Nairobi City County Government v Co-operative Bank of Kenya Limited & 1 other

2. a) Directing the Respondent to forthwith release and remit all funds collected through Account Number: 01141232396600 and/or any related accounts, withheld, retained or not currently remitted into the Petitioners County Revenue Fund. b) Against the Respondents, its servants, agents ,officers or privies, from any further withholding, retention, deduction, set off, attachment, appropriation, or interference whatsoever with any County Public Revenue collected or to be collected on behalf of the Petitioner. c) This Honourable Court be at liberty to grant any further orders/relief that may be just and expedient to preserve the substratum of the petition and prevent further violation of the Constitution. d) That costs and incidentals be provided for. The petitioner asserts through the supporting affidavit by CS Boniface Waweru, the Acting County Attorney that the Respondent, Co-operative Bank of Kenya Limited is operating as their designate Revenue Collection Account Number 01141232396600 (‘the Revenue Collection Account”). This is pursuant to lawful revenue collection mechanisms, substantial public revenue which continues to be deposited into the said account on behalf of the petitioner, which includes, Parking fees, market cess, business permits and other local charges authorize under the Constitution, the County Governments Act and a relevant county legislation. Constitutional Petition No. E400 of 2026 – Proceedings Page 2 of 26

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3. The petitioner is aggrieved by the actions of the Respondent despite the clear constitutional and statutory mandate requiring prompt and unconditional remittance of all their monies into their County Revenue Fund (CRF) having been established under Article 207(1) of the Constitution and Sections 109(2) of the Public Finance Management Act, 2012, and avers that the respondent has unlawfully, irrationally and in utter impunity withheld and/or failed to remit these public funds. 4. The petitioner avers that Article 207 of the Constitution provides that there shall be established a Revenue Fund for each County government into which shall be paid all money raised or received by or on behalf of the County Government. The said money may be withdrawn from the Revenue Fund only as a charge against the Revenue Fund as provided by an Act of Parliament or by legislation of the County or as authorized by an appropriation by legislation of the County. That the said money shall not be withdrawn form a Revenue Fund unless the Controller of Budget has approved the withdrawal. 5. The petitioner further avers that they issued formal demand letter referenced NCC/CA/BW/277/E/2026 to the Respondent demanding immediate remittance of all withheld funds to the CRF; a full account and reconciliation; cessation of any further withholding or interference and a written confirmation of compliance. Constitutional Petition No. E400 of 2026 – Proceedings Page 3 of 26

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6. The petitioner contends that the respondent ignored, failed and/or refused to comply with any of their demands in the said letter. Nor did they remit, no reconciliation provided and no lawful justification existed for the continued retention of public funds. 7. He further contends that the respondent’s conduct is not only a direct violation of the mandatory provisions of the Constitution and the PFMA but brazen arrogation of authority no commercial bank possesses. 8. The petitioner avers that breach is compounded by the extreme urgency of the matter, that the Financial Year 2025/2026 was closing on 30th June 2026. The Funds withheld by the respondent were critical for: a) Implementation of the approved County Budget. b) Payment obligations. 9. of salaries, pension and supplier c) Delivery of essential public services (healthcare, sanitation, security, infrastructure maintenance and emerge response). d) Compliance with statutory audit and accountability requirements The petitioner avers that in the absence of immediate judicial intervention, both the petitioner and the residents of Nairobi City County will suffer irreparable injury and hardship. Thus, the service delivery will be paralyzed, development projects will be stalled, cash flow crises will ensue, potential audit irregularities will arise and county Constitutional Petition No. E400 of 2026 – Proceedings Page 4 of 26

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officers will face personal liability under Section 201 and 203 of the Public Finance Management Act (Cap 412A). 10. The petitioner further avers that the respondent’s actions are not only unlawful but also irrational and demonstrates utter impunity. 11. The application is opposed vide a replying affidavit of the Respondent sworn on 26th June, 2026. The affidavit admits the relationship between the parties mentioning that the Petitioner holds several accounts with them and makes reference to two different agreements, the MOU dated 28 th July, 2025 and the Lease Agreement dated 29 th October,2024 and states that the Respondent is capable of refunding monies if so directed by court. The Respondent admits exercising their right of Set-off against the Petitioner because of the indebtedness relating to the MOU of 28 th July, 2025 and that this is what prompted the filing of the instant Petition/Application. 12. The Petitioner/Applicant in their Supplementary Affidavit sworn on 29th June, 2026 shares a distinction between the accounts. different Stating that Account Number: 01141232396600, which is the subject matter of this suit is meant only for collection of revenue on behalf of the Petitioner/Applicant and ought to be remitted to the County Revenue Fund before any right of set-off or lien could be exercised. The Petitioner further states that the MOU of 28 th July, 2025 is distinct as it was meant only for opening and Constitutional Petition No. E400 of 2026 – Proceedings Page 5 of 26

