https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8920

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CONSTITUTIONAL PETITION NO E004 OF 2026** **IN THE MATTER OF:** **ARTICLES 1, 10, 21, 22, 23, 24, 27, 40, 47 118, 50, 73, 159, 232, 258, AND 259 OF THE CONSTITUTION OF KENYA, 2010.** **AND** **IN THE MATTER OF:** **ALLEGED VIOLATION OF THE RIGHTS AND FUNDAMENTAL FREEDOMS OF SUGARCANE FARMERS IN BUMULA SUB-COUNTY.** **AND** **IN THE MATTER OF: DELINEATION OF SUGAR CATCHMENT AREAS IN THE FIRST SCHEDULE OF THE SUGAR ACT, 2024.** **BETWEEN** **SILVERIOUS SIMON SIMIYU.................................PETITIONER/APPLICANT** **VERSUS** **THE KENYA SUGAR BOARD ............................................ 1ST RESPONDENT** **THE CABINET SECRETARY, MINISTRY OF AGRICULTURE AND LIVESTOCK DEVELOPMENT...............................................................2ND RESPONDENT** **THE HON. ATTORNEY GENERAL......................................3RD RESPONDENT** **AND** **HARRISON TANGA WEBBO……………………………..1ST INTERESTED PARTY** **VINCENT SIMIYU WAKOLI……………………………….2ND INTERESTED PARTY** **JUSTINO WANJALA MUSIBULO…………………………3RD INTERESTED PARTY** **MOSES JUMA SIKUTA…………………………………….4TH INTERESTED PARTY** **DAVID OPALA………………………………………………..5TH INTERESTED PARTY** **RASTO OJAGO……………………………………………….6TH INTERESTED PARTY** **GEOFFREY NABUKWESI………………………………….7TH INTERESTED PARTY** **MICHAEL BARASA………………………………………….8TH INTERESTED PARTY** **CALISTUS WAMALAWA MUSOMBI……………………..9TH INTERESTED PARTY** **TIMOTHY MALALA ODONGO…………………………..10TH INTERESTED PARTY** **JAMES KUHUMI MALABA………………………………11TH INTERESTED PARTY** **WYCLIFF WANAMI NDOLI………………………………12TH INTERESTED PARTY** **WASIKE SITUMA WANYAMA…………………………..13TH INTERESTED PARTY** **Coram: Before Justice R. Nyakundi** **M/s Hammerton Maloba & Advocates for the Petitioner** **M/s Prof. Tom Ojienda & Associates for 1st Respondent** **M/s Kamunya & Associates Advocates** **M/s Wekesa & Simiyu Advocates for 2nd - 3rd Interested Parties** **M/s Olendo, Orare & Samba Advocates for 4th -8th Interested Parties** **Mr. Kaumba S.O Advocate for the Hon. Attorney General** **M/s Marisio Luchivya & Company for the 1st Interested Party** **M/s Macharia, Gaitho & Murigu Advocates LLP for 9th -13th Interested Parties** **RULING** 1. This matter came for a status conference with regard to the notice of motion dated 29th of May 2026 following structural interdict with regard to that motion which had been filed under Certificate of Urgency. It so happened that the original notice of motion brought in other interested parties like Mr. Harrison Tanga Webbo who filed a Replying Affidavit dated 11th June 2026. That was not the end of it. On the 15th of June 2026 yet another motion was filed by Interested Parties being represented by Learned Counsel Mr. Olendo, on behalf of the 4th – 8th Interested Parties sequencing their interests to the petition filed on the 29th May 2026. 2. This litigation did not stop there, on the 15th June 2026 the 1st and 2nd proposed Interested Parties also moved the Court by way of a Notice of Motion dated the same day with a horizon on the justiciable issues pleaded in the petition with regard to the interlocking issues in the entire spectrum and the main actors being the Kenya Sugar Board, the Cabinet Secretary Ministry of Agriculture and Livestock Development and the Hon. Attorney General. This Court for purposes of legal extractives as stated the various motions with corresponding affidavits so as to lay the foundation of the litigation roadmap for purposes of expediency and proportionate merger of what one will call the predominant dispute both at the interlocutory level and which may shed some light to the main petition. Thus, the following applications constitute the legal contestation as between the Petitioner, Respondents and Interested Parties. **Notice of Motion Application dated 29th May 2026** 1. First before this Court is a notice of motion dated 29th May 2026, expressed to be brought under Articles 22, 23, 47 of the Constitution where the Petitioner is seeking the following orders: - * 1. *Spent.* 2. *THAT pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a conservatory order restraining the 1st Respondent from conducting elections of Sugarcane farmers’ representatives to the Kenya Sugar Board under the zoning framework established under the First Schedule of the Sugar Act, 2024.* 3. *THAT costs of this Application be provided for.* 2. The applicationis based on the following grounds: - 3. *That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.* 4. *The Petitioner/Applicant is a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.* 5. *That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company.* 6. *That for decades, the petitioner, like other sugarcane farmers within Bumula Sub County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.* 7. *That in 2024, the Respondents, without consulting farmers within Bumula Sub County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula Sub-County from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.* 8. *In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.* 9. *That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;* 10. *Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.* 11. *These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.* 12. *These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.* 13. *The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity. e. The Kenya Sugar Board has organized elections of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.* 14. *To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.* 15. *Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24 months preceding the date of the elections; and secondly, they will not be eligible to vote in the Lower Western Sugarcane Catchment area since Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.* 16. *On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.* 17. *That the elections of the sugarcane farmers’ representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.* 18. *That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.* 19. *That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.* 20. *That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.* 21. *That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.* 22. *That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.* 23. In support of the application is the annexed affidavit of Silverious Simon Simiyu, the Petitioner whose affidavit echoed the grounds in support of the application and further deponed as follows: - * 1. *That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.* 2. *That I am a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.2.* 3. *That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company. See Minutes of Kenya Sugarcane Growers Association-Mumias Branch of 13.12.2010 and a bundle of farmers ‘contracts, sugarcane delivery slips of farmers within Bumula Sub-County annexed and marked SSS-2(a) and (b) respectively.* 4. *That for decades, the petitioner, like other sugarcane farmers within Bumula Sub-County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.* 5. *That in 2024, the Respondents, without consulting farmers within Bumula Sub-County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula Sub-County from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.* 6. *In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.* 7. *That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;* 1. *Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.* 2. *These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.* 3. *These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.* 4. *The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity.* 5. *The Kenya Sugar Board has organized elections of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.* 6. *To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.* 7. *Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24months preceding the date of the elections; and secondly, they will not be part eligible to vote in the Lower Western Sugarcane Catchment area since/Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.* 8. *On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.* 9. *That the elections of the sugarcane farmers' representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.* 10. *That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.* 11. *That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.* 12. *That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.* 13. *That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.* 14. *That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.* 15. *That the balance of convenience favours conservatory orders being granted.* 16. *That it is in the interest of justice that the orders sought in the application are granted.* **Supplementary Affidavit dated 21st June 2026** 1. The Applicant also filed a Supplementary Affidavit dated 21st June 2026 where he deponed as follows: - 2. *That I wish to reiterate that I am a sugarcane farmer within Bumula Sub-County and have supplied sugarcane to Mumias Sugar Company Limited for decades.* 3. *That I am aware that I am not the only sugarcane farmer within Bumula-Sub-County will be disenfranchised from participating in the elections of growers’ representatives to the Kenya Sugar Board, if the elections were to be conducted on the basis of the impugned schedule.* 4. *That as a resident of Vihiga County, I am entitled to present this petition in Vihiga County.* 5. *That I am aware the Respondents, headquartered in Nairobi with field offices in Vihiga County, have not indicated any hardship in attending to this matter in this court.* 6. *That this honourable court has requisite jurisdiction to entertain the petition.* 7. *That I am aware that the Honourable court in Gikenyi B & 6 Others versus Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026 (2026) KEHC 902 (KLR)) issued conservatory order suspending fresh engagement, procuring, continuing to procure legal services from private advocates/law firms by public entities. See copy of Ruling annexed and marked S-2.* 8. *That I am further aware that the Court of Appeal declined the invitation to set aside and review the order and the conservatory order is still in force. See copy of the decision annexed and marked S-3.* 9. *That I am aware that the 1st Respondent, a public entity established under section 4 of the Sugar Act, is bound by the Conservatory Order issued in Nakuru Petition E001 of 2026 and cannot lawfully engage the firm of Prof. Tom Ojienda & Associates.* 10. *That I have been advised by my advocate on record, which advice I believe to be true, that there is only one High Court in Kenya and everything done by the firm of Prof. Tom Ojienda in these proceedings have been done in contempt of this this honourable court.* 11. *That I have looked at the pleadings in Kakamega Petition No. E013 of 2025 used by the interested party to argue that the Petition presented herein is sub-judice and the application res-judicata and wish to state that the two petitions are distinct from each other, relate to sugarcane farmers in different regions, raise different issues for determination, seek different remedies and brought by different petitioners.* 12. *That I am further aware that no prejudice will be suffered by the 1st respondent if the pleadings by the firm of Prof. Tom Ojienda expunged from these proceedings for being unlawful since the Hon Attorney General has already intimated in these proceedings that he represents all the respondents.* 13. *That the Respondents did not conduct any public participation or stakeholders’ engagement in Bumula Sub-County before enactment of the Act.* 14. *That Public Participation and Stakeholder engagement done at the Pride Inn Hotel in Nairobi on 24.2.2023 was clearly not meant to elicit views from farmers in Bumula Sub-County but residents of Nairobi.* 15. *That I wish to reiterate and state as follows;* 16. *Bumula sugarcane farmers traditionally supply their cane produce to Mumias Sugar Co. Ltd. which undertakes land preparation, seed cane supply and fertilizer distribution to farmers within the sub-county on contract and upon maturity, the cane crop is harvested and delivered to the company.* 17. *After the repeal of the Sugar Act 2002, confusion marred the industry with rampant cane poaching.* 18. *The Sugar Act (2024) was intended to bring sanity in the industry, by protecting millers from losing their cane crop to illegal poachers and to help factories enforce cane farming contracts and similarly, to protect farmers.* 19. *To effectively protect farmers’ interests, the Respondents were enjoined to ensure effective and meaningful public participation and stakeholders’ engagement is done before the enactment.* 20. *Such public participation and stakeholder engagement needed to reach sugarcane farmers who remain key players in the sub-sector in their respective areas.* 21. *By conducting public participation and stakeholder engagement at Pride Inn Hotel in Nairobi on 24.3.2023, the Respondents ensured farmers in Bumula-Sub-County and indeed all other catchment areas did not participate in the process.* 22. *That I am aware that the Court in Kakamega Constitution Petition E013 of 2025 was clear that a determination on the efficacy of the alleged public participation would await the hearing of the petition.* 23. *That first Schedule of the Act classifies the sugar growing areas into 5 zones namely Upper Western, Lower Western, Central, Coastal and Southern.* 24. *That under the Repealed Sugar Act of 2002, zoning was based on factory catchment, catchment being an area or surface under which that particular factory grew its cane for purposes of supplying to its factory. The 2024 Act zones have been made to overlap catchment areas for other factories, and this has now created a lot of hostility and animosity.* 25. *What this means is that whether a factory has planted cane in a region which is under another zone, it is going to be difficult for the particular factory to cross over and harvest the cane which it developed. In the instant case, Bumula whose cane has been developed by Mumias Sugar Company Limited, now falls in the Upper Western Zone and it is going to be very difficult after the conduct of the upcoming elections for them to cross over to the Upper Western zone to harvest and carry away their cane to the Lower Western zone, where the factory is situated.* 26. *That while this situation persists, farmers in Bumula Sub-County will suffer heavily.* 27. *Therefore, to resolve this challenge, it is imperative for the respondents to facilitate an urgent amendment by excluding Bumula under the Upper Western zone for the smooth delivery of their cane and to also participate smoothly in the election of the board members in the Lower Western zone.* 28. *The Respondents admit this is a problem that ought to be fixed and alleged that the Ministry of Agriculture has already started taking steps towards correcting the problem.* 29. *Section 6(1)(b) of the Sugar Act 2024 provides for representatives elected by growers, one from each sugar catchment area listed in the First Schedule as stated above.* 30. *Under the First Schedule, Bumula falls under the Upper Western. Its farmers are contracted to Mumias Sugar which is in the Lower Western. They cannot participate in the upcoming elections under Upper Western because they have not supplied cane to factories falling under the Upper Western zone for the last two years, which is a mandatory requirement for participation in the election of board members in any given zone. One must have supplied cane to a factory under the zone he intends to vote from. This therefore implies that they won’t participate.* 31. *If this election proceeds, Bumula farmers shall suffer irreparable harm. It is only fair and just that an enabling ground be put in place through relevant amendments to the Sugar Act to avoid injustice. This matter is so grave that it cannot be resolved through technicalities as it concerns a substantial number of farmers whose rights are at stake unless and until this honorable court steps in to ensure fairness and compliance with all relevant provisions of the law.* 32. *The Respondents propose a suspension of elections in both the Upper Western and Lower Western catchment areas. This will further disenfranchise farmers in the Western Catchment areas, the largest sugar belt in Kenya. Once constituted with only 3 sugarcane growers representatives, the Kenya Sugar Board will embark on its mandate without the involvement of the Western Kenya comprising the Upper Western and Lower Western catchment areas.* 33. *The proposal by the Respondents perpetuates illegality. Having conceded that the first schedule is illegal, any elections conducted on the basis of the schedule will also be illegal. Further, Section 4 of the Act provides for elections in all the 5 catchment areas to be done at once, not staggered in any manner. This is also important because Board members serve for a term of 3 years. This means that if the proposal to stagger the elections is accepted, the term of board members will end at different times, creating more legal challenges.* 34. *The best scenario that is lawful and neat, is for the elections to be suspended by the court, the respondents given time to correct the problem (in six weeks as proposed by the respondents) before fresh elections* **Replying Affidavit dated 11th June 2026** 1. The Application is opposed vide a Replying affidavit of one Harrison Tanga Webbo, the 1st Interested Party who averred as follows: - * 1. *THAT I have read the application dated 29/5/2026 together with the petition of the same date and having understood wish to respondent thereto as follows* 2. *THAT am one of the farmers with cane supply contract with west Kenya Sugar Co. Ltd.* 3. *THAT am aware that the respondent is established by dint of section 3 of the sugar Act as follows; Establishment and incorporation of the Board* 1. *There is established a board to be known as the Kenya Sugar Board.* 2. *The Board shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of-* 1. *suing and being sued;* 2. *taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;* 3. *borrowing or lending money; and* 4. *doing or performing all such other acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate."* 4. *THAT the petitioner is seeking to declare the schedule to the Act to be unconstitutional* 5. *THAT the respondent being a creature of parliament does not make laws* 6. *THAT I have looked at the petition and he has not enjoined the National Assembly and the Senate.* 7. *THAT the petition is thus incompetent as the Court cannot issue an order affecting on parties.* 8. *THAT the respondent is a creature of parliament and cannot be held responsible for the functions of parliament.* 9. *THAT am aware that the board is 99% constituted as only directors not present are grower directors.* 10. *THAT in interest of the public the injunction should not to be granted.