RULING
1. This matter came for a status conference with regard to the notice of motion dated 29th of May 2026 following structural interdict with regard to that motion which had been filed under Certificate of Urgency. It so happened that the original notice of motion brought in other interested parties like Mr.
Harrison Tanga Webbo who filed a Replying Affidavit dated 11th June 2026. That was not the end of it. On the 15th of June 2026 yet another motion was filed by Interested Parties being represented by Learned Counsel Mr. Olendo, on behalf of the 4th – 8th Interested Parties sequencing their interests to the petition filed on the 29th May 2026.
2. This litigation did not stop there, on the 15th June 2026 the 1st and 2nd proposed Interested Parties also moved the Court by way of a Notice of Motion dated the same day with a horizon on the justiciable issues pleaded in the petition with regard to the interlocking issues in the entire spectrum and the main actors being the Kenya Sugar Board, the Cabinet Secretary Ministry of Agriculture and Livestock Development and the Hon. Attorney General. This Court for purposes of legal extractives as stated the various motions with corresponding affidavits so as to lay the foundation of the litigation roadmap for purposes of expediency and proportionate merger of what one will call the predominant dispute both at the interlocutory level and which may shed some light to the main petition. Thus, the following applications constitute the legal contestation as between the Petitioner, Respondents and Interested Parties.
Notice of Motion Application dated 29th May 2026
3. First before this Court is a notice of motion dated 29th May 2026, expressed to be brought under Articles 22, 23, 47 of the Constitution where the
Petitioner is seeking the following orders: -
a. Spent.
b. THAT pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a conservatory order restraining the 1st Respondent from conducting elections of Sugarcane farmers’ representatives to the Kenya Sugar Board under the zoning framework established under the First Schedule of the Sugar Act, 2024.
c. THAT costs of this Application be provided for.
4. The application is based on the following grounds: -
a. That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.
b. The Petitioner/Applicant is a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.
c. That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company.
d. That for decades, the petitioner, like other sugarcane farmers within Bumula Sub County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.
e. That in 2024, the Respondents, without consulting farmers within Bumula Sub County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula SubCounty from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.
f. In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.
g. That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;
a) Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.
b) These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.
c) These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.
d) The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity. e. The Kenya Sugar Board has organized elections
of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.
e) To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.
f) Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24 months preceding the date of the elections; and secondly, they will not be eligible to vote in the Lower Western Sugarcane Catchment area since Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.
h. On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.
i. That the elections of the sugarcane farmers’ representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.
j. That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.
k. That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.
l. That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.
m. That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.
n. That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.
5. In support of the application is the annexed affidavit of Silverious Simon Simiyu, the Petitioner whose affidavit echoed the grounds in support of the application and further deponed as follows: -
a. That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.
b. That I am a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.2.
c. That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company. See Minutes of Kenya Sugarcane Growers Association-Mumias Branch of 13.12.2010 and a bundle of farmers ‘contracts, sugarcane delivery slips of farmers within Bumula Sub-County annexed and marked SSS-2(a) and (b) respectively.
d. That for decades, the petitioner, like other sugarcane farmers within Bumula Sub-County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.
e. That in 2024, the Respondents, without consulting farmers within Bumula Sub-County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula SubCounty from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.
f. In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.
g. That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;
1) Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.
2) These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.
3) These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.
4) The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity.
5) The Kenya Sugar Board has organized elections of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.
6) To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.
7) Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24months preceding the date of the elections; and secondly, they will not be part eligible to vote in the Lower Western Sugarcane Catchment area since/Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.
h. On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.
i. That the elections of the sugarcane farmers' representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.
j. That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.
k. That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.
l. That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.
m. That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.
n. That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.
o. That the balance of convenience favours conservatory orders being granted.
p. That it is in the interest of justice that the orders sought in the application are granted.
Supplementary Affidavit dated 21st June 2026
6. The Applicant also filed a Supplementary Affidavit dated 21st June 2026 where he deponed as follows: -
a. That I wish to reiterate that I am a sugarcane farmer within Bumula SubCounty and have supplied sugarcane to Mumias Sugar Company Limited for decades.
b. That I am aware that I am not the only sugarcane farmer within BumulaSub-County will be disenfranchised from participating in the elections of growers’ representatives to the Kenya Sugar Board, if the elections were to be conducted on the basis of the impugned schedule.
c. That as a resident of Vihiga County, I am entitled to present this petition in Vihiga County.
d. That I am aware the Respondents, headquartered in Nairobi with field offices in Vihiga County, have not indicated any hardship in attending to this matter in this court.
e. That this honourable court has requisite jurisdiction to entertain the petition.
