Moffat Teya Machogu Mang’are & 5 others v Independent Electoral and Boundaries Commission & 7 others

ORWOCHI MONICA MORAA ................................................ 11TH RESPONDENT MOMANYI DANIEL RASUGU ................................................. 12TH RESPONDENT OMWENGA NICHOLAS ........................................................... 13TH RESPONDENT KERINA RICHARD NYAKUNDI ........................................... 14TH RESPONDENT OGATA ELIJAH ONSONGO ..................................................... 15TH RESPONDENT AND SEVENTH DAY ADVENTIST CHURCH EAST KENYA UNION CONFERENCENYAMIRA CONFERENCE .................................................... INTERESTED PARTY JUDGMENT 1. This Petition concerns the election of directors of six smallholder tea factory companies conducted on 29th June 2024 and the constitutional implications arising from the scheduling of those elections on a Saturday. 2. The 1st Petitioner, Moffat Teya Machogu Mang’are is a smallholder tea farmer and shareholder of the 7th Respondent, Nyansiongo Tea Factory Company Limited, and is registered therein as Grower No. NS012-0447. 3. The 2nd Petitioner, Evans Maoga Kiriama is a smallholder tea farmer and shareholder of the 4th Respondent, Gianchore Tea Factory Company Limited, and is registered therein as Grower No. GN049-0014. 4. The 3rd Petitioner, Elijah Nyabuti Mamboleo is a smallholder tea farmer and shareholder of the 9th Respondent, Sanganyi Tea Factory Company Limited, and is registered therein as Grower No. SA009-011. 5. The 4th Petitioner, Joshua Nyambacha is a smallholder tea farmer and shareholder of the 6th Respondent, Kebirigo Tea Factory Company Limited, and is registered therein as Grower No. KBO-577. 6. The 5th Petitioner, Joseph Nyamwaro Momanyi is a smallholder tea farmer and shareholder of the 8th Respondent, Tombe Tea Factory Company Limited, and is registered therein as Grower No. TE035-032. 7. The 6th Petitioner, Samson Kebigwa Nyaosi is a smallholder tea farmer and shareholder of the 9th Respondent, Sanganyi Tea Factory Company Limited, and is registered therein as Grower No. SA009-1115. 8. The Petitioners describe themselves as practicing members of the Seventh Day Adventist Church within Nyamira County and assert that they observe the Sabbath from sunset Friday to sunset Saturday. 9. The 1st Respondent is the Independent Electoral and Boundaries Commission (IEBC), a constitutional commission established under Article 88 of the Constitution, cited in these proceedings on account of its alleged role in the conduct and supervision of the impugned elections. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 2

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10. The 2nd Respondent is the Tea Board of Kenya, a statutory body established under the Tea Act, No. 23 of 2020, with regulatory oversight over the tea sector, including governance of smallholder tea factory companies. 11. The 3rd Respondent is Kenya Tea Development Agency (Management Services) Limited, a management agency responsible for the operational management of smallholder tea factory companies and the conduct of their director elections. 12. The 4th Respondent is Gianchore Tea Factory Company Limited, a company incorporated under the Companies Act and one of the entities in which elections of directors were conducted on 29th June 2024. 13. The 5th Respondent is Nyankoba Tea Factory Company Limited, also incorporated and subject to the impugned election. 14. The 6th Respondent is Kebirigo Tea Factory Company Limited similarly incorporated and subject to the impugned election. 15. The 7th Respondent is Nyansiongo Tea Factory Company Limited likewise incorporated and subject to the impugned election. 16. The 8th Respondent is Tombe Tea Factory Company Limited equally incorporated and subject to the impugned election. 17. The 9th Respondent is Sanganyi Tea Factory Company Limited correspondingly incorporated and subject to the impugned election. 18. The 10th to 45th Respondents are the individuals who were declared elected as directors of the 4th to 9th Respondent companies following the elections conducted on 29th June 2024 and whose election the Petitioners seek to nullify. 19. The Interested Party is the Seventh Day Adventist Church, East Kenya Union Conference – Nyamira Conference. 20. The Amended Petition dated 24th September 2024 seeks the following orders: 1. A declaration that the election of thirty-six directors of the 4th to 9th Respondents held on 29th June 2024 is null and void. 2. A declaration that the election process violated Articles 27 and 32 of the Constitution. 3. A declaration that the Rules, Guidelines and electoral mechanisms applied by the 2nd and 3rd Respondents are unconstitutional for failure to align with Article 32 of the Constitution. 4. An order directing the Respondents to formulate and align electoral rules with Article 32 within sixty days. 5. Costs of the Petition. 21. The factual basis of the Petition is that although the elections were initially scheduled for 28th June 2024, they were conducted on Saturday, 29th June 2024, being the Sabbath observed by adherents of the Seventh Day Adventist faith. The Petitioners contend that conducting the elections on that day compelled them to choose between participation in corporate governance and observance of their religion, thereby infringing Articles 27 and 32 of the Constitution. 22. The Respondents opposed the Petition through three affidavits placed on record. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 3