* **Replying Affidavit dated 16th June 2026** 1. The Application is also opposed vide a Replying affidavit of Moses Juma Sikuta dated 16th June 2026 who averred follows: - 1. *THAT I am an adult male and a sugarcane farmer within Bungoma and of authority of my fellow farmer and or interested party herein, conversant with the matters in issue herein and of authority to swear this affidavit thus competent to depose to this affidavit* 2. *THAT I have read and understood the tenor and purport of both the Petition dated 29th May 2026, the Notice of Motion Application of even date and the Supporting Affidavit thereof sworn by SILVERIOUS SIMON SIMIYU on 29th May 2026 filed herewith the contents whereof have further been explained to me by my advocates on record and I depose to this Affidavit in opposition to both Petition and Application.* 3. *THAT before the commencement of the Sugar Act 2024 the sugar factories were allowed to recruit and contract farmer from anywhere within the country and pursuant to the said existing practice the interested parties and many farmers alike from within Bumula Sub County in Bungoma were recruited and contracted by both West Kenya Sugar Company Ltd and Nzoia Sugar Company Ltd. Kibos Sugar Industries & Allied Industries Ltd who are domiciled in Kisumu County recruited and contracted farmers in Navakholo Constituency and they operated a sugarcane buying center in the said region.* 4. *THAT the Sugar Act 2024 was gazetted sometimes in November 2024 and it introduced sugarcane catchment areas where farmers were supposed to sell their sugarcane to only millers domiciled in their catchment area with exemptions provided for under Section 20 of the Sugar Act.* 5. *THAT the first schedule of the Sugar Act placed West Kenya Sugar Company Ltd, Nzoia Sugar Company (2025) Ltd, Naitiri Sugar Company Ltd and Butali Sugar Company Ltd within the Upper Western sugarcane catchment area and placed Mumias Sugar Company (2021) Ltd, Olepito Sugar and Busia Sugar within the Lower Western sugarcane catchment area.* 6. *THAT Regulation 25 of the Sugar General Regulations provides the process of how a farmer could apply to supply his sugarcane to a miller outside is catchment area which included applying for a permit to the Kenya Sugar Board who is statutory time bound to respond within 14 days of receipt of the application.* 7. *THAT Section 20(1)(c) of the Sugar Act allows the Petitioner and any farmer in Bumula Sub County contracted to Mumias Sugar Company (2021) Ltd to harvest and have their contracted sugarcane delivered to Mumias Sugar Company (2021) Ltd upon notification to the Board under Section 20 (2) of the Sugar Act and thus there is no economic loss being suffered by the Petitioner with the placement of Bumula Sub County in Bungoma County under Upper Western Sugarcane Catchment area.* 8. *THAT the Sugar Act as gazetted in November 2024 provided for the composition of the Board of the Kenya Sugar Board that included 5 farmers’ representatives to be elected by farmers domiciled in the 5-sugarcane catchment area namely* 2. *Central Sugar Catchment Area* 3. *Upper Western Sugar Catchment Area* 4. *Lower Western Sugar Catchment Area* 5. *Southern Sugar Catchment Area* 6. *Coastal Sugar Catchment Area* 7. *THAT the interested parties are farmers and registered voters in the forthcoming Kenya Sugar Board farmers representative from Bumula Sub County in Bungoma County and they fall within the Upper Western Catchment area as per the First Schedule of the Sugar Act and have existing sugarcane growing and supply contract with millers in the Upper Western Catchment area and specifically West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd. (annexed hereto & marked MJS 2 is bundle of contracts between farmers and West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd who are millers within Upper Western Sugarcane Catchment Area)* 8. *THAT the interested parties are among the over 200,000 sugarcane farmers within Upper and Lower Western Sugar Cane Catchment area which covers 7 Counties namely* 9. *Bungoma County* 10. *Busia County* 11. *Kakamega County* 12. *Trans Nzoia County* 13. *Siaya County* 14. *Uasin Gishu County* 15. *Northern Part of Nandi County whom the Petitioner, who has only one vote and is not a candidate in the forthcoming election is seeking to disenfranchise them by stopping the national statutory elections for their catchment area (Upper and Lower Western Catchment Area) and denying their Constitutional right as enshrined in Article 10 and 38(2) of Constitution of Kenya to participate in the forthcoming Kenya Sugar Board farmer representative election where they are legitimate voters and have a legitimate expectation elect their representative to the Board despite the western sugarcane catchment area being the biggest and backbone of sugarcane farming in Kenya who are most affected by any decision of the Kenya Sugar Board as the regulator.* 16. *THAT the Sugar Act 2024 which contains the First Schedule on the demarcation of the sugarcane catchment area was passed in the year 2024 after an extensive public participation that involved different stakeholders that included farmers, millers, County Governments and County Assemblies in the sugarcane growing areas, different stakeholders with Parliament passing it on 18th October 2024 and the Senate passing it on 29th October 2024 where various competing interest were balanced with the final document being assented into law on 1st November 2024 and it has been in operation for the last 18 months regulating the sugar industry and therefore it is dishonest of the Petitioner to wake up after almost 18 months and alleged that there was no public participation in passing the provision of the First Schedule of the Sugar Act.* 17. *THAT there was proper, sufficient and prolonged public participation across successive bill iterations from 2019 including Senate and National Assembly Agricultural Committees forums before the Sugar Act was passed into law in the year 2024.* 18. *THAT the Petitioner is approbating and reprobating by proposing to amend his prayers and seeks to stay election in Lower and Upper Western Sugar Catchment area only and allow the election to proceed in the other sugar catchment area yet his main contention is that the First Schedule which creates all the 5 sugar catchment area was passed without public participation. If the Petitioner is satisfied that there was sufficient public participation in creation of the 3 other sugar catchment areas he cannot then turn back and contest the creation of the Lower and upper Western as all the sugar catchment areas are a creation of the first schedule.* 19. *THAT the Petitioner's acceptance that election can proceed in the other 3 catchment areas is a clear affirmation that the electoral process sound and should be allowed to run its course to conclusion.* 20. *THAT Section 6(1)(b) and 7(1) of the Sugar Act provides that the election of Farmers Representatives to the board will be conducted at one go and they shall serve for a term of 3 years and are only eligible for re-election once. The Act does not provide for staggered elections of farmers representatives as that will not only complicate the computation of each representative 3-year term but will make the conduct of the said elections so expensive if the election was to be conducted individually for each catchment area.* 21. *THAT the Petitioner is seeking a window period to try and negotiate with the Respondents regarding the review of boundaries of the upper and lower western sugar catchment area, a process that is not only illegal for being ultra vires as the parties have no legal authority and or mandate to amend statutory delineated boundaries.* 22. *THAT the orders being sought by the Petitioner seeking to amend the statutory boundaries of the sugar catchment areas cannot be issued by this Court as the same is a special reserve of Parliament which the Petitioner should explore as provided for, under Article 119 of the Constitution of Kenya.* 23. *THAT this ingenious Petition is a proxy war brought by the Petitioner on behalf of his pay master, the Mumias Sugar Company (2021) Ltd which has been placed under lower Western Catchment area to illegally amend the First Schedule of the Sugar Act through the back door by trying to cave out parts of the Upper Western Sugarcane Catchment area and specifically Bumula Sub County in Bungoma County back to Lower Western Catchment Area.* 24. *THAT the First Schedule to the Sugar Act, 2024 has specifically placed Bungoma County as the first County which forms part of the Upper Western Sugarcane catchment area and therefore the Petition as filed seeks to remove Bumula Sub County from Bungoma County and transfer it to Busia County, a move that does not only affects the forthcoming farmer representative to Kenya Sugar Board but will affect the Kenya General elections of 2027 as it seeks to review and rewrite the Boundaries of not only Bungoma and Busia Counties but also the Boundaries of Bumula Constituency, an exercise that this Court has no Jurisdiction to undertake as it's the mandate of the Independent Electoral and Boundaries Commission.* 25. *THAT nomination of candidates for election of farmer representatives has already closed and there is no candidate from Bumula Sub County who presented his and or her nomination documents to be cleared as a candidate.* 26. *THAT there being no candidate from Bumula Sub County to contest the forthcoming farmers representative elections, means that Bumula Sub County like all the other sub counties will have to be represented by a candidate from another sub County as both the Upper and Lower Western Sugarcane catchment area has an opportunity to elect only 2 representatives to the Kenya Sugar Board whereas the entire Western Sugarcane Catchment area is made up 8 Counties that include Bungoma, Kakamega, Busia, Siaya, Trans Nzoia, Northern Nandi and Uasin Gishu.* 27. *THAT the Petitioner not being a candidate himself in the forthcoming election there is no prejudice that he will suffer if the elections are allowed to proceed, just like the Interested Parties and all the farmers in the Western Catchment area he will be represented by the elected representative who does not only represent a sub county he comes from but all the farmers in Kenya. Further the said leader represents all Kenyans as the policy they make at Kenya Sugar Board affects all Kenyans like changes in prices. It's not fair to localize the elections of national farmers representatives to village politics concerning Bumula Sub County.* 28. *THAT the Petitioner has misrepresented facts as Mumias Sugar Company Ltd is not a registered and licensed sugar miller in operation having been put under receivership in the year 2018 before it closed shop the same year therefore there is no valid contract existing between Mumias Sugar Company Ltd and any farmer in Bumula Sub County for the supply of any sugarcane crop.* 29. *THAT the alleged supply agreement is between the Petitioner and Mumias Sugar Company (2021) Ltd, a company registered in the year 2021 and it started operations in the year 2022 after being granted a lease by the receiver manager appointed by KCB bank and therefore the allegation that farmers in Bumula Sub County have had a decade long contractual relationship with Mumias Sugar Company (2021) Ltd is a misrepresentation of facts meant to mislead the Court.* 30. *THAT there is a Dispute Resolution Committee established by the Cabinet Secretary of Agriculture meant to hear and determine all pre-election disputes and has jurisdiction to hear voter — catchment area election disputes and therefore this Court has no original jurisdiction to hear and determine this election dispute as to which catchment area the voters in the Bumula Sub County are allowed to cast their vote. (annexed hereto & marked MJS 3 is copy of the Procedure for election of grower representative to the Kenya Sugar Board).* 31. *THAT the Interested Parties like all the farmers in the Western catchment area have a legitimate expectation to participate in the forthcoming elections and elect their representatives via elections conducted through universal suffrage and not have representatives imposed on them through boardroom negotiations and decisions to achieve their desired outcome and alter the will of the people.* 32. *THAT elections is not an event but a process that affects the entire ecosystem not only costing money to the organizers who are working on approved budget by the government but also the candidates, their supporters, farmers and different stakeholders who have invested financially, emotionally and physically and the same should not be altered at the whim of only one individual who has had sufficient notice of these elections for the last 18 months but has only sought to challenge them less than a month to the elections after the closure of voter registration and nomination of candidates.* 33. *THAT the Application and the Petition as filed by the Petitioner does not represent the interest and aspirations of the people of Bumula Sub County, Bungoma County as it seeks to deny them representation at the Board of Kenya Sugar Board and that is why the Petitioner has sought to file this Petition in Vihiga High Court which is geographically far away from the people whose interest it's going to adversely affect.* 34. *THAT the First Schedule has not listed Vihiga County as part and parcel of any sugar catchment area and therefore this Court lacks geographical jurisdiction to hear and determine this Petition as the Respondents are not residents of Vihiga County.* 35. *THAT the Appointment of Board Members of the Kenya Sugar Board has inordinately delayed and which has made it impossible for the Board to execute its mandate as provided under Section 4 of the Sugar Act which is prejudicial to all stakeholders.* 36. *THAT the delayed appointment of the Board Members of the Kenya Sugar Board has created apprehension and suspicion among the farmers against the Kenya Sugar Board which caused some farmer to approach Court in KISII HIGH COURT CONSTITUTIONAL PETITION NO.E028 OF 2025 where in a ruling delivered on 11th May 2026 the Court issued injunctive orders restraining the Kenya Sugar Board from using the Sugar Development Levy until the board is properly constituted. So, any continued delay in conducting elections for farmers representative as proposed by the Petitioner is frustrating the execution of the Board's mandate as provided for under Section 4 of the Sugar Act and undermines the Sugar Act. (annexed hereto & marked MJS 4 is a copy of the said Ruling).* 37. *THAT therefore the Proposal by the Petitioner for elections to be conducted in only 3 catchment area does not address the concerns raised in the Kisii Petition.* 38. *THAT further to the foregoing the Petitioner has not sought partial postponement of the elections in his pleadings. A party is bound by his pleadings and unless the Petitioner amends his Petition and Application the prayer that election should only be postponed in Upper and Lower Western Catchment area cannot be issued.* 39. *THAT the public interest tilts in favour of allowing the election to proceed as the interest of all sugarcane farmers in the Kenya to have representation at the board outweighs the unsubstantiated complaints of the Petitioner.* 40. *THAT placing Bumula Sub County under upper western sugar catchment area has not taken away the Petitioner's vote. He can still cast his votes at his registered polling station.* 41. *THAT it is therefore in the interest of fairness and justice that the Petitioner's Notice of Motion Application dated 29th May 2026, and the Petition of even date be dismissed with cost.* **Grounds of opposition dated 16th June 2026** 1. The Application was also opposed vide Grounds of Opposition dated 16th June based on the following grounds: - 2. *The application is incompetent, frivolous and misconceived and ought to be dismissed with costs.* 3. *The Honourable Court has no original jurisdiction; the dispute as to which catchment area a voter belongs is reserved to the Dispute Resolution Committee under the Procedure for Election of Grower Representatives to the Kenya Sugar Board (doctrine of exhaustion).* 4. *The Honourable court has no jurisdiction to hear and determine the Petition and Notice of Motion which are sub-judice to High Court Constitutional Petition No. E013 of 2025 at Kakamega High Court being Boniface Masinde –vs– The Honourable Attorney General & 4 others and High Court Constitutional Petition No. E019 of 2025 at Kakamega High Court being Sheban Matini Chitechi –vs– The Hon Attorney General & 2 others which will be before the Honourable Judge on 26th June 2026.* 5. *The Court lacks geographical jurisdiction, the subject matter, the parties and the affected farmers being in Bungoma County and not Vihiga County.* 6. *The reliefs sought require amendment of the First Schedule to the Sugar Act, 2024, a legislative function reserved to Parliament (Articles 94, 109 and 119); they cannot be granted by this Court, nor lawfully negotiated by the parties, being ultra vires.* 7. *The First Schedule, enacted after public participation and assented to on 1 November 2024, enjoys the presumption of constitutionality; the Petitioner discloses no prima facie case to displace it.* 8. *The Petitioner suffers no irreparable harm: Section 20(1)(c) of the Act permits him to continue delivering cane to Mumias Sugar Company (2021) Ltd, so the placement occasions no economic loss.* 9. *The public-participation challenges, if valid, would impugn the entire First Schedule and all five catchment elections; the Petitioner cannot accept three and impugn two (approbation and reprobation), and partial relief is incompetent.* 10. *The Board cannot be lawfully or fully constituted without the grower representatives of all five catchment areas (Section 6(1)(b)); the orders sought would leave it unconstituted.* 11. *The balance of convenience and the public interest favour the over 200,000 growers of the Western catchment and the timely constitution of the Board; the Petitioner, holding one vote, not being a candidate, having had notice for some eighteen months, and having moved after the close of registration and nomination, is guilty of laches.* 12. *The application fails the conservatory-order test in Gatirau Peter Munya v Dickson Mwenda Kithinji [2014] eKLR and Board of Management of Uhuru Secondary School Vs City County Director of Education eKLR.* 13. *The application is otherwise incompetent and an abuse of the process of the Court and ought to be dismissed with costs.* **2nd and 3rd Interested Parties Grounds of Opposition** 1. The Application is also opposed by the 2nd and 3rd Interested Parties vide their Grounds of Oppositions as follows: - 2. *The petition and Notice of Motion are alleged to be defective, incompetent, bad in law, and an abuse of the court process.