f. That I am aware that the Honourable court in Gikenyi B & 6 Others versus Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026 (2026) KEHC 902 (KLR)) issued conservatory order suspending fresh engagement, procuring, continuing to procure legal services from private advocates/law firms by public entities. See copy of Ruling annexed and marked S-2.
g. That I am further aware that the Court of Appeal declined the invitation to set aside and review the order and the conservatory order is still in force. See copy of the decision annexed and marked S-3.
h. That I am aware that the 1st Respondent, a public entity established under section 4 of the Sugar Act, is bound by the Conservatory Order issued in Nakuru Petition E001 of 2026 and cannot lawfully engage the firm of Prof. Tom Ojienda & Associates.
i. That I have been advised by my advocate on record, which advice I believe to be true, that there is only one High Court in Kenya and everything done by the firm of Prof. Tom Ojienda in these proceedings have been done in contempt of this this honourable court.
j. That I have looked at the pleadings in Kakamega Petition No. E013 of 2025 used by the interested party to argue that the Petition presented herein is sub-judice and the application res-judicata and wish to state that the two petitions are distinct from each other, relate to sugarcane farmers in different regions, raise different issues for determination, seek different remedies and brought by different petitioners.
k. That I am further aware that no prejudice will be suffered by the 1st respondent if the pleadings by the firm of Prof. Tom Ojienda expunged from these proceedings for being unlawful since the Hon Attorney General has already intimated in these proceedings that he represents all the respondents.
l. That the Respondents did not conduct any public participation or stakeholders’ engagement in Bumula Sub-County before enactment of the Act.
m. That Public Participation and Stakeholder engagement done at the Pride Inn Hotel in Nairobi on 24.2.2023 was clearly not meant to elicit views from farmers in Bumula Sub-County but residents of Nairobi.
n. That I wish to reiterate and state as follows;
a) Bumula sugarcane farmers traditionally supply their cane produce to Mumias Sugar Co. Ltd. which undertakes land preparation, seed cane supply and fertilizer distribution to farmers within the sub-county on contract and upon maturity, the cane crop is harvested and delivered to the company.
b) After the repeal of the Sugar Act 2002, confusion marred the industry with rampant cane poaching.
c) The Sugar Act (2024) was intended to bring sanity in the industry, by protecting millers from losing their cane crop to illegal poachers and to help factories enforce cane farming contracts and similarly, to protect farmers.
d) To effectively protect farmers’ interests, the Respondents were enjoined to ensure effective and meaningful public participation and stakeholders’ engagement is done before the enactment.
e) Such public participation and stakeholder engagement needed to reach sugarcane farmers who remain key players in the sub-sector in their respective areas.
f) By conducting public participation and stakeholder engagement at Pride Inn Hotel in Nairobi on 24.3.2023, the Respondents ensured farmers in Bumula-Sub-County and indeed all other catchment areas did not participate in the process.
g) That I am aware that the Court in Kakamega Constitution Petition E013 of 2025 was clear that a determination on the efficacy of the alleged public participation would await the hearing of the petition.
h) That first Schedule of the Act classifies the sugar growing areas into 5 zones namely Upper Western, Lower Western, Central, Coastal and Southern.
i) That under the Repealed Sugar Act of 2002, zoning was based on factory catchment, catchment being an area or surface under which that particular factory grew its cane for purposes of supplying to its factory. The 2024 Act zones have been made to overlap catchment areas for other factories, and this has now created a lot of hostility and animosity.
j) What this means is that whether a factory has planted cane in a region which is under another zone, it is going to be difficult for the particular factory to cross over and harvest the cane which it developed. In the instant case, Bumula whose cane has been developed by Mumias Sugar Company Limited, now falls in the Upper Western Zone and it is going to be very difficult after the conduct of the upcoming elections for them to cross over to the Upper Western zone to harvest and carry away their cane to the Lower Western zone, where the factory is situated.
k) That while this situation persists, farmers in Bumula Sub-County will suffer heavily.
l) Therefore, to resolve this challenge, it is imperative for the respondents to facilitate an urgent amendment by excluding Bumula under the Upper Western zone for the smooth delivery of their cane and to also participate smoothly in the election of the board members in the Lower Western zone.
m) The Respondents admit this is a problem that ought to be fixed and alleged that the Ministry of Agriculture has already started taking steps towards correcting the problem.
n) Section 6(1)(b) of the Sugar Act 2024 provides for representatives elected by growers, one from each sugar catchment area listed in the First Schedule as stated above.
o) Under the First Schedule, Bumula falls under the Upper Western. Its farmers are contracted to Mumias Sugar which is in the Lower Western. They cannot participate in the upcoming elections under Upper Western because they have not supplied cane to factories falling under the Upper Western zone for the last two years, which is a mandatory requirement for participation in the election of board members in any given zone. One must have supplied cane to a factory under the zone he intends to vote from. This therefore implies that they won’t participate.