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23. A Replying Affidavit sworn on 18th July 2024 by Mathews Odero was placed on record for the 1st and 3rd Respondents. The deponent, who describes himself as the Group Company Secretary of Kenya Tea Development Agency Holdings Limited, deposed that the elections conducted on 29th June 2024 were carried out in implementation of a Mediation Settlement Agreement entered in Constitutional Petition No. E254 of 2020 and subsequently adopted as an order of the High Court on 11th April 2024. 24. In the said affidavit, the deponent deposed that the consent adopted as a decree of the Court required that elections of directors of the affected smallholder tea factory companies be conducted by the end of June 2024 so as to avert a governance vacuum. 25. He further deposed that nationwide protests and civil unrest during the week of 28th June 2024 disrupted logistical arrangements, including the delivery of ballot materials, thereby necessitating the rescheduling of the elections to Saturday, 29th June 2024, which date nonetheless fell within the month of June in compliance with the Court order. 26. He expressly denied that any voter was barred from participating in the elections on account of religious belief and averred that some adherents of the Seventh Day Adventist faith did in fact participate in the elections conducted on 29th June 2024. 27. In a Replying Affidavit sworn on 23rd January 2026 by Thomas Nyandieka Onchaba, who describes himself as the Chairman of Gianchore Tea Factory Company Limited, the 4th Respondent, and filed on behalf of the 1st and 3rd to 45th Respondents, the deponent maintained that all parties were duly notified of the change of the election date and that no voter was denied the right to vote on account of religious affiliation. 28. He further deposed that the companies are governed by the Companies Act as well as their respective Memoranda and Articles of Association and not on the basis of religious belief. 29. Additionally, a Replying Affidavit sworn on 23rd January 2026 by Nelson Onyacha Onduko who is the Chairman of Kebirigo Tea Factory Company Limited, the 6th Respondent was filed on behalf of the 1st and 3rd to 45th Respondents. 30. In that affidavit, the deponent reiterated that the change of the election date was duly communicated to growers through notices issued at the respective tea buying centres and that the decision to reschedule was informed solely by logistical challenges occasioned by nationwide unrest. 31. He maintained that no farmer was prevented from presenting himself to vote and that the rescheduling did not target or single out adherents of any faith. He further averred that there was no evidence that any grower was disenfranchised or that the results declared were affected by the change of date. 32. Collectively, the Respondents’ affidavits assert that the elections were conducted in compliance with a binding High Court decree adopted on 11th April 2024; that the adjustment of the election date to 29th June 2024 was necessitated by circumstances beyond the Respondents’ control; that adequate notice of the change was issued; that participation remained open to all eligible growers; and that no material has been placed before the Court to demonstrate that the scheduling decision altered or distorted the outcome of the elections. 33. The Interested Party opposed the scheduling of the elections through a Replying Affidavit sworn on 24th September 2024 by Thomas Nyakundi Masimba who described himself as its Executive Director. He stated that observance of the Sabbath from sunset on Friday to sunset on Saturday is doctrinally binding upon adherents of the Seventh Day Adventist faith and forms an integral part of their religious practice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 4

