https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13051

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CONSTITUTIONAL PETITION NO. E008 OF 2026 (FORMERLY KAKAMEGA** **CONSTITUTIONAL PETITION NO. E004 OF 2026 AND VIHIGA** **CONTITUTIONAL PETITION NO. E004 OF 2026** **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** **=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 WAMALWA MUSOMBI .................... 9TH INTERESTED PARTY** **TIMOTHY MALABA ODONGO ....................... 10TH INTERESTED PARTY** **JAMES KUHUMI MALABA ............................ 11TH INTERESTED PARTY** **WYCLIFF WANAMI NDOLI ............................ 12TH INTERESTED PARTY** **WASIKE SITUMA WANYAMA ........................ 13TH INTERESTED PARTY** **CORAM: HON. JUSTICE R. NYAKUNDI** **M/S HAMMERTON MALOBA & CO. ADVOCATES** **THE HON. ATTORNEY GENERAL** **PROF. TOM OJIENDA & CO. ADVOCATES** **M/S WEKESA & SIMIYU ADVOCATES** **M/S OLENDO, ORARE & SAMBA ADVOCATES LLP** **M/S MARISIO LUCHIVYA & CO. ADVOCATES** **RULING** 1. Before Court are two applications under Certificate of Urgency both dated 8th August 2026. First is Chamber Summons which is brought under Judicature Act Cap 8, The High Court (Practice and Procedure Rules (Part 1 rule 3) and all other enabling rules) where the Applicant M/S Hammerton Maloba Counsel for the Petitioner/Applicant is seeking for the following orders: 1. *That this application be certified urgent and heard exparte.* 2. *That the Notice of Motion filed herein dated 8.08.2026, being an urgent application, be heard at the earliest possible moment during the August Vacation of this Honourable Court.* 3. *That costs of this application be borne by the Respondents*. 4. Which motionis supported by the Grounds set out hereunder and the text of the annexed Supporting Affidavit of Silveriuos Simon Simiyu (the Petitioner) and further grounds to be adduced at the hearing hereof; 5. *THAT through a ruling delivered by the Court on 24.6.2026, the Court made a declaration 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.* 6. *THAT none of the Petitions filed in Kakamega and Vihiga High Court has been heard and determined.* 7. *THAT the 3rd Respondent has advised the 2nd Respondent that the orders did not amount to conservatory orders restraining the Respondents from conducting elections of growers' representatives to the Kenya Sugar Board and, acting on this advice, the 2nd Respondent has fixed the elections for 5th September 2026.* 8. *THAT the direction taken by the 2nd and 3rd Respondents in calling for elections of growers' representatives to the Kenya Sugar Board despite the orders of 24.6.2026 is wholly misconceived.* 9. *THAT it is now prudent that this Honourable Court issues an interpretation, clarification, and directional guidance on the operational effect, intersection, and enforcement of the Ruling delivered by the Honourable Court on 24th June 2026, specifically regarding the precise operational parameters and scope of the status quo order issued on 24th June 2026 restraining the implementation of the First Schedule to the Sugar Act, 2024, and its effect on the impending elections of the growers' representatives of the Kenya Sugar Board.* 10. *THAT it is further prudent this this Honourable Court issues such further or alternate directions as it deems fit to preserve the substratum of the Petition and protect the franchise rights of the Petitioner and sugarcane farmers in Bumula Sub-County pending final determination of the Petition.* 11. *THAT on 31.7.2026, the High Court at Kakamega ordered this Petition to be returned back to Vihiga High Court for hearing and determination.* 12. *THAT unless this application is heard during the August Vacation, the application dated 8.08.2026 will be rendered nugatory.* 13. *THAT this is a fit and proper case to grant Orders sought.* 14. Supporting affidavit sworn by Silveriuos Simon Simiyu on oath solemnly stated as follows: 15. *THAT I am a male adult of sound mind hence competent to swear this affidavit.* 16. *THAT through a ruling delivered by the Court on 24.6.2026, the Court made a declaration 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.* 17. *THAT none of the Petitions filed in Kakamega and Vihiga High Court has been heard and determined.* 18. *THAT the 3rd Respondent has advised the 2nd Respondent that the orders did not amount to conservatory orders restraining the Respondents from conducting elections of growers' representatives to the Kenya Sugar Board and, acting on this advice, the 2nd Respondent has fixed the elections for 5th September 2026.* 19. *THAT the direction taken by the 2nd and 3rd Respondents in calling for elections of growers' representatives to the Kenya Sugar Board despite the orders of 24.6.2026 is wholly misconceived.