Introduction
1. This is a ruling on two interlocutory applications in the Constitutional Petition herein The first one is the Petitioners' Notice of Motion dated 15th December 2025. In that motion, the Petitioners seek conservatory relief restraining the Respondents from withdrawing, utilising, transferring, dissipating or otherwise spending monies collected as the Sugar Development Levy pending the hearing and determination of the Petition. They also seek orders compelling the Respondents to render accounts and to produce minutes, resolutions, annual estimates, policy instruments, operational manuals and other documents relied upon to authorise any withdrawal, allocation or expenditure of the Levy.
2. The second application is the Notice of Motion dated 19th December 2025 filed by the 1st to 3rd Respondents. It seeks the discharge, variation or setting aside of the conservatory orders issued by this Court on 15 December 2025. The 2nd Interested Party supports that application on the basis that the impugned orders have disrupted its statutory operations, which it says substantially depend upon allocations from the Sugar Development Levy.
3. The Petitioners are sugarcane farmers. Their case is not principally based on the imposition or collection of the Levy. Their gravamen is that monies already collected as the Sugar Development Levy are being withdrawn or spent without the statutory and constitutional safeguards that attend the management of public funds. They contend that the Kenya Sugar Board has not been properly or fully constituted; that no Board-approved policy guidelines, annual estimates or resolutions have been shown; and that expenditure of the Levy is therefore inconsistent with Articles 10, 35, 201, 225 and 232 of the Constitution, the Sugar Act, 2024 and the Public Finance Management Act.
4. The Respondents' position is that the Levy is imposed by statute, that section 40(6) of the Sugar Act expressly appropriates the Levy to identified purposes, and that the continued use and disbursement of the Levy is necessary for the performance of statutory obligations, including sector regulation, staff remuneration, research, training and other programmes in the sugar sector. They urge that public interest requires the discharge or substantial variation of the conservatory orders.
Background
5. On 15th December 2025, this Court issued interim conservatory orders restraining the withdrawal or expenditure of monies collected as the Sugar Development Levy pending further directions. The Court also directed production of financial records and supporting documentation relating to the Levy. The 1st to 3rd Respondents moved the Court on 19th December 2025 seeking to set aside or vary those orders. The court varied the said orders on 21st December 2025 and allowed the 1st to 3rd respondents to withdraw 10 % of their appropriation of sugar levy for purposes of meeting administrative costs .
6. By a further affidavit sworn on 20th January 2026, Kennedy Obara Onderi, the 1st Petitioner, deponed on his own behalf and on behalf of the 2nd and 3rd Petitioners. He averred that the Petition relates to the use and expenditure of the Levy in the absence of a properly constituted Board, approved financial policies, rules, regulations, annual estimates or lawful authorisation. He maintained that, even if another court had permitted collection of the Levy, that did not authorise its expenditure outside the statutory governance framework.
7. The Petitioners sought to distinguish the proceedings in Nairobi Petition E042 of 2025 and Kakamega Petition E013 of 2025. In their view, those proceedings principally concerned the collection of the Levy, the constitutionality of provisions of the Sugar Act, or elections of grower representatives to the Board, whereas the present Petition challenges withdrawal, utilisation and accountability for monies already collected in the absence of a duly constituted board . They also contended that the doctrine of necessity and internal-management principles cannot be invoked to bypass clear statutory requirements relating to approvals, quorum, budgeting and accountability.
8. The Petitioners further averred that the Kenya Sugar Board receives funds appropriated by the National Assembly for administrative expenses, including salaries, and that it is therefore misleading to suggest that its operations must be financed solely from the Levy. They stated that, in any event, the Respondents had not produced proof of employee numbers, the wage bill, statutory deductions, approved estimates or Board resolutions authorising such expenditure from the Levy. They asserted that the Respondents' failure to disclose how much has been collected, how much has been spent and the purposes for which it has been spent demonstrates a lack of transparency. The 1st interested party sided with the petitioner .
9. By a further affidavit sworn on 21st April 2026, Jude Chesire, the Chief Executive Officer of the Kenya Sugar Board, opposed the Petitioners' application and supported the Respondents' application for discharge of the orders. He averred that the impugned orders had interfered with implementation of the Sugar Development Levy and had occasioned prejudice to the broader sugar sector. He relied on proceedings in Kakamega Constitutional Petition E013 of 2025, Boniface Masinde v Attorney General & others, which concerned sugar-sector governance, grower representatives, catchment areas, public participation and the continued functioning of institutions under the Sugar Act.
10. According to the Respondents, the Kakamega proceedings demonstrate that the Court must be astute to the wider public interest in uninterrupted operations of the sugar sector and in avoiding orders that prejudice farmers, millers and statutory institutions. The Petitioners, on the other hand, maintained that those proceedings are distinguishable because they did not determine the narrow question now before this Court: whether monies collected as the Levy may be withdrawn and spent without proof of lawful approvals, estimates, policy guidelines and accounts. The 2nd interested party supported the position of the 1st to 3rd respondents .
Submissions of the parties
11. The Petitioners submitted that the Respondents' application dated 19th December 2025 should be dismissed and that the conservatory orders should be confirmed. They argued that the Sugar Development Levy is public money and cannot be spent merely on the authority of individual officers or on the basis of general assertions of operational necessity .
12. They relied particularly on section 9(e) of the Sugar Act, which empowers the Board to lay down policy guidelines for the operation and management of all funds collected by the Board, and on section 43, which requires the Board to prepare and approve annual estimates of revenue and expenditure. In their view, before any monies are withdrawn for salaries, allowances, pensions, administrative expenses, statutory deductions or other obligations, the Board must approve the requisite estimates and policy framework.