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running a salary processing account and is therefore not a subject matter of this Petition/Application, that the issue before court is the Respondent’s breach of their constitutional duty under Articles 201 and 207 of the Constitution. 13. The Respondent disputes the jurisdiction of the court while the Petitioner affirms it. It is clear from a perusal of the pleadings that the parties have a long-standing commercial relationship, with clear arrangements on settling disputes. Respondent’s Replying affidavit 14. The replying affidavit was sworn by Samuel M Kibugi on 26th June, 2026 in reply to the petition and notice of motion dated 22nd June, 2026. 15. The respondent acknowledges that the Petitioner is a customer of the Respondent and operates various accounts including A/C No. 01141232396600, which is central to this dispute. 16. The respondent avers that the Petitioner operates a Revenue Collection Account No. 01141232396600 with the Respondent into which revenue generated from various county sources like parking fees, market cess, business permits and other local charges authorized under the Constitution, the County Government Act and relevant Legislation are deposited on behalf of the County Government. Constitutional Petition No. E400 of 2026 – Proceedings Page 6 of 26

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17. The respondent further avers the Petitioner despite a demand letter dated 17th June 2026, for remittance of all withheld funds to the CRF, a full account and reconciliation, cessation of any further withholding or interference and a written confirmation and compliance, the Respondent has failed and refused to comply with the same. 18. The respondent avers that this Honourable Court has no jurisdiction to entertain, hear and determine the Petition and the Application filed therewith on account of the MOU and the Arbitration Clause therein. Thus, it is prematurely filed and founded on a demand letter dated 17 June, 2026 way before pursuing any amicable negotiations and without any attempt to commence arbitration proceedings as intended in the MOU. 19. The respondent contends that under Clause 4A of the MOU, the Respondent has been contracted to offer Payroll Management Services to the Petitioner and to among others. Whereas under Clause 4B of the MOU and in consideration to the provision of Payroll Management Services and payment of Salaries on behalf of the Petitioner, the Respondent is entitled to levy fees and other charges as follows: (a) The bank shall charge 0.5% of the total amount drawn per drawdown as Administration fees, or such other rate as may be communicated to the County Government from time to time; (b) The Bank shall charge other Commissions associated with the Payroll Processing as per Constitutional Petition No. E400 of 2026 – Proceedings Page 7 of 26

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the Bank's tariff as may be published from time to time and are to be borne by the Employees; and (c) The Bank reserves the right to vary the fees and other charges in the MOU by issuing a 30 days' notice to the County Government. 20. The respondent alleges that under Clause under Clause 5.6 of the MOU the Petitioner undertakes to inform the Respondent immediately upon receipt of the funds from Central Bank of Kenya and make payment to the Salary Processing Account held with the Respondent by the 10 th day of the subsequent month. While under Clause 5.7 of the MOU the Petitioner ensures settlement of the salary processing account by the 10th day of the subsequent month. 21. The respondent contends that under Clause 5.9 of the MOU, the Petitioner undertake to inform the Respondent within Seven (7) Days of any actual or threatened stoppage of funds by the Controller of Budget, Parliament, Central Bank or any other Governmental authority; or of any other threat or material changes that will have a material effect on the operations and actualisation of the operations of the agreement. 22. The respondent further contends that under Clause 5.10 of the MOU, the Petitioner undertakes to retain the Respondent on an exclusive basis for the processing of its payroll for the duration of the MOU and not to enter into engagements similar to payroll management services with any other bank, financial institution or other institution offering similar services as long as the MOU is in place. Constitutional Petition No. E400 of 2026 – Proceedings Page 8 of 26

