RULING AND DIRECTIONS
1. Before Court is Notice of Motion under Certificate of Urgency dated 2nd September 2026 brought under Articles 25(c), 48 and 50(1) of the Constitution; Rule 7 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) (Practice & Procedure) Rules, 2013; Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law), where the Applicant Mr. Joshua Kiilu, an Advocate of the High Court of Kenya in conduct of the matter on behalf of the proposed 4th Respondent, the National Assembly certified the application urgent and requiring the attention of the Honourable Court during the vacation for orders that:-
a. The Honourable Court be pleased to join the Applicant as the 4th Respondent in the Petition.
b. Upon the grant of the aforesaid prayer, the Applicant be granted leave to respond to the Petition and all applications.
c. The attached Replying affidavit by the proposed 4th Respondent be admitted as properly filed.
d. Costs of this Application be provided for.
2. The application is based on the following grounds:
a. The Petitioner challenges the constitutional validity of the First Schedule of the Sugar Act, No. 11 of 2024 on two primary grounds:
(i) That the First Schedule allegedly moved Bumula Sub-County from the Lower Catchment Area to the Upper Catchment Area, which disenfranchised sugarcane farmers in Bumula Sub-County Area from participating in the Kenya Sugar Board grower representative elections.
(ii) That the First Schedule was enacted without meaningful public participation in the affected catchment areas, specifically regarding the delineation of catchment boundaries, in violation of Articles 10 and 118 of the Constitution.
b. The National Assembly legally debated and passed the impugned legislation in the discharge of its legislative mandate under Articles 94 & 95 of the Constitution. Therefore, the Petitioner questions the legitimacy of the legislative process carried out by the Applicant in enacting the impugned legislation.
c. The National Assembly intends to adduce evidence to the effect that the impugned law was passed after due consideration; hence it passes the constitutionality validity test.
d. Based on the above, the Applicant seeks leave of the Court to be joined in these proceedings as a Respondent in the Petition herein to assist the Court in rendering an informed decision.
e. The National Assembly is therefore a proper and necessary Respondent in the Petition herein. The principles of natural justice deem all parties directly affected by a matter to be allowed to participate.
f. No prejudice shall be occasioned to the other Parties herein if the orders sought in this Application are granted. However, the Applicant stands to be condemned unheard if it does not participate in these proceedings.
3. The application is supported by the annexed affidavit of Samuel Njoroge who deponed as follows: That:
a. I am the Clerk of the National Assembly, the Applicant herein. I am fully conversant with the facts of this matter and hence competent to make this Affidavit.
b. I am duly authorized by the Rt. Hon. Speaker of the National Assembly to make this Affidavit on behalf of the National Assembly.
c. The facts and matters deponed herein are derived partly from my own knowledge and partly from information and advice derived from Mr. Joshua Kiilu, Counsel for the Applicant. To the extent that any statement made herein is based on information or belief, I have disclosed the source or ground, as the case may be, of such information or belief and I verily believe the same to be true.
d. I make this Affidavit in support of the Applicant's application seeking leave to be joined as a Respondent to the Petition herein.
e. The Petitioner challenges the constitutional validity of the First Schedule of the Sugar Act, No. 11 of 2024 on two primary grounds:
a. That the First Schedule allegedly moved Bumula Sub-County from the Lower Catchment Area to the Upper Catchment Area, which disenfranchised sugarcane farmers in Bumula Sub-County Area from participating in the Kenya Sugar Board grower representative elections.
b. That the First Schedule was enacted without meaningful public participation in the affected catchment areas, specifically regarding the delineation of catchment boundaries, in violation of Articles 10 and 118 of the Constitution.
f. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the Petitioner challenges the constitutionality of provisions of the Sugar Act, 2024. The Petitioner therefore seeks the following prayers inter alia:
g. A DECLARATION that First Schedule of the Sugar Act, 2024, is unconstitutional, null, and void for delineating Bumula Sub-County from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area without public participation.
h. A DECLARATION that the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugarcane Act, 2024, are unconstitutional, unlawful, and invalid.