13. The Petitioners further submitted that the Respondents had not disclosed essential financial information, including monthly collections, withdrawals, bank balances, payees, payroll numbers, wage bill, approved budgets or Board minutes. They contended that the failure to disclose those particulars strengthens the case for preservation of the funds and for orders compelling accounts.
14. The Petitioners relied on Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) [2022] KESC 54 (KLR) for the proposition that where the law vests authority in a collective constitutional or statutory body, individual office-holders cannot arrogate to themselves powers that belong to that body. They submitted that, by parity of reasoning, the chairperson, chief executive officer or secretariat of the Kenya Sugar Board cannot lawfully make substantive spending decisions on the Levy in the absence of approval by the Board.
1st Interested Party
15. The 1st Interested Party, the Kenya Sugar Manufacturers Association, supported the Petitioners' application. It submitted that the Levy is collected from sugar industry players, including importers and millers, and that section 40 of the Sugar Act does not displace the governance requirements of the Act. It argued that only a lawfully constituted Board can approve and manage expenditure from the Levy, and that the Respondents had not shown compliance with sections 6, 9, 10, 40, 41 and 43 of the Act or the Second Schedule on Board procedure and quorum.
16. The 1st Interested Party further argued that the Petitioners had established a prima facie case because the Respondents appear to be exercising statutory powers over public funds without a properly constituted Board. It invoked Articles 10 and 35 of the Constitution and submitted that the Respondents should produce statements of account, Board minutes, resolutions and other documents relating to collections, withdrawals and expenditure of the Levy.
17. On the Respondents' reliance on section 40(6), the 1st Interested Party argued that statutory earmarking of purposes is not the same thing as lawful approval of expenditure. It submitted that the Court should not permit an illegality by treating administrative continuity by a secretariat as equivalent to the exercise of statutory authority by the Board.
1st to 3rd Respondents and 2nd Interested Party submissions
18. The 1st to 3rd Respondents, supported by the 2nd Interested Party, urged the Court to allow the application dated 19 December 2025, discharge the orders issued on 15th December 2025 and dismiss the Petitioners' application. They submitted that the Petitioners obtained interim relief without candidly disclosing related proceedings concerning the Sugar Act, including Nairobi Petition E042 of 2025 and Kakamega Petition E013 of 2025.
19. The Respondents contended that the present Petition is sub judice or, at the least, an abuse of process because the same or closely related questions are pending before courts of concurrent jurisdiction. They relied on decisions including Said Tahir & others v County Government of Mombasa & others, Aviation & Airport Services Workers Union v Kenya Airports Authority, Kenya Hospital Association Ltd v Rono & others, and Kenya National Commission on Human Rights v Attorney General; IEBC & others to emphasise the duty of full disclosure, the need to avoid fragmented litigation and the impropriety of obtaining ex parte relief without disclosing parallel proceedings.
20. The Respondents also submitted that the Petitioners had not established a prima facie constitutional case. They invoked Anarita Karimi Njeru v Republic and related authorities, including Mumo Matemu v Trusted Society of Human Rights Alliance, for the proposition that constitutional petitions must plead the provisions violated, the facts constituting violation and the manner of violation with reasonable precision. They argued that a complaint about alleged statutory irregularity in the constitution of a Board does not, without more, amount to a constitutional violation.
21. The Respondents relied on sections 53 and 55 of the Interpretation and General Provisions Act to submit that the acts of a statutory body are not invalid merely because of vacancies or defects in appointment. They submitted that the absence of some grower or miller representatives, if any, resulted from subsisting court orders in related proceedings and should not be allowed to paralyse a statutory regulator.
22. The Respondents further submitted that there is no evidence of misappropriation of funds and that section 40(6) of the Sugar Act already restricts the use of the Levy to statutory purposes. They also argued that the prayers for accounts and disclosure are premature because the Petitioners had not first invoked the procedure under the Access to Information Act, including a formal request under section 8, a response period under section 9, and review under section 14.
23. Finally, the Respondents placed substantial emphasis on public interest. They argued that the impugned orders cripple the Board, the sole statutory regulator of the sugar industry, and threaten salaries, regulatory functions, research and training programmes, cane development, infrastructure support and other statutory functions financed by the Levy. They cited, among others, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board, Nyabuto v County Assembly of Nairobi City County & others, Musyoka v Clerk, Machakos County Assembly & others, and Godfrey Paul Okutoyi v Habil Olaka/Kenya Bankers Association & Central Bank of Kenya to underscore that conservatory orders are discretionary public-law remedies and that public interest, proportionality, precision and evidence are central considerations.
Issues for determination
24. Having considered the applications, affidavits, annexures and submissions, the following issues arise for determination at this interlocutory stage:
a) whether the Petitioners have met the threshold for the grant or confirmation of conservatory orders restraining expenditure of the Sugar Development Levy;
b) whether the orders issued on 15th December 2025 should be discharged, varied or maintained in light of the Respondents' allegations of non-disclosure, sub judice, statutory continuity and public interest; and
c) what interim orders should be made to preserve the subject matter, protect public funds, avoid conflict with related proceedings and mitigate undue prejudice to statutory institutions and third parties.
Applicable legal principles
25. The Court's jurisdiction to grant interim relief in proceedings alleging violation or threatened violation of the Bill of Rights is founded on Article 23(3) of the Constitution. The Court's broader jurisdiction to determine whether anything said to be done under the authority of the Constitution or any law is inconsistent with, or in contravention of, the Constitution is conferred by Article 165(3)(d).
26. The test for conservatory orders in constitutional and public-law litigation is now settled. An applicant must demonstrate a prima facie case with arguable prospects of success; a real risk that the Petition or its substratum will be rendered nugatory or that prejudice will be suffered if the order is declined; and that the order sought accords with public interest, constitutional values, proportionality and the balance of convenience. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR emphasised that conservatory orders bear a public-law character and are granted with due regard to the orderly functioning of public agencies, constitutional values and the proportionate magnitude of competing interests.
