UNIVERSITY OF NAIROBI

GPR: 209 ADMINISTRATIVE LAW II

CONTINOUS ASSESSMENT TEST

SUBMITTED BY GROUP 10

DATE OF SUBMISSION: 7TH AUGUST 2013

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GROUP MEMBERS:

1. Joseph Onyango Ondier

G34/2758/2011_______________

2. Ndichu Lilian Wanjiku

G34/2775/2011_______________

3. Stella Nasirumbi

G34/2708/2011_______________

4. Otunga Doreen Wesaya

G34/2789/2011_______________

5. Mauta Dancan Musyimi

G34/2831/2011_______________

6. Kingoo Joram Kioko

G34/2763/2011_______________

7. Kamau Catherine Wamuku

G34/2726/2011_______________

8. Guantai Liz Kagwiria

G34/2752/2011_______________

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INTRODUCTION: THE SUGAR INDUSTRY

Kenya depends on agriculture for its revenue. In fact, agriculture is the backbone of the
countrys economy. The sugar industry is arguably one of the significant role players in the
socio-economic development of the economy. It not only supports small-scale farmers who
grow cane and sell it to sugar companies for milling but also a large percentage of the
Kenyan population derives its livelihood from the industrys returns. It is through the sugar
industry that some people get employed. The estimate is 12,500 people working in sugar
plantations. 1 Kenya is also able to save money, approximately, $ 250 million that it would
use on importing sugar.2
The development of the sugar industry in Kenya started with private investments at Miwani
in 1922, followed by Ramisi Sugar Company in 1927. After independence, six additional
companies were established namely: Muhoroni (1966), Chemelil (1968), Mumias (1973),
Nzoia (1978), South Nyanza (1979), West Kenya (1981) and Sony (2006). 3
The establishment of these parastatals was driven by a national desire to; (i) accelerate social
economic development; (ii) address regional economic imbalances; (iii) increase Kenyan
citizens participation in the economy; (iv)promote indigenous entrepreneurship; and (v)
promote foreign investments through joint ventures. This desire was expressed in the
Sessional Paper No. 10 of 1965 on African Socialism and its Application to Planning in
Kenya.4
The sugar sector in Kenya, just like other facets of the agricultural sector, has faced several
challenges, some of which are very crucial. Some of the current challenges include regulatory
mechanisms whose frameworks are harmonized, punitive tax regimes, and high production
costs among others. However, one of the main challenges faced by the industry is the many
disputes that arise and how to solve them effectively. There is no better way to address such
matters dealing with administrative action other than to have bodies that can listen to and
determine the issues brought before them. This is precisely where the Sugar Arbitration
Tribunal comes into the picture.
It is with this information in mind that this submission seeks to explore the powers of the
Sugar Arbitration Tribunal in Kenya. This is a crucial authority when it comes to the hearing
and determining of disputes in the sugar sector. The report, apart from giving a summary of
the Tribunals mandate, also looks at the constitutional and statutory basis for the power and
mandate of the tribunal. A good part of the submission also looks at the rules that govern the
Tribunal in performing its tasks. Lastly, using two landmark cases in the sugar sector, we
1
2
3
4

Kenya .
Kenya ..

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explore some of the key challenges faced by the Tribunal, the place of judicial review in
handling such cases, and we even go further to recommend key changes in legislation.

CONSTITUTIONAL FOUNDATION AND BASIS FOR TRIBUNALS

The Constitution of Kenya has key provisions for tribunals in general.5 The Constitution
expressly provides that judicial authority is derived from the people and it shall be exercised
by the courts and tribunals established by or under the Constitution.
In exercising their judicial authority, the tribunals shall be guided by certain principles. These
clearly stipulate that:
-Justice shall be done to all
-Justice shall not be delayed
-Alternative forms of dispute resolutions mechanisms shall be promoted
-Justice shall be administered without undue regard to procedural technicalities
In performing their mandate, the tribunals, in general, must promote and protect the purpose
and principles of the constitution.
The Bill of RightsArticle 50 provides for the right to have any dispute decided in a fair and
public hearing before a court or where appropriate, another independent and impartial
tribunal or body. The same Constitution gives one the option of having a decion affecting
them reviewed. 6

