High Court rejects plea to transfer sugar factory case

By Renson Buluma

Busia, Kenya: Sugarcane farmers in Busia have recorded victory after a court rejected an application to have the case, seeking to stop a factory construction at Busibwabo, transferred to Nairobi or Kisumu.

Justice Francis Tuiyott dismissed as “a game of ping pong” the application by petitioners Joseph Owino and Aggrey Sakala (both from Kakamega County) to have the hearing of the case moved from Busia on security grounds.

The petitioners had asked the court to transfer the matter to Nairobi or Kisumu claiming their lives were in danger following protests from residents over their (petitioners) decision to stop Africa Polysac Company from constructing a sugar factory.

Great public interest

“The petitioners fear that they can be lynched by people who have been protesting regarding this matter,” said their lawyer Augustine Khayiekha adding that the duo had a right to petition against the construction of the factory because of environmental concerns.

But lawyers David Ashioya for Africa Polysac and Joseph Makokha representing the county government of Busia as an interested party, poked holes in the application saying there are no substantive grounds to have the case which was originally filed in Nairobi transferred back.

They argued that since Africa Polysac and all the interested parties were based in Busia, it would be illogical and unnecessarily expensive to transfer the hearing.

“The environment, the petitioners are complaining about, is in Busia and if we were to make an application that the court visits the site it would be cumbersome to bring the judge and all the parties from Nairobi,” said Ashioya.

Citing the huge number of farmers who had attended the court session, Ashioya noted that the issue was of great public interest and thus would be convenient for court to reject the application in order to allow the farmers attend the proceedings.

In his determination, Tuiyott said Busia was the natural venue for the adjudication of the matter and also dismissed claims that the petitioners’ lives were in danger.

He said the petitioners had neither recorded a statement with the police on the alleged threats nor sworn an affidavit in that respect.

“As it is the fears have not been proved. In my view, there is no good reason to transfer this matter. It is not an economic use of judicial effort and time to play a game of ping pong with court service. So I decline that application,” said Tuiyott.

Khayiekha said his team would not contest the decision and would be ready for the hearing which resumes on May 16.