i. A CONSERVATORY ORDER restraining the Respondents, whether by themselves, their agents, or servants, from conducting or proceeding with the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugar Act, 2024.
j. AN ORDER directing the Respondents to undertake meaningful public participation involving all affected farmers before delineating sugarcane catchment areas within a period set by the Honourable Court.
k. AN ORDER compelling the Respondents to review, amend, and/or realign the zoning framework in the First Schedule of the Sugar Act 2024 to reflect historical, contractual, and economic realities of the farmers within a period set by the Honourable Court.
l. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the orders herein and reliefs sought, if granted, shall directly affect the Applicant's legislative mandate set out under Articles 94 & 95 of the Constitution. The upshot being the Applicant is a necessary Respondent to the Petition.
m. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the Court in Commission for Implementation of the Constitution v Parliament of Kenya & others Petition No. 454 of 2012, the court held that whenever there is an allegation of constitutional violation on the part of Parliament, Parliament as the state organ responsible for the alleged violation, must be sued in its own name.
n. The Petition challenges the Act on allegations that the Bill which culminated in the Act was not subjected to public participation. The National Assembly, having originated the Bill, has the constitutional mandate to conduct public participation and therefore has the records and information demonstrating that public participation was conducted.
o. Since only the National Assembly can properly adduce evidence on public participation, its participation in these proceedings to defend its interests is crucial. It is therefore fair and just that the National Assembly be admitted as a Respondent to enable it to produce evidence to guide this Honourable Court in making an informed decision.
p. In the event this Honourable Court grants the Application herein, the
Applicant undertakes to comply with any directions made by the Court on
the filing and service of responses and other necessary documents without any undue delay.
q. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that no prejudice shall be occasioned to the Petition or other parties herein if the orders sought in this Application are granted. On the other hand, the Applicant stands to be condemned unheard if it does not participate in these proceedings in light of the orders sought by the Petitioner.
r. In view of the matters aforesaid, it is in the interest of justice and overriding objectives of this Honourable Court that the Applicant be joined herein as a Respondent in the Petition.
Decision
4. In view of the context of this application that some orders have to be issued in the first instance I am minded to touch briefly on the provisions of the law regarding the joinder or impleadment of parties in pending proceedings are governed primarily under Order 1 Rule 10(2) of the Civil Procedure Act. The legal principles as of now established by Superior Courts include inter alia the following:
• Necessary vs. Proper Parties: A necessary party is one in whose absence no effective decree can be passed. A proper party is one whose presence enables the court to completely, effectively, and thoroughly adjudicate upon all questions involved in the suit, even though an effective order can sometimes be parsed without them.
• Dominus Litis: The plaintiff is generally considered the dominus litis (master of the suit) and cannot be forced to add a party against their wishes unless that party is strictly a necessary party for the core relief.
• Non-Joinder Not Always Fatal: Under Order 1 Rule 9 CPC, no suit shall fail by reason of misjoinder or non-joinder of parties, except in the case of the non-joinder of a necessary party.
5. In the persuasive case in the common law jurisdiction in which we share the common heritage the Court in Mumbai International Airport (P) Ltd. V Regency Convention Centre & Hotels (P) Ltd. [2010] 7 SCC 417 the Court explained the import of the expressions necessary party and proper party as follows:
“14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”
6. The High Court and other Superior Courts have not been left behind in interpreting the provisions of Order 1 with specifics which deal with the joinder of a party to pending proceedings within our legal system. The following authorities attest to that litigation landscape:
• JMK v MWM & Another [2015] eKLR:
The Principle: This remains the leading authority cited by High Court judges regarding the interpretation of Order 1 Rule 10(2). It establishes that the court possesses the power to add a party at any stage of the proceedings if their presence is necessary to enable the court to completely and effectively settle all questions involved in the suit.
• Joseph Njau v Robert Maina & 3 Others (HCCC No. 136 of 2000): The Principle: The High Court in this case explicitly outlined the test for distinguishing a necessary party from a peripheral one. The court ruled that the intended party must be a proper party against whom relief flows, and whose absence would make the ultimate decree or order unenforceable.