* 3. *The Court allegedly lacks jurisdiction because the issues raised are already pending before the High Court in Constitutional Petition No. E013 of 2025 at Kakamega* ***(Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party)).*** 4. *The matter is said to be sub judice under section 6 of the Civil Procedure Act since a similar case is already before a court of competent jurisdiction.* 5. *The interim conservatory orders granted on 2 June 2026 should be set aside because they were allegedly issued without jurisdiction and on the basis of material non-disclosure.* 6. *The conservatory orders sought are claimed to be res judicata, as the High Court at Kakamega had already ruled on similar applications on 26 November 2025 and 15 April 2026.* 7. *The doctrine of issue estoppel allegedly bars the Court from re-opening matters already determined by the Kakamega High Court.* 8. *Since the earlier petition remains pending, proceeding with the current matter may result in conflicting decisions from courts of concurrent jurisdiction.* 9. *The earlier Kakamega petition seeks: -* 10. *A declaration that the First Schedule to the Sugar Act, 2024 is unconstitutional for lack of public participation and discrimination.* 11. *An order quashing elections of Kenya Sugar Board members conducted under the disputed zoning framework.* 12. *An order compelling reforms to ensure fair representation in the Kenya Sugar Board.* 13. *The current petition seeks:* 14. *A declaration that the First Schedule to the Sugar Act, 2024 is unconstitutional for moving Bumula Sub-County from the Lower Western to the Upper Western Sugarcane Catchment Area without public participation.* 15. *A declaration that elections of sugarcane farmers’ representatives are unconstitutional and invalid.* 16. *Conservatory orders stopping the elections.* 17. *Orders requiring public participation and review of the zoning framework.* 18. *Both petitions fundamentally challenge the constitutionality of the First Schedule to the Sugar Act, 2024 and seek to interfere with the Kenya Sugar Board elections scheduled for 25th June 2026.* 19. *Merely focusing on Bumula Sub-County does not materially distinguish the present petition from the earlier Kakamega petition.* 20. *The petition is alleged to be founded on material non-disclosure because Parliament allegedly conducted public participation before enacting the Sugar Act, 2024.* 21. *The petitioner is said to be inviting the Court to effectively sit on appeal over decisions already made by the Kakamega High Court, which declined to stop the elections.* 22. *The High Court in Petition No. E013 of 2025 allegedly found that public participation had taken place before enactment of the Sugar Act, 2024.* 23. *The petitioner is accused of* ***forum shopping****, since the dispute concerns Bumula Sub-County and Mumias Sugar Company, both located in areas served by other High Courts.* 24. *Section 20 of the Sugar Act, 2024 allegedly provides a mechanism addressing concerns about zoning and voter registration.* 25. *Under section 20, the petitioner can allegedly continue supplying cane to Mumias Sugar Company and vote in the corresponding catchment area despite the zoning changes.* 26. *Public interest is said to favour allowing the elections to proceed because the Sugar Act, 2024 is presumed constitutional until declared otherwise by a competent court.* 27. *The Court is urged to strike out or stay the proceedings pending determination of the earlier Kakamega petition.* 28. *The petitioner is alleged not to be entitled to any of the reliefs sought.* 29. *The Notice of Motion is said to fail both on jurisdictional grounds and on the legal threshold for granting conservatory orders as set out in Gatirau Peter Munya.* 30. *The petition and application are characterized as scandalous, frivolous, and an abuse of the court process.* 31. *The Court is urged, in line with Article 159(2) of the Constitution, to dismiss or strike out both the petition and application with costs.* **Replying affidavit dated 8th June 2026** 1. The Application is also opposed by the 2nd Respondent vide his Replying Affidavit dated 8th June 2026 in which he deponed as follows: - 2. *That I am the Cabinet Secretary for the Ministry of Agriculture and Livestock Development and competent to swear the affidavit.* 3. *That I have read and understood the Court Orders issued on 2nd June 2026, the Certificate of Urgency, the Notice of Motion, the Petition, and the Supporting Affidavit.* 4. *The affidavit is sworn in response to the Notice of Motion dated 29th May 2026.* 5. *The Petitioner seeks conservatory orders restraining the conduct of elections for sugarcane farmers’ representatives to the Kenya Sugar Board pending determination of both the application and the petition.* 6. *The Petition is based on the allegation that Bumula Sub-County was moved from the Lower Western Sugarcane Catchment Area to the Upper Western Sugarcane Catchment Area without public participation or consultation.* 7. *The dispute raises two public interest concerns: -* 1. *The urgent need to constitute the Kenya Sugar Board.* 2. *The need to ensure fair and accountable representation of Bumula farmers.* 8. *The Court is urged to strike a balance between maintaining effective regulation of the sugar sector and protecting the interests of Bumula farmers.* 9. *Reliance is placed on the decision in* ***Gatirau Peter Munya****, which held that conservatory orders should promote orderly functioning of public institutions and be guided by public interest, constitutional values, and proportionality.* 10. *Sugar catchment areas are important because they:* 1. *Prevent cane poaching by assigning farmers to specific millers.* 2. *Reduce transportation and logistical costs.* 3. *Minimise post-harvest sucrose losses.* 4. *Enhance localized agricultural extension services.* 5. *Promote value addition and industrial development.* 11. *Section 19(1)(b) of the Sugar Act prohibits millers from purchasing sugar crops from growers outside their designated catchment areas.* 12. *The First Schedule to the Sugar Act establishes five sugar catchment areas:* 1. ***Central Catchment Area*** *– Kisumu, Southern Nandi, and Kericho Counties.* 2. ***Upper Western Catchment Area*** *– Bungoma, Kakamega (excluding Mumias Area), Trans-Nzoia, Uasin Gishu, and Northern Nandi Counties.* 3. ***Lower Western Catchment Area*** *– Mumias, Busia, and Siaya Counties.* 4. ***Southern Catchment Area*** *– Migori, Homa Bay, Kisii, and Narok Counties.* 5. ***Coastal Catchment Area*** *– Kwale, Tana River, and Lamu Counties.* 13. *The delineation creates interpretational challenges because:* 1. *Mumias is not a county recognized under the Constitution.* 2. *The Schedule does not clearly identify specific sub-counties within the catchment areas.* 14. *These interpretational challenges mainly affect the Upper Western and Lower Western Catchment Areas.* 15. *Based on a textual, contextual, and purposive interpretation of the Sugar Act, together with legal advice from the Attorney-General, Bumula Weighbridge falls within the Mumias Area and therefore belongs to the Lower Western Sugar Catchment Area.* 16. *Since Mumias is expressly included in the Lower Western Catchment Area, Bumula Weighbridge is also deemed part of the Lower Western Catchment Area.* 17. *There is an urgent need to constitute the Kenya Sugar Board because it plays a central role in regulating and promoting the sugar industry.* 18. *Under section 4 of the Sugar Act, the Board is mandated to:* 1. *Regulate, develop, and promote the sugar industry.* 2. *Coordinate value chain activities.* 3. *Facilitate equitable access to industry benefits.* 4. *Formulate and implement policies.* 5. *Advise Government and stakeholders.* 6. *Promote research, quality assurance, market regulation, value addition, and public participation.* 7. *Register and license industry participants.* 8. *Monitor compliance with industry standards.* 9. *Support growers, millers, and other stakeholders.* 19. *These functions cannot effectively be performed without a properly constituted Board.* 20. *Under section 6(1) of the Sugar Act, the Board consists of:* 1. *A non-executive Chairperson appointed by the President.* 2. *Five growers’ representatives elected from the catchment areas.* 3. *Representatives of private and public sugar mills.* 4. *Representatives from the Ministry of Agriculture and the National Treasury.* 5. *A representative nominated by the Council of Governors.* 6. *The Chief Executive Officer as an ex officio member.* 21. *The quorum for Board meetings is two-thirds of the membership, which translates to eight members.* 22. *A valid quorum requires participation of at least three growers’ representatives elected from the sugar catchment areas.* 23. *The Court is therefore urged to adopt a proportional solution that balances the need for a functioning Board with the need for proper representation of Bumula farmers.* 24. *The proposed solution is:* 1. *Allow elections to proceed in the non-contentious Central, Southern, and Coastal Catchment Areas.* 2. *Suspend elections in the Upper Western and Lower Western Catchment Areas for six weeks.* 3. *Allow the Respondents to resolve the catchment area and boundary issues during that period.* 25. *The parties should report back to the Court within six weeks on progress made in resolving the dispute.* 26. *This approach would ensure fair representation of farmers in the affected catchment areas while enabling the Board to be constituted.* 27. *The Respondents seek a fast-tracked hearing of the Petition on its merits.* 28. *Granting the blanket conservatory orders sought by the Petitioner would undermine the regulatory framework of the sugar industry, threaten constitutional governance, and negatively affect the economic interests of farmers and other industry stakeholders.* 29. *The Court is therefore urged to avoid broad conservatory orders and instead adopt measures that preserve both public interest and effective industry regulation.* **Notice of Motion Application dated 15th June 2026** 1. Second is a Notice of Motion Application dated 15th June 2026, expressed to be brought under Rules 5 and 7 of the Constitution of Kenya, Protection of Fundamental Freedoms) Practice and Procedure Rules 2013 and Articles 20, 22 and 258 of the Constitution and all other enabling provisions of the law. The application seeks the following orders: 2. *Spent.* 3. *THAT leave be granted to the Applicants to join this suit as 1st, 2nd, 3rd, 4th and 5th Interested Parties and the Replying Affidavit sworn on 15th June 2026 by the 1st Interested Party together with the Grounds of Opposition be properly on record upon payment of the requisite Court fees.* 4. *THAT cost of this application be in the course.* 5. This application is based on the following grounds**: -** 6. *THAT the intended interested parties are farmers and voters in the forthcoming Kenya Sugar Board farmers representative from Bumula Sub County in Bungoma County and they fall within the Upper Western Catchment area as per the First Schedule of the Sugar Act and have existing sugarcane growing and supply contract with millers in the Upper Western Catchment area and specifically West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd.* 7. *THAT the interested parties are among the over 200,000 sugarcane farmers within Upper and Lower Western Sugar Cane Catchment area which covers 7 Counties namely: a) Bungoma County b) Busia County c) Kakamega County d) Trans Nzoia County e) Siaya County f) Uasin Gishu County g) Northern Part of Nandi County* 8. *THAT the Sugar Act 2024 which contains the First Schedule on the demarcation of the sugarcane catchment area was passed in the year 2024 after an extensive public participation that involved different stakeholders that included farmers, millers, County Governments and County Assemblies in the sugarcane growing areas, Parliament and Senate, and different stakeholders where various competing interest were balanced with the final document being assented into law on 1st November 2024 and it has been in operation for the last 18 months regulating the sugar industry and therefore its dishonest of the Petitioner to wake up after 18 months and alleged that there was no public participation in passing the provision of the First Schedule of the Sugar Act.* 9. *THAT this ingenious Petition is a proxy war brought by the Petitioner on behalf of his pay master, the Mumias Sugar Company (2021) Ltd which has been placed under lower Western Catchment area to illegally amend the First Schedule of the Sugar Act through the back door by trying to carve out parts of the Upper Western Sugarcane Catchment area and specifically Bumula Sub County in Bungoma County back to Lower Western Catchment Area.* 10. *THAT the First Schedule to the Sugar Act, 2024 has specifically placed Bungoma County as the First County which forms part of the Upper Western Sugarcane catchment area and therefore the Petition as filed seeks to remove Bumula Sub County from Bungoma County and transfer it to Busia County, a move that does not only affects the forthcoming farmer representative to Kenya Sugar Board but will affect the Kenya General elections of 2027 as it seeks to review and rewrite the Boundaries of not only Bungoma and Busia Counties but also the Boundaries of Bumula Constituency, an exercise that this Court has no Jurisdiction to undertake as it's the mandate of the Independent Electoral and Boundaries Commission.* 11. *THAT nomination of candidates for election of farmer representatives has already closed and there is no candidate from Bumula Sub County who presented his and or her nomination documents to be cleared as a candidate.* 12. *THAT there being no candidate from Bumula Sub County to contest the forthcoming farmers representative elections, means that Bumula Sub County like all the other sub counties will have to be represented by a candidate from another sub County as both the Upper and Lower Western Sugarcane catchment area has an opportunity to elect only 2 representatives to the Kenya Sugar Board whereas the entire Western Sugarcane Catchment area is made up 7 Counties that include Bungoma, Kakamega, Busia, Siaya, Trans Nzoia, Northern Nandi and Uasin Gishu.* 13. *THAT the Petitioner not being a candidate himself in the forthcoming election there is no prejudice that he will suffer if the elections are allowed to proceed, just like the interested Parties and all the farmers in the Western Catchment area he will be represented by the elected representative who does not only represent a sub county he comes from but all the farmers in Kenya. Further the said leader represents all Kenyans as the policy they make at Kenya Sugar Board affects all Kenyans like changes in prices. It’s not fair to localize the elections of national farmers representatives to village politics concerning Bumula Sub County.* 14. *THAT the Petitioner has misrepresented facts as Mumias Sugar Company Ltd is not a registered and licensed sugar miller in operation having been put under receivership in the year 2018 before it closed shop the same year therefore there is no valid contract existing between Mumias Sugar Company Ltd and any farmer in Bumula Sub County for the supply of any sugarcane crop.* 15. *THAT the alleged supply agreement is between the Petitioner and Mumias Sugar Company (2021) Ltd, a company registered in the year 2021 and it started operations in the year 2022 after being granted a lease by the receiver manager appointed by KCB bank and therefore the allegation that farmers in Bumula Sub County have had a decade long contractual relationship with Mumias Sugar Company (2021) Ltd is a misrepresentation of facts meant to mislead the Court.* 16. *There is an election committee established by the Cabinet Secretary of Agriculture meant to hear and determine all pre-election disputes and therefore this Court has no original jurisdiction to hear and determine this election dispute as to which catchment area the voters in the Bumula Sub County should be allowed to cast their vote.* 17. *THAT the Interested Parties like all the farmers in the Western catchment area have a legitimate expectation to participate in the forthcoming elections and elect their representatives via elections conducted through universal suffrage and not have representatives imposed on them through boardroom negotiations and decisions to achieve their desired outcome and alter the will of the people.* 18. *THAT elections is not an event but a process that affects the entire ecosystem not only costing money to the organizers who are working on approved budget by the government but also the candidates, their supporters, farmers and different stakeholders who have invested financially, emotionally and physically and the same should not be altered at the whim of only one individual who has had sufficient notice of these elections for the last 18 months but has only sought to challenge them less than a month to the elections.* 19. *THAT the Application and the Petition as filed by the Petitioner does not represent the interest and aspirations of the people of Bumula Sub County, Bungoma County and that is why the Petitioner has sought to file this Petition in Vihiga High Court which is geographically far away from the people whose interest it's going to adversely affect.* 20. *THAT the orders sought by the Petitioner will adversely affect the interest and Constitutional rights of the interested parties, innocent candidates and farmers, hence they need to be heard before any orders are made.* 21. *THAT it would be in the interest of justice that the intended interested parties be joined for reasons that the orders prayed for in this suit shall interfere with their rights as farmers and participation in the forthcoming elections.* 22. *The parties hereto shall not be prejudiced with the intended interested parties being so joined and, in such event, they can be remedied by way of costs.* **Notice of Motion Application dated 15th June 2026** 1. Third is an application expressed to be brought under Articles 1(1), 2(1), 3(1), 10(1) (2), 19, 20, 21, 22, 23, 27(1)(2), 28, 40, 43, 159, 165(3), 227, 259, 260 of the Constitution of Kenya, Rules 1, 2, 2, 7 and 25 of the Constitution of Kenya (Protection Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and the Sugar Act, 2024 where the 2nd and 3rd interested parties are seeking the following orders: - 2. *Spent.* 3. *Spent.* 4. *Spent.* 5. *The Honourable Court be pleased discharge, set aside the interim ex parte orders given on 2nd June, 2026.* 6. *Such further directions be made upon the joinder of the Proposed 1st and 2nd Interested Parties as will enable them to participate in the proceedings accordingly and appropriately.* 7. *Such further or other orders be made as will meet the justice of the proceedings in this Petition.* 8. The application is based on the following grounds: - 9. *The Proposed 1st and 2nd Interested Parties are Kenyan citizens and farmers within the Nzoia Sugar Company Limited Out-growers Zone in Bumula Constituency, Mwomo Area, Bumula Sub-County within Bungoma County in the Republic of Kenya.