ESTABLISHMENT OF THE SUGAR ARBITRATION TRIBUNAL AND THE

SCOPE OF ITS POWERS
The Sugar Arbitration Tribunal is established by the Sugar Act7 and its operations are
governed by the Sugar Arbitration Rules of 2008. 8 According to the Act, the tribunal shall
have the powers of the high court which are:
- To administer oaths to the parties and witnesses to the proceedings;
5

Art. 159, Constitution of Kenya 2010

Art.47(3)(a), Constitution of Kenya 2010
7
Sec 31 of the Sugar Act no. 10 of 2001, Laws of Kenya
8
Paragraph 10, Third Schedule of Sugar Act no. 10 of 2001, Laws of Kenya
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- To summon witnesses and to require the production of documents;- To order the payment of costs;
and the provisions of the law relating to Commissions of Inquiry in Kenya with respect to the
protection of the members of the Tribunal from suit, the form of summonses to witnesses; to
giving or fabricating of false evidence; the duty and indemnity of witnesses, and the penalty
for contumacy, insult or interruption of proceedings; and the appearance of advocates.

The purpose for establishing the Tribunal was mainly to arbitrate disputes arising in the sugar
industry. The Tribunal is to consist of a Chairman who shall be a person qualified for
appointment as a Judge of the High Court as well as two other persons with expert knowledge
of matters likely to come before the Tribunal. It is also a requirement that these officials of
the Tribunal should not have direct material interest in the sugar industry. They shall be
appointed by the Minister of Agriculture (now Cabinet Secretary of Agriculture) in
consultation with the Attorney General and would not serve a term of more than 3 years.
The Minister of Agriculture may in consultation with the Kenya Sugar Board come up with
regulations to govern the operations of the tribunal.9

Sugar Arbitration Tribunal Rules

The operations of the Sugar Arbitration Tribunal are governed by the Sugar Tribunal
Arbitration Rules 2008. The tribunal has been vested with the power to make rules with
regards to its procedure.10 The following section is a clear summary of the rules that govern
the working of the Tribunal.
The tribunal may make rules pertaining to the forms necessary for filing claims, replies or
applications. It may also give directions on the rules to be followed in the proceedings the
form to be used as well as instances where the form is not provided for. The Tribunal can do
this on its own motion or on application the case may be.
The rules provide that the making of the documents may be accepted in a modified form at
the tribunals discretion and this includes any pleadings, documents, references, petitions or
applications instituted or presented. However, defects in pleadings or presentation shall not
be a ground for refusal without giving an opportunity to the party filing to rectify the defects
within
the
time
which
may
be
given
for
the
purpose.
The Rules also provide that the Tribunal shall prescribe a certain fee which shall be payable
upon the presentation of the complaint. This fee shall be paid in cash form, bankers check or
9

Section 33, Sugar Act cap 10 of 2001, Laws of Kenya

Third Schedule, Paragraph 10 of the Sugar Act, Laws of Kenya

10

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postal order issued in favour of the Tribunal. The fee can also be paid through the Ministry of
Agriculture, to the Tribunal. After the fee has been recorded in the register, a receipt shall be
issued accordingly.
There are instances whereby the Tribunal can demand additional fees. This is whereby the fee
charged upon filing of the complaint does not take into account the award as the case may be.
The additional fee will be demanded at the conclusion of the case since the award will have
been
quantified
then.