* 20. *THAT it is now prudent that this Honourable Court issues an interpretation, clarification, and directional guidance on the operational effect, intersection, and enforcement of the Ruling delivered by the Honourable Court on 24th June 2026, specifically regarding the precise operational parameters and scope of the status quo order issued on 24th June 2026 restraining the implementation of the First Schedule to the Sugar Act, 2024, and its effect on the impending elections of the growers' representatives of the Kenya Sugar Board.* 21. *THAT it is further prudent this this Honourable Court issues such further or alternate directions as it deems fit to preserve the substratum of the Petition and protect the franchise rights of the Petitioner and sugarcane farmers in Bumula Sub-County pending final determination of the Petition.* 22. *THAT on 31.7.2026, the High Court at Kakamega ordered this Petition to be returned back to Vihiga High Court for hearing and determination.* 23. *THAT unless this application is heard during the August Vacation, the application dated 8.08.2026 will be rendered nugatory.* 24. *THAT this is a fit and proper case to grant Orders sought.* 25. *THAT I now swear this affidavit in support of the Application herein.* 26. *THAT what I have deposed to hereinabove is true to the best of my knowledge, information and belief.* 27. The second application is the Notice of Motion brought under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Order 45 of the Civil Procedure Rules and all enabling provisions of the law) where the Petitioner/Applicant is seeking for the following orders: 28. *THAT this Application be certified as urgent and the same be heard ex-parte in the first instance.* 29. *THAT this Honourable Court be pleased to issue an interpretation, clarification, and directional guidance on the operational effect, intersection, and enforcement of the Ruling delivered by the Honourable Court on 24th June 2026, specifically regarding the precise operational parameters and scope of the status quo order issued on 24th June 2026 restraining the implementation of the First Schedule to the Sugar Act, 2024, and its effect on the impending elections of the growers' representatives of the Kenya Sugar Board.* 30. *THAT this Honourable Court be pleased to issue such further or alternate directions as it deems fit to preserve the substratum of the Petition and protect the franchise rights of the Petitioner and sugarcane farmers in Bumula Sub-County pending final determination of the Petition.* 31. *THAT the costs of this application be provided for in the cause.* 32. The application is supported by the Grounds set out hereunder and the text of the annexed Supporting Affidavit of Silveriuos Simon Simiyu (the Petitioner) and further grounds to be adduced as follows: 33. *THAT through a ruling delivered by the Court on 24.6.2026, the Court made a declaration 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.* 34. *THAT none of the Petitions filed in Kakamega and Vihiga High Court has been heard and determined.* 35. *THAT the 3rd Respondent has advised the 2nd Respondent that the orders did not amount to conservatory orders restraining the Respondents from conducting elections of growers' representatives to the Kenya Sugar Board and, acting on this advice, the 2nd Respondent has fixed the elections for 5th September 2026.* 36. *THAT the direction taken by the 2nd and 3rd Respondents in calling for elections of growers' representatives to the Kenya Sugar Board despite the orders of 24.6.2026 is wholly misconceived.* 37. *THAT it is now prudent that this Honourable Court issues an interpretation, clarification, and directional guidance on the operational effect, intersection, and enforcement of the Ruling delivered by the Honourable Court on 24th June 2026, specifically regarding the precise operational parameters and scope of the status quo order issued on 24th June 2026 restraining the implementation of the First Schedule to the Sugar Act, 2024, and its effect on the impending elections of the growers' representatives of the Kenya Sugar Board.* 38. *THAT it is further prudent this this Honourable Court issues such further or alternate directions as it deems fit to preserve the substratum of the Petition and protect the franchise rights of the Petitioner and sugarcane farmers in Bumula Sub-County pending final determination of the Petition.* 39. *THAT on 31.7.2026, the High Court at Kakamega ordered this Petition to be returned back to Vihiga High Court for hearing and determination.