* 10. *The Proposed 1st and 2nd Interested Parties/Applicants have, hitherto this Petition being filed in this Honourable Court, supplied sugar cane to Nzoia Sugar Company Limited and contracted as such by Nzoia Sugar Company Limited.* 11. *By virtue of the existing sugarcane farming contracts with Nzoia Sugar Company Limited, the Proposed 1st Interested Party/Applicant is a registered voter in the Upper Western Region Sugar Catchment Area for elections of the representatives to the Kenya Sugar Board, the 1st Respondent herein.* 12. *The Proposed 1st and 2nd Interested Parties/Applicants have personal stake, real and identifiable direct interest in this petition as sugarcane farmers in Bumula Sub-County, Upper Western Sugar Catchment Area who are registered voters in the anticipated elections of the Representatives to the Kenya Sugar Board whose delineation is the subject of challenge by the Petitioner in the instant petition on account of the alleged lack of public participation.* 13. *The Proposed 1st and 2nd Interested Parties/Applicants do not have pre-existing contract with Mumias Sugar Company Limited as alleged by the Petitioner and the instant petition is not representing the interests of the farmers in Bumula Sub-County as alleged save for the Petitioner's self-interests.* 14. *The Proposed 1st and 2nd Interested Parties/Applicants' livelihoods of sugarcane farming that are intertwined with Nzoia Sugar Company Limited as the proximate economic Miller (distance to factory is a cost factor to delivery of cane) is of utmost importance as to their realization of the fundamental right to life and as the Supreme Court of India stated in* ***Olga Tellis v Bombay Municipal Corporation 1986 AIR 180*** *that "an equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood" and in the circumstances of this Petition delineating Bumula Sub-County to Lower Western Sugar Catchment Area will fundamentally raise the cost of transport of sugarcane to Mumias Sugar Company Limited to the disadvantage of the Proposed 1st and 2nd Interested Parties/Applicants herein and further the Proposed 1st and 2nd Interested Parties/Applicants do not have any contract with Mumias Sugar Company Limited.* 15. *The Sugar Act, 2024 defines stakeholder as a person with significant interest in the sugar industry and includes growers, out-growers, millers, transporters and other value chain actors in the industry.* 16. *The Proposed 1st and 2nd Interested Parties/Applicants are thus proper persons with concrete and identifiable stakes in the matters in contention, touching on and delineation of Bumula Sub-County in the Upper Western Sugar Catchment Area and the core of this Petition.* 17. *The subject matter of the petition is the Constitutionality of the provisions of the Sugar Act, 2024 relating to zoning (delineation) which directly implicates the interests of the sugarcane farmers including the Proposed 1st and 2nd Interested Parties/Applicants not only in Bumula Sub-County but also across the country and the Proposed 1st and 2nd Interested Parties/Applicants have demonstrably shown the proximate and identifiable stake in the petition for them to be joined.* 18. *The Proposed 1st and 2nd Interested Parties/Applicants gave their views in the public participation held within the Nzoia Sugar Company Limited out-growers reach in late 2022 and early 2023 to the National Assembly's Departmental Committee on Agriculture on the Sugar Bill that was eventually enacted into the Sugar Act, 2024 and the lack of participation by the Petitioner in the public participation does not by itself mean that there was no public participation.* 19. *Equally in February 2025, the Proposed 1st and 2nd Interested Parties/Applicants engaged in public participation on the then proposed the Sugar (General) Regulations, 2025 and the Sugar (Imports and Exports) Regulations, 2025 within the Upper Western Sugar Catchment Area and in particular at Nzoia Sugar Company Limited.* 20. *The evidence of public participation was found in the Committee reports of the Parliament as a matter of fact by the High Court at Kakamega in High Court Constitutional Petition No E013 of 2025, Masinde v Attorney General & another; Kenya Sugar Board (Interested Party) (Constitutional Petition E013 of 2025) KEHC 17616 (KLR) (26 November 2025) (Ruling).* 21. *The Proposed 1st and 2nd Interested Parties/Applicants will be greatly prejudiced if not joined into this petition which goes to the heart of their livelihood in sugarcane farming and if the petition and the application heard and determined without their participation their Constitutional right to be heard will be seriously imperiled and who intend to make the following critical submission in this petition and its offshoot Notice of Motion which will assist the Honourable Court to arrive at a just decision: a. This Honourable Court does not have jurisdiction to hear and determine the instant petition and its offshoot notice of Motion as the issues raised therein are res judicata High Court Constitutional Petition No E013 of 2025 at Kakamega, Masinde v Attorney General & another; Kenya Sugar Board (Interested Party); b. The Honourable Court in assuming jurisdiction over the instant petition and the notice of motion will be sitting on an appeal against the decision by a Court of concurrent jurisdiction - the High Court at Kakamega; c. There was public participation as documented in the committee reports of the parliament conducted prior to the enactment of the Sugar Act, 2024 and its schedules as was found as a matter of fact by the High Court sitting at Kakamega in the High Court Constitutional Petition No E013 of 2025 at Kakamega; d. There is material non-disclosure by the Petitioner that goes to the root and heart of the application; and e. The Petitioner is forum shopping and abusing the process of this Court given that the alleged farms the subject of the petition are in Bumula Sub-County, Bungoma Court which has a High Court and his preferred miller, Mumias Sugar Company Limited is in Mumias East within Kakamega county with a High Court at Kakamega, why was the petition filed in this Court?* 22. *The purported contracts being relied upon by the Petitioner were for 2010 before the enactment of the Crops Act, 2013 which repealed zoning. If the Petitioner has any existing contract with Mumias Sugar Company Limited, it was entered into post enactment of the Crops Act, 2013 during the time when there was no zoning and hence the farmer was at will to enter into contract with any miller and as such, it is not true that the First Schedule to the Sugar Act, 2024 was enacted without due regard to the existing delineations.* 23. *The Petitioners Petition herein is constructed on quicksand and absurdity for it belabors lack of public participation in the enactment of the First Schedule to the Sugar Act, 2024 when in fact the National Assembly through its Departmental Committee on Agriculture carried out a nationwide public participation in late 2022 and early 2023 prior to the enactment of the Sugar Act, 2024.* 24. *The Courts of Kenya recognize and apply the Latin doctrine of "IGNORANTIA JURIS NON-EXCUSAT", ignorance of the law excuses not.* 25. *The mere fact that the Petitioner for one reason or another willfully, negligently and/or accidentally failed to give his views in the public participation does not render the public participation carried out otiose and inconsequential and to be the premise for declaring the First Schedule to the Sugar Act, 2024 unconstitutional.* 26. *The Petitioner's contention that delineation of Bumula Sub-County into the Upper Western Sugar Catchment Area will lock him out from voting for representatives to the Kenya Sugar Board is made in ignorance of section 20 of the Sugar Act, 2024 that expressly authorizes him, due to pre-existing contract with Mumias Sugar Company Limited, to continue delivering the sugarcane outside a sugar catchment area provided (in this case outside Upper Western Sugar Catchment Area) and to be registered as a voter and vote in that other sugar catchment area to which he supplies the sugarcane.* 27. *The Proposed 1st and 2nd Interested Parties/Applicants state that if indeed the Petitioner has a long standing contract with Mumias Sugar Company Limited, he is eligible to register and vote in the Lower Western Region for representative to the Kenya Sugar Board and for the purpose of his farm and the alleged existing contract with Mumias Sugar Company Limited, the Petitioner will be in the Lower Western Sugar Catchment Area pursuant to section 20 of the Sugar Act, 2024 and there is no justification for declaring the First Schedule to the Sugar Act, 2024 unconstitutional or even halting the imminent elections of the Representatives to the Kenya Sugar Board pursuant to the Sugar Act, 2024.* 28. *The Petition herein is an endeavor by the Petitioner to have another bite at the cherry on the same question of public participation on delineation of sugar catchment areas having been litigated in High Court Constitutional Petition No E013 of 2025 at Kakamega, Masinde v Attorney General & another; Kenya Sugar Board (Interested Party) and the High Court at Kakamega held that there was public participation.* 29. *There is issue estoppel as the question of whether delineation of sugar catchment areas in the First Schedule to the Sugar Act, 2024 was undertaken in contravention of the Constitution has been decided by the High Court at Kakamega and this Court ought not to re-litigate the same issue over and over each time a party files a petition on the same subject matter.* 30. *The Petitioner by acts of omissions withholding materials facts (including the evidence of public participation undertaken and documented in the committee reports of the Parliament before the Parliament enacted the Sugar Act, 2024) failed to make full disclosure of all material facts and which disentitles the Petitioner to any conservatory orders and if any have been granted to be discharged "suo moto" for as Justice F. Gikonyo held in Re Estate of Julius Ntumbi Javan (Deceased) eKLR that "accordingly non-disclosure of material facts undermines justice and introduces festering waters into the pure streams of justice such must, immediately be subjected to serious REVERSE OSMOSIS to purify the streams of justice if society is to be accordingly regulated by law".* 31. *The High Court at Kakamega in High Court Constitutional Petition No E013 of 2025 at Kakamega, when it was brought to its attention with material evidence that had been suppressed by the Petitioner of there being public participation before enactment of the Sugar Act, 2024 and the Schedules thereto, it set aside the interim order it has issued on account of non-disclosure.* 32. *The interim orders granted while they were meant to protect only the Petitioner and his alleged farmers in Bumula Sub- County, the conservatory orders have had real effect of disadvantaging all sugarcane farmers by delaying the elections of the Kenya Sugar Board which creates irreparable economic prejudice that threatens the stability of the entire sugar sector.* 33. *Petitioners cannot ad infinitum purvey the same generic mantra, panel beaten here and there "violation of the Constitution" to leapfrog and circumvent and stultify the Sugar Act, 2024 enacted in compliance with Articles 10 and 118 of the same Constitution he purport has been violated.* 34. *The Petitioner's Petition is in the premises an enterprise to sabotage, suffocate the same Constitutional imperative he cries louder than the bereaved of public participation and it is dead on arrival for being the grossest abuse of the Constitutional Court process.* 35. *There is no basis of halting the elections of the representatives to the Kenya Sugar Board to be carried out pursuant to the provisions of the Sugar Act, 2024 and the attendant material laws unless and until the Sugar Act, 2024 or any provision thereof touching on elections of the representatives to the Kenya Sugar Board is declared unconstitutional.* 36. *In the light of the above demonstrated non-disclosures whether by deliberate acts of omission or Commission or want of due diligence, the inherent merit of this case where the Petitioner purports violation of the Constitution for lack of public participation and which public participation in fact was long undertaken before Parliament prior to the enactment of the Sugar Act, 2024 now being contested in this Court, there is absolutely no basis for grant of any Conservatory orders and orders so issued ought to be set aside by the Honourable Court.* 37. *The inherent merit of this case even at its ex parte level with all facts bearing in mind the public interest, the Constitutional values and the proportionate magnitudes and priority levels impel the Court to decline to grant any Conservatory order(s) and discharging any granted, the Petitioner having constructed its Petition on distortions suppression of material facts that will have led this Court to discern a deliberate enterprise by the Petitioner to abuse the Constitutional Court process to derail, stonewall, obstruct a Constitutional lawful procurement process underway.* 38. *Without jurisdiction over the instant petition and the Notice of Motion which are res judicata High Court Constitutional Petition No E013 of 2025 at Kakamega and section 7 of the Civil Procedure Act, 2010, the Honourable Court does not have jurisdiction to grant conservatory orders and the interim conservatory orders granted on 2nd June, 2026 are for setting aside for having been granted without jurisdiction;* 39. *The Constitution at values of human rights social justice, the rule of law, equal protection and equal benefit of the law impel that the Proposed 1st and 2nd Interested Parties/Applicants voices be heard as they are being marginalized on the key issue that affects their livelihood under the generic impleading by the Petitioner.* 40. *It is fit and just that in the totality of all the material circumstances that the Proposed 1st and 2nd Interested Parties/Applicants be enjoined in this Petition as 1st and 2nd Interested Parties.* 41. *The Parties already enjoined in the Petition will suffer no prejudice if the orders sought herein are granted.* **Notice of Motion Application dated 15th June 2026** 1. Fourth is a Notice of motion dated 15th June 2026 filed by the 1st Respondent and brought under Articles 1(1), 2(1), 3(1), 10(1)(2), 19, 202, 21, 22, 23, 28, 27(1)(2), 28, 40, 43, 159, 165(3), 227, 259, 260 of the Constitution of Kenya rules 1, 2, 3, 7 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and the Sugar Act. The application seeks the following orders: - 2. *Spent.* 3. *This Honourable Court be pleased to set aside and/or discharge the ex parte conservatory orders issued on 2nd June 2026, which orders restrained the election of grower representatives to the Board of the 1st Respondent.* 4. *In the alternative to prayer 2 above, pending hearing and determination of this application, this court be pleased to review the conservatory orders issued on 2nd June 2026 by allowing election of grower representative on all other sugar catchment areas except the affected Upper and Lower western sugar catchment areas.* 5. *This Honourable Court be pleased to dismiss the Petition herein for being vexatious, frivolous and an abuse of the Court process, having been instituted in violation of the established legal principles against forum shopping, res judicata and sub judice.* 6. *In the alternative to prayer 4 above, this Honourable Court be pleased to stay the proceedings herein and direct that the matter be placed before the High Court at Kakamega, which is seized of the hearing and determination of a similar Petition, being High Court Constitutional Petition No. E013 of 2025, Masinde v Attorney General & Another, Kenya Sugar Board (Interested Party), which was filed earlier in time.* 7. *Costs* 8. The application is premised on the following grounds that: - 9. *The Petitioner/ Applicant herein has approached this Honourable Court with unclean hands by failing to make full and frank disclosure of material facts, presenting incomplete and misleading information, and thereby occasioning the issuance of the ex parte orders dated 2nd June 2026.* 10. *In the Application dated 29th May 2026, the Petitioner seeks, inter alia, conservatory orders restraining the 1st Respondent from conducting elections of grower representatives to its Board under the zoning framework established under the First Schedule to the Sugar Act, 2024, on the grounds that: (a) there was allegedly no public participation in the delineation of the catchment areas; and (b) Bumula Sub-County was, according to the Petitioner, improperly classified under the Lower Western sugarcane catchment area instead of the Upper Western Sugar catchment area.* 11. *Contextually, the enactment of the Sugar Act, 2024 introduced a new regulatory and governance framework for the country’s sugar industry. Among the key reforms was the establishment of exclusive milling zones under Section 19 of the Act, as read together with Section 20 thereof, which further provides for limited exemptions permitting growers to supply sugarcane outside their designated milling zones in prescribed circumstances.* 12. *The introduction of exclusive milling zones was the product of extensive public participation and stakeholder engagement undertaken during the legislative process in both Houses of Parliament, as is evidenced by the Report of the Departmental Committee on Agriculture and Livestock on the consideration of the Sugar Bill (National Assembly Bill No. 34 of 2022) presented to the National Assembly on 6th July 2023, and the Report of the Senate Standing Committee on Agriculture, Livestock and Fisheries dated 26th March 2024, submitted to the Senate.* 13. *It is therefore wholly untrue and misleading for the Petitioner to allege that the zoning framework under the First Schedule was not subjected to public participation. On the contrary, the said zoning framework was a product of extensive public participation, as demonstrated hereinabove, and the same has been judicially acknowledged by the High Court in High Court Constitutional Petition No. E013 of 2025, Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party) in the ruling issued on 15th April 2026.* 14. *It is instructive for this Honourable Court to note that the present suit mirrors High Court Constitutional Petition No. E013 of 2025, Masinde v Attorney General & Another, wherein the petitioner therein similarly challenged the zoning framework under the First Schedule to the Sugar Act, 2024, inter alia on grounds relating to alleged lack of proper public participation and improper delineation between the Upper and Lower sugarcane catchment areas as set out in the said Schedule just as the Petition herein.* 15. *The Petition herein thus offends the doctrine of sub judice as codified under section 6 of the Civil Procedure Act, in that it raises issues that are directly and substantially in issue in a previously instituted suit, namely High Court Constitutional Petition No. E013 of 2025, Masinde Vs Attorney General & Another, which is actively pending before a court of competent jurisdiction of equal status.