The Consumers Federation of Kenya (cofek) v The Cabinet Secretary, National Treasury & Economic Planning

THE PRIVATISATION AUTHORITY ....................................... 2ND RESPONDENT THE ATTORNEY-GENERAL ...................................................... 3RD RESPONDENT THE NATIONAL ASSEMBLY ..................................................... 4TH RESPONDENT AND KENYA PIPELINE COMPANY LIMITED (KPC) ................ INTERESTED PARTY CAPITAL MARKETS AUTHORITY (CMA) ....................... INTERESTED PARTY NAIROBI SECURITIES EXCHANGE (NSE) ........................ INTERESTED PARTY RULING Introduction 1. 2. The Petitioner in HCCHR Petition No. E517 of 2025 seeks, through the Notice of Motion dated 14th August 2025, the following substantive reliefs: i. That the application be certified as urgent and be heard on a priority basis in the interest of justice and the public interest. ii. That pending the hearing and determination of this application, the Honourable Court be pleased to issue a temporary conservatory order restraining the Respondents, whether by themselves, their agents, servants, or any persons acting under their authority, from offering for sale, allocating, disposing of, transferring, or otherwise dealing with any shares in the Kenya Pipeline Company Limited pursuant to the impugned privatization plan. iii. That pending the hearing and determination of the Petition, the Honourable Court be pleased to issue a temporary conservatory order in similar terms restraining the Respondents, their agents, servants, or any persons acting under their authority, from taking any steps towards the sale, allocation, disposal, transfer, or other dealings in the shares of the Kenya Pipeline Company Limited pursuant to the impugned privatization plan. iv. That the Honourable Court be pleased to issue an order compelling the Respondents to immediately disclose and deposit in Court certified copies of all reports, valuations, memoranda, approvals, minutes, and correspondence relating to the proposed privatization of the Kenya Pipeline Company Limited. v. That the costs of this application be provided for. The Petitioner in HCCHR Petition No. E546 of 2025, through the Notice of Motion dated 25th August 2025, seeks the following substantive reliefs: i. That the application be certified as urgent and be dispensed with in the first instance. ii. That the Honourable Court be pleased to hear the application at the earliest possible opportunity during the Court Vacation period. iii. That, pending the hearing and determination of this application, a temporary conservatory order be issued restraining the 1st and 2nd Respondents, whether by themselves, their agents, servants, or any person acting under their authority, from undertaking any further steps towards the privatization of the Kenya Pipeline Company Limited, including but not limited https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 2

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to initiating an Initial Public Offering, engaging transaction advisors, or executing any contract for the sale of shares. 3. iv. That, pending the hearing and determination of this application, a temporary conservatory order be issued restraining the 3rd Respondent from considering, approving, or in any way facilitating Sessional Paper No. 2 of 2025 or any related framework for the privatization of the Kenya Pipeline Company Limited. v. That, pending the hearing and determination of the Petition, a conservatory order be issued restraining the 1st and 2nd Respondents, whether by themselves, their agents, servants, or any person acting under their authority, from taking any further steps towards the privatization of the Kenya Pipeline Company Limited, including but not limited to initiating an Initial Public Offering, engaging transaction advisors, or entering into any contract for the sale of shares. vi. That, pending the hearing and determination of the Petition, a conservatory order be issued restraining the 3rd Respondent from considering, approving, or in any way facilitating Sessional Paper No. 2 of 2025 or any related framework or plan for the privatization of the Kenya Pipeline Company Limited. vii. That the costs of this application be in the cause. The two Applications, namely the Notice of Motion dated 14th August 2025 in HCCHR Petition No. E517 of 2025 and the Notice of Motion dated 25th August 2025 in HCCHR Petition No. E546 of 2025, were heard together and canvassed by way of written submissions. HCCHRPETE517/2025 4. The 2nd Respondent filed a Notice of Preliminary Objection dated 22nd August, 2025 in response to the Notice of Motion dated 14th August, 2025. The objection raises a point of law to be determined in limine. The 2nd Respondent contended that the Petitioner’s Motion dated 14th August is incurably defective for having been predicated upon the Privatisation Act, 2023, a statute which was declared unconstitutional and nullified in its entirety by the High Court at Nairobi in Petition No. E491 of 2023, as consolidated with Petitions No. E010 and E025 of 2024, a decision that was subsequently upheld by the Court of Appeal in Civil Appeal (Application) No. E907 of 2024. It was submitted that the Application, being founded on a statute that no longer exists in law, offends the settled legal principle that pleadings must be based on valid and subsisting legislation. 5. Consequently, the 2nd Respondent urged the Court to find that the Application, as drawn, amounts to an abuse of the court process, is hopelessly incompetent, and undeserving of judicial consideration. The Respondent therefore prayed that the Application be dismissed or struck out forthwith with costs to the 2nd Respondent. 6. The Petitioner, in response to the Preliminary Objection, submitted that their Application dated 14thAugust 2025 seeks conservatory orders to restrain the Respondents from implementing or giving effect to actions purportedly based on a Cabinet approval issued in the year 2008, pending the hearing and determination of the substantive Petition. They argued that the Respondents’ continued reliance on the 2008 Cabinet approval is untenable, as it was granted over sixteen years ago and fails to reflect the significant changes that have since occurred in law, policy, economic circumstances, and public priorities. 7. They further contended that such reliance amounts to a clear violation of express constitutional and statutory provisions, particularly those safeguarding public participation, accountability, good https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 3