DISPUTES AND PROCEEDINGS

The next part of the discussion deals with the initiation of proceedings in the Tribunal and
what the proceedings entail in general. This is discussed under part II of the Sugar Arbitration
Tribunal Rules 2008.
Initiation of proceedings
A party that desires to refer a dispute to the Tribunal can do so by filing a suit or by lodging a
complaint, reference or petition. The Tribunal will in turn register the dispute in the register.
It is a requirement that all complaints be in written, typewritten, photocopied or printed
form.11 The contents should be neatly arranged, this means that they should be paragraphed
separately and numbered serially. The complaint shall include the complainants name, his
address, the nature of the claim and the relief which he seeks.
Register
The register in which the complaint will be registered will include particulars such as the date
of filing the complaint, petition or reference, the serial number, the names of the parties
involved as well as the relief sought by the applicant. To register the dispute, the applicant
will be required to pay an appropriate fee. The Clerk will then open a case file and record the
particulars. The complaint shall be stamped and endorsed with a date upon its receipt by the
Tribunal. This information shall be duly recorded in the Register too.
Service and service of notices
After filing a complaint with the Tribunal, the applicant is required to serve the copies of the
same on the respondent. This should be as soon as possible and from the date of presenting
the complaint to the Tribunal. The respondent, on his part, shall file his defence or a reply to
the complaint within 14 days after being served by the complainant. The defence shall be
signed, dated and duly served. A counter-claim may also be included by the respondent
against the complainant. Within 7 days, after being served by the respondent, the complainant
may file a reply to the defence. Filing a defence to a counter-claim, on the other hand, shall
be within 15 days after the latters service.

11

First Schedule

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Notices need to be served by hand delivery, registered post or any other manner appropriated
by the Tribunal. These should be served on the person or his agent at the addressed furnished
for service. The notice may also be delivered at the place where the recipient resides,
personally works for gain or where he carries out his business. The agent, in this case, should
be a person empowered to be served on behalf of the person himself.
The Tribunal may also require that a return of service giving details of served documents.
Their date and manner of service be filed as proof of such evidence.
No service shall be deemed invalid just because there is a defect in the description of the
person or his name. Similarly, no hearing shall be invalidated by reason of a defect unless, on
an objection, the Tribunal is of the opinion that injustice would be caused by the defect.
It is important to note that pleadings will be rendered closed upon the expiry of 15 days since
the filing of reply or defence to the suit or to the counterclaim.
Hearing12
A date of hearing the dispute shall be set by the Tribunal. In fixing the hearing date, the
Tribunal will consider things such as convenience based on its diary as well as business
schedule. It will also issue a hearing notice of the same.13 As a requirement, the proceedings
of the Tribunal should be open to the general public. However, the proceedings can be
conducted on camera but only where the Tribunal deems it fit. It is the Tribunal which shall
determine the time, date and place14 of hearing of any dispute before it.
Any party who seeks to rely on witnesses shall apply in written form or formally to the
Tribunal and the Clerk shall prepare witness summons. 15 The party will then serve the
witnesses with the summons accordingly. In line with the Constitution16a person may be
represented by a counsel.17 Also, during the hearing, the Tribunal can invite comments by
persons on the issues involved. 18
Rule 30 provides for the calling of experts at any stage of the hearing. This can be on
application by the parties or on the Tribunals own motion. The experts will include
professionals and consultants but not limited to the same. The experts may be cross-examined
by the parties with a view to gain as much evidence as possible. Also linked to this provision,
is that which makes it possible for Tribunals to nominate persons to visit places for the
purpose of inspecting and reporting on the same, be it the existence or status of the place or
its facilities and circumstances therein.19

12

25
First Schedule
14
26
15
First Schedule
16
Art.47 Constitution of Kenya 2010
13

17
18
19

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The Tribunal may also direct the parties involved in the dispute to appear before the persons
designated to inspect and make reports to the Tribunal so as to present their views on the
matters referred to. Such reports submitted by the nominated persons to the tribunal shall
form part of the records and shall be given to each party. The parties may file their copies in
support or even in opposition of the opinion or report. These filed copies shall be considered
by the Tribunal in deciding the dispute.

