By Anderson Ojwang
The proposed leasing of Miwani Sugar Company has run into a legal technicality and dilemma after the advocate for the Receiver Manager declined to execute the proposed consent.
Advocate David Otieno, of Owiti, Otieno and Ragot Advocates, referred the matter to the appointing authority to liaise with the Office of the Attorney General to deal with the matter in accordance with the law.
Otieno, in his letter to the Receiver Manager of Miwani Sugar Company Limited, captioned “Kisumu COA Civil Appeal No. 207 of 2021, Miwani Sugar Company (1989) Ltd (in receivership) vs Crossley Holding Limited and 6 others,” stated:
“Thank you for your letter dated 22nd April 2025, the contents of which I have noted.
As I understand it, the instructions that you have relayed to us flow from a directive that you have received from the Principal Secretary in the Ministry of Agriculture and Livestock Development, instructing you to instruct us to sign a consent settling the matter.
The consent has been drafted by the Attorney General in line with a certain decision of the Cabinet. I have not seen the Cabinet decision and therefore cannot tell whether the consent as drafted is in line with the cited Cabinet decision.
Be that as it may, I understand the draft consent to express the position that a decision has been taken by the Cabinet that land reference No. 7845/3 (L.R. 210380), measuring approximately 9,394 acres – which has been and continues to be subject of several pieces of litigation in which I act for you – now belongs to M/s Crossley Holding Limited, who have now agreed to cede 2,000 acres thereof for the purpose of the establishment of a Special Economic Zone and for any other purpose of a public nature as the Government may deem fit.
As you are aware, Crossley Holdings claim to have purchased the property in a public auction on 24th December 2007, for Sh753, in a sale said to have been ordered by the court in Kisumu HCCC No. 225 of 1993.
In that suit and other several matters that followed in the High Court, the Environment and Land Court, and the Court of Appeal, we have taken the position that not a cent was paid for the property by the alleged purchaser, and that the processes by which Crossley Holdings Limited acquired title to the land were illegal and fraudulent from start to finish.
You will recall that in Civil Appeal No. 261 of 2008, filed by the person who allegedly held the decree whose execution birthed the alleged sale and title, the Court of Appeal, in dismissing the appeal against you, reiterated that the entire process by which the property was sold and title issued to Crossley Holdings Limited was based solely on a void judgement, and the process could not pass any title to anyone.
That decision has never been contested. Crossley Holdings was a party to the appeal and had supported the ill-fated appeal.
We have always maintained that this is indeed the position. We have rendered numerous opinions to yourselves and explained in numerous meetings with yourselves, the Ministry of Agriculture and Livestock Development, the Ministry of Lands and the Kenya Sugar Board.
In our view, this position has not changed. The proposed consent seeks to have us take a position that is completely incongruent with what we have consistently advised, what is in the pleadings and affidavits filed, and what we maintain is the correct legal position.
It does not paint a good picture of us as counsel from the professional perspective to now take a different position.
We see no reason to depart from the position we have taken since 2007 — that the title which Crossley Holdings Limited holds is, in view of the foregoing and especially in the face of the decision of the Court of Appeal cited above and Article 40(6) of the Constitution, not a title that can give the said entity any right to alienate any part of the land through the proposed consent or at all.
You are aware of the circumstances in which the Government acquired an interest in the land and the reasons why the land was not transferred to Miwani Sugar Co. (1989) Limited. As was expected, I am aware that the original titles are still with yourselves.
In our view, therefore, the land is and remains public land which the Government holds in trust for the public.
It can therefore only be dealt with in keeping with the process by which all public land is dealt with. The proposed consent does not meet the requirements of due process expected in all dealings with public land.
I have noted that the proposed settlement seeks to have the consent recorded in the Court of Appeal Civil Appeal No. E207 of 2021, which is an appeal against the judgement in ELC Constitutional Petition No. 6 of 2020 — a grossly erroneous decision which purported to sanitise the title held by Crossley Holdings Limited.
It would be a very odd step for us to execute and file a consent in a matter which has not even started. I still do not understand how that can be done. In any case, the Court of Appeal does not execute its orders and decrees. It remits its orders and decrees to the court which made the decision appealed against for implementation or execution.
Filing the consent in the Court of Appeal therefore makes no sense at all.
It appears to me that the Government, by coming up with the Cabinet decision referred to in your letter, has decided that the land belongs to Crossley Holdings Limited, who have through some process of negotiation agreed to cede a portion of the land to the Government.
The Attorney General is the legal advisor to the Government. Since she is part of the Government and sits in the Cabinet, she can proceed to lead the process by executing or advising on the preparation of all that needs to be prepared and executed to facilitate the implementation of the Cabinet decision.
Once she is clear that the process meets the requirements of the law, she can proceed without requiring us to sign anything.
If the Government now wants to accept that Crossley’s title is valid and the position we maintain is totally wrong, it can get the share of the land that it appears to have negotiated to receive from Crossley Holdings Limited directly from them without having to file the consent.”
Over the weekend, the takeover was actualised, with West Kenya Sugar Company taking over Nzoia Sugar Company, while Kibos Sugar and Allied Industries Ltd took over Chemelil Sugar Company.
Sony Sugar Company was leased to Busia Sugar Industry, and West Valley Sugar Company Ltd took over Muhoroni Sugar Company.
Agriculture Cabinet Secretary Mutahi Kagwe said the Ministry has assured the public that no public land would be sold or acquired under the leasing agreements. Further, all assets belonging to the four sugar companies would remain the Government’s property.
“I would like to assure the public and all stakeholders that the negotiated terms represent the best possible outcome to ensure the revival of the sugar sector. I call upon your continued support in realising this vision. The Ministry remains fully committed and ready to address any concerns that may arise,” Kagwe remarked.
But Kisumu Governor Prof Anyang’ Nyong’o has called for the suspension of the exercise, saying there was no public participation or approval by the people of Kisumu County.
“We are concerned about the Miwani nucleus sugar land, which is being transferred through opaque arrangements despite the ongoing court case. This is nothing short of daylight robbery and an economic coup against over 60,000 farmers involving 15,000 hectares of land,” he said.