* 16. *Further, this Honourable Court sitting at Kakamega in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another, initially issued conservatory orders by its ruling dated 26th November 2025 barring the election of grower representatives. However, upon being fully and properly apprised of all material facts, the Court, by its ruling dated 15th April 2026, vacated and/or discharged the said orders on the basis of non-disclosure and lack of full and frank disclosure by the Petitioner/ Applicant therein.* 17. *The Court expressly observed that the extent of public participation undertaken in the enactment of the provisions establishing exclusive milling zones under the First Schedule to the Sugar Act, 2024 (as demonstrated above), was sufficient at an interlocutory stage, stating as follows:; The Proposed 3rd Interested Party has demonstrated that the Petitioner omitted to disclose to the court that some public participation on the zoning provisions had in fact taken place, as evidenced by the committee reports placed before the court. The question whether the public participation was meaningful or not is a question of fact which can only be ascertained upon calling of evidence.* 18. *Equally the court faulted the Petitioner for failing to disclose the sheer prejudice caused by preventing the election of grower representatives as follows; More critically, the Petitioner failed to disclose the immediate and ongoing prejudice that the conservatory orders would cause to thousands of sugarcane farmers across the country who continue to supply cane to mills but are unable to receive payments due to the suspension of the zoning and catchment area mechanisms under the Sugar Act, 2024. This non-disclosure was material because it directly influenced the grant of the orders.* 19. *The Petitioner in the present suit is similarly guilty of non-disclosure and concealment of material facts, having failed to apprise this Honourable Court of the extensive public participation that informed the creation of the catchment areas under the First Schedule to the Sugar Act, 2024, as well as the substantial prejudice likely to be suffered by the public and stakeholders arising from the continued suspension of elections of grower representatives to the Board of the 1st Respondent.* 20. *By issuing the orders dated 2nd June 2026 and in considering the present Application dated 29th May 2026, this Honourable Court has, with respect, been invited to sit on appeal over, and is effectively re-litigating, the decision of the High Court sitting at Kakamega in High Court Constitutional Petition No. E013 of 2025 delivered on 15th April 2026, which upheld and/or facilitated the process for the election of grower representatives to the Board of the 1st Respondent.* 21. *A further consideration arising from the Petitioner's deliberate non-disclosure of the proceedings in High Court Constitutional Petition No. E013 of 2025 (supra) is that the question of whether conservatory orders ought to be issued on the basis of alleged lack of public participation and dissatisfaction with the delineation under the First Schedule to the Sugar Act, 2024, has already been considered and determined in the said Petition. Accordingly, the matter is res judicata, and the doctrines of issue estoppel bar this Honourable Court from re-adjudicating the same issues herein.* 22. *The timing of the filing of the present Petition and Application dated 29th May 2026, immediately after the delivery of the ruling by the High Court at Kakamega on 15th April 2026, is highly suspect and indicative of forum shopping, as it reasonably suggests an attempt to circumvent and/or undermine the effect of the said ruling by inviting a different court to pronounce itself on substantially similar issues.* 23. *Further, the Petitioner has effectively invited this Honourable Court to contravene the Constitutional doctrine of separation of powers by usurping the legislative and policy-making mandate of Parliament. To the extent that zoning under the First Schedule to the Sugar Act, 2024 involves policy determinations and technical considerations informed by sectoral expertise and stakeholder input during the legislative process, such matters fall within the exclusive domain of the Legislature and are not amenable to judicial substitution of opinion.* 24. *In any event, and without prejudice to the foregoing, the governing principles for the grant of conservatory orders as set out by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others eKLR place primacy on public interest. In the present circumstances, public interest clearly militates in favour of allowing the election of grower representatives to proceed in order to alleviate the prevailing challenges in the sugar industry, as observed by the High Court at Kakamega in High Court Constitutional Petition No. E013 of 2025, Masinde v Attorney General & Another, where it noted that— The court has further considered the balance of convenience and the public interest under Article 159(2)(d) of the Constitution. While the Applicants sought to protect the rights of farmers in Mukuyu Sub-County, the conservatory orders have had the unintended but real effect of disadvantaging a far larger number of sugarcane farmers who are now supplying cane without corresponding payments. This creates irreparable economic prejudice and threatens the stability of the entire sugar sector. Similar considerations of prejudice to non-parties and undue hardship on payments have informed the discharge of conservatory orders in Gikenyi B & 6 others v Council of Governors & 68 others eKLR and Channo & 2 others v Cabinet Secretary, Information eKLR, where material non-disclosure coupled with broader sectoral prejudice justified setting aside the orders.* 25. *The Petitioner/Applicant further contends that, by virtue of the delineation of Bumula Sub-County as falling within the Upper Western sugarcane catchment area under the First Schedule to the Act, he has been unlawfully excluded from participating in the forthcoming elections by being omitted from the voter register, allegedly on the basis that he has failed to demonstrate proof of having supplied sugarcane to a miller within his designated catchment area during the preceding 24 months.* 26. *In response, it is imperative for this Honourable Court to first note that the Petitioner has not placed before the Court any credible or probative evidence demonstrating that he, or any other farmer from Bunyala, has been excluded from the voter register or denied the opportunity to participate in the forthcoming elections.* 27. *In response, it is imperative for this honorable court to first note that the petitioner has not yet placed before the court any credible or probative evidence demonstrating that he, or any other farmer from Bunyala, has been excluded from the voter register or denied the opportunity to participate in the forthcoming elections. Further, and more importantly, clause 7(1) as read together with clause 9(7) of the Procedure for Election of Grower Representatives to the Kenya Sugar Board expressly designates the Dispute Resolution Committee as the forum of first instance for the determination of disputes relating to the voter register. Accordingly, the doctrine of exhaustion of alternative remedies requires that the Petitioner/Applicant ought to have first submitted the alleged grievance before the Dispute Resolution Committee before invoking the jurisdiction of this Honourable Court.* 28. *It is noteworthy that the Petitioner had, from the enactment of the Sugar Act, 2024, an opportunity to challenge the delineation of catchment areas under the First Schedule thereto. Further, the Petitioner’s deliberate failure to utilize the prescribed dispute resolution mechanism for any alleged voter registration grievance, coupled with the timing of the present proceedings, raises serious questions regarding the bona fides of the Application. The circumstances demonstrate an apparent attempt to frustrate and delay the election of grower representatives and, consequently, impede the full operationalization of the regulatory framework established under the Sugar Act, 2024.* 29. *It is in the interest of justice for this Application to be allowed as prayed so as to prevent conflicting judicial decisions and return the sugar industry to a sense of normalcy in operation to the benefit of the public* 30. In support of the application is the annexed affidavit of Jude Chesire who deponed as follows: 31. *THAT I am the Chief Executive Officer of the 1st Respondent, the Kenya Sugar Board, thus duly authorized to swear this Affidavit on its behalf.* 32. *THAT I have read and had explained to me by my advocates on record Messrs. Prof. Tom Ojienda & Associates the contents of the attached Application thus I fully understand it and depone as follows;* 33. *THAT the Petitioner/Applicant herein has approached this Honourable Court with unclean hands by failing to make full and frank disclosure of material facts, presenting incomplete and misleading information, and thereby occasioning the issuance of the ex parte orders dated 2nd June 2026.* 34. *THAT in the Application dated 29th May 2026, the Petitioner seeks, inter alia, conservatory orders restraining the 1st Respondent from conducting elections of grower representatives to its Board under the zoning framework established under the First Schedule to the Sugar Act, 2024, on the grounds that: (a) there was allegedly no public participation in the delineation of the catchment areas; and (b) the Bumula Sub-County was, according to the Petitioner, improperly classified under the Lower Western sugarcane catchment area instead of the Upper Western Sugar catchment area.* 35. *THAT contextually, the enactment of the Sugar Act, 2024 introduced a new regulatory and governance framework for the country's sugar industry. Among the key reforms was the establishment of exclusive milling zones under Section 19 of the Act, as read together with Section 20 thereof, which further provides for limited exemptions permitting growers to supply sugarcane outside their designated milling zones in prescribed circumstances.* 36. *THAT the introduction of exclusive milling zones was the product of extensive public participation and stakeholder engagement undertaken during the legislative process in both Houses of Parliament, as is evidenced by the Report of the Departmental Committee on Agriculture and Livestock on the consideration of the Sugar Bill (National Assembly Bill No. 34 of 2022) presented to the National Assembly on 6th July 2023, and the Report of the Senate Standing Committee on Agriculture, Livestock and Fisheries dated 26th March 2024, submitted to the Senate.* 37. *THAT it is therefore wholly untrue and misleading for the Petitioner to allege that the zoning framework under the First Schedule was not subjected to public participation. On the contrary, the said zoning framework was a product of extensive public participation, as demonstrated hereinabove, and the same has been judicially acknowledged by the High Court in High Court Constitutional Petition No. E 013 of 2025; Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party) in the ruling issued on 15th April 2026* 38. *THAT it is instructive for this Honourable Court to note that the present suit mirrors High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another, wherein the petitioner therein similarly challenged the zoning framework under the First Schedule to the Sugar Act, 2024, inter alia on grounds relating to alleged lack of proper public participation and improper delineation between the Upper and Lower sugarcane catchment areas as set out in the said Schedule just as the Petition herein.* 39. *THAT the Petition herein thus offends the doctrine of sub judice as codified under Section 6 of the Civil Procedure Act, in that it raises issues that are directly and substantially in issue in a previously instituted suit, namely High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another, which is actively pending before a court of competent jurisdiction of equal status.* 40. *THAT further, this Honourable Court sitting at Kakamega in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another, initially issued conservatory orders by its ruling dated 26th November 2025 barring the election of grower representatives. However, upon being fully and properly apprised of all material facts, the Court, by its ruling dated 15th April 2026, vacated and/or discharged the said orders on the basis of non-disclosure and lack of full and frank disclosure by the Petitioner / Applicant therein.* 41. *THAT the Court expressly observed that the extent of public participation undertaken in the enactment of the provisions establishing exclusive milling zones under the First Schedule to the Sugar Act, 2024 (as demonstrated above), was sufficient at an interlocutory stage, stating as follows; The Proposed 3rd Interested Party has demonstrated that the Petitioner omitted to disclose to the court that some public participation on the zoning provisions had in fact taken place, as evidenced by the committee reports placed before the court The question whether the public participation was meaningful or not is a question of fact which can only be ascertained upon calling of evidence.* 42. *THAT equally the court faulted the Petitioner for failing to disclose the sheer prejudice caused by preventing the election of grower representatives as follows; More critically, the Petitioner failed to disclose the immediate and ongoing prejudice that the conservatory orders would cause to thousands of sugarcane farmers across the country who continue to supply cane to mills but are unable to receive payments due to the suspension of the zoning and catchment area mechanisms under the Sugar Act, 2024. This nondisclosure was material because it directly influenced the grant of the orders.* 43. *THAT the Petitioner in the present suit is similarly guilty of non-disclosure and concealment of material facts, having failed to apprise this Honourable Court of the extensive public participation that informed the creation of the catchment areas under the First Schedule to the Sugar Act, 2024, as well as the substantial prejudice likely to be suffered by the public and stakeholders arising from the continued suspension of elections of grower representatives to the Board of the 1st Respondent.* 44. *THAT by issuing the orders dated 2nd June 2026 and in considering the present Application dated 29th May 2026, this Honourable Court has, with respect, been invited to sit on appeal over, and is effectively re-litigating the decision of the High Court sitting at Kakamega in High Court Constitutional Petition No. E013 of 2025 (supra) delivered on 15th April 2026, which upheld and/or facilitated the process for the election of grower representatives to the Board of the 1st Respondent.* 45. *THAT a further consideration arising from the Petitioner's deliberate non-disclosure of the proceedings in High Court Constitutional Petition No. E013 of 2025 (supra) is that the question of whether conservatory orders ought to be issued on the basis of alleged lack of public participation and dissatisfaction with the delineation under the First Schedule to the Sugar Act, 2024, has already been considered and determined in the said Petition. Accordingly, the matter is res judicata, and the doctrines of issue estoppel bar this Honourable Court from re-adjudicating the same issues herein.* 46. *THAT the timing of the filing of the present Petition and Application dated 29th May 2026, immediately after the delivery of the ruling by the High Court at Kakamega on 15th April 2026, is highly suspect and indicative of forum shopping, as it reasonably suggests an attempt to circumvent and/or undermine the effect of the said ruling by inviting a different court to pronounce itself on substantially similar issues.* 47. *THAT further, the Petitioner has effectively invited this Honourable Court to contravene the Constitutional doctrine of separation of powers by usurping the legislative and policy-making mandate of Parliament. To the extent that zoning under the First Schedule to the Sugar Act, 2024 involves policy determinations and technical considerations informed by sectoral expertise and stakeholder input during the legislative process, such matters fall within the exclusive domain of the Legislature and are not amenable to judicial substitution of opinion.* 48. *THAT in any event, and without prejudice to the foregoing, the governing principles for the grant of conservatory orders as set out by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others eKLR place primacy on public interest. In the present circumstances, public interest clearly militates in favour of allowing the election of grower representatives to proceed in order to alleviate the prevailing challenges in the sugar industry, as observed by the High Court at Kakamega in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another, where it noted that- The court has further considered the balance of convenience and the public interest under Article 159(2)(d) of the Constitution. While the Applicants sought to protect the rights of farmers in Malava Sub-County, the conservatory orders had the unintended but real effect of disadvantaging a far larger number of sugarcane farmers who are now supplying cane without corresponding payments. This creates irreparable economic prejudice and threatens the stability of the entire sugar sector. Similar considerations of prejudice to non-parties and undue hardship on payments have informed the discharge of conservatory orders in Gikenyi B & 6 others v Council of Governors & 68 others eKLR and Chamao & 2 others v Cabinet Secretary, Information eKLR, where material non-disclosure coupled with broader sectoral prejudice justified setting aside the orders.* 49. *THAT the Petitioner/Applicant further contends that, by virtue of the delineation of Bumula Sub-County as falling within the Upper Western sugarcane catchment area under the First Schedule to the Act, he has been unlawfully excluded from participating in the forthcoming elections by being omitted from the voter register, allegedly on the basis that he has failed to demonstrate proof of having supplied sugarcane to a miller within his designated catchment area during the preceding 24 months.* 50. *THAT in response, it is imperative for this Honourable Court to first note that the Petitioner has not placed before the Court any credible or probative evidence demonstrating that he, or any other farmer from Bunyala, has been excluded from the voter register or denied the opportunity to participate in the forthcoming elections.