Gilbert Nyamweya & 8 others v Director of Public Prosecutions & 7 others

REGISTRAR OF COMPANIES ................................................... 9TH RESPONDENT (On the Notice of Motion Application dated 24th March 2026 for Conservatory Orders) RULING 1. Before the Court for determination is the Notice of Motion Application dated 24th March 2026, brought under Articles 22, 23, 27, 28, 29, 36, 47, 49, 50, 157 and 159 of the Constitution of Kenya 2010. The Application is supported by the affidavit of the 1st Petitioner, Gilbert Nyamweya, and a further supporting affidavit of the 5th Petitioner, sworn on 24th April 2026. 2. The Petitioners' Notice of Motion application seeks conservatory orders pending the hearing and determination of the Application. In particular, it seeks the following orders: 3. a. Restraining the 1st, 2nd and 3rd Respondents from commencing or continuing the prosecution of the 1st to 6th, 8th and 9th Petitioners and/or the directors, members and officers of the 7th Petitioner over matters touching on the governance, management and affairs of the 7th Petitioner, Kenya Hospital Association, trading as the Nairobi Hospital; b. Restraining the Respondents from demanding or causing a change in the membership/ directorship of the 7th Petitioner Company; and c. Restraining the Respondents from summoning, harassing, intimidating, threatening or commencing adverse proceedings against the 1st to 6th Petitioners, as well as doctors, directors, former directors and members of the 7th Petitioner. The Application is opposed. The 1st Respondent, the Director of Public Prosecutions, filed a Replying Affidavit dated 8th April 2026, deponed to by C.I. Nobert Kioko, No. 237087. The 4th Respondent, the Attorney General, filed grounds of opposition dated 2nd April 2026. The 5th Respondent, the Public Service Commission, filed grounds of opposition dated 2nd April 2026. The 7th Respondent, the Asset Recovery Agency, filed grounds of opposition dated 1st April 2026, while the 8th Respondent, the Kenya Revenue Authority, filed a Replying Affidavit dated 21st April 2026, sworn by Sylvester Ogello. There was no response from the 2nd, 3rd, 6th or 9th Respondents. The parties thereafter filed and exchanged written submissions, which the Court has carefully considered together with the authorities cited therein. The Pleadings Of The Parties 4. The 7th Petitioner, Kenya Hospital Association t/a The Nairobi Hospital, is a company limited by guarantee that operates a private hospital, and its members constitute the wider "Hospital Community." The 1st to 6th, 8th and 9th Petitioners are on the record as its directors, former directors, members or officers. 5. It is the Petitioners' position that, for some time preceding the application, factional wrangling within the Hospital Community gave rise to related disputes before the Criminal Division, the Commercial and Tax Division, and the Constitutional and Human Rights Division of this Court, including Kibera High Court Misc. Criminal Application No. E062 of 2025; Felix Osano & Others v The Republic & Others, HCCC No. E173 of 2025; The Kenya Hospital Association Trading as Nairobi Hospital & Others v the Chief Executive Officer, Nairobi Hospital & another, and Milimani Judicial Review No. E073 of 2025; Chief Executive Officer, Nairobi Hospital & 10 Others (Interested Parties). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 2

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6. The Petitioners further plead at paragraph 4 of the affidavit in support of the application that on or about 6th March 2026 the Head of State made public remarks at a political rally in Western Kenya describing persons linked to the 7th Petitioner as "conmen, fraudsters and charlatans" and indicating that he was determined to “save” the 7th Petitioner. 7. The Petitioner state at paragraph 6 of the affidavit in support of the application that on the same date, Mr. Hussein Mohamed, MBS, the State House Spokesperson, issued a press statement confirming that the 5th and 6th Respondents had been instructed to work with government agencies to, “restore stability, strengthen governance, and ensure that Nairobi Hospital continues to provide high quality healthcare services to Kenyans and patients from across the region.” 8. The Petitioners plead that shortly thereafter, some of the Petitioners were arrested and charged before the Kibera Court in Kibera Misc. Criminal Application No. E062 of 2025, Felix Osano & Others vs Republic & Others, and that on 23rd March 2026, the 2nd, 3rd and 6th Petitioners were unlawfully arrested and arraigned before the Chief Magistrate's Court at Milimani in purported criminal proceedings arising from the matters forming the subject matter of the Petition before the court. 