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governance, and lawful administrative action. They maintained that the Application raises serious constitutional issues warranting judicial intervention, and that the Preliminary Objection is therefore misplaced. In view of the grave public interest implications of the Respondents’ actions, the Applicants urged the Court to dismiss the Preliminary Objection and to grant the conservatory orders sought. Applicant’s/Petitioner’s case 8. In response to the Preliminary Objection, the Petitioner contended that the Application dated 14th August 2025 meets the established legal threshold for the grant of conservatory orders. Counsel placed reliance on the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, wherein the Court affirmed that the issuance of conservatory orders is grounded upon the intrinsic merit of a case, having due regard to public interest, constitutional values, and the relative weight of the competing interests involved. Further reliance was placed on Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, in which the Court articulated the guiding principles for the grant of conservatory orders, namely: the establishment of a prima facie case with a likelihood of success; demonstration that, in the absence of such orders, the applicant is likely to suffer prejudice; the risk of rendering the Petition nugatory; and the necessity of safeguarding constitutional values and public interest. Applying these principles, the Petitioner submitted that the present Application meets the requisite threshold, as it raises substantive constitutional and statutory issues relating to the Respondents’ continued reliance on a Cabinet approval issued in 2008, without the benefit of current legal and constitutional scrutiny. 9. The Petitioner further argued that the failure to grant the conservatory orders sought would occasion grave prejudice to fundamental constitutional principles and rights, including the rule of law under Article 10, public participation under Articles 10 and 232, fair administrative action under Article 47, protection of property under Article 40, and accountability under Articles 73 and 201 of the Constitution. It was submitted that the Petition discloses serious questions concerning the Respondents’ alleged disregard of mandatory constitutional requirements of public participation and accountability, thereby rendering their actions unconstitutional. In support, the Petitioner cited Attorney General & Another v Coalition for Reform and Democracy & 7 Others [2015] eKLR, where the Court underscored that the supremacy of the Constitution under Article 2 prevails over claims founded on public interest, and that conservatory orders ought to issue where violations of the Constitution are alleged, save where the State demonstrates that such suspension would occasion paralysis in governance. On this basis, the Petitioner maintained that the Application is neither frivolous nor incompetent but raises substantial constitutional questions warranting judicial protection. Accordingly, the Petitioner urged the Court to dismiss the Preliminary Objection and to allow the Application dated 14th August 2025 by granting the conservatory orders sought. 3rd Respondent’s Case 10. The 3rd Respondent, the Attorney-General opposed the Notice of Motion dated 14th August 2025, relying on the Replying Affidavit sworn by Hon. FCPA John Mbadi Ngóngo, the Cabinet Secretary, National Treasury and Economic Planning. 11. It was submitted that both the Application and the Petition fail to satisfy the legal threshold for the grant of conservatory orders as articulated by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. Counsel emphasized that conservatory orders, being public law remedies, are issued on the inherent merit of each case, with due regard to public interest, constitutional values, and the principle of proportionality. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 4

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12. The 3rd Respondent further contended that the Petition is frivolous and incompetent, having been anchored on the Privatisation Act, 2023, which was declared unconstitutional in Nairobi HCPET No. E491 of 2023 (Orange Democratic Party & Others v The Speaker of the National Assembly & Others), consolidated with E010 and E025 of 2024. Consequently, it was argued that the Privatisation Act, 2005 remains the operative statute. On that basis, the Respondent submitted that a suit founded on a non-existent law is untenable and ought to be struck out in limine. 13. It was also submitted that the proposed privatization of the Kenya Pipeline Company Limited (KPC) is at a preliminary policy approval stage, pending requisite consideration by the National Assembly, and that no actionable cause of action can arise from an incomplete or ongoing administrative process. Reliance was placed on Isaiah Ondiba Bitange & 3 Others v Institute of Engineers of Kenya & Another [2017] eKLR and Kolo v F.B.N. Plc. (2003) 3 N.W.L.R. (Pt. 806) 216. 14. Regarding the alleged absence of public participation, the 3rd Respondent cited British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 Others [2019] eKLR and King v Attorneys Fidelity Fund Board of Control & Another [2006] 1 SA 474, submitting that the nature and extent of public participation are context-dependent and that it is premature to allege any violation at this interlocutory stage. 15. On the issue of access to information, it was the Respondent’s submission that the Petitioner failed to adhere to the prescribed procedure under Part IV of the Access to Information Act, which requires that complaints be lodged initially with the Commission on Administrative Justice. Consequently, it was contended that the Petition constitutes an abuse of the court process. The Respondent further argued that no prejudice or irreparable harm has been demonstrated, as the privatization plan remains under development and will be subject to judicial review once finalized. Reliance was placed on Nelson Andayi Havi v Law Society of Kenya & 3 Others [2018] eKLR. It was further asserted that any actions taken at this stage are reversible should they subsequently be found unlawful. 16. With regard to public interest, the Attorney-General invoked the presumption of regularity affirmed in Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others (2018) eKLR, submitting that executive and parliamentary decisions represent the sovereign will of the people and ought not to be interfered with at an interlocutory stage. The 3rd Respondent underscored the macroeconomic rationale underpinning the privatization programme, including fiscal sustainability, enhanced revenue generation, and the promotion of private sector participation drawing parallels with the successful listing of Safaricom. It was urged that the suspension of the process would disrupt the 2025/2026 fiscal framework and jeopardize funding for critical government programmes. Reliance was placed on East African Cables v Public Procurement Complaints, Review and Appeals Board & Another (2007) eKLR and Cabinet Secretary Ministry of Health v Aura & 13 Others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) to support the proposition that public interest and the welfare of the wider population outweigh private concerns. 17. In conclusion, the 3rd Respondent urged the Court to find that the Application is devoid of merit, that the issues raised are premature, and that the conservatory orders sought would be contrary to the public interest. Accordingly, it was prayed that the Application be dismissed with costs 4th Respondent’s case 18. The 4th Respondent similarly opposed both the Petition and the Notice of Motion dated 14th August 2025 on multiple grounds. It was contended that neither the Petition nor the Application discloses a reasonable cause of action, having been predicated upon the Privatisation Act, 2023, which was declared unconstitutional in Orange Democratic Movement Party & 4 Others v Speaker of National https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 5