27. The authorities relied on by the Respondents are equally important. They caution that conservatory orders are not granted as a matter of course; that an applicant must show more than a bare allegation of illegality; that constitutional petitions must plead violations with reasonable precision; that courts must guard against fragmented or duplicative litigation; and that the applicants owe a duty of candour to the Court.
28. The effect of non-disclosure, however, depends on materiality and context. Where non-disclosure is deliberate or material to the grant of relief, interim orders may be discharged. But the Court retains discretion, after inter partes hearing, to fashion appropriate relief where the subject matter is public funds and where the Court can avoid prejudice by narrowing or clarifying the order.
29.The principle of Sub judice under Section 6 of the Civil procedure Act similarly requires more than general thematic overlap. The question is whether the matter directly and substantially in issue is the same as that in previously instituted proceedings between the same parties, or parties litigating under the same title, before a court competent to grant the relief. Where related proceedings concern different legal questions or different reliefs, the Court may proceed while ensuring that its orders do not conflict with orders issued by courts of concurrent jurisdiction.
30. The Constitution imposes exacting standards on the management of public finance. Article 201 provides for openness, accountability and prudent use of public resources. Article 225 directs Parliament to provides for financial controls and accountability, while Article 232 requires public administration to observe transparency, accountability, efficiency , effectiveness , economic use of resources and public participation . These principles govern the collection, custody, allocation and expenditure of public monies.
31. The Sugar Act, 2024 must be read against that constitutional background. Section 6 (1) (b) and (c) provides for composition of the Sugar Board to include stakeholders to wit ;
(a) …………………….
(b) five representatives elected by growers from each sugar catchment area as per the First Schedule;
(c)two representatives each elected by private and public owned sugar mills who are knowledgeable in sugar technology and value addition;
Section 6 of the Act was enacted in the spirit of Articles 10 and 232 of the Constitution
Section 40 provides for the Sugar Development Levy and section 40(6) sets out the purposes and percentages to which the Levy is to be appropriated. Section 41 establishes the Sugar Development Fund to be administered by the Board. Section 9(e) empowers the Board to lay down policy guidelines for the operation and management of all funds collected by the Board. Section 43 requires annual estimates of revenue and expenditure to be prepared and approved. Section 44 provides for accounts and audit. These provisions, read together, contemplate statutory control, Board oversight, budgeting, accounting and audit.
32. Accordingly, section 40(6) cannot, at this interlocutory stage, be read as a self-executing authority to withdraw and spend the Levy without proof of the processes required elsewhere in the Act and under the public finance framework. It earmarks purposes; it does not by itself answer the questions whether the Board approved the relevant estimates, whether policy guidelines exist, whether the decision-making organ had authority, whether procurement requirements were met, or whether accounts are being maintained in a manner that permits public scrutiny.
Analysis
Prima facie case
33. The petitioners aver that the Sugar Development Levy became operational from 1st July 2025; that KRA was appointed as collector of the levy ; that the Levy yields substantial sums; and that the monies are being withdrawn or spent without proof of Board-approved estimates, policy guidelines, minutes, resolutions or other lawful authority. The KRA public notice annexed to the Petitioners' affidavit confirms that KRA notified millers, importers and the public of its appointment as collector of the Levy and the applicable levy rates. The draft Sugar Development Fund Operations Manual annexed by the respondents contemplates Board administration, policy guidelines, accounting controls and an operational framework.
34. The Respondents have not, at this stage, placed before the Court the fundamental documents that would ordinarily answer the Petitioners' complaint: Board minutes, resolutions, approved annual estimates, policy guidelines under section 9(e), bank statements, detailed schedules of collections and payments, procurement documents, or verified accounts. The absence of those documents is material because the dispute turns precisely on whether lawful authority exists for the expenditure complained of.
35. The Respondents' answer that section 40(6) allocates the Levy is not, without more, sufficient to defeat the prima facie case. The Petitioners do not deny that Parliament set statutory purposes for the Levy. Their main issue is that statutory purposes must be implemented through lawful institutional decisions and accountable financial procedures. While it is true that not every breach of statute becomes a constitutional violation, where the alleged breach concerns the withdrawal and expenditure of a statutory levy collected for public purposes, the dispute assumes a constitutional imperatives of public finance principles, access to information, accountability and legality .
36. The respondent also argued that the existence of the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Kakamega Constitutional Petition E013 of 2025 is the reason why the board is not fully constituted and it is worth noting that the Kakamega case is a dispute among growers from different catchment areas while the millers are not parties therein . At this stage there is no explanation of the absence of millers representatives in the board from July 2025 to date this is an arguable issue which cannot only be fully determined during the hearing of the main petition . A prima face case neend not be one which must succeed but must be arguable .
It suffices to state at this point that at this stage the Petitioners have identified Articles 10, 35, 201, 225 and 232 of the Constitution as allegedly violated or threatened to be violated . I thus disagree with the submission that the petition has not been pleaded with precision .
.
Related proceedings, non-disclosure and sub judice
36. It is the case of the respondents that the petitioners did not disclose to this court the existence of two other similar cases in Kakamega and Nairobi High Court stations i,e Nairobi Petition E042 of 2025, Okoth v Attorney General & 4 others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR) and Kakamega proceedings in Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Constitutional Petition E013 of 2025 challenges provisions of the Sugar Act, including sections 9(a), 20(2) and 40(1). 37. Section 6 of the Civil Procedure Act provides:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit…”
While the term “proceeding” is wide, courts have consistently held that the mischief targeted by Section 6 is the simultaneous prosecution of parallel matters before courts of competent jurisdiction, so as to avoid conflicting decisions and multiplicity of proceedings.