9. The Petitioners aver in paragraph 17 of the affidavit in support of the application that the charges against the 2nd, 3rd and 6th Petitioners were withdrawn before they could enter a plea. 10. The 1st Respondent's Reply Affidavit does not address the remarks allegedly made by the Head of State at a political rally or the press statement allegedly issued by the State House spokesperson. It asserts, at paragraph 4, that the 2nd and 3rd Respondents received intelligence from the state intelligence agency that the 1st to 6th Petitioners, who are board members of the 7th Petitioner, were not lodging financial statements with the Registrar of Companies as required by law. 11. Further, at paragraph 9, the decision to charge the Petitioners was made in good faith, based on sufficient evidence, and in compliance with the Constitution and applicable law. 12. It is the 1st Respondent's position that the withdrawal of charges was done in accordance with section 87(a) of the Criminal Procedure Code and does not amount to proof of malice, illegality or absence of evidence. The Submissions Of The Parties i. Written Submissions of the Petitioners 13. The 1st, 3rd, 4th, 6th, 7th, 8th and 9th Petitioners filed submissions dated 22nd April 2026. The 2nd Petitioner filed submissions dated 27th April 2026. The 5th Petitioner filed submissions dated 27th April 2026. The 8th Petitioner filed another set of submissions dated 18th May 2026. 14. All the Petitioners made reference to the four-part test in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR that: a. there is a prima facie case with a likelihood of success; b. that denial of the orders would occasion irreparable prejudice; c. that the balance of convenience favours preservation of the status quo; and d. that public interest favours the grant of conservatory relief. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 3

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15. They relied on among others, on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR on the prima facie threshold; on Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 and Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32 on abuse of prosecutorial and investigative power; and on Republic v DPP Ex parte Chamanlal Vrajlal Kamani [2015] eKLR and Article 157(10) independence and its converse, on susceptibility to external direction. 16. The 5th Petitioner's submissions dated 27th April 2026 state that she was arrested and charged jointly with the 3rd, 8th and 9th Petitioners notwithstanding subsisting anticipatory bail orders obtained in Kibera High Court Miscellaneous Criminal Application No.E062 of 2025; Felix Osano & Others vs the Republic and Others. She states that this conduct amounted to arbitrary deprivation of liberty under Article 29, violation of dignity under Article 28, Breach of fair trial guarantees under Article 50 of the Constitution of Kenya, 2010, and identified with specificity three prior orders of this Court said to have been disregarded by the Respondents. (ii) The 1st Respondent- Director of Public Prosecutions 17. The 1st Respondent filed submissions dated 30th April 2026 wherein it is submitted that the Petitioners have failed on every limb of their own cited test as outlined in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. 18. The 1st Respondent contended that no irreparable harm has been established and that no "clear and unmistakable right" under actual threat has been shown per Nguruman (supra); that the claims of political interference and malice are "unsupported by evidence"; that criminal process enjoys the protection of Articles 49 and 50 of the Constitution of Kenya,2010 and cannot itself constitute irreparable harm; and that granting the orders would convert conservatory relief into a shield against legitimate accountability, contrary to the caution in Gatirau Peter Munya (supra). (iii) The 4th Respondent – The Attorney General 19. The 4th Respondent filed submissions dated 30th April 2026. Its submissions raised, additionally, a pleadings-based objection: that the application, in seeking to restrain the exercise of statutory mandates under the National Police Service Act and the Income Tax Act, travels beyond the four corners of the Petition, which does not challenge the constitutionality of those statutes, and is accordingly a "jurisdictional stray" of the kind disapproved in IEBC v Stephen Mutinda Mule [2014] eKLR and Okiya Omtatah v JSC [2021]eKLR. 20. The submissions further posited that the Petition discloses no cause of action against the Attorney General and that the Petitioner had not demonstrated why the Court must grant the Conservatory Orders sought. (iv) The 5th Respondent - Public Service Commission 21. The 5th Respondent filed submissions dated 30th April 2026. In paragraph 2, it submitted that its joinder was misconceived, that the Petition did not raise a cause of action against it, and that the Petition should be struck out and that a conservatory Order should not be issued against it. 22. The 5th Respondent placed reliance on the case of Anarita Karimi Njeru v Republic [1979] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others [2013]eKLR and Gatirau Peter Munya (supra). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 4

