Billionaire businessman Jaswant Rai has been dealt a blow after the High Court dismissed a petition challenging the issuance of a milling licence to a rival sugar company in Busia County.
Justice Anthony Mrima dismissed the petition West Kenya Sugar Company Ltd filed in 2018, seeking the cancellation of the licence issued to Busia Sugar Industries Limited.
The judge said the businessman was challenging the same licence issued to the rival factory, in an attempt to bypass other cases pending in court, especially a matter that is yet to be concluded at the Court of Appeal.
West Kenya Sugar, the maker of Kabras Sugar and the dominant company in the sector argued that the issuance of a milling licence to the rival despite knowledge and concession by the Agriculture and Food Authority (AFA) that there was not enough sugar cane in Busia County was wrong.
The company wanted to be paid damages of Sh50 million for infringement of its rights.
“From the record, this court finds difficulty in ascertaining any form of discrimination upon the petitioner by any of the respondents,” the judge said.
Justice Mrima added that he failed to see how the company’s rights were infringed. “The court remains at a loss on how Articles 40, 47 and 50 of the Constitution were allegedly infringed,” said the judge.
West Kenya had complained that the licence issued to the rival company in 2018 was illegal.
The company later challenged the registration of the company and in a judgment, the miller told the court the process through which Africa Polysack Sugar Company changed names to Busia Sugar was illegal.
The company said an appeal against the decision in the Environment and Land Court case was pending at the Court of Appeal.
The miller further said the gazette notice registering the rival was issued illegally and in contempt of the judgment, which cancelled the registration certificate issued to Busia Sugar.
West Kenya argued that despite being a regulator in the sugar industry, AFA never participated in any Environmental Impact Assessment as directed by the Environment and Land court.
AFA opposed the case, arguing that since Africa Polysack Sugar Company Ltd was no longer a player in the sugar industry and that the legal framework governing the issuance of sugar milling licences that applied under the Sugar Act has since changed, the National Environment Management Authority was within its power and competence to issue the licence to Busia Sugar Company Limited.
The authority said it received and considered an EIA licence submitted by Busia Sugar Company Limited, in support of its application for a sugar milling licence and it was satisfied that it was a bona fide EIA licence issued by Nema.
Further, AFA said West Kenya does not have monopoly and ability to process sugar cane and it is not in law entitled to become dominant in the sugar sector.
As to the question of sufficiency of sugar cane in Busia County, AFA submitted that it was not for West Kenya to decide but rather, it was the authority in consultation with stakeholders in the sugar sub-sector.