* 51. *THAT further, and more importantly, clause 7(1) as read together with clause 9(7) of the Procedure for Election of Grower Representatives to the Kenya Sugar Board expressly designates the Dispute Resolution Committee as the forum of first instance for the determination of disputes relating to the voter register. Accordingly, the doctrine of exhaustion of alternative remedies requires that the Petitioner/Applicant ought to have first submitted the alleged grievance before the Dispute Resolution Committee before invoking the jurisdiction of this Honourable Court.* 52. *THAT it is noteworthy that the Petitioner had, from the enactment of the Sugar Act, 2024, an opportunity to challenge the delineation of catchment areas under the First Schedule thereto. Further, the Petitioner's deliberate failure to utilize the prescribed dispute resolution mechanism for any alleged voter registration grievance, coupled with the timing of the present proceedings, raises serious questions regarding the bona fides of the Application. The circumstances demonstrate an apparent attempt to frustrate and delay the election of grower representatives and, consequently, impede the full operationalization of the regulatory framework established under the Sugar Act, 2024.* 53. *THAT it is in the interest of justice for this Application to be allowed as prayed so as to prevent conflicting judicial decisions and return the sugar industry to a sense of normalcy in operation to the benefit of the public.* **Preliminary Objection dated 15th June 2026** 1. The 1st Respondent raised a Notice of Preliminary Objection dated 15th June 2026 based on the following grounds: - 2. *THAT this Honourable Court lacks jurisdiction to sit on appeal over, review, or otherwise overturn the decision of a court of concurrent jurisdiction, namely the ruling delivered on 15th April 2026 in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party).* 3. *THAT this Honourable Court lacks jurisdiction to entertain the present suit as it offends the doctrine of sub judice as codified under section 6 of the Civil Procedure Act, in that it raises issues that are directly and substantially in issue in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party), which is pending determination before a court of competent jurisdiction.* 4. *THAT this Honourable Court lacks jurisdiction to entertain the present suit as it is barred by the doctrine of res judicata as codified under section 7 of the Civil Procedure Act, in that it raises issues that have already been directly and substantially adjudicated upon and determined in the ruling delivered on 15th April 2026 in High Court Constitutional Petition No. E013 of 2025; Masinde v Attorney General & Another; Kenya Sugar Board (Interested Party).* 5. *THAT this Honourable Court lacks jurisdiction to entertain the present suit by virtue of the doctrine of exhaustion of alternative remedies and the provisions of clauses 7(1) and 9(7) of the Procedure for Election of Grower Representatives to the Kenya Sugar Board, which expressly confer original jurisdiction upon the Dispute Resolution Committee to determine disputes relating to the voter registry.* **Notice of Preliminary Objection dated 16th June 2026** 1. The 4th -8th Interested Parties raised a Notice of Preliminary Objection dated 16th June 2026 based on the following grounds: - 2. *This court has no original jurisdiction to hear and determine this matter by the dint of Procedure for Election of Grower Representative to the Kenya Sugar Board which establishes the Dispute Resolution Committee to hear and determine all pre-election disputes.* 3. *The court further lacks geographical jurisdiction to hear and determine this matter by the dint that subject matter in contention is in Bungoma County and not Vihiga County.* 4. *The Honourable court has no jurisdiction to hear and determine the Petition and Notice of Motion which are Sub-Judice to High Court Constitutional Petition No. E013 of 2025 at Kakamega High Court being Boniface Masinde -vs- The Honourable Attorney General & 4 others and High Court Constitutional Petition No. E019 of 2025 at Kakamega High Court being Sheban Matini Chitechi -vs- The Hon Attorney General & 2 others* 5. *The reliefs sought require amendment of the First Schedule to the Sugar Act, 2024, a legislative function reserved to Parliament (Articles 94, 109 and 119), they cannot be granted by this Court, nor lawfully negotiated by the parties, being ultra vires.* **Notice of Motion Application dated 17th June 2026** 1. Fifth is a Notice of motion dated 17th June 2026, expressed to be brought under Articles 22 (1) & (2), Article 38, Article 47, Article 258 of the Constitution, Rule 5 (1) of the Constitution of Kenya Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013, Section 1A 1B & 3A of the Civil Procedure Act and Order 1 Rule 10 2 of the Civil Procedure Rules where the 9th – 13th Interested parties are seeking the following orders: 2. *Spent.* 3. *THAT the Applicants/Proposed Interested Parties, namely, CALISTUS WAMALAWA MUSOMBI, TIMOTHY MALALA ODONGO, JAMES KUHUMI MALABA, WYCLIFF WANAMI NDOLI and WASIKE SITUMA WANYAMA, be and are hereby joined in these proceedings as Interested Parties.* 4. *THAT the Applicants/ Proposed Interested Parties be granted leave to file and serve their Pleadings, Replying Affidavit, and/or Submissions in respect of the Petition and the pending Notice of Motion, both dated 29th May, 2026, within three (3) days of the issuance of this order.* 5. *THAT the costs of this Application be in the cause.* 6. The application is based on the following grounds: - 7. *The Applicants/Proposed Interested Parties are registered, practising sugarcane growers and residents of MILLSITE REGION within the wider Bumula, Mumias West, Kanduyi, Bungoma South Districts respectively, which areas are heavily impacted by the boundary and delineation framework under the Sugar Act, 2024.* 8. *The Applicants/Proposed Interested Parties have distinct, identifiable, and real legal and economic interest in the subject matter of this Petition, specifically the delineation of the Upper Western and Lower Western Sugarcane Catchment Areas.* 9. *The zoning confusion and arbitrary delineation complained of by the Petitioner do not just affect Bumula Sub-County but directly overflow into and systematically marginalize the adjacent sugar-growing areas, including the locality where the Applicant resides and farms.* 10. *The ongoing dispute regarding the upcoming grower representative elections to the Kenya Sugar Board affects the Constitutional right to franchise, public participation, and representation of both the Applicant and hundreds of farmers in their immediate neighborhood.* 11. *For this Court to reach a panoramic, holistic, and just determination of the issues framed in this Petition—especially concerning structural interdicts and administrative adjustments to the First Schedule—the voice, perspective, and evidence of neighboring affected areas are critically relevant.* 12. *No prejudice will be suffered by the current parties to the Petition if the Applicant is joined; rather, their joinder prevents a multiplicity of suits and ensures that the court's final decree is comprehensive and legally binding on all affected regional interests.* 13. *The application is brought timeously, before the final highlighting of submissions scheduled for 12th June 2026, so as not to derail the structured timelines set down by Hon. R. Nyakundi - J.* 14. In support of the application is the annexed affidavit of Calistus Wamalawa Musombi who deponed as follows: - 1. *THAT I am a Kenyan adult citizen of sound mind, a dedicated sugarcane farmer, and an Applicant herein, and that I have authority to swear this affidavit on behalf of myself and on behalf of 2nd to 5th Applicants/Proposed Interested Parties, hence fully competent to depose to this Affidavit.* 2. *THAT I am deeply constrained to seek the indulgence of this Honourable Court to be enjoined Interested Parties because the issues pending for adjudication directly determine my livelihood, economic rights, and democratic representation.* 3. *THAT practising sugarcane growers and residents of MILLSITE REGION within the wider Bumula, Mumias West, Kanduyi, Bungoma South Districts, respectively, areas that share historical, logistical, and commercial ties with the Lower Western Catchment zone. Like the 9,000 farmers in Bumula Sub-County, the farmers in our immediate area suffer from the exact same institutional confusion caused by the First Schedule of the Sugar Act, 2024* 4. *THAT I wish to explicitly clarify for the record that the corporate entity with which the Applicants hold active commercial contracts and to which we deliver our sugarcane harvests is MUMIAS SUGAR (2021) LIMITED, a separate and distinct legal entity, and not "Mumias Sugar Company Limited" as erroneously described or implied in the substantive Petition and some of the state's preliminary responses.* 5. *THAT as evidenced by our attached cane delivery agreements and financial receipts marked CWM-002a and CWM-002b, our logistical and supply chain dependencies are legally intertwined with the operations of Mumias Sugar (2021) Limited, rendering it imperative that any administrative zoning re-alignments directed by this Honourable Court take into strict account our specific contractual locus with this operational factory.* 6. *THAT the administrative shift and vague descriptions of the Upper Western versus Lower Western catchment areas do not merely isolate Bumula; they create a systemic operational vacuum for neighboring sub-counties, blinding millers to our contractual locations and making delivery logistics untenable.* 7. *THAT I am advised by my advocates on record, Macharia, Gaitho & Murigu Advocates LLP, which advice I verily believe to be sound, that the core components for joining a party under Kenyan Constitutional jurisprudence require that the intended party demonstrate a stake in the matter, identifiable prejudice, and an ability to assist the court with novel value elements.* 8. *THAT as at the date of filing this Application, the majority of the board members of the 1st Respondent, the Kenya Sugar Board, have not been legally elected or constituted into office, specifically because the mandatory elections for five (5) grower/farmer representatives and two (2) miller representatives remain pending and un-conducted, thereby leaving the Board structurally incomplete and unable to make inclusive administrative decisions regarding the contested catchment delineation.* 9. *THAT our interest is not peripheral; it is primary. If elections proceed under the un-amended or unclarified zoning matrix, not only will Bumula be locked out, but the surrounding border sub-counties will face massive electoral disqualification because our supply streams cross into overlapping milling fields (such as Mumias Area).* 10. *THAT it is of paramount importance that the contested issue of catchment boundaries and zoning anomalies under the First Schedule of the Sugar Act, 2024, be fully and conclusively determined by this Honourable Court prior to the conduct of the upcoming Kenya Sugar Board elections; otherwise, proceeding with the election under the current un-clarified and arbitrary matrix will inevitably disenfranchise hundreds of legitimate border-region farmers, spark immediate post-electoral litigation, and permanently taint the democratic legitimacy of the incoming Board.* 11. *THAT I note from the Submissions of the Deputy Chief State Counsel, Kaumba S.O., that the Ministry of Agriculture is seeking a six (6) week window via a structural interdict to correct these interpretational and boundary anomalies.* 12. *THAT while the State acknowledges that "Mumias is not a county" and that sub-county lines remain undefined, any administrative layout crafted during that window must look beyond Bumula to ensure comprehensive regional alignment. My presence in this suit will guarantee that the wider border regions are captured cleanly in the corrective blueprints.* 13. *THAT our inclusion will provide this Honourable Court with a complete overview of the spatial and socio-legal economic reality on the ground, thereby matching the panoramic view directed by Hon. Justice R. Nyakundi on 2nd June 2026.* 14. *THAT under the statutory design of the sector, sugarcane must strictly be supplied in accordance with designated catchment areas, meaning a grower's legal eligibility to vote for board representation is entirely dependent on the locality where they actually deliver their sugarcane—which in our case is MUMIAS SUGAR (2021) LIMITED (and not "Mumias Sugar Company Limited" as misdescribed in the Petition).* 15. *THAT consequently, it is of paramount importance that these boundary anomalies be conclusively determined by this Honourable Court prior to any elections, especially since the majority of the Kenya Sugar Board members—specifically five (5) farmer representatives and two (2) miller representatives—have not yet been elected into office, and proceeding on a flawed zoning matrix will permanently disenfranchise the Applicants and poison the democratic legitimacy of the entire Board.* 16. *THAT this Application has been brought without any unreasonable delay, and my participation will not prejudice or stall the current progression of this matter toward its scheduled highlights on 19th June 2026 and 23rd June 2026.* 17. *THAT the substantive Petition before this Honourable Court touches purely, exclusively, and specifically on the legal validity, public participation, and administrative fairness regarding the delineation of sugar catchment areas as set out under the First Schedule of the Sugar Act, 2024; consequently, the Applicants' intended joinder is strictly confined to this specific statutory boundary issue, which directly impacts our regional farming operations and voter eligibility.* 18. *THAT it is in the absolute interest of public policy, justice, and fair administrative action that this Application be allowed.* 15. All these applications and rejoinders were duly supported by written submissions from the respective legal Counsels. **Petitioners Written Submissions** 1. The Petitioner who triggered this avalanche of applications and affidavits also filed his respective submissions dated 19th day of June 2026 in which he contended that there is merit to grant the conservatory orders notwithstanding strong opposition from the Respondents and Interested Parties alike. In this contestation, Learned Counsel invited the Court to be guided by the following cases in which the law has kind of settled on grant of conservatory orders: *Gikenyi B & 6 Others v Council of Governors & 68 Others; Office of the Auditor General & 2 Others (Interested Parties) (Petition E001 of 2026) [2026] KEHC 902 {KLR}, Kakamega High Court Constitutional Petition No. E013 of 2025 Masinde Versus Attorney General & Another, Kenya Sugar Board (Interested Party), The Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, Kenya Commercial Bank Ltd & Another v Muiri Coffee Estate Ltd & 3 Others [2016] KESC 6 {KLR}, John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 {KLR), Kenya Ports Authority v William Odhiambo Ramogi & 8 Others (Civil Appeal No. 166 of 2018) (2019) eKLR, Republic v Independent Electoral and Boundaries Commission (IEBC); AI Ghurair Printing and Publishing LLC & 5 Others [Interested Parties); The National Super Alliance (NASA) Kenya (Ex parte Applicant) (2017) KEHC 4663 (KLR), Supreme Court of India decision Kiran Singh [Kiran Singh vs Chaman Paswan, AIR 1954 SC 340], Chrispinus Munyane Papa & Ano. vs National Environment Management Authority & Ano. [2018] eKLR, Musa vs Mustafa & Ano. [2025] KECA 677 [KLR], Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR & Francis Karioki Muruatetu & another v Republic [2016] eKLR.* 2. It was the contention by the Learned Counsel for the Petitioner that the rest of the parties both the Respondent and Interested Parties are losing the focus on what constitutes the predominant issues which necessitated the filing of the petition and the interlocutory orders to preserve the res so as not to render the petition nugatory. This is more so according to learned Counsel that the imminent elections which fall within the regulatory framework of the schedule to the Sugar Act are due in a few days which if held without determination of the petition around nine thousand (9,000) eligible voters within the sugar belt of Bumula will be deprived of their political rights which is tailored to contribute to the governance of the sugar industry in Kenya. **1st Respondent’s Written Submissions** 1. There is on record submissions to the preliminary objection dated 15th June 2026 in which learned Counsel Prof. Ojienda urged the Court to rely on the following principles now well settled in our jurisprudence in the following authorities: *Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd E.A 696, Kenya National Commission on Human Rights vs Attorney General, Independent Electoral & Boundaries Commission & 16 Others [202], Speaker of the National Assembly & Another v Senate & 12 Others [2021] KECA 282 [KLR], Explanation 6 to Section 7 of the Civil Procedure Act, John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 [KLR], Wambui v Wambui [2024] KECA 474 [KLR], Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Ombayo v Bushuru & 3 Others [2022] KEHC 10930 [KLR].* In a nutshell, the Learned Counsel Prof. Ojienda held a strong view that the petition was unripe for reasons of the doctrine of exhaustion on adjudication of disputes of this nature and therefore both the notice of motion on conservatory orders and substantive petition remains a nonstarter of want of jurisdiction by this Court. **3rd Respondent’s Written Submissions** 1. The other main actor in these proceedings happens to the Attorney General of the Republic of Kenya who also filed submissions dated 8th day of June 2026 in which learned Counsel Mr. Kaumba placing reliance on the following case law urged this Court not to grant the orders of the character of conservatory as prayed for by the Petitioner. (See the principles in *Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018 [2021] KEX 34 (KLR) & Farmers Party v Cabinet Secretary, National Treasury and Planning & 5 Others (Petition E009 of 2025) [2025] KEHC 12169 [KLR]*. The other legal guidelines under which learned Counsel Kaumba invited the Court to have a perspective are as prescribed under Sections 4(2), 6(1) and 19 of the Sugar Act. It was learned Counsel further contention that appreciating the principles in the above authorities it is imperative that the impending elections schedule on 26th should be allowed to proceed for the sustainability of the governance of the Sugar Industry and the greater public interest. **Analysis and Determination** 1. I have reviewed all these interlocutory applications within the canons of ripe and unripe for the Court to exercise its jurisdiction on the merits. Before this Court proceeds to consider issues of substance raised in Human Rights litigation within the scope of the Constitution it must first consider a series of procedural issues for example whether it is clothed with appropriate jurisdiction and any such collateral preliminary issues as submitted by the Petitioner, Respondents and a series of thirteen Interested Parties among whom eight of them had already been admitted as part of the legal conversation with regard to this petition. 