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Assembly & 5 Others (Constitutional Petition E491 of 2023 & E010 & E025 of 2024 (Consolidated)) [2024] KEHC 11494 (KLR). That decision, it was noted, was subsequently affirmed by the Court of Appeal in Speaker of the National Assembly & Another v Orange Democratic Movement Party & 8 Others (Civil Appeal (Application) E907 of 2024) [2025] KECA 681 (KLR). 19. The 4th Respondent further argued that the Petition offends the doctrine of exhaustion in so far as it seeks disclosure of documents without first invoking the mechanisms prescribed under Sections 9 and 14 of the Access to Information Act. Likewise, by challenging the privatization process under the Privatization Act, 2005, the Petitioner failed to exhaust the procedures stipulated under Section 35, read together with paragraph 2 of the Second Schedule to that Act. 20. It was submitted that the Petition is founded upon hearsay and unverified media reports and therefore fails to satisfy the evidentiary standards requisite in constitutional litigation. 21. The 4th Respondent further contended that the Petitioner has not met the established principles for the grant of conservatory orders as set out by the Supreme Court in Munya v Kithinji & 2 Others (Application 5 of 2014) [2014] KESC 30 (KLR), nor has it pleaded the alleged constitutional violations with the requisite precision as articulated in Anarita Karimi Njeru v Republic (1979) eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR). Relying further on Kevin K Mwiti & Others v Kenya School of Law & Others [2015] eKLR, it was argued that a prima facie case must disclose an arguable constitutional issue, which is lacking in this instance. The Respondent asserted that no prejudice or irreparable harm has been demonstrated, given that the privatization process remains subject to Cabinet and parliamentary approval pursuant to Section 23 of the Privatization Act, 2005. Consequently, it was argued that granting the conservatory orders sought would impermissibly interfere with the constitutional mandate of the National Assembly. 22. Invoking the principle of separation of powers, the 4th Respondent submitted that the greater public interest lies in permitting constitutionally established organs to discharge their respective functions without undue judicial intervention. It was further submitted that the Petitioner had not demonstrated that any formal request for information was made or unlawfully declined in accordance with the Access to Information Act, as underscored in Commission for Human Rights & Justice (CHRJ) & Another v Chief Officer, Medical Services County Government of Mombasa & 3 Others (Constitutional Petition E003 of 2022) [2022] KEHC 12994 (KLR). 23. The 4th Respondent urged the Court to find that both the Application and the Petition are misconceived, devoid of merit, premature, and constitute an abuse of the court process, and accordingly prayed that they be dismissed with costs. 1st Interested Party’s case 24. The 1st Interested Party indicated its intention to oppose both the Petition and the Notice of Motion dated 14th August 2025 on several legal and procedural grounds. 25. It was submitted that the Petition and the Application are incurably defective, having been premised upon the Privatisation Act, No. 11 of 2023, which was declared unconstitutional, null, and void in Orange Democratic Movement Party & 4 Others v Speaker of National Assembly & 5 Others (Constitutional Petition E491 of 2023 as consolidated with Petitions E010 & E025 of 2024) [2024] KEHC 11494 (KLR). That decision, counsel noted, was subsequently affirmed by the Court of Appeal in Speaker of the National Assembly & Another v Orange Democratic Movement Party & 8 Others (Civil Appeal (Application) E907 of 2024) [2025] KECA 681 (KLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 6

