publication of Gazette Notice No. 10061* *10. THAT your Petitioner is unaware of any public notice inviting representations from farmers, any stakeholder consultative forum, any regulatory impact assessment, any socio-economic analysis or any report demonstrating compliance with the constitutional requirement of meaningful public participation before the impugned decision was made.* *11. THAT there is lack of transparency and details surrounding the implementation of the duty-free rice importation programme established under Gazette Notice No. 10061 of 6 July 2026 are shrouded in secrecy, remain opaque and vague to the public. Rice farmers and all Kenyans generally have no knowledge of the state of affairs pertaining the implementation of the duty-free importation of rice into Kenya.* *12. THAT there is no objectively verifiable criteria and the Respondents have not disclosed the identities of approved importers, the quantities allocated, customs entries, duty exemptions, or the remaining balance of the authorized quota, thereby preventing public oversight and accountability.* *13. THAT the scope, quantity, duration or beneficiary framework of Gazette Notice No. 10061 has not been disclosed to the public and rice farmers in Kenya who derive their livelihoods from rice farming have been kept in the dark.* *14. THAT the Gazette Notice does not disclose the criteria used to identify or allocate import quotas to importers, nor does it identify the beneficiaries or establish a mechanism through which the public may monitor compliance with the authorized ceiling.* *15. THAT meanwhile, by dint of Article 10 of the Constitution of Kenya, 2010, public participation and sustainable development are among the national values and principles of governance enshrined in the Constitution. Public participation has thereby constitutionally been entrenched under Article 10 (2) (a) of the Constitution of Kenya, 2010, which emphasizes the importance of citizens involvement in governance* *16. THAT Article 10 of the Constitution sets out national values and principles of governance that bind all state officers, state organs, public officers and all persons are required to apply the national values and principles of governance, including inter alia the rule of law, participation of the people, social justice, equity, non-discrimination, protection of the marginalized, good governance, integrity, transparency, accountability and sustainable development.* *17. THAT the constitution thereby requires transparency and public participation through public open hearings, debates, Public awareness engagement of the community and stakeholder engagement.* *18. THAT the duty-free importation of rice into Kenya has been initiated and is being implemented and undertaken without transparency, accountability, any meaningful public participation, adequate stakeholder consultation or disclosure of the criteria governing its implementation.* *19. THAT the duty-free importation of rice into Kenya affects thousands of rice farmers Kenya who derive their livelihoods from rice farming and the sale of locally produced rice. Rice farmers and other stakeholders representing local rice farmers were not consulted before the impugned Gazette Notice was issued.* *20. THAT rice farmers in Kenya have invested heavily in land preparation, irrigation, certified seed, fertilizer, labour, harvesting and milling in anticipation of marketing their produce during the current season.* *21. THAT the unregulated duty-free imports flood the market and depress the prices farmers in rice growing regions earn for their harvest.* *22.THAT furthermore the waiver of customs duties on such substantial quantities of imported rice involves significant public revenue and confers substantial commercial benefits upon private entities, thereby attracting constitutional obligations of openness, accountability and transparency.* *23. THAT it is therefore evident that there is clear and intentional attempt to keep out bona fide stake holders thereby rendering the public participation process and programmes ineffective, non-inclusive and thereby illegal.* *24. THAT the openness about who is importing, how much, and at what point the 490,000-tonne ceiling is reached would allow farmers, taxpayers and the public to verify that the duty-free rice importation programme established under Gazette Notice No. 10061 of 6 July 2026 stays within bounds.* *25. THAT it is in the interests of justice, constitutional governance and protection of the livelihoods of thousands of Kenyan rice farmers that the Application be allowed.* *26. THAT the acts of the Respondents are a threat to the rule of law and constitutionalism hence this honourble court as the primary custodian of the constitution should uphold and defend it from its violation by the respondents.