p) If this election proceeds, Bumula farmers shall suffer irreparable harm. It is only fair and just that an enabling ground be put in place through relevant amendments to the Sugar Act to avoid injustice. This matter is so grave that it cannot be resolved through technicalities as it concerns a substantial number of farmers whose rights are at stake unless and until this honorable court steps in to ensure fairness and compliance with all relevant provisions of the law.
q) The Respondents propose a suspension of elections in both the Upper Western and Lower Western catchment areas. This will further disenfranchise farmers in the Western Catchment areas, the largest sugar belt in Kenya. Once constituted with only 3 sugarcane growers representatives, the Kenya Sugar Board will embark on its mandate without the involvement of the Western Kenya comprising the Upper Western and Lower Western catchment areas.
r) The proposal by the Respondents perpetuates illegality. Having conceded that the first schedule is illegal, any elections conducted on the basis of the schedule will also be illegal. Further, Section 4 of the Act provides for elections in all the 5 catchment areas to be done at once, not staggered in any manner. This is also important because Board members serve for a term of 3 years. This means that if the proposal to stagger the elections is accepted, the term of board members will end at different times, creating more legal challenges.
s) The best scenario that is lawful and neat, is for the elections to be suspended by the court, the respondents given time to correct the problem (in six weeks as proposed by the respondents) before fresh elections
Replying Affidavit dated 11th June 2026
7. The Application is opposed vide a Replying affidavit of one Harrison Tanga
Webbo, the 1st Interested Party who averred as follows: -
a. THAT I have read the application dated 29/5/2026 together with the petition of the same date and having understood wish to respondent thereto as follows
b. THAT am one of the farmers with cane supply contract with west Kenya Sugar Co. Ltd.
c. THAT am aware that the respondent is established by dint of section 3 of the sugar Act as follows; Establishment and incorporation of the Board
1) There is established a board to be known as the Kenya Sugar Board.
2) The Board shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of-
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
(c) borrowing or lending money; and
(d) doing or performing all such other acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate."
d. THAT the petitioner is seeking to declare the schedule to the Act to be unconstitutional
e. THAT the respondent being a creature of parliament does not make laws
f. THAT I have looked at the petition and he has not enjoined the National Assembly and the Senate.
g. THAT the petition is thus incompetent as the Court cannot issue an order affecting on parties.
h. THAT the respondent is a creature of parliament and cannot be held responsible for the functions of parliament.
i. THAT am aware that the board is 99% constituted as only directors not present are grower directors.
j. THAT in interest of the public the injunction should not to be granted.
Replying Affidavit dated 16th June 2026
8. The Application is also opposed vide a Replying affidavit of Moses Juma
Sikuta dated 16th June 2026 who averred follows: -
a. THAT I am an adult male and a sugarcane farmer within Bungoma and of authority of my fellow farmer and or interested party herein, conversant with the matters in issue herein and of authority to swear this affidavit thus competent to depose to this affidavit
b. THAT I have read and understood the tenor and purport of both the Petition dated 29th May 2026, the Notice of Motion Application of even date and the Supporting Affidavit thereof sworn by SILVERIOUS SIMON SIMIYU on 29th May 2026 filed herewith the contents whereof have further been explained to me by my advocates on record and I depose to this Affidavit in opposition to both Petition and Application.
c. THAT before the commencement of the Sugar Act 2024 the sugar factories were allowed to recruit and contract farmer from anywhere within the country and pursuant to the said existing practice the interested parties and many farmers alike from within Bumula Sub County in Bungoma were recruited and contracted by both West Kenya Sugar Company Ltd and Nzoia Sugar Company Ltd. Kibos Sugar Industries & Allied Industries Ltd who are domiciled in Kisumu County recruited and contracted farmers in Navakholo Constituency and they operated a sugarcane buying center in the said region.
d. THAT the Sugar Act 2024 was gazetted sometimes in November 2024 and it introduced sugarcane catchment areas where farmers were supposed to sell their sugarcane to only millers domiciled in their catchment area with exemptions provided for under Section 20 of the Sugar Act.
e. THAT the first schedule of the Sugar Act placed West Kenya Sugar Company Ltd, Nzoia Sugar Company (2025) Ltd, Naitiri Sugar Company Ltd and Butali Sugar Company Ltd within the Upper Western sugarcane catchment area and placed Mumias Sugar Company (2021) Ltd, Olepito Sugar and Busia Sugar within the Lower Western sugarcane catchment area.