* 40. *THAT it is in the interest of justice that the orders sought herein are granted.* 41. *THAT the Respondents will not suffer any prejudice if the orders sought* 42. The application is supported by an affidavit sworn by Petitioner/ Applicant who states as follows; 43. *THAT I am a male adult of sound mind hence competent to swear this affidavit.* 44. *THAT through a ruling delivered by the Court on 24.6.2026, the Court made a declaration 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.* 45. *THAT none of the Petitions filed in Kakamega and Vihiga High Court has been heard and determined.* 46. *THAT the 3rd Respondent has advised the 2nd Respondent that the orders did not amount to conservatory orders restraining the Respondents from conducting elections of growers' representatives to the Kenya Sugar Board and, acting on this advice, the 2nd Respondent has fixed the elections for 5th September 2026.* 47. *THAT the direction taken by the 2nd and 3rd Respondents in calling for elections of growers' representatives to the Kenya Sugar Board despite the orders of 24.6.2026 is wholly misconceived.* 48. *THAT it is now prudent that this Honourable Court issues an interpretation, clarification, and directional guidance on the operational effect, intersection, and enforcement of the Ruling delivered by the Honourable Court on 24th June 2026, specifically regarding the precise operational parameters and scope of the status quo order issued on 24th June 2026 restraining the implementation of the First Schedule to the Sugar Act, 2024, and its effect on the impending elections of the growers' representatives of the Kenya Sugar Board.* 49. *THAT it is further prudent this this Honourable Court issues such further or alternate directions as it deems fit to preserve the substratum of the Petition and protect the franchise rights of the Petitioner and sugarcane farmers in Bumula Sub-County pending final determination of the Petition.* 50. *THAT on 31.7.2026, the High Court at Kakamega ordered this Petition to be returned back to Vihiga High Court for hearing and determination.* 51. *THAT it is in the interest of justice that the orders sought herein are granted.* 52. *THAT the Respondents will not suffer any prejudice if the orders sought herein are granted.* **DECISION** 1. This is a unique litigation landscape in view of the following orders which were issued by this Court in a ruling delivered on 24th June 2026 and in retrospection the binder orders stated *inter alia*; Thus: * + - 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.* *That the Deputy Registrar High Court at Vihiga do dispatch this case docket to Kakamega High Court within 24 hours from today’s ruling.* 1. In the manner in which the notice of motion is designed and crafted and my understanding of it its interpretation, appreciation and conceptualization is causing ripples upon the parties whom it was supposed to be binding and unfortunately since the pronouncement is more than eight weeks and none of the parties who were supposed to be impacted by the orders has come forward to seek the debunking of the language. 2. As a matter of transparency and accountability under the provisions of Article 10 of the Constitution this Court was not even aware that some of the orders in context and text like consolidation of the Petition and empaneling of an even bench had not been infused and fashioned with the pending Petition at Kakamega High Court. That as it may be, since the Applicant/Petitioner has sought leave of this Court to clarify and set the record straight as the reading in and reading out including the literal and purposive interpretation of the ruling remains some kind of mystified, I have the discretion to just what has been asked and share it with the parties. 3. First and foremost, the Petition as premised required of this Court to horizon its legal lens with regard to the provisions of the Constitution which will form the touchstone of the remedies applied for under Article 23 of the Constitution. This included Articles 1, 10, 21, 22, 23, 24, 27, 40, 47, 50, 73, 118, 159, 232, 258 and 259. 4. The Petitioner having this in mind sought the following prayers: 5. *A 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.* 6. *A 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.* 7. *A Conservatory Order restraining the Respondents, whether by themselves, their agents, or servants, from conducting or proceeding with the elections of sugarcane famers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugar Act,2024.* 8. *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.* 9. *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.* 10. *Costs of this Petition.