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34. He further deposed that the decision to conduct the elections on a Saturday placed faithful members in a position of religious conflict by compelling them to choose between participation in the governance of their respective tea factory companies and observance of a constitutionally protected day of worship. 35. The Interested Party therefore supported the Petition and contended that the Respondents failed to take reasonable steps to accommodate Sabbath observance despite the availability of alternative dates within the month of June 2024 that would have complied with the High Court decree. 36. The Petitioners filed written submissions dated 12th January 2026 in support of the Petition. They set out the issues for determination to include whether the 1st Respondent was properly constituted to oversee the elections; whether the elections of directors of the 4th to 9th Respondents met the constitutional standard of being free, fair, transparent and credible; whether the alteration of the election date from 28th June 2024 to 29th June 2024 contravened Articles 24, 27 and 32 of the Constitution; and whether the Court should nullify the impugned elections. 37. The Petitioners contended that Article 32 safeguards freedom of conscience, religion, belief and opinion, including manifestation of religion through observance and practice. They argued that rescheduling the elections to Saturday 29th June 2024, being a Sabbath day for adherents of the Seventh Day Adventist faith, placed such adherents in a position of religious conflict and amounted to indirect discrimination contrary to Article 27. They further relied on Article 24, maintaining that any limitation of a fundamental right must be reasonable and justifiable in an open and democratic society and that no such justification had been demonstrated. 38. They maintained that although the consent decree adopted on 11th April 2024 required elections to be conducted by the end of June 2024, it did not prescribe 29th June 2024 as the only permissible date. It was their position that no sufficient explanation had been offered as to why alternative weekday dates within June 2024 could not have been utilised so as to accommodate Sabbath observance. 39. In addressing the standard applicable in constitutional litigation, they made reference to Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR in relation to the requirement of precision in pleading constitutional violations. 40. The 1st, and 3rd to 45th Respondents filed written submissions dated 26th January 2026 opposing the Petition. They submitted that the elections of directors of the affected smallholder tea factory companies were conducted pursuant to a subsisting High Court decree adopted on 11th April 2024, which required that elections be held by the end of June 2024 in order to avert a governance vacuum. They explained that the rescheduling of the elections from 28th June 2024 to 29th June 2024 was necessitated by nationwide unrest and attendant logistical challenges, and that the revised date remained within the timeline prescribed by the Court. 41. They further contended that the right to freedom of religion under Article 32 is not absolute and must be read together with Article 24 of the Constitution, which permits limitation of rights where such limitation is reasonable and justifiable in an open and democratic society. In their view, the Petitioners had not demonstrated that the scheduling decision was arbitrary, discriminatory, or disproportionate. They maintained that participation in the elections remained open to all eligible growers and that no evidence had been placed before the Court to establish that any voter was excluded or that the outcome of the elections was materially affected. 42. In addition, the Respondents argued that the Petition did not meet the constitutional threshold of precision required in constitutional litigation. They relied on Anarita Karimi Njeru v Republic https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 5

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[1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, submitting that a party alleging violation of constitutional rights must set out with reasonable precision the provisions alleged to have been infringed and the manner of such infringement. On that basis, they urged the Court to find that the Petition fell short of the required standard and that the reliefs sought were not warranted. 43. The Interested Party filed written submissions dated 19th January 2026 in support of the Petition. It grounded its case on Articles 23, 24, 27, 32 and 159 of the Constitution and maintained that freedom of religion under Article 32 extends beyond internal belief to encompass religious practice and observance, including strict Sabbath observance from sunset on Friday to sunset on Saturday. It contended that the rescheduling of the elections to Saturday 29th June 2024 placed faithful adherents in a position of religious conflict and effectively excluded a substantial segment of growers from participation in the governance of their respective tea factory companies. 