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(v) The 7th Respondent- Asset Recovery Agency 23. The 7th Respondent filed submissions dated 8th May 2026, in which it stated that it acts under section 53(1) of the Proceeds of Crime and Anti-Money Laundering Act and that the Petitioners have not tendered any evidence of harassment or unlawful conduct on its part. 24. The 7th Respondent relied on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others [2019] eKLR and Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2017] eKLR. It is submitted that these decisions collectively affirmed that Conservatory orders must be grounded on clear and demonstrable violation of the Constitution and that the Courts must exercise restraint when other constitutional organs are discharging their mandates. 25. The cases of Anarita Karimi Njeru v Republic (1976-1980) KLR 1272 and Meme v Republic & Another [2004] eKLR were referred to. It is the 7th Respondent's position that the Petitioners have not pleaded with the requisite precision how its exercise of the POCAMLA mandate violated any constitutional provision. 26. The Respondent also relied on the courts decision in Ismail Mohamed Garat alias Korio & Others v Senior Principal Magistrate, Garissa & Others, Petition No. 1 of 2012, wherein the court held that granting the orders sought by the Petitioners would set a bad precedent and would open the fioodgates to other likeminded people to rush to court to block intended criminal prosecutions on grounds that do not stand legal test. The 8th respondent - Kenya Revenue Authority 27. The 8th Respondent filed its written submissions dated 15th May 2026 wherein it described its actions as routine audit and compliance activity under Sections 31 and 51 of the Tax Procedures Act. 28. Its counsel submitted that the Petition against it is premature and intended to frustrate lawful investigations and the raising of additional tax assessments. It further submitted that the Petitioners have failed to demonstrate that they have exhausted all statutory and administrative remedies before approaching the court. 29. They made reference to the courts’ decision in Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR and Speaker of National Assembly v Karume [1992] KLR 21. 30. They stated that the Petitioners failed to meet the threshold for the grant of Conservatory orders and the precision required in the drafting of the Constitutional Petition, as set out in Anarita Karimi Njeru (supra), Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR), Okiya Omtatah Okoiti v Attorney General & Another [2020] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. Issues For Determination 31. I have considered the pleadings, the affidavits and the rival submissions of the parties. Having done so, I am of the view that the following issues fall to be determined by the Court: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 5

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i. Whether the Petitioners have established a prima facie case with a likelihood of success; ii. Whether the Petitioners stand to suffer real and irreparable prejudice, in the absence of conservatory orders; iii. Where the balance of convenience lies as between the Petitioners' interest in protection from threatened constitutional violation and the public interest in unhindered exercise of investigative, prosecutorial, fiscal and constitutional mandates; and iv. What, if any, conservatory orders ought to be issued, and against which Respondents, pending the hearing and determination of the Petition. Applicable Law 32. Before considering each of these issues, I will consider the applicable law first as a background before delving into each issue in extenso. 33. Article 23(3)(c) of the Constitution of Kenya, 2010 empowers the Court, in proceedings brought under Article 22, to grant a conservatory order as appropriate relief. The jurisprudence on the grant of such orders is not in dispute between the parties. Each and every party invoked substantially the same authorities. 34. A conservatory order is a public-law remedy distinct from a private interlocutory injunction. As the Supreme Court held in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, such orders "facilitate ordered functioning within public agencies" and uphold the Court's adjudicatory authority in the public interest. They are not tethered to private-party considerations such as "prospects of irreparable harm" in the conventional sense, but are to be granted having regard to the inherent merit of the case, constitutional values, and the proportionate magnitude of the interests at stake. 35. Secondly, the applicant must demonstrate a prima facie case that, on the material presented, discloses an apparent infringement of a right, thereby calling for an explanation from the Respondent(s). In considering whether the second test has been met, the dicta in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR are instructive. 36. The Court is not called upon at this stage to conduct a mini-trial or resolve disputed questions of fact. Rather, it is called upon to review the evidence placed before it and to find that the applicant has raised a fair, bona fide and arguable question, assessed on a balance of probabilities as to whether the case is more likely to succeed. 37. Third, the danger of prejudice or of the Petition being rendered nugatory must be real, imminent and not merely theoretical as was held in the Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR; Kangogo & Another v Attorney General & 4 Others [2025] KEHC 13930. 38. Fourth, while the independence of the prosecutorial and investigative organs under Articles 157(10), 244 and 245 of the Constitution of Kenya 2010 is jealously guarded, and courts will not lightly interfere with their exercise, that independence is not an absolute licence. 39. Where constitutional and statutory safeguards are not adhered to, or where the exercise of such power is shown to be actuated by an ulterior or collateral purpose, the Court retains and indeed must exercise an inherent supervisory power to intervene as was held in Dande & 3 Others v Inspector General, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 6