• Absolom Opini Mekenye v James Obegi (2018) eKLR:
• The Principle: This case directly addresses the status of the proceedings. The High Court affirmed that Order 1 Rule 10(2) strictly envisages pending/ongoing proceedings. Once a final judgment has been delivered, a party cannot be enjoined unless that judgment is first set aside or reviewed.
• Francis Karioki Muruatetu & Another v Republic [2016] KESC 12 (KLR):
The Principle: Although a Supreme Court decision, it serves as the ultimate test used by the High Court when a party applies to join as an Interested Party. The intended party must prove they have a clearly identifiable, proximate, and direct stake in the matter, rather than a peripheral or academic curiosity
7. This application has been filed while the petition is active but almost at the tail end of the case management protocols. This means that the window of interlocutory applications is no longer wide open for the parties to open it and shut it at will. However, having reviewed the instant application the following orders shall abide:
(a) That the 4th Respondent be admitted as a necessary party to file any affidavits in relation to the issues raised in the main petition scheduled for a final status conference on the 11th September 2026 unless otherwise there exist new compelling evidence to warrant extension of time which is also restrictive given the nature of the issues being placed on the table of the Constitutional Court.
(b) That the 4th Respondent having been admitted as a necessary party shall therefore confine itself to the justiciable issues by the Petitioner and then secondary matters arising to aid the Court within the provisions of Article 50 of the Constitutional on fair trial rights.
(c) The replying affidavit by the 4th Respondent be and is hereby admitted as the line of evidential material in answer to the petition.
(d) That the 4th Respondent be and is hereby granted leave to file brief submissions on the legal perspectives touching on the interpretation of the Constitution with regard to the impugned legislation which is the subject matter of the litigation.
(e) In view of the earlier orders on the sequencing of events any rejoinder by the Petitioner to the Replying Affidavit shall be undertaken within three (3) days with effect from today.
GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS 8TH DAY OF SEPTEMBER 2026.
1. Before Court is Notice of Motion under Certificate of Urgency dated 2nd September 2026 brought under Articles 25(c), 48 and 50(1) of the Constitution; Rule 7 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) (Practice & Procedure) Rules, 2013; Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law), where the Applicant Mr. Joshua Kiilu, an Advocate of the High Court of Kenya in conduct of the matter on behalf of the proposed 4th Respondent, the National Assembly certified the application urgent and requiring the attention of the Honourable Court during the vacation for orders that:-
a. The Honourable Court be pleased to join the Applicant as the 4th Respondent in the Petition.
b. Upon the grant of the aforesaid prayer, the Applicant be granted leave to respond to the Petition and all applications.
c. The attached Replying affidavit by the proposed 4th Respondent be admitted as properly filed.
d. Costs of this Application be provided for.
2. The application is based on the following grounds:
a. The Petitioner challenges the constitutional validity of the First Schedule of the Sugar Act, No. 11 of 2024 on two primary grounds:
(i) That the First Schedule allegedly moved Bumula Sub-County from the Lower Catchment Area to the Upper Catchment Area, which disenfranchised sugarcane farmers in Bumula Sub-County Area from participating in the Kenya Sugar Board grower representative elections.
(ii) That the First Schedule was enacted without meaningful public participation in the affected catchment areas, specifically regarding the delineation of catchment boundaries, in violation of Articles 10 and 118 of the Constitution.
b. The National Assembly legally debated and passed the impugned legislation in the discharge of its legislative mandate under Articles 94 & 95 of the Constitution. Therefore, the Petitioner questions the legitimacy of the legislative process carried out by the Applicant in enacting the impugned legislation.
c. The National Assembly intends to adduce evidence to the effect that the impugned law was passed after due consideration; hence it passes the constitutionality validity test.
d. Based on the above, the Applicant seeks leave of the Court to be joined in these proceedings as a Respondent in the Petition herein to assist the Court in rendering an informed decision.
e. The National Assembly is therefore a proper and necessary Respondent in the Petition herein. The principles of natural justice deem all parties directly affected by a matter to be allowed to participate.
f. No prejudice shall be occasioned to the other Parties herein if the orders sought in this Application are granted. However, the Applicant stands to be condemned unheard if it does not participate in these proceedings.