44. The Interested Party relied on the decision of the Court of Appeal on Fugicha v Methodist Church in Kenya (suing as the Registered Trustees) & 3 Others [2016] eKLR where the Court addressed the obligation to reasonably accommodate religious belief and practice within constitutional and institutional settings. 45. Reference was also made to R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, a decision of the House of Lords of the United Kingdom, and to Leyla Şahin v Turkey (2005) 44 EHRR 5, a decision of the Grand Chamber of the European Court of Human Rights, in support of the proposition that limitations on the manifestation of religion must be lawful, proportionate, and justified in a democratic society. 46. Further reliance was placed on South African Constitutional Court decisions including Prince v President, Cape Law Society & Others [2002] 2 SA 794 (CC) and MEC for Education, KwaZuluNatal v Pillay 2008 (1) SA 474 (CC), emphasizing that equality requires reasonable accommodation of minority religious practices unless undue hardship is demonstrated. 47. The Interested Party also cited Canadian authorities including Central Okanagan School District No. 23 v Renaud [1992] 2 SCR 970 and Multani v Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256, underscoring the principle that neutral rules may result in indirect discrimination where accommodation is not provided. On the strength of those authorities, it asserted that the Respondents were under a constitutional duty to reasonably accommodate Sabbath observance and that failure to do so rendered the election process inconsistent with Articles 27 and 32 of the Constitution. Issues for Determination 48. Having carefully considered the pleadings, the affidavits placed before Court, and the written submissions filed by the respective parties, the issues that arise for determination are the following: 1. Whether the Petition is properly before this Court notwithstanding the objection based on alleged lack of precision in pleadings. 2. Whether the conduct of the election of directors on 29th June 2024 violated Articles 27 and 32 of the Constitution. 3. Whether the election of thirty-six directors of the 4th to 9th Respondents held on 29th June 2024 is null and void. 4. Whether the Rules, Guidelines and electoral mechanisms applied by the 2nd and 3rd Respondents are unconstitutional for failure to align with Article 32 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 6

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5. Whether this Court should issue structural or mandatory orders directing formulation and alignment of electoral rules with Article 32 within sixty days. 6. What orders as to costs ought to issue. Analysis 1. On the Objection as to Precision 49. The Respondents contend that the Petition does not meet the threshold articulated in Anarita Karimi Njeru v Republic (supra) and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra). 50. The principle in the two cases requires that a petitioner alleging constitutional violation set out with reasonable precision the constitutional provisions alleged to have been infringed and the manner in which the infringement has occurred. That requirement serves an important jurisprudential purpose, namely that pleadings define the issues in controversy and enable the opposing party and the Court to understand the case to be met. 51. However, constitutional litigation in the post-2010 era is also by Articles 22 and 159 of the Constitution. Article 22(3) mandates that formalities relating to proceedings be kept to the minimum and that the Court shall not be unreasonably restricted by procedural technicalities. Article 159(2)(d) further commands that justice shall be administered without undue regard to procedural technicalities. 52. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) emphasized that while procedural rules serve to facilitate the administration of justice, compliance with timelines and procedural requirements is not a mere technicality. The Court underscored that extension of time is an equitable remedy, to be granted at the Court’s discretion, and that parties must demonstrate sufficient cause for departure from established rules and timelines. 53. In the present case, the Petition expressly invokes Articles 27 and 32 of the Constitution and identifies the impugned conduct, namely the scheduling of elections on Saturday, 29th June 2024. The Respondents have responded substantively to that allegation. The issues are therefore neither obscure nor indeterminate. 54. In the circumstances of this case, the objection grounded on alleged lack of precision cannot be sustained. 2) On Whether Articles 27 and 32 Were Violated 55. Article 32(1) guarantees freedom of conscience, religion, thought, belief and opinion, while Article 32(2) guarantees the right to manifest religion or belief through worship, practice, teaching or observance, including observance of a day of worship. 