* 11. *Any other relief that this Honorable Court may deem just and appropriate.* 12. The bone of contention the way I see it from the application is whether the canon of status quo chosen by the Court within the scope of clause (a) of the Ruling had any effect with regard with the pendency of the scheduled elections as set to be held and governed under the Sugar Act and its addendum First Schedule of the substantive Statute of 2024. 13. Generally, and simply and in legal science which has been developed over time from the common law heritage and domesticated in our very own jurisprudence, *a status quo order preserves the existing state of affairs, physical possession, or legal relations as they existed on the day of the order or immediately before the dispute arose. It prevents either party from taking unilateral action or altering the substratum of the suit before a full trial (see the case of Mukuha v Gashwe & 14 Others (Civil Application E064 of 2023).* 14. This doctrine has had its space within our legal system as illuminated in the following cases: * **Definition of Time and State:** In *TSS Spinning & Weaving Company Limited v. NIC Bank Limited & another [2020] e KLR*, the court noted that status quo means maintaining the exact physical or legal situation of the subject matter as it existed before the "mischief" or dispute crept in, or as of the date the order was granted. * **Last Peaceable Position:** Jurisprudence referenced in cases like *Chelogoi v. Shah & 4 others [2024] KEELC* and Supreme Court applications emphasizes that status quo typically anchors back to the *status quo ante*—the last actual, peaceable, and uncontested state of things immediately preceding the controversy. * **Distinction from Injunctions:** As highlighted in *Jawa & 2 others v. Petition E005 [2025] KEELC*, a status quo order is an ancillary preservation tool that does not strictly require the formal proof of a prima facie case under *Giella v. Cassman Brown & Co. Ltd [1973] EA 358*, but rather acts as a holding order. * **Requirement for Precision:** The Supreme Court in *Bia Tosha Distributors v. Kenya Breweries Limited (Petition 15 of 2020)* stressed that courts must explicitly detail the descriptive particulars of what constitutes the status quo (e.g., who stays in possession and what activities are frozen) rather than issuing a vague blanket term 1. At a glance upon perusing the applications placed before the me for consideration I thought upon myself in the same position the Court of Appel found itself in the case of [*Shimmers Plaza Limited v National Bank of Kenya Limited*](https://kenyalaw.org/akn/ke/judgment/keca/2015/945)*, (2015) eKLR held that:* *“It is in the circumstances important to define what status quo means and what it meant for purposes of this appeal. We are apt to mention however, that when that order was made, none of the parties in Court sought any clarification from us as to what the status quo entailed. The presumption therefore must be that everybody knew the meaning and import of that order. “Status quo’’ in normal English parlance means the present situation, the way things stand as at the time the order is made, the existing state of things. It cannot therefore relate to the past or future occurrences or events. We fail to see what can be ambiguous about that order. All it meant was that everything was to remain as it was as at the time that order was given. If there was any transaction of whatever nature that was going on in respect of the land in question, it had to freeze and await the discharging of the Court order.”* 1. The key assumption of what brought about this model of status quo is that every legal case there exists a current legal status quo which is key point of reference for the Court as it makes decisions in each of the stages of the Court’s decision-making process. Before any lawsuit or Petition is filed on some legal issue in the High Court, there will always be what one will call the prior legal state of affairs in the country if the legal issue falls within the prism of the Constitutional interpretation on threats, infringement or violation of the rights and fundamental freedoms. This prior legal state of affairs is or could have been established in a wide variety of ways but basically drawing from the lens of the Petition premised for interpretation by a Court of law. For example, the prior legal state of affairs in the Petition at bar was based largely on the imminent and pending elections within the provisions of the Sugar Act 2024 and the operative regulatory framework referred to as the First Schedule. The other possible legal state of affairs is that for some public or private activity there is no Statute