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23. The Respondent avers it has given salary-processing services to ensure that the Petitioner's employees are paid their salaries promptly pending receipt of the funds from the National Treasury through Central Bank of Kenya so that there is seamless operations without disruptions as the petitioner renders services to the Nairobi County residents. 24. The respondents further avers that pursuant to the clear terms of the MOU, the Petitioner on 17 th November, 20225 applied for and was granted a Salary Advance Payment of Kshs.692,586,116.30 The reimbursement of which was to be done on or before 30th November, 2025 as per their annexture “SMK-2”, ( being a letter by the petitioner’s letter dated 17th November, 2025. 25. The respondents alleges that the Petitioner unilaterally and arbitrarily moved its payroll management services to another bank contrary to the terms of the MOU and without first honouring its financial obligations with the Respondent and has since neglected to reimburse the Respondent within the agreed timelines despite their clear commitment to have fully reimbursed the Respondent by 30th November 2025. 26. The Respondent contends that it has severally demanded the reimbursement as per the following demand letters to no avail and the reimbursement remains outstanding to date despite the lapse of several months. a) Demand letter dated 20th December 2025; b) Demand letter dated 3rd January 2026; Constitutional Petition No. E400 of 2026 – Proceedings Page 9 of 26

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c) Demand letter dated 18th February 2026; d) Demand letter dated 9th April 2026; and e) Demand letter dated 20th May 2026 27. The respondent avers that despite Petitioner’s indebtedness to it, the Respondent exercised its legal right of set off to clear the outstanding balance by applying the funds held in the Petitioner's Accounts towards settlement of the outstanding reimbursement amount. They have on a daily basis recovered the outstanding amount and the balance outstanding as at 24 June 2026 is Kshs.54,388,663.18 which is due from the petitioner and it is legally entitled to fully recover the same in order to safeguard its shareholder and depositors funder as per its mandate. 28. The respondent deeply regrets, notwithstanding the considerable support extended to the petitioner pursuant to the MOU in enhancing its operational efficiencies, addressing income leakages, and facilitating regular salary advance support for smooth operations, has, without justification, disengaged from the special arrangement and callously neglected its financial obligations to the Respondent. 29. The respondents contends that petitioner’s flagrant breach of its contractual obligations and without clear authority, the Petitioner's County Chief Officer (Revenue Administration) and the Head of Treasury through a jointly-signed letter dated 18th June 2026 have now purported to instruct the Respondent to close the Account No. 01141232396600 (domiciled at the Respondent's City Hall Branch) without any Constitutional Petition No. E400 of 2026 – Proceedings Page 10 of 26

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reference to the MOU and the outstanding reimbursement owed to the Respondent. 30. The respondent further contends that it being a Bank in an effort to support the Petitioner invested in an electronic top notch and state of the art collection system that has assisted the Petitioner in minimizing revenue leakage collection and also set up a branch within their premises with dedicated teller counters stakeholders to and serve a their Relationship customers and other Manager for added efficiencies and enhanced customer service. 31. The Respondents feels aggrieved by the petitioner which acted in bad faith in an attempt to intimidate it that on 19 th June 2026 the Petitioner issued a letter purporting to terminate the Lease and demanding a vacant possession of Building known and identified as City Hall Annexe situated on L.R No. 209/577 belonging to the Petitioner knowing so well that the said build hosts the Respondent’s City Hall Branch in which the Bank Account No. 011412323966600 in question is domiciled as per annexture “SMK-4”. 32. The respondent believes that the Petition and the Application before this Honourable Court amounts to a clever attempt by the Petitioner to shield itself from fulfilling its legal contractual obligations to the Respondent as founded in the MOU dated 28th July 2025 and the salary processing services advanced by the Respondent to the Petitioner. By doing this, the petitioner wants to conceal to the court material Constitutional Petition No. E400 of 2026 – Proceedings Page 11 of 26

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information and documents, especially the existence of the MOU and the Payroll Processing Services advanced to it by the respondent. 33. The respondent avers that it is clear from the contractual relationship between the Petitioner and the Respondent through the MOU, that the dispute between the parties is not a constitutional one despite being characterized as such. The same it is founded on a valid contract with an arbitration clause which oust the jurisdiction of the Court and the Petition together with the Motion filed therefore amounts to abuse of the due process of this Honourable Court. 34. In conclusion, the respondents contends that the petition and the Notice of Motion both dated 22 nd June, 2026 and is conceived and without merit. It requests the court to strike them out on account of jurisdiction and/or dismiss the same for lack of merit with costs to he respondent. Petitioner’s Submissions 35. Parties filed written submissions. The Petitioner affirmed the Court’s jurisdiction under Article 165 of the Constitution of Kenya and relied on the case of Interim Independent Electoral Commissions (2011) eKLR. 36. The petitioner submitted that this court has jurisdiction as provided under Articles 47, 50, 201 and 207 of the Constitution of Kenya as read together with Sections 109 Constitutional Petition No. E400 of 2026 – Proceedings Page 12 of 26