* *27. THAT your Petitioner has shown and/or demonstrated the gravity and seriousness of the dispute herein.* *28. THAT the petitioner's grievances are genuine, legitimate, deserving and appropriate.* *29. THAT unless this Honourable Court intervenes urgently, substantial portions of the authorized quota may be allocated and imported before the legality and constitutionality of the impugned decision can be examined.* *30. THAT the petitioner thereby has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger of a violation or threatened violation of the Constitution and the law and the constitutional petition shall be rendered nugatory.”* 1. Having considered the petitions available before the Court, this Court would find, as the two judges who dissented in the Supreme Court decision in ***Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)*** [2020] eKLR, that the issues raised in this petition going to the root of the authority to make, and the validity of, the Gazette Notice No. 10061 of 2026 are different from the issue in the Petitions in Nairobi Pet. E461 of 2026, and Kisumu No. E024 of 2026 and E026 of 2026, the former which challenge the recent gazettement of authority to import without the benefit of prior litigation on the same scheme of duty-free rice importation and the latter seeking judicial validation of the said Gazette Notice and its strict implementation to the importation of the rice amounts set therein, and both which do not raise any issue as to the compliance with East African Community Customs Management legislation (EACCMA). 2. The lead Kisumu Petition Pet. No. E024 of 2026 while attacking the constitutionality of the Gazette Notice No. E10061 of 2026, as with the present petition, takes the matters from the date of promulgation of the Gazette Notice and laments the want of public participation in the formulation of the policy as the key defect of the Gazette Notice. While the Gazette Notice is the common denominator of the petitions before the Court, there is only one petition which challenges the publication of Gazette Notice as an infringement of a scheme of supervisory interdicts issued in Kerugoya Petition No. E009 of 2025. This Court does not see how the present petition may be transferred for hearing at Kisumu when it is related to a petition pending hearing before this Court. 3. The Nairobi Petition No. E461 of 2026 subsequently transferred to Kisumu does not truly challenge the validity of the Gazette Notice as it is stated in the grounds of support as follows: *“5. THAT it is imperative to note that your Petitioner does not per se challenge the Government's power to import rice to secure national food security, nor does it seek to halt the whole the duty-free rice importation programme established under Gazette Notice No. 10061 of 6 July 2026 but a programme involving the waiver of substantial public revenue and the conferment of valuable benefits on private importers must be run transparently and within its lawful limits.”* 1. In the respectful view of this court, it would appear that the question in the present petition calls for an antecedent determination to the issues raised by the petitions Nos. E024 and especially E026 of 2026 pending before the Kisumu Court. The present petition seeks a determination on the question of the validity of the Gazette Notice No. 10061 of 2026 against the background of the litigation history of the authority to issue such a Gazette Notice, while two of the petitions pending before the Kisumu Court affects a down-the-road consideration of the mechanics of the making of the Gazette Notice and the other assume the validity of the Gazette Notice and only seeks its meticulous implementation. The two issues are with respect not the same. 2. This Petition must determine that the Gazette Notice authorizing the duty-free importation is lawful and constitutionally valid in the context of the history of the matter, before the Gazette Notice can be the subject of the public participation analytics and implementation directives sought in the petitions pending before the Kisumu Court. If the Petition herein succeeds, the substratum of the petitions before the Kisumu Court will have been eroded. ***Previous Suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title*** 1. The petitioner in this petition is described as *“an adult male Kenyan citizen and sitting Senator for Kirinvaga County, a leading rice-growing county encompassing the Mwea Irrigation Scheme, suing in his own capacity and in the public interest on behalf of rice farmers in Kirinyaga Countv and across the Republic of Kenya, pursuant to Article 258 of the Constitution.”