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26. The 1st Interested Party contended that a pleading founded upon a statute declared unconstitutional cannot stand, as such a statute is devoid of legal force and effect. Consequently, it was argued that both the Petition and the Application are fatally defective and ought to be dismissed in limine. 27. It was further submitted that, following the invalidation of the Privatisation Act, 2023, the applicable law reverted to the Privatisation Act, 2005, under which the ongoing privatization process of the 1st Interested Party is duly anchored. Reliance was placed on Attorney General & 2 Others v Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR), wherein the Supreme Court affirmed that a declaration of unconstitutionality of a repealing statute operates to revive the previously repealed law. 28. The 1st Interested Party further contended that the Petition and Application offend the doctrine of exhaustion of statutory remedies. It was submitted that the Petitioner’s grievances relating to access to information, consumer protection, and privatization fall within the purview of statutory mechanisms established under the Access to Information Act, the Consumer Protection Act, and the Privatisation Act, 2005, respectively. The Petitioner’s failure to pursue remedies available under Sections 8 and 14 of the Access to Information Act, Part IX of the Consumer Protection Act, and Section 37 read together with paragraph 2 of the Second Schedule to the Privatisation Act, 2005, was said to render the Petition premature and improperly before the Court. 29. Reliance was placed on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR, where the courts underscored the principle that where a statute provides a specific procedure for redress, that procedure must be strictly adhered to. 30. It was also submitted that the Petition proceeds on a misapprehension of the law by conflating privatization under the Privatisation Act with procurement under Article 227 of the Constitution and by misinterpreting the relationship between the privatization process and the fiscal principles set out under Article 201 of the Constitution. The Petition was further faulted for lack of specificity and precision in its pleadings, contrary to Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, and the principles enunciated in Anarita Karimi supra and Mumo Matemu supra. 31. It was further submitted that the Petitioner has failed to meet the legal threshold for the grant of conservatory orders as set out in Munya v Kithinji & 2 Others [2014] KECA 876 (KLR), in that no prima facie case, imminent violation, or irreparable harm has been demonstrated, and that the balance of convenience and public interest militate against the grant of such orders. For these reasons, the 1st Interested Party urged the Court to find both the Petition and the Application speculative, jurisdictionally defective, and devoid of merit, and to dismiss them with costs. HCCHRPETE546 of 2025 Petitioner’s case 32. On 5th August 2025, the National Assembly received Sessional Paper No. 2 of 2025 from the 1st Respondent, dated 31st July 2025, proposing the privatization of the Kenya Pipeline Company Limited (KPC), an entity vested with the exclusive mandate for the refining, storage, supply, and distribution of petroleum and oil products within Kenya and to its hinterland. The proposal followed significant consolidation within the petroleum sector, occasioned by the full acquisition of the Kenya Petroleum Refineries Limited (KPRL) by the 1st Interested Party, thereby rendering it a monopoly in the sector. The Petitioner contends that both the acquisition and the proposed privatization were not subjected https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 7

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to review or scrutiny by the Competition Authority, contrary to its statutory obligation to ensure fair competition among undertakings. 33. Acting in its capacity as a key stakeholder, the Petitioner formally objected to the proposed privatization. Through letters dated 12th August 2025 addressed to the Clerk of the National Assembly and to the President, the Petitioner raised serious concerns regarding the legality, transparency, and broader implications of the process. It underscored the imminent threat of job losses and the likely violation of workers’ rights guaranteed under Article 41(1) of the Constitution. The Petitioner asserted that privatization would likely result in large-scale retrenchments, outsourcing, erosion of collective bargaining agreements, and the casualization of labour. It was further contended that the process lacked transparency, meaningful public participation, stakeholder consultation, and the requisite human rights and socio-economic impact assessments. 34. According to the Petitioner, the privatization of KPC a strategic national asset poses a grave threat to national energy security, fiscal stability, and the sovereign control of critical infrastructure. It was submitted that the Sessional Paper failed to disclose the percentage of Government shares intended for divestiture, thereby undermining transparency and accountability. The Petitioner therefore demanded the immediate suspension of the privatization process, full disclosure of the intended beneficiaries, the establishment of a comprehensive public participation framework, and the preservation of employees’ rights and benefits under existing collective bargaining agreements. 35. The Petitioner contends that, by proceeding with the privatization without meaningful consultation, the Respondents have violated Articles 10, 35, 41, and 47 of the Constitution. 36. It was further submitted that, under the principles set out in Munya v Kithinji & 2 Others [2014] KESC 30 (KLR), conservatory orders are granted on the basis of inherent merit, public interest, and constitutional values. The Petitioner also relied on Steyn v Ruscone [2013] KESC 11 (KLR), wherein public interest was defined as the general welfare of the public deserving of protection. On this basis, the Petitioner asserted that the present Application satisfies the threshold for conservatory relief, given the overarching public interest in safeguarding national assets, labour rights, and transparency in the management of state affairs. 37. It was further argued that the Respondents failed to undertake human rights due diligence or a Human Rights Impact Assessment as required under the UN Guiding Principles on Business and Human Rights, which, by virtue of Articles 2(5) and 2(6) of the Constitution, form part of the law of Kenya. This omission, the Petitioner contended, infringes upon the rights of KPC employees to fair labour practices, access to information, and participation in public decision-making. It was also observed that the Sessional Paper lacked any framework for employee protection or an Employee Share Ownership Plan (ESOP), notwithstanding its purported objective of promoting inclusive participation in national wealth creation. The absence of such safeguards, it was submitted, renders the privatization process constitutionally infirm and procedurally defective. 38. In support of these arguments, reliance was placed on Republic v National Treasury and Economic Planning & Another; Law Society of Kenya (Ex parte Applicant) [2025] KEHC 8955 (KLR), where the Court held that administrative actions affecting workers’ rights must adhere to due process, including consultation and stakeholder engagement. Similarly, in Njoroge & 2 Others v Ministry of Interior and National Administration Kenya & 2 Others [2025] KEHC 4587 (KLR), the Court emphasized that failure to undertake prior consultation and regulatory impact assessments constitutes a violation of Articles 10 and 47 of the Constitution. 39. Further reliance was placed on Legal Advice Centre & 3 Others v County Government of Mombasa & 4 Others [2016] KEHC 146 (KLR), where Otieno J underscored that public participation https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 8