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and 119 of the Public Finance Management Act and can only be addressed by a Constitutional Court and this Honourable Court has the requisite jurisdiction to hear and determine the application and petition dated 22nd June, 2026. 37. The petitioner further submits that this dispute does not emanate from the Memorandum of Understanding dated 28 th July, 2025 which provides at clause 13 for arbitration of disputes arising for the said contract. 38. The petitioner submitted that the respondent contravened Article 201 and 207 by failing to remit county revenue funds the deposited with Respondent and that, the Memorandum of Understanding dated 28th July 2025 relates to provision of payroll management and salary processing and payment services. The said Contract does not relate, in any way, to the contract for collection and remittance of revenue and its clauses cannot therefore be used to determine whether or not this Honourable Court has the requisite jurisdiction to hear and determine this matter. 39. The Petitioner asserted that all funds received in the Bank Account Number 01141232396600 is revenue collected by the Respondent on behalf of the Petitioner. 40. On whether the Respondent can exercise a right of set off and/or lien on funds in Bank Account Number 01141232396600, the Petitioner submitted that the said Constitutional Petition No. E400 of 2026 – Proceedings Page 13 of 26

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account was created to satisfy the provisions of Article 207 (1) of the Constitution and Section 109 (1) of the Public Finance Management Act and the Respondent, as the receiver of the Revenue on behalf of the Petitioner, has a duty to deposit all revenue collected in Bank Account Number 01141232396600 into the Petitioner’s County Revenue Fund. 41. The petitioner submits that therefore, the Respondent has no legal authority, whatsoever, in neglecting and/or failing to deposit all revenue collected in Bank Account Number 01141232396600 into the County Revenue Fund and that it is only upon appropriation by the County Treasury that the Respondent can exercise lien/set off on the monies appropriated to the Petitioner. 42. The Petitioner further submits that a right of set off/lien cannot override a clear a. provision of the Constitution specifically articles 201 and 207 of the Constitution of Kenya which provides that all revenue collected must be deposited in the County, b. Revenue Fund and therefore, the Respondent has no legal and/or justifiable cause to c. Exercise the right of set off on funds held in the Bank Account Number 01141232396600. Constitutional Petition No. E400 of 2026 – Proceedings Page 14 of 26

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43. The Petitioner submitted that there exists special circumstances to warrant issuance of the orders sought and that if an order to release the funds collected in Bank Account Number 01141232396600 is granted, no prejudice will be occasioned on the Respondent given that the Respondent will use other redress mechanisms available in the Memorandum of understanding to recover the salary advance extended to the Petitioner. The Petitioner prayed to be granted the orders sought in the application. Respondent’s Submissions 44. The Respondent filed submissions dated 7 th July, 2026. The respondent submits that it did not dispute that the petitioner is a customer and operates various accounts including A/C No. 01141232396600. The said account is domiciled at the City Hall Annex Branch, which is the centre of interest. 45. The respondent argued that under Clause 4A of the Memorandum of Understanding, the petitioner contracted the respondent to offer Payroll Management Services to the petitioner which among others: (a) Facilitate the opening of the salary processing Account at the nearest Branch to the County Headquarters, which will be designated as the domicile Branch for the Account; (b) Collect and verify the Payroll details submitted by the County Government through Co-op Online payment platform, Constitutional Petition No. E400 of 2026 – Proceedings Page 15 of 26

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(c) Receive the payroll and approval from the CEC in charge of Finance, together with confirmation by the CEC that a request for Transfer of Funds has been presented to the CBK in relation to the Payroll; (d) After the necessary confirmations, validations and call backs, process the payment of the Employee salaries by debiting the designated payroll account and crediting the employee accounts as provided in the payroll; (e) Ensure processing of the payroll as submitted by the County Government within 3 days of the receipt therefore, (f) Payment of the payroll shall be subject to the Central Bank of Kenya requirements on payments including validation of high value transactions and confirmations of payments that are inconsistent with the usual operations of the Account and the bank shall retain the right to decline payments that are inconsistent with the normal operations of the account. (g) The Bank shall share the Payment Report with the County CEC in charge of Finance and thereafter submit monthly statements to the County with information on total transactions received and processed throughout the month, (h) Receive payments from the County CEC in Charge of Finance and remit the same Payroll Account held by the Bank, and (i) The Bank shall not be obligated to pay any emoluments/remuneration as part of the Payroll Management Services and shall not remit any statutory deductions on behalf of the County Assembly unless otherwise agreed with the bank in writing. Constitutional Petition No. E400 of 2026 – Proceedings Page 16 of 26