Decision and awarding of costs

The decision of the Tribunal shall be that of the majority of its members who are present
during the proceedings. The decision shall then be signed by all sitting members and
delivered
on
the
date
directed
by
the
Tribunal.
The Tribunal has discretion to award costs in favour of any party. It also has the discretion to
require one of the parties to pay the costs or part of it to the other party. The tribunal will
specify the amount as the case may be.
The Tribunal may also make orders as it deems necessary, regarding the costs of the experts
as well as their expenses.
Other relevant rules governing the working of the Tribunal include the following:
In the interest of expeditious disposal of justice, the Tribunal may decline to hear a dispute
whereby the case does not disclose any reasonable grounds or where the Tribunal finds it
frivolous or vexatious. In doing this, the Tribunal shall give its reasons in writing and notify
the involved parties beforehand.
In determining a dispute, the Tribunal is at liberty to decide it on the basis of the strength of
submissions and pleadings or otherwise on the trial and submission of oral evidence. To
ensure expediency, the Tribunal may order the consolidation of matters where it I
appropriate. This may be on the application of parties or in consultation with them.
In accepting evidence by way of oral submission, the Tribunal may grant the opposing party
an opportunity to cross-examine the person giving evidence. It may also direct parties to the
dispute to file written notes of arguments or submissions on terms which the Tribunal may
order. The Tribunal may record such evidence as it deems fit.

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Relevant Case Law

REPUBLIC v SUGAR ARBITRATION TRIBUNAL Ex parte SOUTH NYANZA
SUGAR COMPANY LTD [2012] eKLR
The applicants were of the opinion that the Sugar Arbitration Tribunal acted in excess of the
powers conferred to it by statute20as follows, There is established a tribunal to be known as
the Sugar Arbitration Tribunal for the purpose of arbitrating disputes arising between any
parties under this Act. They challenged the tribunals decisions arising from suits filed by
claimants for breach of contract, an issue it had not been expressly empowered to handle.
The ex-parte applicants, in the respective applications to the High Court, sought the following
orders;
1. An order of Certiorari to quash the decision, order and judgment and/ or decree of the
Sugar Arbitration Tribunal in arbitration of the matter before it.
2. An order of Prohibition to issue and the same be directed against the Respondent, the
Sugar Arbitration Tribunal prohibiting her from implementing and or executing its
decisions, judgments, order and or decrees dated, issued and delivered by the Sugar
Arbitration Tribunal
3. The costs of the application
The application was dismissed on the grounds that the breach of contract suit handled by the
tribunal was still under its purview as outlined in section 29 of the Sugar Act. Costs were
however charged on the respondent.
In his dicta, the Justice highlighted that the tenor of the ex-parte applicants submission was
that the Tribunal made errors in the manner of assessment of evidence and the conclusions it
reached. He went further to say, I am unable to detect any errors of the nature that would
attract orders of judicial review. In essence what the ex-parte applicant seeks is an appeal
from the Tribunals decision. That is outside the purview of judicial reviewthe Court will
not, however, on a judicial review act as a court of appeal from the body concerned, nor
will the Court interfere in any way with the exercise of any power or discretion which has
been conferred on that body unless it has been exercised in a way which is not within that
bodys jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is
to see that lawful authority is not abused by unfair treatment. If the court were to attempt
itself the task entrusted to that authority by law the Court would, under the guise of
preventing the abuse power be guilty of usurping the power.21

REPUBLIC V SUGAR ARBITRATION

MOCHECHE AYIEKO [2012] eKLR
20
21

Section 31(1) , Sugar Act No. 10 of 2001, Rules of Kenya

Chief Constable of North Wales Police v Evans [1982] I WLR

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TRIBUNAL

EX-PARTE

ESTHER

This case was brought forth in the High court of Kisumu with the applicant seeking orders to
remove into the honourable court, for the purpose of quashing the decision of the respondent
(made on 8th February 2012 in proceedings before it) in the hearing of the Sugar Arbitration
Tribunal Dispute No. 1301 of 2012 filed by Notice of Motion under certificate of urgency.
There was a statement of claim by South Nyanza Sugar Company Limited (hereinafter)
called Sony against Trans Mara restraining the applicant, her agents workers and or any
person claiming under them from buying, harvesting, transporting and or milling and or in
any other manner whatsoever handling sugar cane from any of the growers and out growers.
This was as per several sections of South Nyanza Sugar Belt with whom Sony have in force a
cane supply or cane growing contracts and whose names are as per cane census reports
appended and marked Appendix 1 pending the hearing and determination of the application
inter partes, (hereafter the Order of the Tribunal).