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is a constitutional imperative binding upon all State organs, and its omission renders a process unconstitutional. It was therefore argued that the failure of the Respondents to involve the Petitioner in the preparation and presentation of the Sessional Paper contravenes these established principles. Additionally, the Petitioner invoked Kenya Human Rights Commission & Another v Attorney General & Another; Law Society of Kenya & Another (Interested Parties) [2024] KEHC 15702 (KLR), wherein the Court reaffirmed that access to information is a cornerstone of democratic governance and that the State bears the burden of justifying any denial thereof. The Respondents’ failure to disclose crucial details such as the proportion of shares to be ofioaded, valuation of KPC assets, and the potential impact on employees was said to constitute a violation of Article 35 of the Constitution. 40. The Petitioner also relied on Mombosi & 449 Others v CS, Ministry of Interior Co-ordination of National Government & 3 Others [2022] KEHC 13397 (KLR), where the Court declared that actions undertaken without public participation are arbitrary and unconstitutional. 41. The Petitioner further contended that the proposed privatization is tainted by the potential for unlawful disposition of public land and asset stripping, contrary to Article 67(2)(c) of the Constitution and the National Land Commission Act, as the process excludes the mandatory oversight of the National Land Commission. It was argued that divesting 100% of Government ownership in KPC would compromise national energy security and sovereignty in contravention of Article 238(1) of the Constitution. The lack of transparency in valuation, selection of potential buyers, and absence of a feasibility or social impact assessment was said to create fertile ground for corruption, undervaluation, and public asset loss, thereby violating the principles of public finance under Article 201, as well as the national values of patriotism, transparency, accountability, and sustainable development under Article 10 of the Constitution. 42. Reliance was also placed on Richard Owuor & 2 Others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 Others [2021] KEHC 12651 (KLR), where the Court, citing Nairobi High Court Constitutional Petition No. E283 of 2020, observed that executive decisions with significant public impact must be subjected to public participation. The Petitioner maintained that the decision to privatize KPC falls squarely within this category, as it directly affects employees, consumers, and the general public. The failure of the Respondents to comply with this constitutional requirement, it was urged, renders the process unconstitutional and inimical to the rule of law. 43. The Petitioner therefore prayed that, pending the hearing and determination of this Petition, a conservatory order be issued restraining the 1st to 3rd Respondents, their agents, servants, or any persons acting under their authority, from taking any further steps towards the privatization of Kenya Pipeline Company Limited, including initiating an Initial Public Offering, engaging transaction advisors, or executing any agreements for the sale of shares. 44. The Petitioner further prayed for a conservatory order restraining the 3rd Respondent from considering, approving, or facilitating Sessional Paper No. 2 of 2025 or any related frameworks or plans for the privatization of Kenya Pipeline Company Limited, pending full compliance with the Constitution and due process. 2nd Respondent’s case 45. In opposition to the Petition and the Notice of Motion dated 25th August 2025, Janerose Omonoi, the Acting Executive Director and Chief Executive Officer of the 2nd Respondent, swore a Replying Affidavit on behalf of the 2nd Respondent. She deposed that the 2nd Respondent, the Privatization https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 9

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Commission, is a statutory body established under Section 3 of the Privatization Act, 2005, with the mandate to formulate, manage, and implement the Privatization Programme. 46. It was averred that, pursuant to Section 17 of the Privatization Act, 2005, a Privatization Programme was duly formulated, approved by Cabinet, and gazetted on 14th August 2009 vide Gazette Notice No. 8739. The said Programme lawfully included the 1st Interested Party, Kenya Pipeline Company Limited, among the entities earmarked for privatization. The objectives of privatization, as outlined in the gazetted Programme, include the mobilization of resources for investment, enhancement of transparency and corporate governance, broadening of shareholding, development of capital markets, and the raising of resources to support the government budget. 47. The 2nd Respondent further deposed that the process of privatization under the Privatization Act, 2005 follows a structured and transparent procedure involving due diligence, preparation of specific privatization proposals in accordance with Sections 23 and 24 of the Act, Cabinet approval, and the submission of a Sessional Paper to the National Assembly for consideration under Section 25. 48. It was maintained that all requisite statutory steps had been undertaken and that the process was presently at the parliamentary stage, where Sessional Paper No. 2 of 2025 was under consideration. It was further deposed that, in compliance with Sections 28 to 41 of the Act, the 2nd Respondent ensures that all privatizations are undertaken transparently and competitively, guided by valuations undertaken by qualified professionals and public notices published in national newspapers and in the Kenya Gazette. 49. The 2nd Respondent stated that comprehensive due diligence had been conducted on the 1st Interested Party, encompassing financial, technical, operational, legal, human resource, commercial, and environmental dimensions, and that a detailed feasibility study and cost-benefit analysis had been undertaken to inform the privatization proposal. 50. It was deposed that, between 30th July 2025 and 18th August 2025, staff sensitization forums were held in Mombasa, Nairobi, Nakuru, Eldoret, and Kisumu to apprise employees of the privatization process, its rationale, benefits, and implications, with attendance duly recorded. 51. It was maintained that public participation was ongoing and that, on 6th August 2025, the National Assembly published an invitation for the submission of memoranda by members of the public on Sessional Paper No. 2 of 2025 concerning the privatization of Kenya Pipeline Company Limited. It was asserted that the Petitioner’s claims regarding threats to national security were speculative and unfounded, noting that the Commission’s commercial and market due diligence had comprehensively addressed potential monopoly and operational continuity risks in accordance with Section 35 of the Act. 52. It was further emphasized that under Section 24(d) of the Privatization Act, 2005, the Commission is mandated to make recommendations on measures to safeguard employees directly affected by privatization. In compliance with this provision, a detailed human resource due diligence exercise had been undertaken to ensure adherence to labour laws and international best practices. 53. It was contended that the Petitioner had failed to demonstrate any violation of the Constitution or of statute by the 2nd Respondent, and that the allegations raised were speculative, premature, and aimed at frustrating a lawful statutory process. Relying on the principles enunciated in Commission for Human Rights & Justice (CHRJ) & Another v Chief Officer, Medical Services County Government of Mombasa & 3 Others (Constitutional Petition E003 of 2022) [2022] KEHC 12994 (KLR), the 2nd Respondent submitted that the Petitioner had failed to exhaust the internal mechanisms provided by law before seeking recourse to this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 10