3. The application is supported by the annexed affidavit of Samuel Njoroge who deponed as follows: That:
a. I am the Clerk of the National Assembly, the Applicant herein. I am fully conversant with the facts of this matter and hence competent to make this Affidavit.
b. I am duly authorized by the Rt. Hon. Speaker of the National Assembly to make this Affidavit on behalf of the National Assembly.
c. The facts and matters deponed herein are derived partly from my own knowledge and partly from information and advice derived from Mr. Joshua Kiilu, Counsel for the Applicant. To the extent that any statement made herein is based on information or belief, I have disclosed the source or ground, as the case may be, of such information or belief and I verily believe the same to be true.
d. I make this Affidavit in support of the Applicant's application seeking leave to be joined as a Respondent to the Petition herein.
e. The Petitioner challenges the constitutional validity of the First Schedule of the Sugar Act, No. 11 of 2024 on two primary grounds:
a. That the First Schedule allegedly moved Bumula Sub-County from the Lower Catchment Area to the Upper Catchment Area, which disenfranchised sugarcane farmers in Bumula Sub-County Area from participating in the Kenya Sugar Board grower representative elections.
b. That the First Schedule was enacted without meaningful public participation in the affected catchment areas, specifically regarding the delineation of catchment boundaries, in violation of Articles 10 and 118 of the Constitution.
f. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the Petitioner challenges the constitutionality of provisions of the Sugar Act, 2024. The Petitioner therefore seeks the following prayers inter alia:
g. A DECLARATION that First Schedule of the Sugar Act, 2024, is unconstitutional, null, and void for delineating Bumula Sub-County from the Lower Western Sugarcane Catchment area to the Upper Western Sugarcane Catchment area without public participation.
h. A DECLARATION that the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugarcane Act, 2024, are unconstitutional, unlawful, and invalid.
i. A CONSERVATORY ORDER restraining the Respondents, whether by themselves, their agents, or servants, from conducting or proceeding with the elections of sugarcane farmers' representatives to the Kenya Sugar Board on the basis of the First Schedule of the Sugar Act, 2024.
j. AN ORDER directing the Respondents to undertake meaningful public participation involving all affected farmers before delineating sugarcane catchment areas within a period set by the Honourable Court.
k. AN ORDER compelling the Respondents to review, amend, and/or realign the zoning framework in the First Schedule of the Sugar Act 2024 to reflect historical, contractual, and economic realities of the farmers within a period set by the Honourable Court.
l. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the orders herein and reliefs sought, if granted, shall directly affect the Applicant's legislative mandate set out under Articles 94 & 95 of the Constitution. The upshot being the Applicant is a necessary Respondent to the Petition.
m. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that the Court in Commission for Implementation of the Constitution v Parliament of Kenya & others Petition No. 454 of 2012, the court held that whenever there is an allegation of constitutional violation on the part of Parliament, Parliament as the state organ responsible for the alleged violation, must be sued in its own name.
n. The Petition challenges the Act on allegations that the Bill which culminated in the Act was not subjected to public participation. The National Assembly, having originated the Bill, has the constitutional mandate to conduct public participation and therefore has the records and information demonstrating that public participation was conducted.
o. Since only the National Assembly can properly adduce evidence on public participation, its participation in these proceedings to defend its interests is crucial. It is therefore fair and just that the National Assembly be admitted as a Respondent to enable it to produce evidence to guide this Honourable Court in making an informed decision.
p. In the event this Honourable Court grants the Application herein, the
Applicant undertakes to comply with any directions made by the Court on
the filing and service of responses and other necessary documents without any undue delay.
q. I am advised by the counsel for the proposed 4th Respondent, which advice I verily believe, that no prejudice shall be occasioned to the Petition or other parties herein if the orders sought in this Application are granted. On the other hand, the Applicant stands to be condemned unheard if it does not participate in these proceedings in light of the orders sought by the Petitioner.
r. In view of the matters aforesaid, it is in the interest of justice and overriding objectives of this Honourable Court that the Applicant be joined herein as a Respondent in the Petition.
