Koigu & 2 others v Principal Judge (High Court) & 4 others (Petition E125 of 2026) [2026] KEHC 9568 (KLR) (Constitutional and Human Rights) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9568 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CONSTITUTIONAL AND HUMAN RIGHTS PETITION E125 OF 2026 PM NYAUNDI, J JULY 2, 2026 BETWEEN ALEX JOSHUA KOIGU ................................................................... 1ST PETITIONER NANCY NJAGI ................................................................................ 2ND PETITIONER ANTHONY NJAGI .......................................................................... 3RD PETITIONER AND PRINCIPAL JUDGE (HIGH COURT) ......................................... 1ST RESPONDENT CHIEF JUSTICE ............................................................................ 2ND RESPONDENT JUDY THONGORI & CO ADVOCATES ................................... 3RD RESPONDENT JOSEPHINE RUKARIA ................................................................ 4TH RESPONDENT ATTORNEY GENERAL ............................................................... 5TH RESPONDENT RULING 1. The Applicants have moved this Court by Notice of Motion dated 7th February 2026 brought pursuant to Articles 10, 22, 23, 25(c), 47, 48, 50(1), 50(2)(k), 159(2)(b) & (d), and 165(3)(b) & (4) of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 18 Rule 2, Order 25 Rule 1, Order 45 and Order 53 of the Civil Procedure Rules; Sections 146–154 of the Evidence Act; Section 47 of the Law of Succession Act; and Rule 73 of the Probate and Administration Rules. The Motion is supported by afidavits sworn by the three Petitioners. They seek, in summary, seven substantive orders, including:the recusal of the Presiding Judge in Succession Cause No. P&A 1287/07 and the striking out of his rulings;an injunction restraining confirmation of grant;oral examination of the DNA expert and the 3rd and 4th Respondents;authorization for the 1st Petitioner to complete https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9568/eng@2026-07-02 1
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sale and exclusive use of a portion of the estate;reactivation of ELC E121 of 2022, JR E025 of 2024, and CHR E116 of 2021;certification of the Petition under Article 165(4); andsupervisory jurisdiction over all related matters. 2. None of the Respondents filed a response to the Motion, though the 1st, 2nd, and 5th Respondents filed Grounds of Opposition to the Petition. The Petitioners did not file submissions as directed. Nevertheless, the Court is seized of the record and is able to determine the Motion on its merits. The prayers collapse into two broad issues: i. Whether this Court should exercise supervisory jurisdiction over proceedings in Succession Cause No. P&A 1287/07, ELC E121 of 2022, JR E025 of 2024, and CHR E116 of 2021; and ii. Whether the Petition should be certified under Article 165(4) for the empanelment of a multijudge Bench. Supervisory Jurisdiction 3. The first issue is neither novel nor unsettled. In Maeski v Republic [2025] KEHC 6363 (KLR), the Court stated with unmistakable clarity: “ There is no law which bestows this court with jurisdiction to review a decision by a court of concurrent jurisdiction and/or its own decision. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status.” 4. The Court of Appeal in Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 Others, Civil Appeal No. 203 of 2006, was equally categorical: “ It would be a usurpation of power… whatever decision emanates from a court regarding itself as a constitutional court, with powers of review over decisions of concurrent or superior jurisdiction, such decision is at best a nullity.” 5. Article 165(6) of the Constitution is explicit, the High Court’s supervisory jurisdiction extends only to subordinate courts and persons or bodies exercising judicial or quasi-judicial authority. It does not extend to the High Court itself, nor to courts of equal or superior status. That constitutional boundary is firm. It must be respected. This limb of the application therefore collapses under the weight of settled doctrine. Certification Under Article 165(4) 6. On whether this matter warrants certification for empanelment, the guiding principles are equally well‑established. In Harrison Kinyanjui v Attorney General & Another [2012] eKLR, Majanja J observed that the meaning of “substantial question” must be understood in light of the Constitution’s commitment to timely justice and the reality of scarce judicial resources. A three‑Judge bench does not carry greater precedential weight than a single Judge; both exercise the same jurisdiction. 7. Odunga J (as he then was) in Republic v Public Service Commission & 2 Others [2017] KEHC 3581 (KLR), emphasized that empanelment is an exceptional measure, not a routine procedural step: “ This Country still does not enjoy the luxury of granting such orders at the whims of the parties… empanelling such a bench invariably leads to delays… worsening the backlog crisis.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9568/eng@2026-07-02 2
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8. The Court in Vadag Establishment v Y A Shretta & Another, HCCC No. 559 of 2011, reinforced the point: “ A High Court whether constituted by one judge or more than one judge exercises the same jurisdiction… their precedential value is the same.” 9. The jurisprudence is clear: a matter qualifies for empanelment only where it raises both; a substantial question of law and an issue concerning the interpretation or enforcement of the Bill of Rights. As articulated Republic v Public Service Commission & 2 Others ( Supra) : It is not enough that a constitutional question is raised; the question must be substantial, exceptional, and incapable of resolution by a single Judge. 10. Having carefully reviewed the Petition and the Motion, I find no such substantial question. The issues raised, though important to the parties, are neither novel nor complex in the constitutional sense. They fall squarely within the ordinary jurisdiction of a single Judge of the High Court. The threshold for certification is therefore not met. 11. For the foregoing reasons, the Notice of Motion dated 7th February 2026 is dismissed in its entirety. Costs shall be in the Petition. 12. The main Petition shall now proceed to hearing. The 1st, 2nd, and 5th Respondents have filed Grounds of Opposition. The Petition shall be canvassed by written submissions as follows: i. Petitioners shall file submissions within three (3) days; ii. Respondents shall file submissions within three (3) days of service. iii. Judgment shall be delivered on 30th July 2026. It is so ordered. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026. P. M. NYAUNDI JUDGE In the Presence of Fardosa Court Assistant Ms. Ndirangu for 3rd & 4th Respondents Ms. Mwarao for 1st, 2nd & 5th Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9568/eng@2026-07-02 3
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