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54. The 2nd Respondent accordingly urged the Court to find that the Petition and the Application fail to meet the threshold set out under Articles 22 and 23 of the Constitution and to dismiss both with costs. 3rd Respondent’s case 55. The 3rd Respondent, the National Assembly, opposes the Application through its Grounds of Opposition fundamentally, on the grounds that the Application invites this Honourable Court to intervene and halt an ongoing parliamentary process that falls squarely within the constitutional and statutory mandate of the National Assembly under Articles 95 and 118 of the Constitution and Section 23 of the Privatisation Act, 2005. 56. It is contended that the principles for the grant of conservatory orders are well settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (Application No. 5 of 2014) [2014] KESC 30, where the Supreme Court held that an applicant must demonstrate a prima facie case with a likelihood of success, show that they stand to suffer irreparable harm if the orders are denied, and that the Court must weigh the public interest in deciding whether to grant such orders. Conservatory orders, unlike private law injunctions, are public law remedies aimed at ensuring orderly functioning of public agencies, upholding constitutional values, and preserving the adjudicatory authority of the Court. 57. The position was reiterated in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, where the court held that conservatory orders should not issue lightly but only where there is a clear and arguable constitutional violation. 58. According to the 3rd Respondent, the Petitioner’s claim is anchored on the Privatisation Act, 2023, which was declared unconstitutional in Orange Democratic Movement Party & 4 others v Speaker of the National Assembly & 5 others (Petition E491 of 2023 consolidated with E010 & E025 of 2024) [2024] KEHC 11494. The Court of Appeal in Speaker of the National Assembly & another v Orange Democratic Movement Party & 8 others (Civil Appeal E907 of 2024) [2025] KECA 681 subsequently confirmed that the governing law reverted to the Privatisation Act, 2005. A claim grounded on a statute declared invalid is therefore untenable and discloses no prima facie case capable of sustaining the Application. The Petitioner seeks to restrain Parliament from considering Sessional Paper No. 2 of 2025, a process expressly contemplated by Section 23 of the Privatisation Act, 2005. Articles 95 and 118 of the Constitution vest the National Assembly with authority to deliberate on policy, approve Sessional Papers, and ensure public participation. The Supreme Court in Council of Governors & 47 others v Attorney General & 3 others; Senate (Interested Party) [2020] eKLR emphasized that judicial interference in parliamentary proceedings is an extraordinary remedy to be invoked only where there is a manifest constitutional violation. No such violation has been demonstrated here. To the contrary, the record reflects that the Committee received stakeholder submissions, including those from labour unions, and that its report is yet to be tabled before the House. 59. It is argued that halting a parliamentary debate midstream would amount to the Court usurping legislative functions in breach of the doctrine of separation of powers. 60. It is further argued that the Petition is also sub judice within the meaning of Section 6 of the Civil Procedure Act, the same subject matter being pending in Petition No. E517 of 2025 (COFEK v CS Treasury & Others). Both suits involve identical Respondents, raise substantially similar constitutional and statutory issues, and seek overlapping reliefs. Concurrent proceedings on the same subject risk conflicting outcomes and undermine judicial economy contrary to Sections 1A and 1B of the Civil Procedure Act. Moreover, the Petitioner’s claim for disclosure of valuation reports, cost-benefit analyses, and impact assessments is premature. There is no evidence of a formal request under the Access https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 11

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to Information Act, which provides a specific procedure for seeking and reviewing access requests under Sections 9 and 14. 61. It is the 3rd Respondent’s case that Section 35 and the Second Schedule to the Privatisation Act, 2005 require objections to privatisation proposals to be lodged first before the Privatisation Commission, with a right of appeal to the Privatisation Appeals Tribunal. It is posited that the Petitioner bypassed these mandatory avenues and prematurely invoked this Court’s jurisdiction, contrary to the doctrine of exhaustion of remedies. Reliance is placed in Commission for Human Rights & Justice (CHRJ) & another v Chief Officer, Medical Services County Government of Mombasa & 3 others (Constitutional Petition E003 of 2022) [2022] KEHC 12994, where it was held that where the law provides for internal remedies, a party must exhaust them before approaching the Court. 62. It is contended that the Petitioner has not demonstrated irreparable harm that would result if the process continues. Should the Court ultimately find any constitutional infirmity, it retains jurisdiction to nullify the process or any resultant action. Any alleged harm is therefore remediable. Conversely, halting parliamentary debate would gravely prejudice the 3rd Respondent by paralysing its constitutional and statutory mandate. Public interest also militates against granting the conservatory orders sought. The proposed privatisation has undergone public participation in accordance with Article 118, and stopping Parliament now would silence the very stakeholders who have participated in the process. The broader public interest lies in permitting Parliament to discharge its constitutional role, subject to later judicial review if warranted. As observed in Trusted Society of Human Rights Alliance v AG & 2 others [2012] eKLR, public interest is a central consideration in constitutional remedies; here, it clearly favours the continuation of the legislative process. 63. It is argued that the Petition and Application are therefore incompetent, premature, sub judice, and an abuse of the Court process. Accordingly, the 3rd Respondent urges this Honourable Court to dismiss the Application dated 25th August 2025 with costs. 4th Respondent’s case 64. The Attorney-General opposes the Notice of Motion dated 25th August 2025, which seeks to restrain the Respondents from proceeding with the proposed privatisation of Kenya Pipeline Company Limited (KPC) and to compel disclosure of related documents. In opposition, the Attorney-General relies on the Replying Affidavit sworn by Hon. FCPA John Mbadi Ngóngo, Cabinet Secretary for the National Treasury and Economic Planning, contending that the Application fails to meet the threshold for the grant of conservatory orders as articulated by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. 65. It is submitted that conservatory orders are public law remedies intended to preserve constitutional order and the authority of the Court, and may only issue where an applicant demonstrates a prima facie case, public interest, and proportionality. 66. It contended that the Petitioner has not established a prima facie case, as the intended privatisation of KPC is still at the preliminary policy approval phase before the National Assembly under the Privatisation Act, 2005. The Attorney General argues that allegations of lack of public participation, transparency, and accountability are premature, as no concrete action capable of violating the Constitution has yet been undertaken. Reliance was placed on Isaiah Ondiba Bitange & 3 others v Institute of Engineers of Kenya & another [2017] eKLR and Kolo v F.B.N. Plc. (2003) 3 N.W.L.R. (Pt. 806) 216, where it was held that to argue that a cause of action only accrues when material facts constituting a complete claim exist, which is not the case here. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 12