Decision
4. In view of the context of this application that some orders have to be issued in the first instance I am minded to touch briefly on the provisions of the law regarding the joinder or impleadment of parties in pending proceedings are governed primarily under Order 1 Rule 10(2) of the Civil Procedure Act. The legal principles as of now established by Superior Courts include inter alia the following:
• Necessary vs. Proper Parties: A necessary party is one in whose absence no effective decree can be passed. A proper party is one whose presence enables the court to completely, effectively, and thoroughly adjudicate upon all questions involved in the suit, even though an effective order can sometimes be parsed without them.
• Dominus Litis: The plaintiff is generally considered the dominus litis (master of the suit) and cannot be forced to add a party against their wishes unless that party is strictly a necessary party for the core relief.
• Non-Joinder Not Always Fatal: Under Order 1 Rule 9 CPC, no suit shall fail by reason of misjoinder or non-joinder of parties, except in the case of the non-joinder of a necessary party.
5. In the persuasive case in the common law jurisdiction in which we share the common heritage the Court in Mumbai International Airport (P) Ltd. V Regency Convention Centre & Hotels (P) Ltd. [2010] 7 SCC 417 the Court explained the import of the expressions necessary party and proper party as follows:
“14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”
6. The High Court and other Superior Courts have not been left behind in interpreting the provisions of Order 1 with specifics which deal with the joinder of a party to pending proceedings within our legal system. The following authorities attest to that litigation landscape:
• JMK v MWM & Another [2015] eKLR:
The Principle: This remains the leading authority cited by High Court judges regarding the interpretation of Order 1 Rule 10(2). It establishes that the court possesses the power to add a party at any stage of the proceedings if their presence is necessary to enable the court to completely and effectively settle all questions involved in the suit.
• Joseph Njau v Robert Maina & 3 Others (HCCC No. 136 of 2000): The Principle: The High Court in this case explicitly outlined the test for distinguishing a necessary party from a peripheral one. The court ruled that the intended party must be a proper party against whom relief flows, and whose absence would make the ultimate decree or order unenforceable.
• Absolom Opini Mekenye v James Obegi (2018) eKLR:
• The Principle: This case directly addresses the status of the proceedings. The High Court affirmed that Order 1 Rule 10(2) strictly envisages pending/ongoing proceedings. Once a final judgment has been delivered, a party cannot be enjoined unless that judgment is first set aside or reviewed.
• Francis Karioki Muruatetu & Another v Republic [2016] KESC 12 (KLR):
The Principle: Although a Supreme Court decision, it serves as the ultimate test used by the High Court when a party applies to join as an Interested Party. The intended party must prove they have a clearly identifiable, proximate, and direct stake in the matter, rather than a peripheral or academic curiosity
7. This application has been filed while the petition is active but almost at the tail end of the case management protocols. This means that the window of interlocutory applications is no longer wide open for the parties to open it and shut it at will. However, having reviewed the instant application the following orders shall abide:
(a) That the 4th Respondent be admitted as a necessary party to file any affidavits in relation to the issues raised in the main petition scheduled for a final status conference on the 11th September 2026 unless otherwise there exist new compelling evidence to warrant extension of time which is also restrictive given the nature of the issues being placed on the table of the Constitutional Court.
(b) That the 4th Respondent having been admitted as a necessary party shall therefore confine itself to the justiciable issues by the Petitioner and then secondary matters arising to aid the Court within the provisions of Article 50 of the Constitutional on fair trial rights.
(c) The replying affidavit by the 4th Respondent be and is hereby admitted as the line of evidential material in answer to the petition.
(d) That the 4th Respondent be and is hereby granted leave to file brief submissions on the legal perspectives touching on the interpretation of the Constitution with regard to the impugned legislation which is the subject matter of the litigation.
(e) In view of the earlier orders on the sequencing of events any rejoinder by the Petitioner to the Replying Affidavit shall be undertaken within three (3) days with effect from today.
GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS 8TH DAY OF SEPTEMBER 2026.