* 2. In Pet. E024 of 2026 ***Ahero Farmers Association,*** the petitioner describes itself as *“a duly registered farmers' association representing more than 1,500 rice farmers drawn from Ahero, West Kano, Bunyala, Mwea, Tana Delta, Bura, Hola, Garsen, Taita Taveta and other rice-growing regions across Kenya. Its principal mandate is to promote and protect the interests of local rice producers, advocate for sustainable agricultural policies and advance the welfare of its members and the wider rice value chain [and the] Petitioner brings this Petition pursuant to Articles 22 and 258 of the Constitution in its own interest, in the interest of its members and in the public interest to vindicate constitutional principles affecting thousands of Kenyan farmers whose livelihoods depend on domestic rice production.”* 3. In Nairobi Pet. No. E461 of 2026, the petitioner is human rights defender organization known CENTER FOR LITIGATION TRUST (CLT), sues in public interest. 4. In Petition No. E026 of 2026 ***Soufianne Bakkal***, the petitioner is described as a Kenya Citizen suing in public interest. 5. The Respondents to suits are the same government agencies involved in the rice import process; the petitioners are different even if each asserts to petition in public interest. The petitioners are not suing under any of them and while there could be a case for consolidation of the Petitions, there is definitely no case for stay of the present petition for ***sub judice.*** 6. The Court considers that the Explanation No. 6 under section 7 of the Civil Procedure Act on *res judicata* as considered in ***Wamunyinyi v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others; Manyonge & 3 others (Interested Parties)****,* supra, cited by the Respondents relates to the plea of *res judicata* for purpose of section 7 and not to section 6 on *sub-judice.* *Reference of substantial question of law to an uneven bench of the Court* 1. This Court is enjoined to deliver just and fair determination of disputes and respectfully considers, *prima facie,* that the question whether the property rights of rice farmers, the Executive Government’s interest in fostering right to food and food security by duty-free imports and the property rights acquired by successful awardees of import licences may converge in a constitutional framework. It would appear that this apparent intersection (or conflict) of rights caused by the Cabinet Minister for Treasury in repeatedly publishing the Gazette Notices subject of the constitutional challenge herein and in other suits gives rise to questions in terms of Article 165(4) whether it was a valid exercise of authority within the meaning of the Constitution and whether the Gazette authority to import rice duty-free infringes upon the farmers’ right to property through resultant price drops affecting the marketability and profitability returns of the local farmers’ rice growing activity. The existence of multiple suits on the question in this case raises the spoils for the uneven bench. 2. Article 165(4) of the Constitution is in the following terms: ***“(4) Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.”*** 1. However, as regards the procedure for moving the Court for certification of a substantial question of law under Article 165(4), the ***Mutunga Rules*** are quiet and this court would agree that the issue may be raised by application of a party or by the Court on its own motion. 2. In the ***National Integrated Identity Management System*** (***NIIMS)*** case *(****MACHAKOS PETITION NO. 7 OF 2019, OKIYA OMTATA OKOITI & 4 OTHERS v. THE HON ATTORNEY GENERAL & OTHERS)***, Odunga, J. (as he then was) certified a substantial question and referred the Petition therein for empanelment of uneven bench, and observed as follows: *“18. In my view since the factors to be considered in certifying a matter under Article 165(4) are not exclusive and the doors are not closed as to what factors the court ought to consider, to paraphrase* ***Bagmall, J*** *in* ***Crowcher vs. Crowcher [1972] 1 WLR 425, 430*** *, the jurisdiction under Article 165(4) jurisdiction is not past child-bearing age; however, its progeny must be legitimate and it is well that this should be so; otherwise no lawyer could safely advice his client and every petition would call for certification.* *19. In my view, one of the factors to be considered is the effect of having parallel proceedings having a bearing on each other. That is clearly a question of general public importance since the public need to have certainty as regards the determination of courts of concomitant jurisdiction so that they are not left wondering whether decisions depend on particular presiding officers of the court rather than the law.* *20. Although the petitioners have submitted that this court ought not, in the absence of an application made pursuant to Article 165(4) of the Constitution invoke the powers thereunder,* ***this court has held before that such powers can either invoked on an application of the parties or by the court on own motion where the circumstances call for it.”