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46. The respondent submits that pursuant to the MOU, it offers salary-processing services to ensure that the Petitioner’s employees are promptly paid pending receipt of the funds from the National Treasury through Central Bank of Kenya for seamless operations without disruptions as the petitioner renders services to the Nairobi County residents. 47. The respondent asserted that on or about 17 th November, 2025 and citing pursuant to the terms of the MOU, the petitioner applied for and was granted by the Respondent a payroll management service in the sum of Kshs. 692,586,116.30. This is according to the petitioner’s own application letter of same date, the reimbursement of that amount was to be done on or before 30th November, 2025. 48. The respondents further submitted that the petitioner’s having benefited from the advance payment, the petitioner failed to honour its payment obligations. They demanded the reimbursement to no avail through the demand letters dated 20th December, 2025, 3rd January, 2026, 18th February, 2026, 9th April, 2026 and 20th May, 2026. They did so on a daily basis and recovered the account and as at 24 th June, 2026, the balance still has an outstanding of Kshs.54,388,663.18 due from the petitioner. 49. The respondent avers that the petitioner has filed to demonstrate the existence of a right that has been apparently infringed by the respdoent since the relationship Constitutional Petition No. E400 of 2026 – Proceedings Page 17 of 26

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between them is governed by a duly executed MOU dated 28th July, 2025. 50. They submitted that the Petitioner had not met the threshold for grant of conservatory orders as they have not established a prima facie case and that the orders sought at the interlocutory stage are actually final orders citing Commission for Human Rights and Justices (CHRJ) v Kung’u Ndung’u University & 6 others; Education Commissioner (Interested for Party) [2021] KEELRC 1048 (KLR). 51. The respondent relied on Board of Management of Uhuru Secondary School v. City County Director of Education & 2 others ([2015] KEHC 2174), Munya v Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR) (30 May 2014), Malombe & another v Nairobi City County Government & 7 others (Petition E214 of 2026) [2026] KEHC 7598 (KLR), David Ndii & others v Attorney General & others [2021] KEHC 12605 (KLR), to buttress its submissions on whether the Petitioner had met the threshold for conservatory orders. 52. Citing Ibrahim Mwangi Athumani v Minister for Information and Communications [2011] KEHC 4284 (KLR), the respondent submits that the dispute is commercial in nature and not constitutional. That the MOU allowed for a two-tier dispute resolution before coming to Constitutional Petition No. E400 of 2026 – Proceedings Page 18 of 26

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court and that the Petitioner is not being honest and has only provided to court material favorable to it while seeking exparte orders. That the petition, therefore, does not raise a prima facie case. 53. The respondent submits that no constitutional prejudice will be occasioned to the Petitioner before conclusion of the proceedings ,that the Respondent only exercised its contractual remedy of set-off and remitted the rest of the money to the Petitioner and placed reliance in the decision of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Judicial Service Commission (Petition 154 of 2016) [2018] KEHC 9274 (KLR). 54. The Respondent submits that determining the application would effectively determine the entire petition because payer 2 of the application is verbatim prayer 3 of the petition and that the court should not grant mandatory orders at an interlocutory phase. 55. The respondent relied on the decisions in Kenya Breweries Limited & another v. Washington O. Okeyo [2005], Okiya Omtatah Okoiti v. Judicial Service Commission & 2 others [2021] and Damour Florian Emmeric v Director of Immigration Services [2022] eKLR and seeks that the application be dismissed with costs. Constitutional Petition No. E400 of 2026 – Proceedings Page 19 of 26

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56. In conclusion, the Respondent urged that the petition lacks merit; it is brought in bad faith and a waste of the court’s time. They asked that it be dismissed with costs. Analysis and Determination 57. At the core for determination at this stage is whether the court should grant the interim and conservatory orders sought by the Petitioner pending the determination of this Petition. 58. Article 23 (3) of the Constitution basically affords a party to proceedings brought pursuant to Article 22, asserting violation or threat of violation of any Constitutional right or fundamental freedom, to prompt the court for any relief, including temporary reliefs. The said Article 23 provides as follows: “23 (1) … 23 (2) … 23 (3) In any proceedings brought under Article 22, a court may grant appropriate relief, includinga) a declaration of rights; b) an injunction; c) a conservatory order; d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; Constitutional Petition No. E400 of 2026 – Proceedings Page 20 of 26