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67. Reliance is also placed on British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR and King v Attorneys Fidelity Fund Board of Control & Another [2006] 1 SA 474, where the courts emphasized that public participation is a flexible concept whose adequacy depends on context, and cannot be impugned mid-process. The suit was therefore termed premature and an abuse of court process, consistent with Lelang v Cooper (1965) Q.B. 232, which held that courts should not be used to advance vexatious or speculative claims. 68. It was further submitted that judicial restraint must be exercised where constitutional mandates are clearly allocated to other state organs, citing Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017) eKLR, where the Supreme Court held that courts should not encumber Parliament or the Executive in the discharge of their lawful duties. 69. On alleged irreparable harm, the 4th Respondent maintained that the Petitioner had failed to demonstrate any prejudice, noting that the impugned plan remains at preliminary stages and could be invalidated later if found unconstitutional. Reliance was placed on Nelson Andayi Havi v Law Society of Kenya & 3 others [2018] eKLR; and Civil Application 28 of 2018 (UR 26/2018), where the Court of Appeal held that actions taken under a contested framework can be nullified post facto without occasioning irreparable prejudice. 70. On public interest, it was argued that the presumption of regularity attaches to executive and legislative acts, citing Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others (2018) eKLR, and that decisions of the Cabinet and Parliament reflect the sovereign will of the people under Articles 1(2), (3) and 130(1) of the Constitution. It was submitted that halting the privatisation process would disrupt critical fiscal and economic planning, particularly given that privatisation is projected to raise KES 149 billion in the 2025/2026 financial year to support essential government programmes. The AttorneyGeneral stressed that privatisation promotes fiscal sustainability, capital market development, and efficient public investment, citing the example of Safaricom’s success following its listing. In support of prioritising public interest over individual claims, reliance was placed on East African Cables v Public Procurement Complaints, Review and Appeals Board & another (2007) eKLR, where the Court of Appeal held that public interest must prevail where orders sought would harm the wider population, and Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR), where the Court underscored the duty to prevent harm to public welfare pending the determination of a dispute. 71. It was submitted that the Application lacks merit, is premature, and offends the doctrines of ripeness, separation of powers, and proportionality. Bearing in mind the inherent merits of the privatisation programme, its preliminary stage, and the overriding public and fiscal interest, the Attorney-General urged the Court to dismiss the Application dated 25th August 2025 with costs 1st Interested Party’s case 72. The 1st Interested Party, contends that the Application and Petition are incompetent, premature, and devoid of merit on several grounds. It is argued that the Petition raises employment-related grievances regarding staff consultation and alleged threats to employee benefits, matters that fall squarely within the jurisdiction of the Employment and Labour Relations Court (ELRC) under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. Reliance was placed on Daniel N Mugendi v Kenyatta University & 3 others [2013] KECA 41 (KLR), where the Court of Appeal, adopting the reasoning in Gcaba v Minister of Safety and Security & Others CCT https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 13