The Supreme Court in Kenya National Commission on Human Rights v Attorney General & 16 Others underscored that the doctrine of sub judice is aimed at preserving the integrity of the judicial process.
38. In the said Okoth matter, I only managed to perused the last orders dated 10.4.25 in which the Court partially confirmed conservatory orders in respect of sections 9(a) and 20(2), but declined to suspend the interim application of section 40(1), having regard to public interest and the statutory allocation of funds under section 40(6).
39. The Kakamega subject matter in the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Constitutional Petition E013 of 2025 are issues of sugar-sector governance, catchment areas, public participation and grower representatives to the Board.
40. The instant Petition neither seeks to invalidate or suspend section 40(1) nor to stop collection the Levy. It rather questions whether monies already collected as the Levy may be withdrawn and spent without proof of expenditure control and transparency . It clear to me at this stage that proceedings in the Kakamega and Nairobi cases (supra) relate to the Sugar Board but do not relate to the issue of the alleged legality of the acts of the impugned board of expending sugar levy monies already collected in the absence of demonstrated approvals, transparency and accountability . From the material placed before this court at this stage , I find that the issues in the 3 petitions are not do not raise the same issues and thus the subjudice principle does not apply herein .
41. The Respondents' argument based on sections 53 and 55 of the Interpretation and General Provisions Act is also not determinative at this stage. Those provisions may prevent the acts of a statutory body from being invalidated merely because of a vacancy or defect . They are provisions of continuity, not a substitute for proof of legal constitution of the board in the first instance . The said Argument does not hold . The respondent also argued that the existence of the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Kakamega Constitutional Petition E013 of 2025 is the reason why the board is not fully constituted and it is worth noting that the Kakamega case is a dispute among growers from different catchment areas while the millers are not parties therein . At this stage there is no explanation of the absence of millers representatives in the board from July 2025 todate ,
Risk of rendering the Petition nugatory
42. The Petitioners argue that there is a real risk of continued unfettered expenditure which may render the Petition nugatory. The Respondents submitted that public agencies must continue to function and that the sugar sector serves a large public constituency, including farmers, millers, workers, researchers, statutory institutions and consumers. Once public funds are expended, they may not be easily traced or recovered. Post-expenditure audit, while important, is remedial. It does not cure expenditure made without lawful authority at the time of withdrawal or disbursement.. The constitutional principle of legality requires authority before expenditure, not merely an explanation after the fact.
43. The Court must therefore avoid issuing orders that needlessly paralyses legitimate public functions. However , public interest is not served by permitting unrestricted spending of public funds where the lawful basis of expenditure has not been demonstrated. The rule of law, transparency and accountability are themselves substantial public interest.
Disclosure and access to information
44. The Respondents' argument that the disclosure prayers are premature because the Petitioners did not first invoke the Access to Information Act is not persuasive in the circumstances of this application. The Petitioners are not merely seeking information in the abstract. The documents sought are central to the Court's determination of the legality of withdrawal and expenditure of the Levy. In constitutional litigation, the Court may order production of documents necessary to preserve the subject matter, enforce constitutional rights and facilitate just determination of the dispute.
45. Further, Article 35 of the Constitution and the Access to Information Act does not shield public bodies from producing accounts, minutes, approvals and financial records when those records are directly in issue before the Court. The statutory procedure for information requests may be relevant in an ordinary access-to-information claim, but it does not oust the Court's power to compel disclosure in pending proceedings involving public funds.
Public interest and proportionality
46. The public-interest balance lies between two competing concerns On the side the respondents they argue of the need for continuity of statutory functions, including salaries, statutory deductions, research, training, cane development and regulatory services. On the other side the petitioners and the 1st interested party expound the need to preserve public funds and prevent expenditure that may later be found unconstitutional or unlawful. An unconditional discharge of the orders would expose the Levy to expenditure without the transparency and authorisation presently in dispute. A freeze, on the other hand, may prejudice statutory functions and the interest of third parties . In determining whether to grant conservatory orders or not , the court has to consider strike a balance between preserving the substratum of the petition and exercise of its adjudicatory powers to ensure orderly functioning of the statutory agencies as was held in Gatirau Peter Munya and the other authorities cited by the parties. Proportionality therefore requires a tailored order to preserve the funds and compel disclosure of the expenditure on interim basis . This would preserve the substratum of the petition while respecting the public-law character of conservatory relief and the need for orderly functioning of statutory agencies. I find that the balance tilts towards preserving substratum of the petition .
.
Disposition
47. For the foregoing reasons, the Court makes the following orders:
a) The Petitioners' Notice of Motion dated 15th December 2025 is allowed.
b) The 1st to 3rd Respondents' Notice of Motion dated 19th December 2025 seeking discharge, variation or setting aside of the conservatory orders issued on 15th December 2025 is declined.
c) Pending the hearing and determination of Constitutional Petition No. E028 of 2025, or until further order of the Court, a conservatory order is hereby issued restraining the 1st, 2nd, 3rd and 4th Respondents, whether by themselves, their agents, employees, servants or any person acting under their authority, from withdrawing, utilising, transferring, disbursing, allocating, dissipating or otherwise spending monies collected as the Sugar Development Levy.
d) For avoidance of doubt, paragraph (c) does not restrain the lawful collection, receipt, banking or safekeeping of the Sugar Development Levy by the authorised collector or receiving entity, and nothing in this ruling shall be construed as suspending the operation of section 40(1) of the Sugar Act, 2024 or as contradicting orders issued in Okoth v Attorney General & 4 others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR).
f) The respondents shall within twenty-one (2
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1. This is a ruling on two interlocutory applications in the Constitutional Petition herein The first one is the Petitioners' Notice of Motion dated 15th December 2025. In that motion, the Petitioners seek conservatory relief restraining the Respondents from withdrawing, utilising, transferring, dissipating or otherwise spending monies collected as the Sugar Development Levy pending the hearing and determination of the Petition. They also seek orders compelling the Respondents to render accounts and to produce minutes, resolutions, annual estimates, policy instruments, operational manuals and other documents relied upon to authorise any withdrawal, allocation or expenditure of the Levy.
