Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025) (Environment and Land) [2026] KEELC 1260 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court retains jurisdiction to grant conservatory orders pending appeal after striking out the Petition
No. The striking out conclusively determined the matter; conservatory orders require a subsisting cause and granting them would indirectly reinstate a struck-out petition.
The court relied on the Supreme Court's clarification in the Peter Munya case that conservatory orders preserve the subject matter of a dispute and are ancillary to a subsisting cause. Having struck out the Petition on 5th November 2025, the court conclusively determined the matter, became functus officio, and had no pending cause to preserve. It applied Western College v Oranga on negative orders and followed Josephine Wairimu Kinyanjui, Dofu v Ngome and Karage v CS Interior, holding that interim relief collapses with the struck-out petition.
Whether the 13th Respondent's Preliminary Objection on jurisdiction was merited
Implicitly yes, as the application was dismissed for want of jurisdiction to preserve a cause no longer before the court.
The court framed the single issue as whether it could grant conservatory orders pending appeal after striking out a petition. Answering it negatively, the court found the application could not stand, and dismissed the Notice of Motion, effectively upholding the Preliminary Objection without separately pronouncing on the other grounds such as abuse of process.
Legal principles established
#- Conservatory orders are ancillary reliefs anchored on a subsisting cause; once a petition is struck out there is nothing to preserve and the court becomes functus officio
- An order striking out a petition is a negative order, incapable of being stayed
Court orders
#- 1.The Notice of Motion dated 22nd November 2025 is dismissed
- 2.Each party to bear own costs
- Jurisdiction invoked
- Articles 22, 23 and 165(3)(b) of the Constitution of Kenya, 2010; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025) (Environment and Land) [2026] KEELC 1260 (KLR)", Case Analysis (2026). Not stated in judgment (related to ELC Petition struck out on 5th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1260/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.