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National Police Service & 5 Others [2023] KESC 40; Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32; Republic v Chief Magistrate's Court at Mombasa Ex parte Ganijee & Another [2002] 2 KLR 703; Kuria & 3 Others v Attorney General [2002] 2 KLR. 40. Fifth, and of equal importance, a constitutional petition must plead its case with reasonable precision as against each of the Respondent(s) while particularizing the specific acts or omissions complained of and the nexus between those acts and the Respondent(s) in question. Failure to do so renders the Petition liable to be struck out as against that respondent(s). The case of Anarita Karimi Njeru v Republic [1979] eKLR; Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR are instructive on this limb. 41. Relatedly, a party is bound by its pleadings, and relief sought at an interlocutory stage that is out of touch with the substantive prayers in the petition cannot stand, as held in Independent Electoral Boundaries Commission v Stephen Mutinda Mule [2014] eKLR. Analysis And Determination 42. The Court adopts the four-part test restated by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, namely: (a) whether the Petitioners have established a prima facie case with a likelihood of success; (b) whether the Petitioners stand to suffer real and irreparable prejudice in the absence of conservatory orders; (c) where the balance of convenience lies; and (d) whether the public interest favours the grant of conservatory relief. (a) Whether the Petitioners have established a prima facie case with a likelihood of success 43. The Court is mindful that, as the Supreme Court emphasized in that decision, a conservatory order is a public-law remedy granted in light of the inherent merit of the case, constitutional values and the proportionate magnitude of the competing interests, rather than a private-party test of conventional irreparable harm. 44. The Court has carefully considered all the Pleadings and submissions filed in the matter. The 1st Respondent's position is that the allegations of political direction are "unsupported by evidence." The Court is not persuaded by this submission, and it cannot be accepted at face value. 45. The Petitioners have pleaded, with reasonable specificity, a sequence of public events warranting the filing of the Application before this court. These include the remarks attributed to the Head of State at a political rally, the same-day State House press statement naming the 5th and 6th Respondents, and the arrests and charges of the Petitioners that followed within days. 46. These actions taken cumulatively are capable of supporting an inference of coordinated executive direction and intention of the Respondents. It is worth noting that none of these specific factual averments by the Petitioners has been denied on oath by the 1st Respondent, whose Replying Affidavit is confined to asserting, in general and formulaic terms, that the charging decision followed independent application of the evidential and public interest tests. 47. A bare assertion of independence, unaccompanied by any engagement with the specific pleaded facts said to undermine that independence, does not controvert the Petitioners' case; it merely restates the Respondent's position. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 7

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48. The Court has noted the consistent pattern in which charges against the 2nd, 4th and 6th Petitioners were withdrawn before plea was taken, the demand for a fresh appearance of the 2nd, 4th and 6th Petitioners within two days, while the 3rd, 5th, 8th and 9th Petitioners were separately charged over what appears, on the face of the pleadings, to be substantially the same subject matter. 49. The 1st Respondent's explanation that any withdrawal was effected under section 87(a) of the Criminal Procedure Code addresses the mechanism of withdrawal but not its rationale, nor why proceedings said to have been founded on independent evidential review would need to be withdrawn and reinstituted in this manner. 50. Given the 1st Respondent's action, coupled with the unrebutted allegation that the 5th Petitioner and others were arrested notwithstanding subsisting anticipatory bail orders issued in Kibera High Court Misc. Criminal Application No. E062 of 2025, and the further allegation of non-compliance with orders in HCCC No. E173 of 2025, the Court is satisfied that the Petitioners have satisfied the Mrao threshold as against the 1st, 2nd and 3rd Respondents at the interlocutory stage. 51. This is not to say that this is the end of the road for the 1st, 2nd and 3rd Respondents' case. They shall have a chance to ventilate their evidence at the hearing of the Petition. 