or constitutional provision that governs the activity and when this holds the general presumption in Kenya is that such activity is permissible. A new legal case involving this activity might then be filed to focus on whether there is any legal rationale for restricting the activity in some way. 2. In so far as the decision which was rendered by this Court is concerned, the letter and spirit or ghost of the orders issued fall within the class of every legal case of interest particularly on the Constitution interpretation to the High Court would thus involve some current legal status quo that is being challenged and the Court is clothed with powers to uphold the current legal status quo until the pending Petition is adjudicated within Article 50(1) of the Constitution or replace it with some alternative policy guidelines. 3. Why would a Court consider the current status quo when making decisions? I believe that when Judges are confronted with the legal issues in a case, there are aware of or become aware of by dint of the case dockets filed before them, the prior legal status of affairs and the current legal status quo regarding this legal issue must be given prominence so that the substantive litigation on the merits does not become an academic treatise or moot. 4. For purposes of clarity this was a constitutional litigation in which the Court utilizes interim interdicts to preserve the status quo halting unlawful conduct or one done in excess of jurisdiction or one that applies as provisions of a Statute which is in contestation under the purview of public litigation and preventing irreparable harm before a final judgment or ruling by the Court. 5. Why status quo in so far as the First Schedule is concerned? The public in the constitutional dispensation has been cited as a fluid faction that is largely determined by the issue at hand and they run to the Courts seeking an interpretive approach of the matter and as part of the citizenry they have a vested interest in the issue of the pending elections tailored on the transformative governance of the sugar industry. It is noteworthy at the time the ruling was made by this Court and now until the Petition is heard and determined any activity in the form of an election invoking the provisions of the Sugar Act 2024 with the addendum referenced as the First Schedule shall remain temporarily injuncted pending the hearing and determination of the Petition and this was the original letter of declaration in Clause (a) and the spirit now lays bare for compliance. 6. I think I have said enough on the issue of the application placed before my doorstep and given the public interest which involves the entire Sugar Belt from Kwale to Migori, Busia, Kisumu, Bungoma, Kakamega etc. the doctrine of necessity calls upon this Court to exercise discretion by giving the following structured directions so that the delay of the Petition being heard does not infringe and limit the rights and fundamental freedoms of the other citizens and Interested Parties; Thus: 7. That the Respondents and Interested Parties who had not filed and exchanged any evidential disclosures in the form of affidavits and other documentary evidence shall do so within seven (7) days from today’s date. 8. That the Petitioner shall in turn file rejoinder to any matters arising from the replying affidavits filed by the Respondents and Interested Parties including documentary evidence by other counter affidavits within a period of three (3) days. 9. That the Petition by its very nature shall proceed via affidavit and written submissions unless under the doctrine of necessity there might a requirement for *viva voce* evidence. 10. That the parties be and are hereby directed to agree on and frame the constitutional questions to be adverted to in the legal arguments and the bundles of case law to guide the Court in this fast-track litigation. 11. That thereafter and upon compliance with Clause (a), (b) of these directions the Petitioner’s legal team shall have a further three (3) days to file and serve comprehensive written submissions and have them exchanged with the Respondents and Interested Parties. 12. That upon the Respondents and Interested Parties receipt of the written submissions they shall at liberty jointly or severally to file written submissions within five (5) days of being served by the Petitioner. 13. That a priority date be and is hereby assigned for oral highlights and substantive plenary arguments in both open and virtual Courts on 11th September 2026 without default. Orders accordingly. **DATED AND DELIVERED THROUGH CTS, EMAIL AND WHATSAPP THIS 21ST DAY OF AUGUST 2026.** **………………………………..** **R. NYAKUNDI** **JUDGE**