Hillary Mokaya & 1 other v The Attorney General & 2 others

HILLARY MOKAYA ........................................................................ 1ST PETITIONER LEGAL ADVICE CENTRE T/A KITUO CHA SHERIA ............. 2ND PETITIONER AND THE ATTORNEY GENERAL ...................................................... 1ST RESPONDENT CABINET SECRETARY, NATIONAL TREASURY AND ECONOMIC PLANNING .................................................................................... 2ND RESPONDENT PRINCIPAL SECRETARY IMMIGRATION AND CITIZEN SERVICES ....................................................................................... 3RD RESPONDENT AND NATIONAL CANCER INSTITUTE OF KENYA ................ INTERESTED PARTY KENYA HOSPITAL AUTHORITY TRUST FUND ............ INTERESTED PARTY KENYA NUTRITIONIST AND DIETICIAN INSTITUTE .... INTERESTED PARTY HEALTH RECORDS AND INFORMATION MANAGERS BOARD ...................................................................................... INTERESTED PARTY NATIONAL SYNDEMIC DISEASE CONTROL COUNCIL .... INTERESTED PARTY OCCUPATION THERAPY COUNCIL OF KENYA ............ INTERESTED PARTY DIGITAL HEALTH AGENCY ................................................ INTERESTED PARTY KENYA BIOVAX INSTITUTE LIMITED ............................. INTERESTED PARTY KENYA NATIONAL PUBLIC HEALTH INSTITUTE ........ INTERESTED PARTY KENYA HEALTH HUMAN RESOURCE AUTHORITY .... INTERESTED PARTY KENYA WATER INSTITUTE ................................................ INTERESTED PARTY TANATHI WATER WORKS DEVELOPMENT AGENCY . INTERESTED PARTY WATER SECTOR TRUST FUND ......................................... INTERESTED PARTY KENYA ENGINEERING TECHNOLOGY REGISTRATION BOARD ...................................................................................... INTERESTED PARTY KENYA PORTS AUTHORITY .............................................. INTERESTED PARTY INDEPENDENT POLICING OVERSIGHT AUTHORITY (IPOA) INTERESTED PARTY PRIVATE SECURITY REGULATORY AUTHORITY ........ INTERESTED PARTY NAIROBI INTERNATIONAL FINANCIAL CENTER ...... INTERESTED PARTY KENYA RE-INSURANCE CORPORATION ....................... INTERESTED PARTY FINANCIAL REPORTING CENTRE ................................... INTERESTED PARTY KENYA INSTITUTE OF SUPPLIES MANAGEMENT ....... INTERESTED PARTY https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 2

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CONSOLIDATED BANK OF KENYA .................................. INTERESTED PARTY DEVELOPMENT BANK OF KENYA .................................... INTERESTED PARTY KENYA ACCOUNTANTS AND SECRETARIES NATIONAL EXAMINATION BOARD ...................................................................................... INTERESTED PARTY INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS OF KENYA ...................................................................................... INTERESTED PARTY INSTITUTE OF CERTIFIED SECRETARIES ...................... INTERESTED PARTY ENERGY AND PETROLEUM REGULATION AUTHORITY .... INTERESTED PARTY KENYA POWER COMPANY LIMITED ............................... INTERESTED PARTY RURAL ELECTRIFICATION AND RENEWABLE ENERGY CORPORATION. ..................................................................... INTERESTED PARTY GEOTHERMAL DEVELOPMENT COMPANY ................... INTERESTED PARTY KENYA PETROLEUM REFINERIES LIMITED .................. INTERESTED PARTY NATIONAL DEFENCE UNIVERSITY ................................. INTERESTED PARTY KENYA SPACE AGENCY ....................................................... INTERESTED PARTY KENYA SHIPYARD LIMITED .............................................. INTERESTED PARTY DR ELIAS MELLY (MD) CEO, NATIONAL CANCER INSTITUTE OF KENYA ...................................................................................... INTERESTED PARTY JOE NGIGI TRUSTEE KENYA HOSPITAL AUTHORITY TRUST FUND ......................................................................................... INTERESTED PARTY DR DAVID OMONDI OKEYO CEO, KENYA NUTRITIONIST AND DIETICIAN INSTITUTE ........................................................ INTERESTED PARTY CEO, HEALTH RECORDS AND INFORMATION MANAGERS BOARD ...................................................................................... INTERESTED PARTY DR RUTH LAIBON-MASHA CEO, NATIONAL SYNDEMIC DISEASE CONTROL COUNCIL ............................................................ INTERESTED PARTY CEO, OCCUPATION THERAPY COUNCIL OF KENYA .. INTERESTED PARTY ANTONY LENAIYARA CEO, DIGITAL HEALTH AGENCY .... INTERESTED PARTY DR MICHAEL LUSIOLA CEO, KENYA BIOVAX INSTITUTE LIMITED ................................................................................... INTERESTED PARTY DR MAUREEN KAMENE KIMENYE CEO, KENYA NATIONAL PUBLIC HEALTH INSTITUTE ............................................................. INTERESTED PARTY CEO, KENYA HEALTH HUMAN RESOURCE AUTHORITY .... INTERESTED PARTY DR LEIRO LETANGULE CEO, KENYA WATER INSTITUTE .... INTERESTED PARTY https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 3

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ENG FK KYENGO CEO, TANATHI WATER WORKS DEVELOPMENT AGENCY ................................................................................... INTERESTED PARTY WILLIS OKELLO OMBAI CEO, WATER SECTOR TRUST FUND ......................................................................................... INTERESTED PARTY MRS ALICE MUTAI, CEO, KENYA ENGINEERING TECHNOLOGY REGISTRATION BOARD ...................................................... INTERESTED PARTY CAPTAIN WILLIAM K RUTO MANAGING DIRECTOR KENYA PORTS AUTHORITY ........................................................................... INTERESTED PARTY ELEMA HALAKE CEO, INDEPENDENT POLICING OVERSIGHT AUTHORITY ........................................................................... INTERESTED PARTY FAZUL MAHAMED CEO, PRIVATE SECURITY REGULATORY AUTHORITY ........................................................................... INTERESTED PARTY OSCAR NJUGUNA CEO, NAIROBI INTERNATIONAL FINANCIAL CENTER .................................................................................... INTERESTED PARTY DR HILLARY M WACHINGA MANAGING DIRECTOR, KENYA REINSURANCE CORPORATION ............................................ INTERESTED PARTY SAITOTI K MAIKA CEO, FINANCIAL REPORTING CENTRE ... INTERESTED PARTY KENNETH MATIBA CEO, KENYA INSTITUTE OF SUPPLIES MANAGEMENT ...................................................................... INTERESTED PARTY SAM MUTURI CEO, CONSOLIDATED BANK OF KENYA .... INTERESTED PARTY JOHNSON KINITI CEO, DEVELOPMENT BANK OF KENYA .... INTERESTED PARTY FCPA PROF NICHOLAS K LETTING’ CEO, KENYA ACCOUNTANTS AND SECRETARIES NATIONAL EXAMINATION BOARD ..... INTERESTED PARTY DR GRACE KAMAU (CPA) CEO, INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS OF KENYA ................................................ INTERESTED PARTY FCS JEREMIAH N KARANJA CEO, INSTITUTE OF CERTIFIED SECRETARIES ......................................................................... INTERESTED PARTY DANIEL KIPTOO BARGORIA, OGW DIRECTOR GENERAL, ENERGY AND PETROLEUM REGULATION. .............................................. INTERESTED PARTY DR (ENG) JOSEPH SIROR CEO, KENYA POWER COMPANY LIMITED ................................................................................... INTERESTED PARTY DR ROSE MKALAMA CEO, RURAL ELECTRIFICATION AND RENEWABLE ENERGY CORPORATION .................................................... INTERESTED PARTY PAUL NGUGI CEO, GEOTHERMAL DEVELOPMENT COMPANY ................................................................................ INTERESTED PARTY JOSEPH NDOTI (CPA) CEO, KENYA PETROLEUM REFINERIES LIMITED ................................................................................... INTERESTED PARTY https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 4

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LT GEN JL MUTAI MGH, MBS ‘NDC’ ‘PSC’ VICE CHANCELOR, NATIONAL DEFENCE UNIVERSITY ........................................................ INTERESTED PARTY BRIG HILLARY KIPKOSGEY CEO, KENYA SPACE AGENCY .... INTERESTED PARTY MAJOR GENERAL PAUL OTIENO MANAGING DIRECTOR, KENYA SHIPYARD LIMITED ............................................................. INTERESTED PARTY RULING Introduction 1. This Court is called upon to determine two interlocutory applications instituted by the 3rd Respondent, the Principal Secretary, Immigration and Citizen Services. The first application seeks to set aside the conservatory orders previously issued in these proceedings, while the second prays that the petition be struck out on the ground that it is res sub judice. The petition, lodged on 6th December 2024, impugns a Presidential directive dated 28th November 2024 which mandates certain State agencies, cited herein as Interested Parties, to utilise the eCitizen payment platform for their transactions. 2. Upon initial consideration of the matter, this Honourable Court, being satisfied that the petition disclosed arguable constitutional questions, granted interim conservatory orders suspending the implementation of the impugned directive pending inter partes hearing of the petitioner’s application. 3. Dissatisfied with the Court’s decision, the 3rd Respondent lodged Grounds of Opposition dated 29th January 2025, followed by a Notice of Motion dated 30th January 2025, through which it sought the dismissal of the petition and the variation or setting aside of the interim conservatory orders. The petition itself challenges certain administrative measures undertaken by the 3rd Respondent within the Directorate of Immigration and Citizen Services, which the petitioner contends infringe upon the constitutional guarantees enshrined in Articles 27, 28, 35, and 47 of the Constitution. Contemporaneously with the petition, the petitioner moved the Court under a certificate of urgency, seeking conservatory relief to restrain the respondents from proceeding with the impugned measures pending the determination of the substantive petition. 4. On 6th December 2024, this Court certified the matter urgent and, upon ex parte consideration, issued conservatory orders temporarily restraining the 3rd Respondent from implementing the disputed administrative actions and thereby preserving the status quo ante. These orders were to remain in force pending inter partes hearing and further directions. The respondents were duly served with the pleadings and the said orders. 5. Subsequently, by the Notice of Motion dated 30th January 2025, the 3rd Respondent sought two substantive prayers. Firstly, that the conservatory orders issued on 6th December 2024 be set aside on the basis that they were procured through material non-disclosure and that their continued enforcement had occasioned prejudice to the proper functioning of the State Department. Secondly, that the entire petition be struck out as being res sub judice, reference being made to Petition No. E260 of 2023, which was said to be pending before another bench and to traverse issues substantially similar to those raised herein. The application was supported by an affidavit sworn on 30th January 2025. 6. In opposition, the petitioner filed a replying affidavit on 13th February 2025, vehemently denying the allegations of non-disclosure and asserting that the doctrine of res sub judice was inapplicable. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 5

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petitioner contended that Petition No. E260 of 2023 dealt with materially distinct issues, and further maintained that the conservatory orders were necessary to avert imminent and irreparable infringement of constitutional rights and the public interest. 7. Pursuant to directions of the Court, both parties filed written submissions: the 3rd Respondent’s submissions are dated 26th February 2025, while those of the petitioner are dated 27th February 2025. The Honourable Attorney General, appearing for the 1st and 2nd Respondents, also filed Grounds of Opposition concurring with the 3rd Respondent’s position. PETITIONER’S SUBMISSIONS 8. The petitioner opposed both applications through submissions dated 27th February 2025 and a replying affidavit sworn on 13th February 2025. On the question of res sub judice, it was the petitioner’s contention that Petition No. E260 of 2023, to which the 3rd Respondent had made reference, concerned different parties, factual circumstances, and legal questions. Although both petitions invoked similar statutory provisions, counsel submitted that the causes of action and grievances advanced in the present proceedings were unique to the petitioner and could not properly be subsumed under the earlier suit. Reliance was placed on Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR, where the Court held that the doctrine of sub judice is inapplicable where the issues in dispute and the reliefs sought are distinguishable. 9. On the allegation of material non-disclosure, the petitioner denied any deliberate concealment of relevant facts. Counsel submitted that the petitioner only became aware of Petition No. E260 of 2023 after instituting the current proceedings, and that there was no intent to mislead the Court. It was further argued that the parties in the earlier petition were distinct from those before this Court, and that the petitioner, not being privy to the former proceedings, could not be bound by their outcome. Citing Republic v Paul Kihara Kariuki & Another Ex Parte Law Society of Kenya [2020] eKLR, counsel urged that constitutional litigation should not be defeated by mere procedural or technical objections. 10. With respect to the conservatory orders, the petitioner maintained that they were properly issued to forestall irreparable harm to fundamental rights and freedoms. Reliance was placed on Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR, where it was submitted that the requisite threshold for the grant of conservatory relief had been met, the petitioner having established a prima facie case and demonstrated a real and imminent threat to constitutional rights. Counsel contended that the orders served to preserve the substratum of the petition and were issued in the broader public interest, particularly where allegations of systemic violations were implicated. 11. The petitioner further argued that the conservatory orders did not impede essential governmental operations, and that any inconvenience occasioned was outweighed by the constitutional imperative to safeguard fundamental rights. Placing reliance on Trusted Society of Human Rights Alliance v AG & Others [2012] eKLR, counsel submitted that courts are enjoined to err on the side of caution where constitutional rights are under threat. It was emphasized that the impugned orders were narrowly framed, designed solely to restrain specific administrative actions pending determination of the petition, without paralysing the general functioning of the State Department. 12. The petitioner urged this Court to uphold the conservatory orders and dismiss both applications. Counsel submitted that constitutional petitions are sui generis in nature and ought to be determined on their substantive merits rather than on technical objections. It was argued that allowing the applications would not only stifle the petitioner’s right to access justice but also risk discouraging https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 6

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future litigants from seeking judicial protection of their constitutional rights, thereby undermining the progressive realization of constitutionalism and the rule of law. 3Rd Respondent’s Submissions 13. The 3rd Respondent, acting through the Honourable Attorney General, supported both applications seeking, firstly, the striking out of the petition on the ground of res sub judice and, secondly, the setting aside of the conservatory orders issued on 6th December 2024. In submissions dated 26th February 2025, it was contended that the conservatory orders were obtained ex parte without full and candid disclosure of material facts, particularly the existence of a prior petition involving substantially the same issues and parties. The 3rd Respondent argued that such non-disclosure amounted to an abuse of the court process and demonstrated mala fides on the part of the petitioner, whose omission was said to have been deliberate and calculated to procure favourable interim relief. 14. On the issue of res sub judice, the 3rd Respondent maintained that the present petition is substantially identical to Petition No. E260 of 2023, which remains pending before a court of competent jurisdiction. Counsel invoked Section 6 of the Civil Procedure Act, asserting that where two suits between the same parties, or those litigating under the same title, are found to raise substantially similar issues, the later proceedings must be stayed. Reliance was placed on Kenya National Commission on Human Rights v Attorney General [2020] eKLR, wherein the Court reaffirmed the principle that judicial proceedings should not run concurrently in different fora over identical subject matter. It was therefore submitted that entertaining this petition would offend the doctrine of judicial comity and invite a risk of conflicting decisions. 15. On the issue of conservatory orders, the 3rd Respondent submitted that the petitioner failed to establish a prima facie case or to demonstrate any real or imminent threat of constitutional violation warranting such extraordinary relief. Citing Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, counsel contended that the orders in question had the effect of disrupting lawful and ongoing government operations, thereby undermining effective service delivery. The Respondent further argued that the orders interfered with internal administrative processes and were contrary to public interest, circumstances that justified their immediate discharge. 16. It was further submitted that conservatory orders are not to be granted merely upon allegations of constitutional breaches without substantiating evidence of real danger or imminent harm. The 3rd Respondent referred to Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, for the proposition that an applicant seeking conservatory relief must meet a high threshold by demonstrating a clear and specific threat to constitutional rights, and that such orders must be proportionate to the harm apprehended. It was contended that the petitioner had fallen short of this standard, and that the balance of convenience tilted decidedly in favour of allowing the government to continue performing its statutory mandate free from unwarranted judicial restraint. 17. The 3rd Respondent urged this Court to uphold the rule of law and the doctrine of judicial economy by dismissing the petition as res sub judice and vacating the conservatory orders issued on 6th December 2024. It was submitted that the petitioner’s conduct, particularly the alleged concealment of material facts, disentitled it from any equitable relief. Counsel emphasized that the continued operation of the conservatory orders would occasion greater prejudice to the public than to the petitioner, and accordingly prayed that the said orders be discharged forthwith. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 7

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ANALYSIS AND DETERMINATION 18. Having considered the pleadings, rival affidavits, and the comprehensive written submissions by the parties, as well as the authorities cited therein, the Court is of the considered view that the following issues arise for determination: I. Whether the conservatory orders issued in this petition should be set aside. II. Whether the petition is sub judice and should be struck out. 19. Conservatory orders in constitutional proceedings represent an extraordinary public law remedy, granted only in circumstances where it is necessary to preserve the substratum of the dispute and avert the occurrence of irreparable constitutional harm pending the final determination of the matter. They are distinct from interlocutory injunctions in private law, which primarily safeguard individual rights and private interests. Conservatory orders, by contrast, are directed toward upholding the integrity of the constitutional framework, ensuring institutional stability, and maintaining the orderly and lawful functioning of public administration while the Court considers the substantive issues in dispute. The guiding principles for the grant of such orders were aptly articulated in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, where the Court comprehensively outlined the conditions that must be satisfied before such extraordinary relief is granted. 20. Foremost, an applicant seeking conservatory relief must establish an arguable case that raises serious and substantial questions of constitutional interpretation or law. The petition must not merely constitute a compilation of generalized grievances or speculative complaints; rather, it must disclose a credible and discernible basis in both law and fact that warrants the Court’s intervention. In this context, a prima facie case is one in which, upon a preliminary assessment of the evidence and pleadings, the Court can reasonably conclude that there appears to have been a violation or threatened violation of a constitutional right. It is not sufficient to rely on conjecture, presumptions, or unsubstantiated allegations the issues presented must be weighty, genuine, and meriting the Court’s deliberate consideration. 21. Secondly, even upon establishing an arguable case, the applicant bears the further burden of demonstrating a likelihood of success, or at the very least, a substantial risk that the relief sought in the main petition would be rendered nugatory if interim protection is not granted. The critical inquiry is whether, in the absence of a conservatory order, the alleged constitutional grievance would be rendered merely academic or irretrievably lost before the petition is heard and determined. As this Court has previously affirmed, the establishment of a prima facie case constitutes only the initial threshold; the applicant must, in addition, demonstrate at a preliminary level that there exists a real and imminent danger of prejudice that necessitates the Court’s protective intervention pending the final determination of the matter. 22. Thirdly, conservatory relief must be carefully tailored to preserve the existing status quo so as to enable the Court, should the petition ultimately succeed, to grant effective and meaningful remedies. In doing so, the Court must remain acutely mindful of the broader public interest and the delicate constitutional balance at stake specifically, whether the suspension of an impugned governmental measure would advance or impede constitutional values and the public good. The Supreme Court, in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, emphasized that conservatory orders serve the purpose of facilitating the orderly functioning of public institutions and upholding judicial authority in the public interest, and “are not… linked to private issues such as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 8

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irreparable harm or a high probability of success.” Accordingly, even where a prima facie violation of rights is established, such a finding does not, without more, justify the suspension of governmental or policy action. The Court must, therefore, exercise judicious restraint, intervening only where it is satisfied that a clear, imminent, and compelling constitutional threat exists one that, if left unchecked, would occasion grave prejudice to the constitutional order or render the petition nugatory. 23. In applying the foregoing principles to the instant petition, this Court is satisfied that the Petitioner has not demonstrated any substantial or imminent constitutional violation warranting immediate judicial intervention. The contention that the Presidential directive of 28th November 2024 was “authoritarian,” and that preceding Gazette notices were defective, does not rise to the level of a constitutional breach. The directive compelling State agencies to utilize the eCitizen platform for payments falls squarely within the Executive’s lawful mandate to enhance efficiency, transparency, and accountability in public service delivery. A mere preference for alternative mechanisms, such as manual payments, cannot in itself give rise to a constitutional entitlement. While the petitioner invokes fundamental rights under Articles 27, 28, 35, and 47 of the Constitution including equality, dignity, access to information, and fair administrative action no material evidence has been adduced to establish that these rights have been prima facie infringed. This aligns with the principles articulated in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, which underscore that conservatory relief requires more than speculative or generalized grievances, and must demonstrate a tangible threat to constitutional rights. 24. The Court further notes that the allegations of harm are speculative. No penalties or coercive actions were shown to have been taken against any public officer or agency as a result of the directive. Indeed, by the time the 3rd Respondent filed the application in January 2025, the compliance period had lapsed without any demonstrable prejudice to the petitioner or the public. This weakens the assertion that any irreparable harm was imminent or ongoing. Moreover, the petitioner has failed to demonstrate irreparable prejudice sufficient to justify continued restraint of government action. The subsisting conservatory orders have effectively stalled the nationwide implementation of the eCitizen policy, thereby undermining a major governance and anti-corruption initiative. The 3rd Respondent’s uncontroverted evidence indicates that the eCitizen system is central to promoting transparency, accountability, and efficiency in revenue collection. The Court notes, as observed in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, that conservatory relief ought to be declined where its continuation would undermine constitutional values or prejudice the public interest. In the present case, the maintenance of the suspension of the Presidential directive does not serve the cause of constitutionalism; on the contrary, it would impede the State’s constitutional duty to ensure efficient, transparent, and accountable public administration. 25. This Court is not persuaded that discharging the interim orders would render the petition nugatory. Should the petition ultimately succeed, declaratory or compensatory relief would remain available. Conversely, preserving the status quo ante continuation of manual payment systems serves no discernible public purpose and risks stalling digital reforms vital to efficient governance. As the Court of Appeal held in Martin Wambora v Speaker of the County Assembly of Embu & Others, Petition No. 7 of 2014, a matter is not rendered nugatory merely because implementation proceeds pending judgment, provided that meaningful remedies remain accessible. The Petitioner has not demonstrated that, absent the conservatory orders, any irreparable prejudice will ensue. 26. In view of the foregoing, this Court is satisfied that the 3rd Respondent’s application is meritorious. The petitioner has failed to establish a credible prima facie case, irreparable harm, or a compelling public https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 9

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interest justifying interim relief. The balance of convenience, constitutional propriety, and public interest all favour the lifting of the conservatory orders issued on 6th December 2024. Whether the Petition is Barred by Pending Proceedings 27. The doctrine of res sub judice is a well-established principle in our jurisprudence and finds statutory expression in Section 6 of the Civil Procedure Act, which provides: “ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed." 28. The statutory framework is unequivocal: where two proceedings are concurrently pending, the later suit must be stayed or otherwise restrained if it is shown to substantially replicate the earlier action. The rule serves to prevent parallel litigation, avert the risk of conflicting judgments, conserve judicial resources, and shield parties from being vexed by repetitive proceedings over the same cause. It is firmly rooted in public policy and reflects the imperative to uphold the authority and integrity of courts of competent jurisdiction. 29. The operation of the sub judice doctrine requires the satisfaction of several elements: (i) the existence of a previously instituted suit or proceeding, (ii) pending before a court of competent jurisdiction, (iii) concerning the same subject matter, (iv) involving the same parties or those under whom they claim, and (v) a matter in issue that is directly and substantially identical in both proceedings. These criteria have been consistently applied by this Court and were affirmed by the Supreme Court in Kenya National Commission on Human Rights v AG & 16 Others (Advisory Opinion No. 1 of 2017) [2020] eKLR, which underscored that the rule seeks to prevent multiplicity of suits between the same parties on identical issues. The same principles were reiterated in David Ndii & Others v AG & Others [2021] eKLR. 30. Turning to the facts of the present matter, it is evident that Petition E260/2023 predates Petition E676/2024 and raises the same constitutional issues as those advanced in the latter. Petition E260/2023 remains pending before a court of concurrent jurisdiction, whereas E676/2024 was instituted subsequently. The petitions involve overlapping parties: the 3rd Respondent, who has raised the preliminary objection, is common to both proceedings, and the 1st and 2nd Respondents are identical to the principal officers challenged in E260/2023. While the petitioners may not be numerically identical, they claim rights under the same legal “title” at issue in E260. Accordingly, the parties are substantially the same, advancing claims to the same underlying entitlement. 31. Moreover, the petitions are founded upon the same operative facts and raise identical legal questions. Both challenge the constitutionality of the same executive action and seek substantially similar relief. The matters “directly and substantially” in issue are, for all practical purposes, indistinguishable, and there exists no meaningful differentiation in either the legal question or the relief sought that could distinguish Petition E676/2024 from E260/2023. The 3rd Respondent rightly submits that the issues advanced in E676/2024 are substantially similar to those in E260/2023, and the pleadings demonstrate that nearly identical bundles of documents and legal arguments have been prepared for both proceedings. This scenario exemplifies a classic case of lis pendens. 32. Given that all statutory elements are satisfied, Petition E676/2024 constitutes a parallel suit instituted on the same cause of action as Petition E260/2023. Section 6 of the Civil Procedure Act directs that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 10

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such a suit “ought to be stayed.” Kenyan jurisprudence, however, recognizes that striking out a wholly duplicative proceeding is an appropriate alternative. As held in Ndungu v Ndiritu & 2 Others KEHC 4262, striking out the later suit does not preclude the institution of subsequent proceedings once the earlier matter is resolved and serves to prevent abuse of court process. In the present case, such abuse is manifest, as the petitioners have sought to circumvent the pending E260/2023 by re-framing their challenge under a new petition. 33. In conclusion, Petition E676/2024 is barred under Section 6 of the Civil Procedure Act. The issues and reliefs it seeks are directly and substantially the same as those in Petition E260/2023, the parties are substantially the same or in privity, and the earlier petition remains pending. The doctrine of sub judice therefore applies, and the 3rd Respondent’s preliminary objection is well-founded. In the exercise of the Court’s discretion under Section 6, Petition E676/2024 is accordingly ripe to be struck out. Orders 34. In light of the foregoing, the Court makes the following orders: a. The Respondents’ Notice of Application dated 30th January 2025 seeking to set aside the conservatory orders is allowed; b. The conservatory orders issued by this Court on 15th December 2024 and extended subsequently are hereby vacated/discharged; c. The Respondents’ application dated 30th January 2025 seeking to strike out the petition on grounds of sub judice is hereby allowed.; d. Consequently, Constitutional Petition No. E676 of 2024 is struck out in its entirety for being an abuse of the court process; e. The Petitioner shall bear the costs of both applications; and f. File closed accordingly. Orders accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 10th DAY OF SEPTEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17645/eng@2025-09-10 11

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