f. THAT Regulation 25 of the Sugar General Regulations provides the process of how a farmer could apply to supply his sugarcane to a miller outside is catchment area which included applying for a permit to the Kenya Sugar Board who is statutory time bound to respond within 14 days of receipt of the application.
g. THAT Section 20(1)(c) of the Sugar Act allows the Petitioner and any farmer in Bumula Sub County contracted to Mumias Sugar Company (2021) Ltd to harvest and have their contracted sugarcane delivered to Mumias Sugar Company (2021) Ltd upon notification to the Board under Section 20 (2) of
the Sugar Act and thus there is no economic loss being suffered by the Petitioner with the placement of Bumula Sub County in Bungoma County under Upper Western Sugarcane Catchment area.
h. THAT the Sugar Act as gazetted in November 2024 provided for the composition of the Board of the Kenya Sugar Board that included 5 farmers’ representatives to be elected by farmers domiciled in the 5sugarcane catchment area namely
a) Central Sugar Catchment Area
b) Upper Western Sugar Catchment Area
c) Lower Western Sugar Catchment Area
d) Southern Sugar Catchment Area
e) Coastal Sugar Catchment Area
f. THAT the interested parties are farmers and registered voters in the forthcoming Kenya Sugar Board farmers representative from Bumula Sub County in Bungoma County and they fall within the Upper Western Catchment area as per the First Schedule of the Sugar Act and have existing sugarcane growing and supply contract with millers in the Upper Western Catchment area and specifically West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd. (annexed hereto & marked MJS 2 is bundle of contracts between farmers and West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd who are millers within Upper Western
Sugarcane Catchment Area)
g. THAT the interested parties are among the over 200,000 sugarcane farmers within Upper and Lower Western Sugar Cane Catchment area which covers 7 Counties namely
a) Bungoma County
b) Busia County
c) Kakamega County
d) Trans Nzoia County
e) Siaya County
f) Uasin Gishu County
g) Northern Part of Nandi County whom the Petitioner, who has only one vote and is not a candidate in the forthcoming election is seeking to disenfranchise them by stopping the national statutory elections for their catchment area (Upper and Lower Western Catchment Area) and denying their Constitutional right as enshrined in Article 10 and 38(2) of Constitution of Kenya to participate in the forthcoming Kenya Sugar Board farmer representative election where they are legitimate voters and have a legitimate expectation elect their representative to the Board despite the western sugarcane catchment area being the biggest and backbone of sugarcane farming in Kenya who are most affected by any decision of the Kenya Sugar Board as the regulator.
h. THAT the Sugar Act 2024 which contains the First Schedule on the demarcation of the sugarcane catchment area was passed in the year 2024 after
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1. This matter came for a status conference with regard to the notice of motion dated 29th of May 2026 following structural interdict with regard to that motion which had been filed under Certificate of Urgency. It so happened that the original notice of motion brought in other interested parties like Mr.
Harrison Tanga Webbo who filed a Replying Affidavit dated 11th June 2026. That was not the end of it. On the 15th of June 2026 yet another motion was filed by Interested Parties being represented by Learned Counsel Mr. Olendo, on behalf of the 4th – 8th Interested Parties sequencing their interests to the petition filed on the 29th May 2026.
2. This litigation did not stop there, on the 15th June 2026 the 1st and 2nd proposed Interested Parties also moved the Court by way of a Notice of Motion dated the same day with a horizon on the justiciable issues pleaded in the petition with regard to the interlocking issues in the entire spectrum and the main actors being the Kenya Sugar Board, the Cabinet Secretary Ministry of Agriculture and Livestock Development and the Hon. Attorney General. This Court for purposes of legal extractives as stated the various motions with corresponding affidavits so as to lay the foundation of the litigation roadmap for purposes of expediency and proportionate merger of what one will call the predominant dispute both at the interlocutory level and which may shed some light to the main petition. Thus, the following applications constitute the legal contestation as between the Petitioner, Respondents and Interested Parties.
Notice of Motion Application dated 29th May 2026
3. First before this Court is a notice of motion dated 29th May 2026, expressed to be brought under Articles 22, 23, 47 of the Constitution where the
Petitioner is seeking the following orders: -
a. Spent.
b. THAT pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a conservatory order restraining the 1st Respondent from conducting elections of Sugarcane farmers’ representatives to the Kenya Sugar Board under the zoning framework established under the First Schedule of the Sugar Act, 2024.
c. THAT costs of this Application be provided for.
