The High Court in Nairobi has thrown out a petition filed by former Kanduyi MP Wafula Wamunyinyi seeking to quash the government’s plan to privatise state-owned sugar milling factories.
Justice Lawrence Mugambi said grievances raised by Mr Wamunyinyi had been determined in another case that was challenging a government’s advertisement posted last year in January inviting international bids for leasing of the millers.
The previous case had been filed by Mr Martin Nyongesa Barasa and was dismissed on February 28, 2025 by Justice Chacha Mwita sitting at the High Court in Milimani, Nairobi.
“The fact that the petitioner is a different person does not permit him to re-litigate the matter, camouflaging it as a different petition. It is my finding that the instant petition offends the doctrine of res judicata (re-litigation). This finding is sufficient to dispose of this petition without any further consideration of any other issue. At this juncture I cannot proceed any further; I must down my tools,” said Justice Mugambi.
The factories earmarked for leasing to private investors include Nzoia Sugar Company Ltd, Chemelil Sugar Company Ltd, South Nyanza Sugar Company Ltd (Sony Sugar) and Muhoroni. The privatisation is part of the government's plan to revive the ailing sugar farming sector in order to turn around the economy.
Recently, Agriculture Cabinet Secretary Mutahi Kagwe said that four private millers will take over the operations of the four companies for 30 years. In the deal, Sony Sugar Company was leased to Busia Sugar Industry while West Kenya Sugar Company took over operations of Nzoia Sugar Company. An investor known as West Valley Sugar Company Ltd took Muhoroni Sugar Company, while Kibos Sugar and Allied Industries Ltd took over Chemelil Sugar Company.
Mr Wamunyinyi’s petition was challenging an advertisement titled ‘International Tender Notice, No. MOALD/SDA/IT/001/2024-2025’, which was posted by the Principal Secretary, State Department for Agriculture in February this year. The advertisement was requesting prospective tenderers to bid for the leasing of the public sector owned/controlled sugar companies.
Mr Wamunyinyi said his case was different from the previous one, since his was for the 2025 advertisement while the other one concerned a 2024 advertisement. His main contention was that the government began the privatisation without the involvement of the public through public participation, especially with regard to Nzoia Sugar Company.
“The tendering process will not yield value for money or lead to sustainable and profitable operation of the sugar mills to benefit the economy and stakeholders involved and, further, it is exposing public assets to the risk of mismanagement and loss,” argued Mr Wamunyinyi.
However, Justice Mugambi ruled that the court in the previous case had found that the Ministry of Treasury & Economic Planning together with the State Department for Agriculture had by affidavit evidence demonstrated that public participation had been undertaken.
“The contention that no public participation was conducted for purposes commencing the tendering process of leasing out publicly owned or controlled sugar companies, of which Nzoia Sugar Company formed part, is utterly misleading,” said Justice Mugambi. “The judge in the initial petition dealt with the issue and made a concrete finding that the respondents had demonstrated that they had fulfilled the constitutional requirement relating to public participation”.
He added that it was clear “beyond peradventure that the prayers in the two petitions are analogous and repetitious word for word”.
The petition was opposed by the Attorney-General together with Mr Thomas Wafula, David Khatete and Geoffrey Makayi, who were listed as interested parties to the dispute.
The AG, through Deputy Chief State Counsel Samwel Kaumba, raised an objection arguing that the petitioner moved to court prematurely and without exhausting other legal mechanisms related to procurement.
He stated that the petitioner should have lodged a complaint at the public procurement review board, as provided for in the Public Procurement and Asset Disposal Act and the Public Private Partnerships Act.
On the allegation of lack of public participation, he said the same was without basis on account of open tendering, which he said was in itself an invitation to the public to participate.