1. To apply for an order of certiorari to quash the proceedings filed in the Sugar
Arbitration Tribunal by Sony against Trans Mara.
2. To apply for an order of Prohibition to prohibit the respondent from hearing a dispute
between Sony Sugar and Trans Mara, relating to the buying, harvesting, transporting
and/ or milling and/ or in any other manner whatsoever handling sugar cane of the
applicant without involvement of the applicant.
3. To apply for an order of prohibition to prohibit the respondent from exercising
purported power under Rule 32 or Rule 42 of the Sugar Arbitration Tribunal Rules
2001
4. The grant of leave shall operate as a stay of the order of the Sugar Arbitration
Tribunal made on 8th February 2012 and extended to 24th February pending the
determination of this matter or further orders.
5. The application by Notice of Motion for the substantive orders of certiorari and
Prohibition to be lodged within ten (10) days hereof.
There was a dispute therefore between Sony and Trans Mara and the matter went to the
tribunal. The tribunal issued interim orders of injunction which stopped Trans Mara from
dealing with Sonys farmers or people it had contracted. Sony had contended that Trans Mara
was poaching her farmers.
From the pleadings on record it was evidently clear that the ex parte applicant herein had a
contractual agreement between her and Sony dated 20th June 2010. The validity or otherwise
of the said contract was not for the court to decide. The determination of this contract was
allowed clearly in Section 29 (1) of the Sugar Act which states, There shall be for the
purposes of this Act, agreements negotiated between growers and millers, growers and out
growers institution and millers and out growers institutions.
Justice Chemitei set aside the orders sought with costs charged to Sony.

CONCLUSION
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The sugar industry is very troubled because of lack of clarity and preciseness in the Sugar
Act. It is not clear who can approach the Sugar Arbitration Tribunal for arbitration. It is
apparent that the Sugar Arbitration Tribunal has no jurisdiction over all the stakeholders in
the industry leaving out a gap that if filled could bring order in the sector. It is therefore our
recommendation that the Act be amended to provide solid guidelines on the powers of this
tribunal. These should involve streamlining and harmonizing conflicting ambiguous
provisions and removing inherent impediments in a way that will guarantee an enabling
environment for the growth of the Industry and serve the interests of all stakeholders.
Stakeholders have also expressed their concern in the lack of power on the part of the tribunal
to carry out its decisions. Decisions by the tribunal have been ignored. Further, some
authorities in the sugar industry have suggested that the Sugar Arbitration Tribunal should
not be amenable to judicial review. They claim it is pointless to have a dispute solved when
one can always ignore the decision and go to a higher court. The common view of this group
is that such a move would be giving the Sugar Arbitration Tribunal immense powers. Like all
public bodies and authorities the Sugar Arbitration Tribunal should be subject to judicial
review with a view to protect the stakeholders rights.
As seen in the hearing of the two cases above, this tribunal has been accused of acting ultra
vires to the Act subsequently forcing the aggrieved parties to seek judicial review remedies in
higher courts. This has rendered it devoid of the objective of justice stipulated in Article 47
(1) of the Constitution and Section 31 of the Sugar Act. The Sugar Arbitration Tribunal has
been formed to arbitrate over contentious issues that may arise in the industry. This is
intended to engender harmony, mutual understanding and provide an amicable way to
expeditiously handle disputes. If this ultimate objective has not been met then the Tribunal is
deficient. To ensure its effectiveness, another proposal would be to subject the Sugar
Arbitration Tribunal to evaluation procedures. Its performance should be reviewed at least
annually to ensure that it is feasible and produces the intended results. According to the
Constitution, justice should not only be done, but seen to be done. Therefore the Sugar
Arbitration Tribunal should not only exist because it has been created by Statute but its
desired output should be witnessed to be achieved.

Bibliography
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1. The Constitution of Kenya 2010

2. Kenya Sugar Board Strategic Plan 2009
3. Economic governance reform in the sugar-subsector: Submitted to: Centre for
Governance and Development, by Peter Kegode, February 2005
Where do these go on the content/footnotes

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