*** 1. However, in both situations, in my view, the parties should be heard before an order is made under Article 165(4) of the Constitution and reference made to the Hon the Chief Justice for purposes of empanelment of an uneven bench of the Court. 2. Consequently, the Court shall take submissions on the issue of certification of the petition as raising a substantial question of law and reference to the Chief Justice for empanelment of an uneven bench. If the true objective of the proposed transfer and consolidation of the Petition with the petitions in Kisumu is, as urged by the 1st Intended Interested Party, to *“promote consistency in constitutional adjudication, conserve judicial time, reduce litigation costs and facilitate the just, expeditious and proportionate determination of the dispute which has been narrowed down to the Gazette Notice No. 10061 of 6th day of July 2026”* there should be no opposition the empanelment of an uneven bench to resolve the issues, and indeed the petitions now pending before the courts may be placed before the expanded bench as happened in the ***NIIMS*** case. *Status quo to be maintained in the meantime.* 1. In the ***NIIMS*** case, the Court said as regards conservatory orders that: *“27. For avoidance of doubt the application for conservatory orders pending hearing in this petition is yet to be heard and determined and it will be upon the bench as empanelled to decide the manner of its disposal. In my view the decision whether or not to grant conservatory orders may be made at any point in the proceedings and the fact that the court earlier on declined to issue the same does not bar the court in reconsidering its earlier decision if circumstances require it to do so. I therefore cannot say, assuming that is the position, that the mere fact that the Judge in the Nairobi petitions, declined to grant conservatory orders, necessarily bars the empanelled bench from revisiting the issue in light of the new developments assuming that this matter will be referred to the same bench.”* 1. On account of its urgency, an application for conservatory orders may be heard, and granted ex parte. Rule 23 of the ***Mutunga Rules*** on procedure in constitutional litigation provides that: *“****23. Conservatory or interim orders*** *(1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.* ***(2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.*** *(3) The orders issued in sub-rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.”* 1. By analogy of the criminal process, the Court suspends a sentence of death because of the irreversibility of the execution of the sentence. In the same way, the irreversibility of execution of importation duty-free of rice under the impugned Gazette Notice calls for suspension of the implementation pending consideration by the Court of the challenge on its validity of the authorising Gazette Notice. 2. Irreversability is the basis of grant of conservatory orders. It is simply an issue of responding to the irreversibility of the effect of duty-free imports on the farm and consumer prices and profitability of the rice production to the farmers so that the Petition which seeks to invalidate the Gazette Notice authorizing the importation is not rendered nugatory. If, however, the Gazette Notice whose authority to issue by the Government is asserted in public interest is validated at hearing, the importers will have their property right to import duty-free immediately crystallized. The conservatory orders may also for sufficient cause shown be lifted. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds that the Preliminary Objection on ***sub judice*** raised by Notice of Preliminary Objection dated 22/7/2026 is without merit and it is dismissed. 2. However, the Court deems it appropriate **to consider** reference of the Petition to a panel of ***an uneven number of judges*** to be appointed by the Hon. The Chief Justice. The Court shall, consequently, fix the matter for submissions on the issue whether this petition shall be certified by this court as raising a substantial question of law in terms of Article 165 (4) of the Constitution. 3. Hearing of submissions in terms of Article 165(4) of the Constitution to be taken, on the basis of urgency shown by all the parties, on **Thursday 6/8/2026 at 2.30pm.** 4. Status quo to be maintained by extension of the interim order until then. *Order accordingly.* **DATED AND DELIVERED THIS 5TH DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES**: Mr. Musyoki with Mr. Muge for teh petition. Mr. Kaumba for the 1,2 3, 5 & 6 Respondent. Mr. Ochieng for the 4 & 7 Respondents. Mr. Masake for the 1st Intended Interested Party. Mr. Maroa for the Intended 2nd Intended Interested Party