4. The application is based on the following grounds: -
a. That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.
b. The Petitioner/Applicant is a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.
c. That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company.
d. That for decades, the petitioner, like other sugarcane farmers within Bumula Sub County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.
e. That in 2024, the Respondents, without consulting farmers within Bumula Sub County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula SubCounty from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.
f. In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.
g. That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;
a) Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.
b) These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.
c) These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.
d) The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity. e. The Kenya Sugar Board has organized elections
of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.
e) To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.
f) Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24 months preceding the date of the elections; and secondly, they will not be eligible to vote in the Lower Western Sugarcane Catchment area since Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.
h. On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.
i. That the elections of the sugarcane farmers’ representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.
j. That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.
k. That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.
l. That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.
m. That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.
n. That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.
5. In support of the application is the annexed affidavit of Silverious Simon Simiyu, the Petitioner whose affidavit echoed the grounds in support of the application and further deponed as follows: -
a. That sugarcane farming is the economic backbone and primary source of livelihood for the majority of residents in Bumula Sub-County. It sustains over 9,000 farmers and their families in the sub-County and forms the mainstay of the local economy.
b. That I am a sugarcane farmer in Bumula Sub-County, with running contract with Mumias Sugar Company Limited.2.
c. That Bumula Sub-County has more than 9,000 sugarcane farmers who are affiliated to Mumias Sugar Company by virtue to sugarcane supply contracts with the company. See Minutes of Kenya Sugarcane Growers Association-Mumias Branch of 13.12.2010 and a bundle of farmers ‘contracts, sugarcane delivery slips of farmers within Bumula Sub-County annexed and marked SSS-2(a) and (b) respectively.
d. That for decades, the petitioner, like other sugarcane farmers within Bumula Sub-County, developed economic dependence and contractual relationship with Mumias Sugar Company Limited which, over time, made deliberate efforts to expand its sugarcane catchment area through cane development, infrastructural development and economic and social empowerment programmes in the area.
e. That in 2024, the Respondents, without consulting farmers within Bumula Sub-County, conducting any public participation, arbitrarily and unilaterally delineated new sugarcane catchment areas as contained in the First Schedule of the Sugar Act, in so doing, moving Bumula SubCounty from Lower Western Sugarcane Catchment Area where Mumias Sugar Company is located to Upper Western Sugarcane Catchment area.
f. In delineating the new sugarcane catchment areas, the Respondents did not carry out any public participation to allow farmers to give their views on the proposed rezoning, prevent economic harm to over 9,000 farmers and ensure decisions reflect the historical, contractual, and economic realities on the ground.
g. That the rezoning of these farmers from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area has serious ramification to the Petitioner and more than 9,000 sugarcane farmers in Bumula Sub-County described herein below;
1) Most of the farmers in Bumula Sub-County have long-standing relationship with Mumias Sugar Company Limited.
2) These farmers do not have any sugarcane supply contracts with millers in the Upper Western Sugarcane Catchment area.
3) These farmers are barred from entering into new sugarcane supply contracts with other millers because they will be in breach of their contractual obligations with Mumias Sugar Company Limited.
4) The rezoning severely affected the Bumula Sub-County sugarcane farmers’ ability to earn income from sugarcane farming, their only economic activity.
5) The Kenya Sugar Board has organized elections of sugarcane farmers’ representatives to the Kenya Sugar Board based on the newly delineated sugarcane catchment areas.
6) To be eligible to participate in the elections, either as candidates or voters, the Procedure for elections of Growers Representatives to the Kenya Sugar Board 2025 requires sugarcane farmers to show that they have running sugarcane supply contracts with millers in their respective sugarcane catchment areas and have, in twenty-four (24) months preceding the date of the elections, supplied sugarcane to the respective millers.
7) Farmers in Bumula Sub-County will not be eligible to participate in the elections in both the Lower Western sugarcane catchment area and the Upper Western Sugarcane Catchment area because, firstly, the First Schedule of the Sugar Act places them in the Upper Western sugarcane catchment area where they do not have sugarcane supply contracts and have not supplied any sugarcane to any millers in the area in the 24months preceding the date of the elections; and secondly, they will not be part eligible to vote in the Lower Western Sugarcane Catchment area since/Bumula Sub-County is now not considered part of the Lower Western Sugarcane Catchment area.
h. On 12.5.2026, through official website, the 1st Respondents issued a Notice of Election calling for elections of sugarcane farmers representatives scheduled for 25.6.2026.
i. That the elections of the sugarcane farmers' representatives to the Kenya Sugar Board as currently constituted will marginalize the petitioner and more than 9,000 sugarcane farmers within Bumula Sub-County by denying them an opportunity to participate in the elections either as voters or as candidates. Further, these farmers will be denied a voice in the management of the affairs of the sugar industry to which they are key stakeholders for 3 years.
j. That the Kenya Sugar Board is a critical organ in the ecosystem of the sugar industry in line with the provisions of section 4 of the Sugar Act. Its statutory functions include the licensing of millers, delineation of sugarcane catchment areas, registration of growers, and the organisation of elections for farmer representatives to the Board.