56. The constitutional protection of Sabbath observance was considered by the Court of Appeal in Attorney General & 2 Others v Miyogo (Civil Appeal No. 57 of 2019) [2025] KECA 1836 (KLR). In a decision of the majority, the Court affirmed that for adherents of the Seventh Day Adventist faith, observance of the Sabbath from sunset on Friday to sunset on Saturday constitutes a central and defining religious obligation. The Court emphasised that Article 32 protects not only the freedom to hold religious beliefs but also their manifestation through worship and observance of a day of worship. It further stated that any limitation of such observance must satisfy the requirements of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 7

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Article 24 of the Constitution, and that the burden lies upon the party seeking to justify the limitation to demonstrate that it is reasonable, proportionate, and the least restrictive means of achieving a legitimate constitutional objective. 57. The Respondents do not contest the doctrinal centrality of Sabbath observance. Their case is that the elections were conducted pursuant to a consent decree adopted on 11th April 2024 requiring that elections be concluded by the end of June 2024 and that logistical disruptions during the week of 28th June 2024 necessitated rescheduling to Saturday, 29th June 2024. 58. It is therefore evident that by fixing the elections on Saturday 29th June 2024, the Respondents placed adherents of the Seventh Day Adventist faith in a position of having to choose between participation in the corporate governance of their tea factory companies and observance of the Sabbath, a practice protected under Article 32 of the Constitution. 59. The effect of that choice amounts to a prima facie limitation of the right to freedom of religion guaranteed under Article 32. The Court must therefore determine whether that limitation is justified in accordance with the criteria prescribed under Article 24 of the Constitution. 60. Article 24 requires that any limitation be reasonable and justifiable in an open and democratic society, taking into account the nature of the right, the importance and purpose of the limitation, the extent of the limitation, and whether less restrictive means were available. 61. The right implicated in this case is expressly textualized and occupies a core position in the Bill of Rights. The purpose of the limitation, as articulated by the Respondents, was compliance with a judicial decree and avoidance of governance paralysis. 62. Compliance with a binding court order is undoubtedly a legitimate objective. However, the proportionality inquiry does not end at legitimacy. It requires demonstration that the means adopted were necessary and that no less restrictive alternative was reasonably available. 63. The consent adopted on 11th April 2024 required elections to be conducted by the end of June 2024 but did not prescribe 29th June 2024 as the only permissible date. No evidence was placed before the Court demonstrating that alternative weekday dates within June 2024 were unavailable or that conducting the elections on such dates would have been impracticable while still complying with the judicial timeline. 64. While the Respondents deposed that logistical disruption occurred, no material was placed before Court demonstrating that weekday scheduling was impossible or that alternative arrangements could not reasonably have been made. 65. In the absence of such evidence, the Court cannot conclude that selecting Saturday, a day known to be doctrinally binding for a segment of shareholders, constituted the least restrictive means of achieving compliance with the judicial timeline. 66. I therefore conclude that the scheduling decision constituted an unjustified limitation of Article 32. 67. As regards Article 27, the scheduling decision was neutral on its face in that it applied uniformly to all shareholders. However, constitutional equality jurisprudence recognises that a measure which appears neutral in form may nevertheless have a disproportionate adverse impact upon a protected group. 68. The material placed before the Court demonstrates that the decision to conduct the elections on Saturday 29th June 2024 imposed a disproportionate burden upon adherents of the Seventh Day Adventist faith, whose observance of the Sabbath is doctrinally binding. In the absence of a constitutionally sufficient justification under Article 24, that differential impact constitutes indirect https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 8