2. The second application is the Notice of Motion dated 19th December 2025 filed by the 1st to 3rd Respondents. It seeks the discharge, variation or setting aside of the conservatory orders issued by this Court on 15 December 2025. The 2nd Interested Party supports that application on the basis that the impugned orders have disrupted its statutory operations, which it says substantially depend upon allocations from the Sugar Development Levy.
3. The Petitioners are sugarcane farmers. Their case is not principally based on the imposition or collection of the Levy. Their gravamen is that monies already collected as the Sugar Development Levy are being withdrawn or spent without the statutory and constitutional safeguards that attend the management of public funds. They contend that the Kenya Sugar Board has not been properly or fully constituted; that no Board-approved policy guidelines, annual estimates or resolutions have been shown; and that expenditure of the Levy is therefore inconsistent with Articles 10, 35, 201, 225 and 232 of the Constitution, the Sugar Act, 2024 and the Public Finance Management Act.
4. The Respondents' position is that the Levy is imposed by statute, that section 40(6) of the Sugar Act expressly appropriates the Levy to identified purposes, and that the continued use and disbursement of the Levy is necessary for the performance of statutory obligations, including sector regulation, staff remuneration, research, training and other programmes in the sugar sector. They urge that public interest requires the discharge or substantial variation of the conservatory orders.
Background
5. On 15th December 2025, this Court issued interim conservatory orders restraining the withdrawal or expenditure of monies collected as the Sugar Development Levy pending further directions. The Court also directed production of financial records and supporting documentation relating to the Levy. The 1st to 3rd Respondents moved the Court on 19th December 2025 seeking to set aside or vary those orders. The court varied the said orders on 21st December 2025 and allowed the 1st to 3rd respondents to withdraw 10 % of their appropriation of sugar levy for purposes of meeting administrative costs .
6. By a further affidavit sworn on 20th January 2026, Kennedy Obara Onderi, the 1st Petitioner, deponed on his own behalf and on behalf of the 2nd and 3rd Petitioners. He averred that the Petition relates to the use and expenditure of the Levy in the absence of a properly constituted Board, approved financial policies, rules, regulations, annual estimates or lawful authorisation. He maintained that, even if another court had permitted collection of the Levy, that did not authorise its expenditure outside the statutory governance framework.
7. The Petitioners sought to distinguish the proceedings in Nairobi Petition E042 of 2025 and Kakamega Petition E013 of 2025. In their view, those proceedings principally concerned the collection of the Levy, the constitutionality of provisions of the Sugar Act, or elections of grower representatives to the Board, whereas the present Petition challenges withdrawal, utilisation and accountability for monies already collected in the absence of a duly constituted board . They also contended that the doctrine of necessity and internal-management principles cannot be invoked to bypass clear statutory requirements relating to approvals, quorum, budgeting and accountability.
8. The Petitioners further averred that the Kenya Sugar Board receives funds appropriated by the National Assembly for administrative expenses, including salaries, and that it is therefore misleading to suggest that its operations must be financed solely from the Levy. They stated that, in any event, the Respondents had not produced proof of employee numbers, the wage bill, statutory deductions, approved estimates or Board resolutions authorising such expenditure from the Levy. They asserted that the Respondents' failure to disclose how much has been collected, how much has been spent and the purposes for which it has been spent demonstrates a lack of transparency. The 1st interested party sided with the petitioner .
9. By a further affidavit sworn on 21st April 2026, Jude Chesire, the Chief Executive Officer of the Kenya Sugar Board, opposed the Petitioners' application and supported the Respondents' application for discharge of the orders. He averred that the impugned orders had interfered with implementation of the Sugar Development Levy and had occasioned prejudice to the broader sugar sector. He relied on proceedings in Kakamega Constitutional Petition E013 of 2025, Boniface Masinde v Attorney General & others, which concerned sugar-sector governance, grower representatives, catchment areas, public participation and the continued functioning of institutions under the Sugar Act.
10. According to the Respondents, the Kakamega proceedings demonstrate that the Court must be astute to the wider public interest in uninterrupted operations of the sugar sector and in avoiding orders that prejudice farmers, millers and statutory institutions. The Petitioners, on the other hand, maintained that those proceedings are distinguishable because they did not determine the narrow question now before this Court: whether monies collected as the Levy may be withdrawn and spent without proof of lawful approvals, estimates, policy guidelines and accounts. The 2nd interested party supported the position of the 1st to 3rd respondents .
Submissions of the parties
11. The Petitioners submitted that the Respondents' application dated 19th December 2025 should be dismissed and that the conservatory orders should be confirmed. They argued that the Sugar Development Levy is public money and cannot be spent merely on the authority of individual officers or on the basis of general assertions of operational necessity .
12. They relied particularly on section 9(e) of the Sugar Act, which empowers the Board to lay down policy guidelines for the operation and management of all funds collected by the Board, and on section 43, which requires the Board to prepare and approve annual estimates of revenue and expenditure. In their view, before any monies are withdrawn for salaries, allowances, pensions, administrative expenses, statutory deductions or other obligations, the Board must approve the requisite estimates and policy framework.