k. That since sugarcane farmers in Bumula Sub-County do not have subsisting sugarcane supply contracts with sugar millers found in the Upper Western catchment area as per the impugned schedule, they will effectively be locked out of the upcoming elections, if the elections were to proceed on the basis of the impugned schedule.
l. That prudence dictates that the concerns raised in the petition be addressed before the elections are conducted.
m. That unless the honourable Court intervenes by granting the orders sought herein, the farmers within Bumula Sub-County will be denied the right to participate in the elections and a voice in the management of the affairs of the sugar industry in the country. Further, the petition will be rendered nugatory.
n. That the Respondents will not suffer any prejudice if the orders sought herein are granted. Conversely, the Petitioner/Applicant and indeed most of most sugarcane farmers within Bumula Sub-County will suffer irreparable loss if the looming elections were to proceed in the manner planned.
o. That the balance of convenience favours conservatory orders being granted.
p. That it is in the interest of justice that the orders sought in the application are granted.
Supplementary Affidavit dated 21st June 2026
6. The Applicant also filed a Supplementary Affidavit dated 21st June 2026 where he deponed as follows: -
a. That I wish to reiterate that I am a sugarcane farmer within Bumula SubCounty and have supplied sugarcane to Mumias Sugar Company Limited for decades.
b. That I am aware that I am not the only sugarcane farmer within BumulaSub-County will be disenfranchised from participating in the elections of growers’ representatives to the Kenya Sugar Board, if the elections were to be conducted on the basis of the impugned schedule.
c. That as a resident of Vihiga County, I am entitled to present this petition in Vihiga County.
d. That I am aware the Respondents, headquartered in Nairobi with field offices in Vihiga County, have not indicated any hardship in attending to this matter in this court.
e. That this honourable court has requisite jurisdiction to entertain the petition.
f. That I am aware that the Honourable court in Gikenyi B & 6 Others versus Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026 (2026) KEHC 902 (KLR)) issued conservatory order suspending fresh engagement, procuring, continuing to procure legal services from private advocates/law firms by public entities. See copy of Ruling annexed and marked S-2.
g. That I am further aware that the Court of Appeal declined the invitation to set aside and review the order and the conservatory order is still in force. See copy of the decision annexed and marked S-3.
h. That I am aware that the 1st Respondent, a public entity established under section 4 of the Sugar Act, is bound by the Conservatory Order issued in Nakuru Petition E001 of 2026 and cannot lawfully engage the firm of Prof. Tom Ojienda & Associates.
i. That I have been advised by my advocate on record, which advice I believe to be true, that there is only one High Court in Kenya and everything done by the firm of Prof. Tom Ojienda in these proceedings have been done in contempt of this this honourable court.
j. That I have looked at the pleadings in Kakamega Petition No. E013 of 2025 used by the interested party to argue that the Petition presented herein is sub-judice and the application res-judicata and wish to state that the two petitions are distinct from each other, relate to sugarcane farmers in different regions, raise different issues for determination, seek different remedies and brought by different petitioners.
k. That I am further aware that no prejudice will be suffered by the 1st respondent if the pleadings by the firm of Prof. Tom Ojienda expunged from these proceedings for being unlawful since the Hon Attorney General has already intimated in these proceedings that he represents all the respondents.
l. That the Respondents did not conduct any public participation or stakeholders’ engagement in Bumula Sub-County before enactment of the Act.
m. That Public Participation and Stakeholder engagement done at the Pride Inn Hotel in Nairobi on 24.2.2023 was clearly not meant to elicit views from farmers in Bumula Sub-County but residents of Nairobi.
n. That I wish to reiterate and state as follows;
a) Bumula sugarcane farmers traditionally supply their cane produce to Mumias Sugar Co. Ltd. which undertakes land preparation, seed cane supply and fertilizer distribution to farmers within the sub-county on contract and upon maturity, the cane crop is harvested and delivered to the company.
b) After the repeal of the Sugar Act 2002, confusion marred the industry with rampant cane poaching.
c) The Sugar Act (2024) was intended to bring sanity in the industry, by protecting millers from losing their cane crop to illegal poachers and to help factories enforce cane farming contracts and similarly, to protect farmers.
d) To effectively protect farmers’ interests, the Respondents were enjoined to ensure effective and meaningful public participation and stakeholders’ engagement is done before the enactment.
e) Such public participation and stakeholder engagement needed to reach sugarcane farmers who remain key players in the sub-sector in their respective areas.