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64/08 (2009) ZACC 26, affirmed that the ELRC has exclusive jurisdiction to determine employment disputes and to enforce constitutional rights incidental thereto. On that basis, it was submitted that this court lacks jurisdiction to entertain the employment-related complaints advanced by the Petitioner. 73. It was further contended that the Petition and Application offend the doctrine of exhaustion of statutory remedies. The Petitioner, instead of invoking the mechanisms available under the Access to Information Act, Consumer Protection Act, and Privatisation Act, 2005, has improperly sought constitutional relief as a substitute for those statutory procedures. The 1st Interested Party relied on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), where the Court of Appeal held that where the Constitution or statute prescribes a clear procedure for redress, it must be strictly followed, and on Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR, where the Supreme Court cautioned that disputes disguised as constitutional petitions cannot override statutory dispute-resolution mechanisms. It was therefore argued that the Petition is premature, offends the principle of orderly adjudication, and invites the Court to usurp the functions of specialised statutory bodies. 74. The 1st Interested Party also submitted that the Petition misapprehends the relationship between the privatisation process and Article 201 of the Constitution. Article 201 merely articulates guiding principles of public finance and does not displace the detailed statutory framework governing privatisation under the Privatisation Act, 2005. 75. The Petition, it was argued, wrongly seeks to elevate general fiscal principles into a legal basis for invalidating lawful statutory procedures. On the issue of conservatory orders, reliance was placed on Munya v Kithinji & 2 others [2014] KECA 876 (KLR), which set out the governing test requiring proof of a prima facie case, imminent violation, irreparable harm, and a favourable balance of convenience and public interest. The 1st Interested Party submitted that the Petitioner has failed to establish any of these elements, as the alleged violations are speculative, unsupported by evidence, and do not disclose any unlawful act or imminent harm. 76. Lastly, the 1st Interested Party argued that the Petition lacks the necessary particularity required under Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, as reinforced in Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR). It was contended that the pleadings are vague, fail to identify the specific constitutional provisions allegedly violated, and do not demonstrate with precision how the Respondents’ conduct offends the Constitution. Consequently, the 1st Interested Party urged the Court to find that the Petition is speculative, jurisdictionally defective, contrary to the doctrine of exhaustion, and devoid of merit, and to dismiss both the Petition and the Application with costs. Analysis and Determination 77. I have carefully considered parties’ pleadings and submissions on the two notice of motions dated 14th August, 2025 and 25th August, 2025 and find the following to be the issue that commends itself for determination: 1. 78. whether this court should issue conservatory orders to halt Parliament’s consideration of Sessional Paper No. 2 of 2025 and the proposed privatization of the Kenya Pipeline Company The two applications before me arose from two Petitions challenging the proposed privatization of the Kenya Pipeline Company Limited and the accompanying Sessional Paper No. 2 of 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 14

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79. The Petitioners sought conservatory orders restraining the Government and Parliament from taking any further steps towards the privatization process pending the determination of their respective Petitions. 80. Having carefully considered the pleadings, submissions, and relevant constitutional and statutory provisions, it is evident that Sessional Paper No. 2 of 2025 and the matter of the proposed privatization of the Kenya Pipeline Company are still under active consideration by Parliament. 81. Guided by the Doctrine of Separation of Powers, I am persuaded that Parliament, as the legislative arm of government, must be allowed to exercise its constitutional authority to deliberate upon and reach its own decision on such policy proposals. 82. At this stage, it would be premature and constitutionally inappropriate for this Court to interfere with Parliament’s consideration of the Sessional Paper and the attendant privatization proposals. I am further satisfied that the parliamentary actions are within the first phase of a three-phase process envisaged under the Privatization Act, 2005, and that there remains ample time for this Court to hear and determine the Petitions without rendering them nugatory should Parliament proceed with its deliberations. I am not convinced by the Petitioners’ contention that the parliamentary process is a mere formality lacking meaningful and independent evaluation of the proposals. 83. The Attorney-General and the 1st Interested Party submitted, and I agree, that the applications are premature and speculative, the privatization process being incomplete and still subject to multiple statutory and administrative approvals. 84. They further contended that no justiciable constitutional violations have been demonstrated at this stage, and that allegations regarding public participation, transparency, and accountability can only be properly assessed once the process has matured. This position is consistent with the jurisprudence in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others [2019] eKLR, and Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017) eKLR, which collectively affirm that conservatory orders must rest on a clear and demonstrable violation of the Constitution and that courts must exercise restraint when other constitutional organs are discharging their mandates. 85. I also agree with the 1st Interested Party’s submission that this Court lacks jurisdiction over any employment-related grievances raised within the Petitions, as such matters fall within the exclusive jurisdiction of the Employment and Labour Relations Court, in line with Daniel N Mugendi v Kenyatta University & 3 others [2013] KECA 41 (KLR). 86. Moreover, the Petitions offend the doctrine of exhaustion of statutory remedies, given that the Petitioners have not pursued the mechanisms provided under the Access to Information Act, Consumer Protection Act, and Privatization Act, 2005. The well-settled principle that statutory remedies must be exhausted before invoking the Court’s constitutional jurisdiction is reflected in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR. 87. In the circumstances, I find no basis and legal threshold for the grant of the conservatory orders sought at this stage. Parliament should, therefore, be allowed to continue exercising its rightful constitutional functions pending the expedited hearing and determination of the substantive Petitions. 88. In conclusion, this finding reflects the Court’s commitment to upholding constitutional boundaries and the principle of separation of powers. While the Court refrains from pre-empting or interfering with Parliament’s ongoing deliberations, it remains seized of constitutional jurisdiction and stands https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 15

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ready to intervene should future stages of the privatization process reveal any constitutional infractions or procedural improprieties. 89. 90. Consequently, the Court makes the following orders: a. the Petitioner/Applicant’s Notice of Motion Application dated 14/08/2025 in Milimani HCCHRPET/E517/2025 be and is hereby dismissed with costs in the cause; b. the Petitioner/Applicant’s Notice of Motion Application dated 25/08/2025 in Milimani HCCHRPET/E546/2025 be and is hereby dismissed with costs in the cause; c. the interim conservatory orders dated and issued on 15/08/2025 in Milimani HCCHRPET/ E517/2025 are lifted and discharged with immediate effect; and d. notwithstanding the dismissal of the respective Petitioner’s Applications and the discharge of the interim conservatory orders that had been granted ex parte, parties shall remain at liberty to apply if circumstances change. The Court will now proceed to separately issue directions in each of the files, after hearing from Parties and/or their Counsel, geared at the expedited hearing and determination of the respective petitions. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 12th DAY OF SEPTEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17628/eng@2025-09-12 16

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