2. The reach of this Constitutional Petition can be demarcated within Articles 1, 10, 21, 22, 23, 24, 27, 40, 47, 118, 50, 73, 159, 232, 258 and 259 of the Constitution and it is in the matter of allege violation of the rights and fundamental freedoms of the sugarcane farmers with regard to delineation of sugar catchment areas in the first schedule of the Sugar Act 2024. Within this area the Bill of Rights overwrites ordinary law and conduct in consistence with it. In addition, it should be borne in mind that subject to considerations of justiciability and constitutional jurisdiction the Bill of Rights in our Chapter 4 of the Constitution generates its own set of remedies including but not exhaustive to the ones provided under Article 23 of the Constitution. Some of the issues being pleaded in the various affidavits have an implication of the principle of avoidance relating to standing litigants and the jurisdiction of the Court. 3. The central issue to be determined first is the constitutional jurisdiction of the Court and whether it is impaired by the doctrine of exhaustion. These are not simply technical issues but of paramount importance for the protection of fundamental rights in practice by both the citizens to citizens of Kenya, the constitutional organs, the Executive, the Legislative arm both National and Senate and even as the Judiciary is mandated to oversight the Bill of Rights, it must also defend the Constitution at the individual and institutional level. 4. The drafters of the Constitution invested in the High Court under Article 165(3) with the following jurisdictional mandate: *(3) Subject to clause (5), the High Court shall have—* *(a)unlimited original jurisdiction in criminal and civil matters;* *(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;* *(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144* *(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of —(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and* *(e)any other jurisdiction, original or appellate, conferred on it by legislation.* *(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. In this respect, Article 23(1) (2) of the Constitution provides as follows: 2. *The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.* 3. *Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.* It is now trite and many Superior Courts across the country have now over and over again adjudicated on disputes with regard to jurisdiction for without it a Court has no power to take one more step. This is what the Apex Court addressed in the case of *Re: The matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011* (unreported) at paragraphs 29 and 30 discussed the issue of jurisdiction in the following manner:- *“29. Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution; by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel “Lilian S’ vs. Caltex Oil (Kenya) Limited (1989) KLR 1, which bears the following passage (Nyarangi, JA at page 14.):-* *“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step.”* *30. The Lilian ‘S’ case establishes that jurisdiction flows from the law, and the recipient –Court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”* 1. In 2010 a new Republic was born after a series of negotiations at Bomas and finally the Naivasha Accord as between citizens as individuals, non-governmental organizations, justice actors, institutions of various legal entity, the National Assembly and even the Judiciary with one core vision, to overthrow the existing order on the divine new social economic, cultural and political order for themselves. It is stated elsewhere that wisdom prevailed that the new Republic would navigate overall objectives and purposes around the following clusters: 2. *Reconstitution or reconfiguration of a Kenyan state from its former vertical, imperial, authoritative, non-accountable content under the former Constitution to a state that is accountable, horizontal, decentralized, democratized, and responsive to the vision of the Constitution;* 3. *A vision of nationhood premised on national unity and political integration, while respecting diversity;* 4. *Provisions on the democratization and decentralization of the Executive;* 5. *Devolution;* 6. *Decreeing values in the public service;* 7. *Giving ultimate authority to the people of Kenya that they delegate to institutions that must serve them and not enslave them;* 8. *Prioritizing integrity in public leadership;* 9. *A modern Bill of Rights that provides for economic, social and cultural rights to reinforce the political and civil rights giving the whole gamut of human rights the power to radically mitigate the status quo and signal the creation of a human rights state and society in Kenya;* 10. *Mitigating the status quo in land that has been the country’s Achilles heel in its economic and democratic development;* 11. *The strengthening of institutions;* 12. *The creation of institutions that provide democratic checks and balances; and,* 13. *Reflect the will and deep commitment of Kenyans for fundamental and radical changes through the implementation of the Constitution*. 14. Generally speaking, context is crucial for this Court to appreciate both vertically and horizontally whether the petition as by the Petitioner and the remedies being sought as curated in the following language and declarations are capable of being adjudicated and determined on the merits in another constitutional forum which is not the High Court. The answer to me is in the negative and the following prayers acquit me on jurisdiction of this Court: * + - 1. DECLARATION that First Schedule of the Sugar Act, 2024, is unconstitutional, null, and void for delineating Bumula Sub-County from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area without public participation. 2. DECLARATION that the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugarcane Act, 2024, are unconstitutional, unlawful, and invalid. 3. A CONSERVATORY ORDER restraining the Respondents, whether by themselves, their agents, or servants, from conducting or proceeding with the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugar Act, 2024. 4. AN ORDER directing the Respondents to undertake meaningful public participation involving all affected farmers before delineating sugarcane catchment areas within a period set by the honourable court. 5. AN ORDER compelling the Respondents to review, amend, and/or realign the zoning framework in the First Schedule of the Sugar Act 2024 to reflect historical, contractual, and economic realities of the farmers within a period set by the honourable court. 6. COSTS of this Petition. 7. ANY OTHER RELIEF that this Honourable Court may deem just and appropriate. 15. The Court must of course be careful not to usurp the powers and functions of the various constitutional and statutory forums of adjudication so as to ensure fidelity to the Constitution is maintained. There is no Court in Kenya which has the capacity both manually and even application of artificial intelligence to corelate at any one given time the various disputes filed across the country by institutions, individuals and other public interest groups agitating for one remedy or another or in our case in defence of the Constitution. In my considered view the doctrine of exhaustion as submitted by Learned Counsel Prof. Ojienda is incapable of finding its justiciability space in this petition. 16. This is what the Court addressed in the case of *R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) [2017] eKLR thus;* * + 1. *However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:* *What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)* * + - 1. *As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.* * + - 1. *The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.* 2. *In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.* 1. I therefore effectively and justifiably find no evidential material or a provision of a Statute duly legislated in Kenya that the interpretation of the Sugar Act 2024 and its components are capable of being litigated and determined by an Inferior Tribunal besides the High Court. That doctrine of exhaustion being introduced within the prism of the Political Disputes Tribunal Act though in this case there are certain justiciable issues surrounding election of Directors or nominees to the Kenya Sugar Board in my view cannot be said to apply mutatis mutandis to the challenge being fronted against the Sugar Act 2024 and its collateral First Schedule. 2. The only forum of *conveniens* for both parties could have been Article 159(2)(c) of the Constitution. The Constitution never granted any other Court to interpret the Constitution at its original entry point save for the High Court and through a legislative scheme limited jurisdiction can be accorded the Magistrate’s Court. Similarly, the Court of equal status retains some level of jurisdiction on constitutional interpretation to give effect to the realization of the rights guaranteed under the Constitution together with the enabling Statutes governing those Courts. In reflecting briefly to nature of the petition this Court is on the right footing to interpret the impugned Sugar Act of 2024 and the First Schedule. As jurisdiction if described as the life wire or the life-blood of adjudication for the forums constituted by the Constitution under Article 50(1), if this Court had felt very strongly that it had no jurisdiction it could not have entertained the petition in the first instance for any such proceedings should have been considered null and void regardless of how well the logic and the yardstick of the jurisprudence was developed thereto on the dispute. 3. The second fundamental question navigated by the parties was in reference to the doctrine of res judicata as manifested under Section 7 of the Civil Procedure Act and the various illuminating decisions by the Superior Courts some of which I find it inspiring to bring out the methodical critical legal thinking of the Jurists of this Republic ordained to sit at the resolute desks in their chambers to dispense justice in accordance with the Constitution on the Statute law. In this respect, the Court of Appeal in the case of *John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR* (which decision was overturned by the Supreme Court) also, and so correctly, discussed the doctrine of *res judicata* at length. The Court stated in part as follows: - *The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.* *We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit.* *From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -* * + - 1. *The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.* 2. *There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.* 3. *The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.* 1. In Kenyan jurisprudence, res judicata is a legal doctrine that bars a party from relitigating a claim, petition, originating summons, suit, dispute or issue that has already been conclusively decided by a Court of competent jurisdiction. Its primary goals are to ensure finality in litigation, protected parties from double jeopardy and prevent abuse of the Court process. What do we learn from the Kenyan jurisprudence is the key characteristics of res judicata which include inter alia; (a) first and foremost, the impugned ruling or judgment intimated to be impacted by res judicata must be final and conclusive. This means essentially that the decision must be a final judgment on the merits. To a large extent in my view interlocutory orders or decisions based purely on procedural technicalities generally do not and cannot trigger the application of the doctrine of res judicata. (b) Secondly, the identity of the parties must not fall under the cluster of differentia minimum and maximum in so far as locus standi is concerned. Essentially the prior case being referred to and the subsequent case must involve the same parties or their privies or those who legally represent or derive their rights from the original parties. (c) Thirdly, my other understanding of the application of the doctrine of res judicata is the identical causes of action and subject matter. The new law suit must be based on the exact same legal grounds and subject matter as earlier litigation. (d) Fourthly, the scope of the bar is that the doctrine applies not only to points the Courts was actually required to decide but also every point that properly belonged to the litigation and could have been brought forward with reasonable diligence. (e) Fifthly, as embodied in Henderson v Henderson rule the doctrine is rooted in protecting the administration of justice from abuse, this extended branch of res judicata prevents parties from bringing up arguments they deliberately chose not to raise in earlier proceedings. (f) Finally, the doctrine does not apply where there is no traditional dispute between the parties such as some applications for judicial review or conservatory orders or injunctions. 2. When this matter came up for hearing, the Interested Parties as can be reminisced elsewhere in this ruling Legal Counsels for the Interested Parties took a preliminary objection which was contained in their respective memoranda on the basis that the matter was res judicata. In the first instance, the Petitioner was never a party in Constitutional Petition No. E013 of 2025 at Kakamega, Boniface Masinde vs Hon. Attorney General, Cabinet Secretary for Agriculture & Livestock Development & Others. As if that is not enough, no evidence was ever presented before this Court that he was once a Petitioner in that petition or an Interested Party but decided to run away from that jurisdiction so that he can forum shop of *conveniens* at Vihiga so that he can get favorable orders from this Court. The current petition was filed in Constitutional and Human Rights Division on 29th May 2026 and indexed as case docket E004 of 2026. Whereas the Kakamega Petition at the very earliest is indexed as Petition No. E013 of 2025. This description itself of the petitions is far apart in relation to identity of the parties. The differentia maximum in terms of identities of parties, Constitutional Petition E004 of 2026 besides the 1st, 2nd and 3rd Respondents there are already thirteen Interested Parties, eight of them already admitted to serve their respective *Res* and the threatened infringement or violation of rights which if not adjudicated alongside the petition they may suffer substantial loss. As the residual Interested Parties filed their motions of admission after the closure of the status conference on the interlocutory application by the Petitioner, they will have a chance to be enjoined in the petition in the course of analysis on the determination of the issues adjudicated at this juncture. The other fundamental differences are akin to the prayers being sought in Petition No. E013 of 2025 being that: * + - 1. *A declaration that the First Schedule to the Sugar Act No. 11 of 2024 is unconstitutional as it is contrary to Articles 10 on public participation 27 on discrimination and 47 on the right to a fair administrative action;* 2. *An Order of CERTIORARI to quash the elections held for Board Members of the Kenya Sugar Board under the zoning/electoral areas provided under the First Schedule to the Kenya Sugar Act no.11 of 2024* 3. *An order of MANDAMUS in the nature of a structural interdict for the 1st Respondent to advise the legislative arm of government on a fair representation int eh Kenya Sugar Board taking into account best international practices and to report to Court in 6 months and/or as the court may determine;* 4. *Any other further relief that this Honourable Court shall deem fit to grant.* 3. Whilst I concur with the Interested Parties and partly the Respondents that the two petitions predominantly are on unconstitutionality of the First Schedule of the Sugar Act of 2024, a Judge of coordinate jurisdiction is yet to determine the bedrock of the petition on the merits. The interlocutory issues in a matter of this nature can never be described as the subject matter or cause of action for the parties to invite the doctrine of res judicata. The orders of the coordinate Judge are very clear that the parties maintain status quo pending the hearing and determination of the Petition and issues surrounding the entire spectrum of the issues in Constitutional Petition No. E013 of 2025. As I have alluded to above in so far as the two petitions are concerned, they were filed at different seasons and none of the Petitioners is said to be a proxy of the other for the threshold of both identify or same parties known to be litigating the same issues at different Courts. The weight of judicial authority in Kenya establishes that the doctrine of res judicata does not readily lend itself to the procedural applications may it be injunctions or for our case conservatory orders because there is no *lis* between the parties. I am therefore of the considered view that it was wrong in both fact and law for the Learned Counsels to hold that the Petitioner’s application for conservatory orders was premature and runs foul the doctrine of res judicata. The essence of the petition of the Applicant may be structurally on the same vision and mission with the Petitioner in Kakamega Petition No. E013 of 2025 but the unquestionable fact is that the petition itself which was tailored to determine the constitutionality of the said First Schedule to the Sugar Act No. 11 of 2024 is still pending for a decision on the merits. So far as is relevant a fair interpretation of the First Schedule to the Sugar Act is what moved both Petitioners to seek redress under the Constitution. It cannot be over emphasized that these two forums duly constituted by Article 165 of the Constitution on jurisdiction is strikingly individualized unless there is fresh evidence to indicate that they were capable of affirming that the Petitioner in the next-door forum was capable of knowing the existence of the pendency of a motion on issues surrounding the justiciability of the Sugar Act of Kenya. In relation to the requirements on res judicata as set out elsewhere in this ruling, it will be unsettling to hold and make jurisdiction practically available to the Petition No. E004 of 2026. It could be said that in 2025 a party unknown to him was touched by the spirit of the Constitution to ask the forum at Kakamega High Court to take steps to rule on the enactment or promulgation of the First Schedule which is part of the secondary instrument in the statutory scheme to try and bring orderliness, integrity, governance and fidelity to the rule of law in the sugar sector. The merits of the petition are yet to be discussed in the Petition No. E013 of 2025. 