13. The Petitioners further submitted that the Respondents had not disclosed essential financial information, including monthly collections, withdrawals, bank balances, payees, payroll numbers, wage bill, approved budgets or Board minutes. They contended that the failure to disclose those particulars strengthens the case for preservation of the funds and for orders compelling accounts.
14. The Petitioners relied on Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) [2022] KESC 54 (KLR) for the proposition that where the law vests authority in a collective constitutional or statutory body, individual office-holders cannot arrogate to themselves powers that belong to that body. They submitted that, by parity of reasoning, the chairperson, chief executive officer or secretariat of the Kenya Sugar Board cannot lawfully make substantive spending decisions on the Levy in the absence of approval by the Board.
1st Interested Party
15. The 1st Interested Party, the Kenya Sugar Manufacturers Association, supported the Petitioners' application. It submitted that the Levy is collected from sugar industry players, including importers and millers, and that section 40 of the Sugar Act does not displace the governance requirements of the Act. It argued that only a lawfully constituted Board can approve and manage expenditure from the Levy, and that the Respondents had not shown compliance with sections 6, 9, 10, 40, 41 and 43 of the Act or the Second Schedule on Board procedure and quorum.
16. The 1st Interested Party further argued that the Petitioners had established a prima facie case because the Respondents appear to be exercising statutory powers over public funds without a properly constituted Board. It invoked Articles 10 and 35 of the Constitution and submitted that the Respondents should produce statements of account, Board minutes, resolutions and other documents relating to collections, withdrawals and expenditure of the Levy.
17. On the Respondents' reliance on section 40(6), the 1st Interested Party argued that statutory earmarking of purposes is not the same thing as lawful approval of expenditure. It submitted that the Court should not permit an illegality by treating administrative continuity by a secretariat as equivalent to the exercise of statutory authority by the Board.
1st to 3rd Respondents and 2nd Interested Party submissions
18. The 1st to 3rd Respondents, supported by the 2nd Interested Party, urged the Court to allow the application dated 19 December 2025, discharge the orders issued on 15th December 2025 and dismiss the Petitioners' application. They submitted that the Petitioners obtained interim relief without candidly disclosing related proceedings concerning the Sugar Act, including Nairobi Petition E042 of 2025 and Kakamega Petition E013 of 2025.
19. The Respondents contended that the present Petition is sub judice or, at the least, an abuse of process because the same or closely related questions are pending before courts of concurrent jurisdiction. They relied on decisions including Said Tahir & others v County Government of Mombasa & others, Aviation & Airport Services Workers Union v Kenya Airports Authority, Kenya Hospital Association Ltd v Rono & others, and Kenya National Commission on Human Rights v Attorney General; IEBC & others to emphasise the duty of full disclosure, the need to avoid fragmented litigation and the impropriety of obtaining ex parte relief without disclosing parallel proceedings.
20. The Respondents also submitted that the Petitioners had not established a prima facie constitutional case. They invoked Anarita Karimi Njeru v Republic and related authorities, including Mumo Matemu v Trusted Society of Human Rights Alliance, for the proposition that constitutional petitions must plead the provisions violated, the facts constituting violation and the manner of violation with reasonable precision. They argued that a complaint about alleged statutory irregularity in the constitution of a Board does not, without more, amount to a constitutional violation.
21. The Respondents relied on sections 53 and 55 of the Interpretation and General Provisions Act to submit that the acts of a statutory body are not invalid merely because of vacancies or defects in appointment. They submitted that the absence of some grower or miller representatives, if any, resulted from subsisting court orders in related proceedings and should not be allowed to paralyse a statutory regulator.
22. The Respondents further submitted that there is no evidence of misappropriation of funds and that section 40(6) of the Sugar Act already restricts the use of the Levy to statutory purposes. They also argued that the prayers for accounts and disclosure are premature because the Petitioners had not first invoked the procedure under the Access to Information Act, including a formal request under section 8, a response period under section 9, and review under section 14.
23. Finally, the Respondents placed substantial emphasis on public interest. They argued that the impugned orders cripple the Board, the sole statutory regulator of the sugar industry, and threaten salaries, regulatory functions, research and training programmes, cane development, infrastructure support and other statutory functions financed by the Levy. They cited, among others, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board, Nyabuto v County Assembly of Nairobi City County & others, Musyoka v Clerk, Machakos County Assembly & others, and Godfrey Paul Okutoyi v Habil Olaka/Kenya Bankers Association & Central Bank of Kenya to underscore that conservatory orders are discretionary public-law remedies and that public interest, proportionality, precision and evidence are central considerations.
Issues for determination
24. Having considered the applications, affidavits, annexures and submissions, the following issues arise for determination at this interlocutory stage:
a) whether the Petitioners have met the threshold for the grant or confirmation of conservatory orders restraining expenditure of the Sugar Development Levy;
b) whether the orders issued on 15th December 2025 should be discharged, varied or maintained in light of the Respondents' allegations of non-disclosure, sub judice, statutory continuity and public interest; and
c) what interim orders should be made to preserve the subject matter, protect public funds, avoid conflict with related proceedings and mitigate undue prejudice to statutory institutions and third parties.
Applicable legal principles
25. The Court's jurisdiction to grant interim relief in proceedings alleging violation or threatened violation of the Bill of Rights is founded on Article 23(3) of the Constitution. The Court's broader jurisdiction to determine whether anything said to be done under the authority of the Constitution or any law is inconsistent with, or in contravention of, the Constitution is conferred by Article 165(3)(d).
26. The test for conservatory orders in constitutional and public-law litigation is now settled. An applicant must demonstrate a prima facie case with arguable prospects of success; a real risk that the Petition or its substratum will be rendered nugatory or that prejudice will be suffered if the order is declined; and that the order sought accords with public interest, constitutional values, proportionality and the balance of convenience. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR emphasised that conservatory orders bear a public-law character and are granted with due regard to the orderly functioning of public agencies, constitutional values and the proportionate magnitude of competing interests.
