Benson Mugo Mukunya v Samuel Mwanganu Thuku & 8 others

The court relied on its own prior decisions and on the Supreme Court's holding in Communications Commission of Kenya v Royal Media Services that the 2010 Constitution elevated judicial review beyond common law technicalities. Because decisions of the Supreme Court bind all courts under Article 163(7), the applicant's contention that only the traditional orders can issue was not arguable. The court affirmed that constitutional, statutory and common law judicial review now co-exist, with the latter subsumed into the constitutional framework.

The court applied the two-limb Githunguri test: arguability and nugatory-ness. The arguability limb failed because the central issue ran against binding Supreme Court authority. On the nugatory limb, the applicant had actively participated in the post-compromise applications and consent orders, including losing an election under court supervision, so no prejudice was shown. His approbation and reprobation - participating when convenient and disowning orders when not - disentitled him to equitable relief.