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e) an order for compensation; and f) an order of judicial review.” (emphasis supplied) 59. In Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) the Court defined Conservatory orders as follows: “A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 60. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications 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.” 61. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]: Constitutional Petition No. E400 of 2026 – Proceedings Page 21 of 26

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“Arguments in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”. 62. It is therefore not enough to merely establish a prima facie case and show that it is potentially arguable. To justify a conservatory order, there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, the court stated that an “applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success.” 63. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success, the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights. (See Patrick Musimba –v- The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –vRegistered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR). Constitutional Petition No. E400 of 2026 – Proceedings Page 22 of 26

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64. The third consideration is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects, the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant. 65. I have considered the petition as pleaded by the petitioner. It is not without a doubt that for a party to prove violation of their rights under the various Bills of Right under the Constitution, they must not only state the provisions of the Constitution allegedly breached, but also the manner of infringement, the nature and extent of injury suffered. A party who alleges violation of his rights must plead his or her case with precision as was held in the case of Anarita Karimi Njeru vs Republic (1979) KECA 12 (KLR). 66. A cursory glance of the petitioner’s petition does not outline the particular manner in which the respondent infringed upon the petitioner’s rights. 67. The petition is drafted in a manner suggesting public finance management and constitution and regulatory compliance with nothing to back up or support these assertions. Section 107 (1) of the Evidence Act Cap 80 provides that the burden of proof always lies on the person who alleges and wants the court to believe the existence of alleged facts. Constitutional Petition No. E400 of 2026 – Proceedings Page 23 of 26

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68. A reading of the affidavit in response to the petition and the annexures thereto including the MOU, reveals the existence of a commercial relationship between the parties. The said relationship creates rights and obligations for the parties. A determination pertaining to such commercial rights and obligations is not a constitutional question but a commercial dispute that ought to be heard and determined in different forum. A reading of the issues presented in this Petition leave no doubt that the Petitioner’s grievance, if any, can effectively be addressed in a commercial suit before the Commercial Division of this Court. 69. This court is not convinced that the petitioner has discharged its burden of proof on the alleged violation of its rights and/or a threat of infringement thereof, the nature and extent of the injury suffered (if any) and that it would conservatory orders sought aren’t granted. To this extent, I do hereby find that the petitioner has not established a prima facie case with a likelihood of success. 70. Further, from the affidavit evidence presented by the respondent, it would appear that the respondent has already made full recovery of what it claims was due from the petitioner. The respondent has categorically stated that it has no further claims against the petitioner. In the circumstances, the court is conceived that any conservatory orders issued at this point in time will not serve any meaningful purpose as that which the petitioner seeks to prevent has already occurred. The legality or otherwise of Constitutional Petition No. E400 of 2026 – Proceedings Page 24 of 26

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the said recoveries is a question that cannot be conclusively determined at this interlocutory stage. 71. It is also clear that the orders sought in the application are final orders. If the court were to grant the said orders at this interlocutory stage, the same would lead to a premature grant of some of the substantive prayers in the petition even before hearing the petition. The grant of the mandatory orders in the application would no doubt dispose of the subject matter of the petition. 72. That being said, the court is not convinced that the petitioner is bound to suffer any prejudice if the conservatory orders are not issued. There is also no public interest that will suffer as a result of this Court declining to grant the conservatory orders. 73. The balance of convenience does not tilt in favour of the petitioner in this matter. As observed earlier in this ruling, it is not in dispute that there has been a bank-customer relationship between the petitioner and the respondent. Both parties have acknowledged that fact. The parties have contractual rights and obligations arising out of the said relationship. The resolution of any dispute arising out of the said relationship can only be determined in the context of a full trial, not in interlocutory proceedings. This court does not wish to, and will not, re-write the contract for the parties. Constitutional Petition No. E400 of 2026 – Proceedings Page 25 of 26

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74. Flowing from the foregoing, the court is not convinced that the petitioner deserves the conservatory orders sought in the Notice of Motion application dated 22 nd June 2026. The said application lacks merit and is hereby is hereby dismissed with no order as to costs. 75. Orders accordingly. Dated, signed and delivered Virtually at Nairobi this 16 th day of July 2026. DAVID MBURU JUDGE Constitutional Petition No. E400 of 2026 – Proceedings Page 26 of 26

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