52. The position taken by the 4th Respondent that the Petition does not challenge the constitutionality of the National Police Service Act or the ODPP Act, and that an order that purports to freeze the entirety of the investigative and prosecutorial machinery touching on the 7th Petitioner would be ill-advised is persuasive. Most certainly it would be wrong for this Court to bar all investigative activities. However, the order would be overbroad if it were not limited in time and subject matter. Such overreach would offend the caution in Gatirau Peter Munya (supra) against converting conservatory relief into an instrument for paralyzing government agencies from exercising their mandate. 53. The prima facie case made out relates specifically to the pattern of arrest, charge, withdrawal and recharging on the same subject matter, and to the alleged disregard of subsisting court orders and not to the existence of a lawful investigation as such. 54. The Petitioners' pleaded case is that the 5th and 6th Respondents have been meddling in the internal affairs of the 7th Petitioner, purportedly at the behest of the state, and that this is impermissible under the 7th Petitioner's own constitutive documents. 55. The 5th and 6th Respondents have not controverted this position. The absence of a response is a significant, though not on its own conclusive, factor at this interlocutory stage. On the material before it, the Court finds that a prima facie case is disclosed against the 6th Respondents in terms of prayer (b) of the Application. 56. The Court agrees with the 4th Respondent that its constitutional mandate under Article 156 does not extend to operational control over prosecutorial or investigative decision-making, which is constitutionally reposed in the 1st Respondent under Article 157. No act, decision or omission independently attributable to the Attorney General, as opposed to the Attorney General's role as principal legal adviser to Government and nominal representative in litigation of this nature, has been pleaded or evidenced. 57. The court agrees with the 5th Respondent's submission in its entirety on this issue. Parties are bound by their own pleadings. The 7th Petitioner, at paragraph 7 of the Petition, is described as a private company limited by guarantee. The 5th Respondent’s mandate is confined under Article 234 of the Constitution of Kenya, 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 8

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58. No prima facie case is disclosed against the 5th Respondent, so no conservatory order can be issued against it. 59. The Petitioners have not placed before the court any evidence that the 7th Respondent acted outside its mandate under section 53(1) of the Proceeds of Crime and Anti-Money Laundering Act, or that its conduct was coordinated with the impugned criminal process for a collateral purpose. 60. The Petitioners' application does not particularize any specific unlawful act on the part of the 7th Respondent with the precision as was held in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272 and Meme v Republic & Another [2004] eKLR. 61. The court in Applying the threshold restated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others [2019] eKLR and Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2017] eKLR, a conservatory order must rest on a clear and demonstrable violation of the Constitution, and courts must exercise restraint where, as here, an independent constitutional or statutory organ is shown, on the material available, to be discharging its mandate lawfully. 62. The court takes the position that, restraining the 7th Respondent on the strength of an undifferentiated narrative would, moreover, risk precisely the outcome that the court cautioned against in the decision of Ismail Mohamed Garat alias Korio & Others v Senior Principal Magistrate, Garissa & Others, Petition No. 1 of 2012. 63. To this end, the Petitioners have failed to make out a prima facie case against the 7th Respondent, and no order can be issued against the 7th Respondent. 64. The material before the court in relation to the 8th Respondent's audit and compliance activity is explained as the ordinary exercise of its statutory mandate under sections 31 and 51 of the Tax Procedures Act, and is expressly stated to be independent of the investigations by other Respondents. 65. The court takes the view that the Petitioners have not shown that the timing or manner of the 8th Respondent's actions was itself actuated by the alleged executive scheme, as opposed to being one of several parallel processes, specific to the 8th Respondent. 66. The Claim against the 8th Respondent lacks the specificity required by Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, as applied in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR), Okiya Omtatah Okoiti v Attorney General & Another [2020] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. The Prayer for conservatory Orders against the 8th Respondent fails on this ground. 67. The existence of a statutory objection and appeal mechanism under section 51 of the Tax Procedures Act further weighs against the grant of conservatory relief at this stage, consistent with the doctrine of exhaustion as was affirmed in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR. 68. No response has been filed by the 9th Respondent, and no specific act or omission on its part is particularized in the application before the Court. In the absence of any pleaded nexus, no prima facie case is disclosed, and no order shall issue against the 9th Respondent at this stage. (b) Whether the Petitioners stand to suffer real and irreparable prejudice in the absence of conservatory orders https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 9