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discrimination. I accordingly find that the rights guaranteed under Articles 27 and 32 of the Constitution were infringed. 3. On Whether the Election Is Null and Void 69. The Petitioners seek orders nullifying the elections conducted on 29th June 2024 in so far as they resulted in the election of the 10th to 45th Respondents as directors of the 4th to 9th Respondent companies. 70. It is necessary to underscore that a finding of constitutional violation does not automatically render consequential acts void ab initio. The remedial jurisdiction under Article 23(3) is discretionary and must be exercised in a manner that is appropriate and just in the circumstances. 71. In Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others [2013] eKLR, the Supreme Court held that non-compliance must be shown to have affected the validity of the election. That principle was reaffirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. 72. Even though the present matter arises within the context of corporate governance rather than national elections, the underlying principle is of general constitutional application: institutional processes are not nullified unless the irregularity substantially affects the outcome or undermines the integrity of the process. 73. The Petitioners have not placed before Court evidence demonstrating that the declared directors would not have been elected had the elections been conducted on a weekday or that the will of shareholders was distorted. 74. In those circumstances, nullification would constitute a disproportionate response to the violation established, particularly given the absence of evidence of outcome distortion. 75. The prayer seeking to declare the election null and void is therefore declined. 4) On the Constitutionality of the Rules and Structural Relief 76. The Petitioners further seek a declaration that the Rules, Guidelines and electoral mechanisms applied by the 2nd and 3rd Respondents are unconstitutional for failure to align with Article 32. 77. However, no evidence was placed before Court demonstrating that the Rules themselves mandate Saturday elections or prohibit reasonable accommodation of religious observance. 78. The violation identified in this case arises from the scheduling decision taken in implementation of the electoral process rather than from the text or structure of the Rules themselves. 79. In the absence of evidence establishing inherent unconstitutionality, the prayer seeking to declare the Rules unconstitutional cannot succeed. On Whether to order alignment of the electoral rules with Article 32 within sixty days. 80. The Petitioners also seek an order directing formulation and alignment of electoral rules within sixty days. Structural or mandatory relief is ordinarily reserved for circumstances where systemic constitutional non-compliance has been demonstrated. 81. On the material before Court, the violation arises from a discrete administrative decision rather than from a structural defect in the regulatory framework. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 9

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82. A mandatory order directing reform within sixty days would therefore be disproportionate. 6) Costs 83. Costs ordinarily follow the event. However, this matter raises constitutional questions concerning the scope of religious freedom and equality under Articles 27 and 32. 84. The Petition has succeeded in part, but the principal reliefs sought have been declined. In the circumstances, and bearing in mind the public interest dimension of the dispute, it is appropriate that each party bear its own costs. Disposition 85. Having considered the issues framed and the analysis above, the Court finds that the scheduling of the elections on 29th June 2024 violated Articles 27 and 32 of the Constitution, but that the circumstances do not warrant nullification of the elections or the grant of structural relief. 86. Accordingly, the Court makes the following orders: 1. A declaration is hereby issued that the scheduling of the elections of directors of the 4th to 9th Respondents on 29th June 2024 constituted an unjustified limitation of Articles 27 and 32 of the Constitution. 2. The prayer seeking nullification of the election of thirty-six directors held on 29th June 2024 is declined. 3. The prayer seeking a declaration that the Rules, Guidelines and electoral mechanisms applied by the 2nd and 3rd Respondents are unconstitutional is declined. 4. The prayer seeking an order directing formulation and alignment of electoral rules within sixty days is declined. 5. Each party shall bear its own costs. DELIVERED AT NYAMIRA THIS 26TH DAY OF FEBRUARY 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Petitioners - Mr. Nyamwange for C.O.Nyamwange & Co. Advocates For 1st, 3rd to 45th Respondents - Mr. Mukonyi for Ongwenyi Mirieri & Co. Advocates For 2nd Respondent -Mr. Odoyo for Kipkenda & Co. Advocates For Interested Party - Mr. Kiprono for O.M.Otieno & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2859/eng@2026-02-26 10

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