f) By conducting public participation and stakeholder engagement at Pride Inn Hotel in Nairobi on 24.3.2023, the Respondents ensured farmers in Bumula-Sub-County and indeed all other catchment areas did not participate in the process.
g) That I am aware that the Court in Kakamega Constitution Petition E013 of 2025 was clear that a determination on the efficacy of the alleged public participation would await the hearing of the petition.
h) That first Schedule of the Act classifies the sugar growing areas into 5 zones namely Upper Western, Lower Western, Central, Coastal and Southern.
i) That under the Repealed Sugar Act of 2002, zoning was based on factory catchment, catchment being an area or surface under which that particular factory grew its cane for purposes of supplying to its factory. The 2024 Act zones have been made to overlap catchment areas for other factories, and this has now created a lot of hostility and animosity.
j) What this means is that whether a factory has planted cane in a region which is under another zone, it is going to be difficult for the particular factory to cross over and harvest the cane which it developed. In the instant case, Bumula whose cane has been developed by Mumias Sugar Company Limited, now falls in the Upper Western Zone and it is going to be very difficult after the conduct of the upcoming elections for them to cross over to the Upper Western zone to harvest and carry away their cane to the Lower Western zone, where the factory is situated.
k) That while this situation persists, farmers in Bumula Sub-County will suffer heavily.
l) Therefore, to resolve this challenge, it is imperative for the respondents to facilitate an urgent amendment by excluding Bumula under the Upper Western zone for the smooth delivery of their cane and to also participate smoothly in the election of the board members in the Lower Western zone.
m) The Respondents admit this is a problem that ought to be fixed and alleged that the Ministry of Agriculture has already started taking steps towards correcting the problem.
n) Section 6(1)(b) of the Sugar Act 2024 provides for representatives elected by growers, one from each sugar catchment area listed in the First Schedule as stated above.
o) Under the First Schedule, Bumula falls under the Upper Western. Its farmers are contracted to Mumias Sugar which is in the Lower Western. They cannot participate in the upcoming elections under Upper Western because they have not supplied cane to factories falling under the Upper Western zone for the last two years, which is a mandatory requirement for participation in the election of board members in any given zone. One must have supplied cane to a factory under the zone he intends to vote from. This therefore implies that they won’t participate.
p) If this election proceeds, Bumula farmers shall suffer irreparable harm. It is only fair and just that an enabling ground be put in place through relevant amendments to the Sugar Act to avoid injustice. This matter is so grave that it cannot be resolved through technicalities as it concerns a substantial number of farmers whose rights are at stake unless and until this honorable court steps in to ensure fairness and compliance with all relevant provisions of the law.
q) The Respondents propose a suspension of elections in both the Upper Western and Lower Western catchment areas. This will further disenfranchise farmers in the Western Catchment areas, the largest sugar belt in Kenya. Once constituted with only 3 sugarcane growers representatives, the Kenya Sugar Board will embark on its mandate without the involvement of the Western Kenya comprising the Upper Western and Lower Western catchment areas.
r) The proposal by the Respondents perpetuates illegality. Having conceded that the first schedule is illegal, any elections conducted on the basis of the schedule will also be illegal. Further, Section 4 of the Act provides for elections in all the 5 catchment areas to be done at once, not staggered in any manner. This is also important because Board members serve for a term of 3 years. This means that if the proposal to stagger the elections is accepted, the term of board members will end at different times, creating more legal challenges.
s) The best scenario that is lawful and neat, is for the elections to be suspended by the court, the respondents given time to correct the problem (in six weeks as proposed by the respondents) before fresh elections
Replying Affidavit dated 11th June 2026
7. The Application is opposed vide a Replying affidavit of one Harrison Tanga
Webbo, the 1st Interested Party who averred as follows: -
a. THAT I have read the application dated 29/5/2026 together with the petition of the same date and having understood wish to respondent thereto as follows
b. THAT am one of the farmers with cane supply contract with west Kenya Sugar Co. Ltd.
c. THAT am aware that the respondent is established by dint of section 3 of the sugar Act as follows; Establishment and incorporation of the Board
1) There is established a board to be known as the Kenya Sugar Board.
2) The Board shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of-
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;
(c) borrowing or lending money; and
(d) doing or performing all such other acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate."
d. THAT the petitioner is seeking to declare the schedule to the Act to be unconstitutional
e. THAT the respondent being a creature of parliament does not make laws
f. THAT I have looked at the petition and he has not enjoined the National Assembly and the Senate.
g. THAT the petition is thus incompetent as the Court cannot issue an order affecting on parties.
h. THAT the respondent is a creature of parliament and cannot be held responsible for the functions of parliament.
i. THAT am aware that the board is 99% constituted as only directors not present are grower directors.
j. THAT in interest of the public the injunction should not to be granted.