27. The authorities relied on by the Respondents are equally important. They caution that conservatory orders are not granted as a matter of course; that an applicant must show more than a bare allegation of illegality; that constitutional petitions must plead violations with reasonable precision; that courts must guard against fragmented or duplicative litigation; and that the applicants owe a duty of candour to the Court.
28. The effect of non-disclosure, however, depends on materiality and context. Where non-disclosure is deliberate or material to the grant of relief, interim orders may be discharged. But the Court retains discretion, after inter partes hearing, to fashion appropriate relief where the subject matter is public funds and where the Court can avoid prejudice by narrowing or clarifying the order.
29.The principle of Sub judice under Section 6 of the Civil procedure Act similarly requires more than general thematic overlap. The question is whether the matter directly and substantially in issue is the same as that in previously instituted proceedings between the same parties, or parties litigating under the same title, before a court competent to grant the relief. Where related proceedings concern different legal questions or different reliefs, the Court may proceed while ensuring that its orders do not conflict with orders issued by courts of concurrent jurisdiction.
30. The Constitution imposes exacting standards on the management of public finance. Article 201 provides for openness, accountability and prudent use of public resources. Article 225 directs Parliament to provides for financial controls and accountability, while Article 232 requires public administration to observe transparency, accountability, efficiency , effectiveness , economic use of resources and public participation . These principles govern the collection, custody, allocation and expenditure of public monies.
31. The Sugar Act, 2024 must be read against that constitutional background. Section 6 (1) (b) and (c) provides for composition of the Sugar Board to include stakeholders to wit ;
(a) …………………….
(b) five representatives elected by growers from each sugar catchment area as per the First Schedule;
(c)two representatives each elected by private and public owned sugar mills who are knowledgeable in sugar technology and value addition;
Section 6 of the Act was enacted in the spirit of Articles 10 and 232 of the Constitution
Section 40 provides for the Sugar Development Levy and section 40(6) sets out the purposes and percentages to which the Levy is to be appropriated. Section 41 establishes the Sugar Development Fund to be administered by the Board. Section 9(e) empowers the Board to lay down policy guidelines for the operation and management of all funds collected by the Board. Section 43 requires annual estimates of revenue and expenditure to be prepared and approved. Section 44 provides for accounts and audit. These provisions, read together, contemplate statutory control, Board oversight, budgeting, accounting and audit.
32. Accordingly, section 40(6) cannot, at this interlocutory stage, be read as a self-executing authority to withdraw and spend the Levy without proof of the processes required elsewhere in the Act and under the public finance framework. It earmarks purposes; it does not by itself answer the questions whether the Board approved the relevant estimates, whether policy guidelines exist, whether the decision-making organ had authority, whether procurement requirements were met, or whether accounts are being maintained in a manner that permits public scrutiny.
Analysis
Prima facie case
33. The petitioners aver that the Sugar Development Levy became operational from 1st July 2025; that KRA was appointed as collector of the levy ; that the Levy yields substantial sums; and that the monies are being withdrawn or spent without proof of Board-approved estimates, policy guidelines, minutes, resolutions or other lawful authority. The KRA public notice annexed to the Petitioners' affidavit confirms that KRA notified millers, importers and the public of its appointment as collector of the Levy and the applicable levy rates. The draft Sugar Development Fund Operations Manual annexed by the respondents contemplates Board administration, policy guidelines, accounting controls and an operational framework.
34. The Respondents have not, at this stage, placed before the Court the fundamental documents that would ordinarily answer the Petitioners' complaint: Board minutes, resolutions, approved annual estimates, policy guidelines under section 9(e), bank statements, detailed schedules of collections and payments, procurement documents, or verified accounts. The absence of those documents is material because the dispute turns precisely on whether lawful authority exists for the expenditure complained of.
35. The Respondents' answer that section 40(6) allocates the Levy is not, without more, sufficient to defeat the prima facie case. The Petitioners do not deny that Parliament set statutory purposes for the Levy. Their main issue is that statutory purposes must be implemented through lawful institutional decisions and accountable financial procedures. While it is true that not every breach of statute becomes a constitutional violation, where the alleged breach concerns the withdrawal and expenditure of a statutory levy collected for public purposes, the dispute assumes a constitutional imperatives of public finance principles, access to information, accountability and legality .
36. The respondent also argued that the existence of the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Kakamega Constitutional Petition E013 of 2025 is the reason why the board is not fully constituted and it is worth noting that the Kakamega case is a dispute among growers from different catchment areas while the millers are not parties therein . At this stage there is no explanation of the absence of millers representatives in the board from July 2025 to date this is an arguable issue which cannot only be fully determined during the hearing of the main petition . A prima face case neend not be one which must succeed but must be arguable .
It suffices to state at this point that at this stage the Petitioners have identified Articles 10, 35, 201, 225 and 232 of the Constitution as allegedly violated or threatened to be violated . I thus disagree with the submission that the petition has not been pleaded with precision .
.
Related proceedings, non-disclosure and sub judice
36. It is the case of the respondents that the petitioners did not disclose to this court the existence of two other similar cases in Kakamega and Nairobi High Court stations i,e Nairobi Petition E042 of 2025, Okoth v Attorney General & 4 others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR) and Kakamega proceedings in Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Constitutional Petition E013 of 2025 challenges provisions of the Sugar Act, including sections 9(a), 20(2) and 40(1). 37. Section 6 of the Civil Procedure Act provides:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit…”
While the term “proceeding” is wide, courts have consistently held that the mischief targeted by Section 6 is the simultaneous prosecution of parallel matters before courts of competent jurisdiction, so as to avoid conflicting decisions and multiplicity of proceedings.