4. On the basis of the above authorities, I will therefore conclude that the doctrine of res judicata in the modern law as comprehended in the above distinct components, this current petition cannot be said to be a re-litigation between the same parties or their privies so that it can act as a bar to oust the jurisdiction of this Court as alluded to by the parties who have already taken a shot of stopping the appropriate Courts and forums with regard to the impugned legislation and schedule. The cause of action estoppel is also not available to any of the Respondents or the Interested Parties whose legal typology was basically on these three doctrines being jurisdiction, res judicata and cause of action estoppel. 5. The Petitioner before this Court in a Notice of Motion filed 29th May 2026 moved the Court at the interim to grant conservatory orders particularly to the upcoming elections to the governance structure of the Kenya Sugar Board. The legal threshold for granting conservatory orders is firmly established in Kenya jurisprudence. The Courts faced with this kind of litigation are guided by three primary factors namely: * + - 1. **Prima Facie Case:** The applicant must demonstrate an arguable case with a likelihood of success, showing a clear right that is threatened by the actions sought to be restrained. 2. **Preventing Irreparable Prejudice:** The court considers whether, if the orders are denied, the petition or its substratum would be rendered *nugatory* (i.e., a subsequent victory would be meaningless). 3. **Public Interest:** Courts weigh whether granting or denying the orders will serve or prejudice the public interest. Courts are generally hesitant to halt lawful functions meant to serve the public good, such as ongoing vetting or public participation processes, unless constitutional violations are clear. 6. Since the new dawn of the Constitution the principles of granting conservatory orders are now well settled as can be demonstrated by the following cases: First, the Court in *Invesco Assurance Co. Ltd v MW (Minor suing thro' next friend and mother (HW) [2016] eKLR, Nairobi Civil Appeal 151 of 2011,* a conservatory order was defined as: *“5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”* *Similarly, in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR the Court stated as follows on the nature of conservatory orders: “Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”* In addition, the Court in the case of the Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, where the Court summarized the principles for grant of conservatory orders as: - *“(i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice. (ii) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. (iii) Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. (iv) Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.”* 1. Given the historical context in which our Constitution was adopted in 2010 following extensive violation of fundamental rights which had preceded its promulgation, I have no doubt that for the last fifteen years or so this Court and other Superior Courts have a particular duty to ensure that within the bounds of the Constitution effective relief ought to be granted for the infringement of any of the rights entrenched in the very transformative Constitution. In my context an appropriate remedy for the Petitioner must mean an effective remedy for without effective remedies for breach by any of the constitutional organs of State the values under Article 10 underlying the governance of our Republic and the rights entrenched in the Constitution cannot be said to be properly upheld or enhanced. This is one country where one can generally say that so few of the citizens have the means to enforce their rights through the Court system. That is the very reason I strongly believe that it is essential that in those rare occasions when the legal process does establish that an infringement or a violation of an entrenched rights and fundamental freedoms have occurred it is time for Courts to rise up and effectively vindicate those rights. The jurisdiction of Courts and constitutional empowerment places upon their shoulders a heavy responsibility in this regard of interpreting the Constitution bearing in mind Article 24 of the Constitution that any limitation of rights must be justified. That is why the Justices of this country and various courtrooms in devolved units and metropolis are obliged to forge new tools and shape innovative remedies if need be to achieve constitutionalism. 2. In the instant petition various affidavits have been filed challenging any remedies being accorded the Petitioner from the Respondents and some of the Interested Parties whose quest in this litigation are not in tandem with the Petitioner. The issues challenging the notice of motion and the petition have been fashioned in the respective affidavits and submissions and I find no necessity to reevaluate them at this stage. The question which is of significance is whether the Petitioner’s motion on conservatory orders have met the threshold within the parameters of the case law as referenced elsewhere in this ruling. In my view, the relief is based on the threat of the already legislated First Schedule of the Sugar Act 2024. That the Petitioner is apprehensive that if the schedule is implemented in its current form there is a likelihood of violation of its fundamental rights having filed this petition under the corpus of over 9,000 or so farmers in one of the recognized regions of sugar belt of Kenya. It is alleged by the Petitioner and justifiably denied by the Respondents and some of the Interested Parties that there are no structural elements within the schedule and therefore the Petitioner embarked on a frivolous litigation which causes further lengthy delays and aggravated prejudice to the other farmers also who have a great stake in the sugar belt economic zone within the Republic of Kenya. 3. The Constitution of Kenya under Article 27 holds that every person or citizen for that matter is equal before the law and has the right to equal protection and equal benefits of the law. The same Constitution further holds that equality involves the full and equal enjoyment of all the rights and fundamental freedoms. One of the building blocks for our democracy is enjoyment of the Economic, Social and Cultural rights under Article 43 of the Constitution. As the Constitution itself states and also on my own assessment the rights are not absolute and the caveat is well provided for in Article 24 of the Constitution. 4. It was incumbent upon the Respondents to demonstrate that since the filing of Petition No. E013 of 2025 that extreme measures, reasonable and justifiable have been taken with regard to the issues raised by the Petitioner though still in the realm of litigation. As a starting point therefore the restraint which arose in those prescribed situations where the Respondents are accused of limitations expressed in the regulation there was need to fast track the hearing and determination of that petition which is being relied upon to shut out the rights and fundamental freedoms and societal interest from accessing justice under Article 48 of the Constitution on the basis of the doctrines of res judicata and cause of action estoppel. The Constitution frowns on such limitation. It is worth keeping in mind that the conceptual framework of human rights, equity, equality, non-discrimination, inclusivity and public participation in our constitutional democracy is a quilt of individuals sown together by principles and laws. Each person adds colour and contributes to its overall pattern. When propagandists undo the threads that bind all the separate parts, the entire network of public safety and security loosens and therefore crucial part of any written Constitution is the guarantee of citizen rights. *(See the Principles of Constitutional Law by Charles Mwaura 2014 Law Africa).* 5. Whether or not there will be regulation within the sugar belt within the model of catchment area or Upper Eastern or Western zones is essentially a political question which falls within the domain of the legislature and not the Court is a threshold issue to be addressed in the main petition. Prominent on the service of this petition and stating it textually within the context of the facts in the petition and the motion and the rejoinder affidavits some of the Interested Parties who have taken a different queue from the Petitioner the determination of this kind requires the Court to undertake distillation of the predominant issues and determining them on the merits. This is not one petition which should be wished away without judicial scrutiny for consistency with the Bill of Rights and the provisions of Article 10 of the Constitution. 6. It bears emphasis therefore that this Court in the Notice of Motion dated 15th day of June 2026 was to review and discharge the interim orders as against the major political event geared towards creating a governance structure within the Kenyan Sugar Board. This jurisdiction on review is premised under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. This is the prism of the law; thus: *Section 80 of the Civil Procedure Act empowers the High Court to review its decree or orders as follows;80.Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.* *Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications as follows: -1.Application for review of decree or order:(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.* In the illuminating case by the Court of Appeal in *Nyamogo & Nyamogo v Kogo (2001) EA 170 the Court discussed what would constitute a long-drawn process. It observed as follows;…. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.* 1. I have heard Learned Counsel on this matter appearing on behalf of respective parties at length, the question which is posed before this Court for consideration is whether in the facts and circumstances of the case this Court is justified in allowing the review of the interim orders under Order 45 Rule 1 of the CPR issued to give room for the Court to hear and determine the main notice of motion on the merits. This Court has observed that there was already an earlier petition filed in 2025 in which conservatory orders were issued by the coordinate Court at Kakamega but apparently in April 2026 they were set aside but with a rider that parties maintain status quo so that the petition can be heard and determined on the merits. It is therefore observed that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers under our legal system can be exercised by the session Judge who authored the impugned ruling and judgment. It is also within the limits of the Statute empowering the Courts is to exercise discretion when some error or mistake apparent on the face of the record is found. But error on the face of the record must be such an error which must strike one on mere looking at the record and would not require any process of reasoning on points of law. 2. Applying the law laid down by the Court of Appeal in the aforesaid decision to the facts of the case at hand, I am of the opinion that completely setting aside the interim conservatory orders runs the danger of ruining the merits of the outstanding petitions both in Vihiga and Kakamega High Courts. However as that as it maybe I do not loose sight that concurrent Court gave a greenlight apparently on that political process to go on but conditioned it on status quo to be maintained by the parties pending the hearing and determination of the pending petitions before that Court. 3. From the reason given by the coordinate High Court I ride on that protocol that there are substantive petitions challenging the legislative scheme of the First Schedule as an addendum to the Sugar Act No. 11 of 2024. It appears according to the High Court at Kakamega that the main writs in the petitions ought to be determined on the merits hence the order of status quo. The above principles being borne in mind by this Court while considering the review application I am constrained that justice will be found within our borders without giving the Courts a chance to interrogate the predominant question raised in the petitions filed which is manifested by the prayers being sought by the Petitioners together with other Interested Parties. The prejudice as I sit from my legal standing will be the delay in constituting the governance institution at the Kenya Sugar Board. Apparently, the Act came into existence in 2024, the Kenya Sugar Board has been without the governance structure since the enactment of the law. In view of the above, I am in reluctant concurrence with the our able Cabinet Secretary for Ministry of Agriculture and Livestock Development in his averments that the Courts allow elections to proceed to the non-contested constituencies as referenced in the operative Act as scheduled, whereas the contested zones can have their issues placed for further discussion within the inter-sectoral committee to align their concerns and grievances and as of necessity have their elections held within six weeks. In this partial concurrence I pose the question, “what happens to the petitions now am told numbering three or four before Kakamega and this Court challenging the constitutionality of the First Schedule?” This to me is not about which zone is ready for the elections, but it is a more bigger question whether the legislative framework by the National Assembly is under contestation before the High Court for a decision on the merits. There is no evidence at all that the parties to this litigation have taken a positive step to invoke Section 159 2(c) of the Constitution on the ADR systems to fast track the resolution in the aforementioned petitions. 4. In this discourse I am inspired by the remarks made by the Court in *Shabalala v Attorney General of the Transvaal 1996 (1) SA 725 CC* thus: *The Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of Apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of alleges, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is 'justifiable in an open and democratic society based on freedom and equality'. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.* 1. This decision is about the heritage of South Africa but it resonates well with our past history preceding the 2010 Constitution. The Bill of Rights is not the conduct of a few individual public servants and other public State Officers but a multiplicity of individuals who played a major role in negotiations and adoption of the transformative Constitution. The charter is inter-generational in guaranteeing and protecting the rights and fundamental freedoms of the citizens of Kenya. How can we therefore each defend the Constitution in so far as Article 2 is concerned which states as follows: *This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government.* Article 3(1) further states as follows: *Every person has an obligation to respect, uphold and defend this Constitution.* 1. Basically, this means that there is preliminary enquiry as to whether the impugned provisions of the First Schedule in the Sugar Act differentiates between people or categories of farmers in the sugar belt zones as currently established in the various devolved units. This is a threshold test to be answered by the pending petitions. 2. Finally, there were variety of applications by the Interested Parties some who were already admitted to join the proceedings pursuant to Order 1 Rule 10(2) of the CPR. The core legal principles are now well developed in the following authorities: Francis Kariuki Muruatetu & Another v Republic & 5 others, JMK v MWM & Another [2015] eKLR, Kilonzo v Musyoki [2026], Kimwele v Kubora & Another; Mwasya & 5 others [2025] KEELC 5636 and Ijaka [2023] KEHC 17775. I therefore on review of the various applications and corresponding affidavits allow joinder of parties to purpose to litigate their interest in the main petition at an opportune time within the case management protocols of the Court. 3. In exploring this application and the many issues which has been raised by the respective parties, I am inspired to share with the parties and the legal team the poem on the balance and weight of true fairness as seekers of justice: The scales are held in steady hands, Weighing truths from distant lands. It does not ask who bears the crown, Or who is left to wander down. For fairness is a quiet art, A steady hand, an open heart. It measures burdens, shares the weight, And offers hope instead of hate. When justice speaks, it must be clear, To banish every lingering fear. For equity is not a prize, But truth reflected in our eyes. 1. For those reasons, I am persuaded to exercise discretion by making the following orders: * + - 1. *That a declaration be and is hereby issued that status quo be maintained in so far as the implementation of the First Schedule in the Sugar Act of 2024 is concerned pending the hearing and determination of the filed petitions both at Kakamega and Vihiga High Courts respectively.* 2. *That a declaration be and is hereby made that pursuant to Section 1(A), 1(B), 3 & 3(A) of the Civil Procedure Act as read with Article 50 of the Constitution on fair trial rights that a necessity has arisen to have Petition E004 of 2026 be transferred to Kakamega High Court for purposes of consolidation with the other pending petitions for hearing and determination on the merits.* 3. *That a declaration be and is hereby made that the review application be and is hereby dismissed for want of merit.* 4. *That a declaration be and is hereby made that all the thirteen Interested Parties have already established locus standi to litigate their interests and justiciable rights in the consolidated petitions and therefore admitted under Order 2 Rule 10(2) of the Civil Procedure Rules.* 5. *That a declaration be and is hereby made that in determining the disputed issues of fact and law in the pending petitions in the event partial implementation of the schedule is undertaken by the Respondents there is likelihood of the Petitioners suffering prejudice and substantial loss which may not be quantifiable by dint of damages.* 6. *That on a without prejudice basis there may be a need for the coordinate Judge to consider whether under the doctrine of necessity and expediency a proposal could be made to the Chief Justice to empanel uneven bench of Judges due to the public interest of the petitions to determine the issues.* 7. *That a declaration be and is hereby made that the doctrine of res judicata and the cause of action estoppel did not find its space in so far as the currency of the pending petition is concerned.* 8. *That the costs of these many interlocutory applications be in the cause and to abide the outcome of the petitions.* 9. *That the Deputy Registrar High Court at Vihiga do dispatch this case docket to Kakamega High Court within 24 hours from today’s ruling. Orders accordingly.* **DATED AND DELIVERED VIA CTS, EMAIL AND WHATSAPP PLATFORMS ON 24TH JUNE 2026.** **……………………….…………..** **R. NYAKUNDI** **JUDGE**