Replying Affidavit dated 16th June 2026
8. The Application is also opposed vide a Replying affidavit of Moses Juma
Sikuta dated 16th June 2026 who averred follows: -
a. THAT I am an adult male and a sugarcane farmer within Bungoma and of authority of my fellow farmer and or interested party herein, conversant with the matters in issue herein and of authority to swear this affidavit thus competent to depose to this affidavit
b. THAT I have read and understood the tenor and purport of both the Petition dated 29th May 2026, the Notice of Motion Application of even date and the Supporting Affidavit thereof sworn by SILVERIOUS SIMON SIMIYU on 29th May 2026 filed herewith the contents whereof have further been explained to me by my advocates on record and I depose to this Affidavit in opposition to both Petition and Application.
c. THAT before the commencement of the Sugar Act 2024 the sugar factories were allowed to recruit and contract farmer from anywhere within the country and pursuant to the said existing practice the interested parties and many farmers alike from within Bumula Sub County in Bungoma were recruited and contracted by both West Kenya Sugar Company Ltd and Nzoia Sugar Company Ltd. Kibos Sugar Industries & Allied Industries Ltd who are domiciled in Kisumu County recruited and contracted farmers in Navakholo Constituency and they operated a sugarcane buying center in the said region.
d. THAT the Sugar Act 2024 was gazetted sometimes in November 2024 and it introduced sugarcane catchment areas where farmers were supposed to sell their sugarcane to only millers domiciled in their catchment area with exemptions provided for under Section 20 of the Sugar Act.
e. THAT the first schedule of the Sugar Act placed West Kenya Sugar Company Ltd, Nzoia Sugar Company (2025) Ltd, Naitiri Sugar Company Ltd and Butali Sugar Company Ltd within the Upper Western sugarcane catchment area and placed Mumias Sugar Company (2021) Ltd, Olepito Sugar and Busia Sugar within the Lower Western sugarcane catchment area.
f. THAT Regulation 25 of the Sugar General Regulations provides the process of how a farmer could apply to supply his sugarcane to a miller outside is catchment area which included applying for a permit to the Kenya Sugar Board who is statutory time bound to respond within 14 days of receipt of the application.
g. THAT Section 20(1)(c) of the Sugar Act allows the Petitioner and any farmer in Bumula Sub County contracted to Mumias Sugar Company (2021) Ltd to harvest and have their contracted sugarcane delivered to Mumias Sugar Company (2021) Ltd upon notification to the Board under Section 20 (2) of
the Sugar Act and thus there is no economic loss being suffered by the Petitioner with the placement of Bumula Sub County in Bungoma County under Upper Western Sugarcane Catchment area.
h. THAT the Sugar Act as gazetted in November 2024 provided for the composition of the Board of the Kenya Sugar Board that included 5 farmers’ representatives to be elected by farmers domiciled in the 5sugarcane catchment area namely
a) Central Sugar Catchment Area
b) Upper Western Sugar Catchment Area
c) Lower Western Sugar Catchment Area
d) Southern Sugar Catchment Area
e) Coastal Sugar Catchment Area
f. THAT the interested parties are farmers and registered voters in the forthcoming Kenya Sugar Board farmers representative from Bumula Sub County in Bungoma County and they fall within the Upper Western Catchment area as per the First Schedule of the Sugar Act and have existing sugarcane growing and supply contract with millers in the Upper Western Catchment area and specifically West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd. (annexed hereto & marked MJS 2 is bundle of contracts between farmers and West Kenya Sugar Co. Ltd and Nzoia Sugar Company (2025) Ltd who are millers within Upper Western
Sugarcane Catchment Area)
g. THAT the interested parties are among the over 200,000 sugarcane farmers within Upper and Lower Western Sugar Cane Catchment area which covers 7 Counties namely
a) Bungoma County
b) Busia County
c) Kakamega County
d) Trans Nzoia County
e) Siaya County
f) Uasin Gishu County
g) Northern Part of Nandi County whom the Petitioner, who has only one vote and is not a candidate in the forthcoming election is seeking to disenfranchise them by stopping the national statutory elections for their catchment area (Upper and Lower Western Catchment Area) and denying their Constitutional right as enshrined in Article 10 and 38(2) of Constitution of Kenya to participate in the forthcoming Kenya Sugar Board farmer representative election where they are legitimate voters and have a legitimate expectation elect their representative to the Board despite the western sugarcane catchment area being the biggest and backbone of sugarcane farming in Kenya who are most affected by any decision of the Kenya Sugar Board as the regulator.
h. THAT the Sugar Act 2024 which contains the First Schedule on the demarcation of the sugarcane catchment area was passed in the year 2024 after
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