https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12364

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KAKAMEGA** **CONSTITUTIONAL PETITION NO. E013 OF 2026 (FORMERLY 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** **LIVESTOCKDEVELOPMENT.........................................................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** **(On the applications dated 10th July,2026 and 14th July,2026)** **RULING.** 1. For determination before this court are two applications which are quite similar in nature. The first application was filed by the 9th to 13th interested Parties and is dated 10th July,2026. The second application was filed by the Petitioner and is dated 14th July,2026. 2. The said applications are similar because the applicants in both applications have invited this court to reconsider the directions issued by the court on 26th June,2026 and to refer this Petition back to the Vihiga High Court where it was originally filed as Constitutional Petition No. E004 of 2026 for determination by the court that was dealing with the matter from the onset. 3. I have carefully considered the two applications, responses and submissions which have been filed. **Analysis and determination** 1. The Court has also looked at the court proceedings and directions emanating from the Vihiga High Court. Notably, the main reason why the petition in Vihiga Constitutional Petition No. E004 of 2026 was transferred to this court was for purposes of consolidation with the related Petitions before this Court being Kakamega Constitutional Petition No. E013 of 2025 and Kakamega Constitutional Petition No. E019 of 2025. 2. Am guided by the sound authorities on consolidation of matters. The Supreme Court of Kenya in **Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR)** provides general guidance in this subject; - ***“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion*** *any disadvantage towards the party that opposes it.”* 1. The objectives for consolidating matters were considered by the Court of Appeal in **Okebe & 9 others v South Nyanza Sugar Company Limited & 2 others [2009] KECA 441 (KLR)** thus;- ***“The main object of consolidation is to save costs and time by avoiding a multiplicity of proceedings covering largely the same ground. Thus, where it appears to the court that there are common questions of law or fact; that the right to relief is in respect of the same transaction or series of transactions; or that for some other reason, it was desirable to make an order for consolidation of one or more cases, then the court will do so.”*** 1. Similarly, in **Anne Wambui Githuri v Makfam Investments Limited & 2 others [2015] KECA 478 (KLR),** the Court of Appeal held; - ***“The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Delaying or postponing the hearing of one suit to commence after the other when the subject matter in dispute is the same and competing interests are involved in the different suits does not save time. The test is not whether the parties are different; the test is whether the same or similar questions of law or fact are involved in the suits”*** 1. In the present matter, the parties could not agree on the issue of consolidation of this petitions, which petitions were ordered to proceed separately before this court. 2. Much as this court is also vested with jurisdiction to handle this Petition as *inter alia* noted in directions issued by this court on 26th June,2026, this court cannot insist on proceeding with the instant petition in view of the application by the Petitioner who wishes have the matter referred back to the court where it originally filed which is also vested with jurisdiction to deal with this matter. 3. The main reason for the referral of this matter to this court from the Vihiga High Court to this court was to have the same consolidated with the related matters pending before this court. 4. I am therefore inclined to grant the Petitioner’s wishes to have this matter revert back the Vihiga High Court where it was originally filed for further directions and/or determination. 5. If there is no any real prejudice that shall be occasioned on their part if this matter is be referred back to the originating court for the petition is still fresh. 6. Before I pen off I take issue with the language used by the drafter of the Application , he used the words ‘’ to hold on the file’’ to me this is unprofessional language for it connotes that I had interest on the file, for whatever reasons I don’t know. In any case there was no any previous application to have the matter transferred back to Vihiga and the court declined, such that one can have basis to make such allegations. Let us use professional and courteous language when drafting pleadings. 7. Turning to the application by the 9th to 13th Interested Parties, the application seeks a clarification on orders issued by the High Court at Vihiga in the ruling delivered by the Hon. Nyakundi, J., on 24th June,2026 or that alternatively this petition be referred and/or transferred back to the High Court at Vihiga for hearing and determination. 8. Having pronounced myself on the Petitioner’s application dated 14th July,2026 by allowing the application seeking to have this petition referred back to the High Court at Vihiga, the directions of this court issued on 26th June,2026 are consequently overtaken by events or spent. 9. The Applicants/Interested Parties are at liberty to seek clarification on the orders issued by High Court at Vihiga on 24th June, 2026 from the originating court. 10. In the upshot, this Court has considered the two applicationsdated 10th July,2026 and 14th July,2026 and allow the same with the following terms;- 11. The Petition herein referenced as Kakamega High Court Petition No. E013 of 2026 is hereby marked as closed and the matter be transferred back to the High at Vihiga both physically and on the court CTS under its original reference Vihiga High Court Petition No. E004 of 2026. 12. The Deputy Registrar Kakamega High Court is hereby directed to facilitate the transfer of the physical file to Vihiga High Court for directions on how the petition shall proceed before the said court, forthwith. 13. Considering that this is a constitutional petition on a matter of public interest, the parties shall bear their own of the applications before this court. 14. Mention 1.10.2026 before Vihiga High Court for directions. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 31ST DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda