David Nyakwama & 12 others v County Commander Kisii & 2 others

RULING Introduction 1. The applicants herein filed the originating motion dated 14.2.24 seeking October, 2023 under sections 123 of the criminal procedure as read together with Articles 10, 22, 23,27, 28, 29, 47, 48 49(i) & (h), 50, 165 and 259 of the Constitution of Kenya, 2010 as read with sections 123 of the criminal procedure seeking the following orders. a. Spent b. Spent c. Spent d. That the Honourable Court be pleased to issue a conservatory order restraining the Respondents, their servants, agents, junior officers and /or anybody from effecting and/ or anybody from arbitrary arresting, charging, harassing or otherwise however interfering with the applicant without conducting investigations and according them an opportunity to be heard to wit issuing them with summons for them to appear at any offices to record statements if need be. e. Any other orders as this Honourable Court deem fit and just to grant. 2. The application is based on the grounds outlined on the face of it and on the annexed affidavit sworn by David Nyakwama, the 1st applicant herein on behalf of his co-applicants. He deponed that he is a protocol officer in the office of the Governor Kisii County and that they are supporters of the Governor. Also, that on 9.2.2024 they attended the funeral of the Principal of Kisii Polytechnic when altercation took place between the County Commissioner and the Governor. Further that after that a list was circulated on social media claiming he and his co – applicants were wanted goons as per exhibit “DN-1” the Applicant herein. The applicant averred that he had information that police were looking for him and his co -applicants for arrest and being held in communicado for reasons best known to them. Also that the threats were actualized by the arrest of Hesborn Mochama (appearing as no. 13th on the wanted list annexed to the application) on 12.2.24 at around 20:00 hours and incarcerated at an unknown place and had not been accessed by his lawyers and family and had not been arraigned in court. He said that none of them has been summoned to the police station and they are apprehensive that their constitutional rights are being violated as the respondents are being maliciously misused to harass, intimidate and oppress them to achieve political purposes unconnected with upholding the law. Also, that security officers assigned to him had already been withdrawn on 2.2.2024. he deponed that they are ready to submit themselves for investigations to a just, fair legal system which respects and protects their fundamental rights and systems or to arraignment in a court of law. Further that they are advice by their counsel of record that they are entitled to secure their protection of the law as guaranteed under Articles 25, 27, 28, 29, 47, 50 and 51 of the Constitution which cannot be limited and this Honourable court is obliged to enforce the law. 3. The respondents filed grounds of opposition dated 6.3.24 and argued that the application is frivolous, vexatious and an abuse of the process of the court, that the application does not meet the threshold for the grant of the orders sought and that the application is made in bad faith, same is prejudicial to the conduct of the respondents’ respective constitutional mandates, the and it is not in the interest of the public. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19748/eng@2025-05-05 2

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4. This court directed the application to be disposed by way of written submissions and gave them sufficient time to file the same. However, from the online record, there are submissions by the applicants but not none by respondents. Determination 5. Upon consideration of the Application, the response thereto and the written submissions by the applicant I find that only issue for determination is whether the Applicant is entitled to grant of conservatory orders restraining the Respondents, their servants, agents, junior officers and /or anybody from effecting and/ or anybody from arbitrary arresting, charging, harassing or otherwise however interfering with the applicant without conducting investigations and according them an opportunity to be heard. 6. A conservatory order is one of the appropriate reliefs available to a party who alleges denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The purpose of conservatory orders is to preserve the substratum of the petition before Court pending the hearing and determination of the same. Rule 23 of the Mutunga Rules provides that despite any provision to the contrary, a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders. 7. In Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR the Court of Appeal expressed itself as follows: Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person. 8. The threshold for the grant of conservatory orders was established by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows: (86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes. (87) The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that: (i) the appeal or intended appeal is arguable and not frivolous; and that (ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19748/eng@2025-05-05 3

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(88) These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely: (iii) (89) 9. 10. that it is in the public interest that the order of stay be granted. This third condition is dictated by the expanded scope of the Bill of Rights, and the publicspiritedness that run through the Constitution.” In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR after going through several decisions the court summarized three main principles for consideration on whether to grant conservatory orders as follows: (a) an applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution. (b) whether, if a conservatory order is not granted, the petition alleging violation of, or threat of violation of rights will be rendered nugatory; and (c) the public interest must be considered before grant of a conservatory order.” In Board of management of Uhuru Secondary School vs. City County Director of Education & 2 others [2015] eKLR, the court summarized the principles for grant of conservatory orders as: (i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice. (ii) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the bill of rights. (iii) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. (iv) Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order. 11. The applicants sought anticipatory bail pending hearing and determination of the application among other prayers and the same was granted. The only prayer pending hearing and determination herein is the prayer for Conservatory orders (prayer d). Conservatory orders are usually issued to preserve the substratum of the matter as held in the Gatirau Peter Munya, Uhuru Secondary school and the Wilson Kaberia Nkunja cases (Supra) In this case, there are no prayers beyond the conservatory orders and no petition was filed with the application on which the application for conservatory orders is hinged on. Granting the conservatory orders would end the matter and hence defeat the purpose for conservatory orders. The applicants have not established any case whose substratum would be rendered nugatory unless the conservatory orders are granted and, on that ground, alone the application is devoid of merit and I proceed to dismiss it. 12. File is closed. T.A ODERA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19748/eng@2025-05-05 4

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DELIVERED VIRTUALLY VIA CTS ON THIS 5TH MAY 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19748/eng@2025-05-05 5

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