The Supreme Court in Kenya National Commission on Human Rights v Attorney General & 16 Others underscored that the doctrine of sub judice is aimed at preserving the integrity of the judicial process.
38. In the said Okoth matter, I only managed to perused the last orders dated 10.4.25 in which the Court partially confirmed conservatory orders in respect of sections 9(a) and 20(2), but declined to suspend the interim application of section 40(1), having regard to public interest and the statutory allocation of funds under section 40(6).
39. The Kakamega subject matter in the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Constitutional Petition E013 of 2025 are issues of sugar-sector governance, catchment areas, public participation and grower representatives to the Board.
40. The instant Petition neither seeks to invalidate or suspend section 40(1) nor to stop collection the Levy. It rather questions whether monies already collected as the Levy may be withdrawn and spent without proof of expenditure control and transparency . It clear to me at this stage that proceedings in the Kakamega and Nairobi cases (supra) relate to the Sugar Board but do not relate to the issue of the alleged legality of the acts of the impugned board of expending sugar levy monies already collected in the absence of demonstrated approvals, transparency and accountability . From the material placed before this court at this stage , I find that the issues in the 3 petitions are not do not raise the same issues and thus the subjudice principle does not apply herein .
41. The Respondents' argument based on sections 53 and 55 of the Interpretation and General Provisions Act is also not determinative at this stage. Those provisions may prevent the acts of a statutory body from being invalidated merely because of a vacancy or defect . They are provisions of continuity, not a substitute for proof of legal constitution of the board in the first instance . The said Argument does not hold . The respondent also argued that the existence of the Masinde v Attorney General & another; Kenya Sugar Board (Interested Party), Kakamega Constitutional Petition E013 of 2025 is the reason why the board is not fully constituted and it is worth noting that the Kakamega case is a dispute among growers from different catchment areas while the millers are not parties therein . At this stage there is no explanation of the absence of millers representatives in the board from July 2025 todate ,
Risk of rendering the Petition nugatory
42. The Petitioners argue that there is a real risk of continued unfettered expenditure which may render the Petition nugatory. The Respondents submitted that public agencies must continue to function and that the sugar sector serves a large public constituency, including farmers, millers, workers, researchers, statutory institutions and consumers. Once public funds are expended, they may not be easily traced or recovered. Post-expenditure audit, while important, is remedial. It does not cure expenditure made without lawful authority at the time of withdrawal or disbursement.. The constitutional principle of legality requires authority before expenditure, not merely an explanation after the fact.
43. The Court must therefore avoid issuing orders that needlessly paralyses legitimate public functions. However , public interest is not served by permitting unrestricted spending of public funds where the lawful basis of expenditure has not been demonstrated. The rule of law, transparency and accountability are themselves substantial public interest.
Disclosure and access to information
44. The Respondents' argument that the disclosure prayers are premature because the Petitioners did not first invoke the Access to Information Act is not persuasive in the circumstances of this application. The Petitioners are not merely seeking information in the abstract. The documents sought are central to the Court's determination of the legality of withdrawal and expenditure of the Levy. In constitutional litigation, the Court may order production of documents necessary to preserve the subject matter, enforce constitutional rights and facilitate just determination of the dispute.
45. Further, Article 35 of the Constitution and the Access to Information Act does not shield public bodies from producing accounts, minutes, approvals and financial records when those records are directly in issue before the Court. The statutory procedure for information requests may be relevant in an ordinary access-to-information claim, but it does not oust the Court's power to compel disclosure in pending proceedings involving public funds.
Public interest and proportionality
46. The public-interest balance lies between two competing concerns On the side the respondents they argue of the need for continuity of statutory functions, including salaries, statutory deductions, research, training, cane development and regulatory services. On the other side the petitioners and the 1st interested party expound the need to preserve public funds and prevent expenditure that may later be found unconstitutional or unlawful. An unconditional discharge of the orders would expose the Levy to expenditure without the transparency and authorisation presently in dispute. A freeze, on the other hand, may prejudice statutory functions and the interest of third parties . In determining whether to grant conservatory orders or not , the court has to consider strike a balance between preserving the substratum of the petition and exercise of its adjudicatory powers to ensure orderly functioning of the statutory agencies as was held in Gatirau Peter Munya and the other authorities cited by the parties. Proportionality therefore requires a tailored order to preserve the funds and compel disclosure of the expenditure on interim basis . This would preserve the substratum of the petition while respecting the public-law character of conservatory relief and the need for orderly functioning of statutory agencies. I find that the balance tilts towards preserving substratum of the petition .
.
Disposition
47. For the foregoing reasons, the Court makes the following orders:
a) The Petitioners' Notice of Motion dated 15th December 2025 is allowed.
b) The 1st to 3rd Respondents' Notice of Motion dated 19th December 2025 seeking discharge, variation or setting aside of the conservatory orders issued on 15th December 2025 is declined.
c) Pending the hearing and determination of Constitutional Petition No. E028 of 2025, or until further order of the Court, a conservatory order is hereby issued restraining the 1st, 2nd, 3rd and 4th Respondents, whether by themselves, their agents, employees, servants or any person acting under their authority, from withdrawing, utilising, transferring, disbursing, allocating, dissipating or otherwise spending monies collected as the Sugar Development Levy.
d) For avoidance of doubt, paragraph (c) does not restrain the lawful collection, receipt, banking or safekeeping of the Sugar Development Levy by the authorised collector or receiving entity, and nothing in this ruling shall be construed as suspending the operation of section 40(1) of the Sugar Act, 2024 or as contradicting orders issued in Okoth v Attorney General & 4 others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR).
f) The respondents shall within twenty-one (2
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