Linus Rotich Tum v Cabinet Secretary, Ministry of Agriculture Livestock, Fisheries & Cooperatives & another v County Government of Kisumu & 2 others (Interested Parties) [2021] KEELC 3875 (KLR)
The bottom line
#Kenya's High Court halted the lease of Chemelil Sugar Company because the government couldn't prove the public was consulted before the sale process started.
What this practically means
#Executive summary
#Key legal issues
#Non-disclosure of material facts as ground for setting aside exparte orders
The 2nd Respondent failed to demonstrate non-disclosure; the interim orders stood and the application dated 22/9/2020 was dismissed with costs
The court found that the interim orders had been granted on establishment that the petition was not frivolous and raised issues of public interest. The supporting affidavit of Anthony Muhiu Lubullella did not identify any material facts allegedly withheld; it merely criticised the exparte order on the merits. Without proof of withheld material facts, the ground for vacation failed.
Public participation in the decision to lease five state-owned sugar factories
The Petitioner established, on a prima facie basis, that there was no proper public participation; the Respondents did not avail any evidence of public participation
Article 10 of the Constitution binds all state organs and officers whenever they implement public policy decisions, and includes participation of the people as a national value. Although the 2nd Respondent's replying affidavit referred to a taskforce that held public participation meetings, nothing was attached to demonstrate public knowledge of or participation in the leasing process itself.
Test for conservatory orders pending determination of a constitutional petition
Conservatory orders were granted because a prima facie case with likelihood of success was established and real danger of prejudice from the constitutional violation was shown
The court restated the test for interim conservatory relief in constitutional litigation: a prima facie case with likelihood of success plus real danger of prejudice if the orders are withheld. Both limbs were satisfied given the failure to demonstrate public participation in the impugned leasing and gazettement decisions affecting Chemelil Sugar Company Limited.
Legal principles established
#- Non-disclosure of material facts leads to vacation of interim orders issued by the court
- At the conservatory-order stage a party need only demonstrate a prima facie case with a likelihood of success and real danger of prejudice from the threatened constitutional violation
Court orders
#- 1.The 2nd Respondent's application dated 22/9/2020 seeking to vacate, set aside or review the exparte orders issued on 27/8/2020 is dismissed with costs
- 2.Conservatory orders issued suspending the implementation, effectuation and execution of the process of receiving and working on the invitation for bids in the International Expression of Interest in the long term leasing of the assets of M/s Chemelil Sugar Company Limited as advertised in the Daily Nation of 10/7/2020, and the commencement of the work of the Interim Management Committee as set out in Gazette Notice No. 5473 of 7th August 2020, pending the hearing and determination of the Petition
- 3.An order removing M/s Chemelil Sugar Company Limited from the list of state-owned sugar factories the subject of the invitation for an International Expression of Interest for long term leasing as advertised on 10/7/2020, pending the hearing and determination of the Petition
- 4.Costs in the cause
- Jurisdiction invoked
- Constitution of Kenya, 2010 - enforcement of Bill of Rights (petition and conservatory orders); motion under Rules 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linus Rotich Tum v Cabinet Secretary, Ministry of Agriculture Livestock, Fisheries & Cooperatives & another v County Government of Kisumu & 2 others (Interested Parties) [2021] KEELC 3875 (KLR)", Case Analysis (2021). Petition (Kisumu High Court) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3875/eng@2021-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.