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69. On this limb, the material presented before the Court against the 1st,2nd, 3rd and 6th Respondent’s repeated arrest, charge, withdrawal and re-charging on the same subject matter, if left unrestrained pending determination of the Petition, would occasion irreparable prejudice to liberty, dignity and reputation to the Petitioners and could render the substantive Petition nugatory. For this reason, I find that the balance of convenience favours granting the Conservatory Orders. (c) Where the balance of convenience lies 70. The court finds that the 1st, 2nd, 3rd and 6th Respondents lose nothing by waiting for the outcome of the Petition before initiating further proceedings, if necessary, on the same subject matter. On the other hand, the Petitioners would lose the very protection they seek through the application before the court to vindicate, if such proceedings continue unchecked in the interim. 71. On the balance of convenience, the Court finds that this limb weighs decisively in favour of the Petitioners as against the 1st, 2nd, 3rd and 6th Respondents. If the conservatory orders are withheld, the Petitioners would remain exposed to the very pattern of arrest, charge, withdrawal, re-charging, and interference with the 7th Petitioner's governance that is impugned in the Petition, with the attendant risk that the substantive Petition is rendered nugatory before it is heard. 72. The 1st, 2nd, 3rd and 6th Respondents lose nothing of substance at this stage and they shall be free to conclude investigation if any unconnected with the governance contest at the 7th Petitioner, and will have full opportunity to ventilate their evidence at the hearing of the Petition. 73. The Court is accordingly satisfied that the Petitioners have discharged the third limb of the test as against the Respondents, and that the balance tilts firmly towards granting the orders pending determination of the Petition. (d) Whether the public interest favours the grant of conservatory orders 74. Turning to the fourth and final limb, the Court is satisfied that the public interest favours the grant of conservatory orders against the 1st, 2nd, 3rd and 6th Respondents. There is a profound public interest, going to the rule of law itself, in ensuring that the coercive machinery of the State is neither deployed nor perceived to be deployed to resolve what is, at its core, a private corporate governance dispute, and in ensuring that orders of this Court, once made, are not disregarded by State organs. 75. The unrebutted pattern established at the prima facie stage, the remarks attributed to the Head of State at a political rally, the State House press statement issued on the same day, and the sequence evidenced by the arrest-charge-withdrawal-recharge in total disregard of subsisting court orders in Kibera High Court Misc. Criminal Application No. E062 of 2025 and HCCC No. E173 of 2025 falls squarely within this public interest, and weighs decisively in favour of conservatory relief as against the Respondents. Final Orders 76. For the foregoing reasons, the Notice of Motion Application dated 24th March, 2026 is determined as follows: a. A conservatory order is hereby granted restraining the 1st, 2nd and 3rd Respondents from commencing or continuing the prosecution of the 1st to 6th and 8th and 9th Petitioners, the directors, members and officers of the 7th Petitioner, over matters touching on the governance, management and affairs of the 7th Petitioner, Kenya Hospital Association, trading as the Nairobi Hospital; that formed the subject of the charges preferred and/or withdrawn prior to the filing of this Petition, pending the hearing and determination of the Petition; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 10

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b. A conservatory order is hereby granted restraining the 1st, 2nd, 3rd and 6th Respondents, whether by themselves, their agents or servants, from demanding, directing, or causing any change in the membership or directorship of the 7th Petitioner, pending the hearing and determination of the Petition; and c) A conservatory order is hereby granted restraining the 1st, 2nd, 3rd and 6th Respondents from summoning, harassing, intimidating or threatening or commencing adverse proceedings against the 1st to 6th and 8th and 9th Petitioners as well as doctors, directors, former directors and members of the 7th Petitioner; 77. Costs of the application shall abide the outcome of the Petition. 78. Orders accordingly. DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026. GREGORY MUTAI JUDGE In the Presence of: Dr O’Kubasu, with Mr James Orengo, SC, for the 1st, 3rd, 4th, 6th and 7th Petitioners Mr Marube, holding brief for Dr Nyaundi, for the 2nd Petitioner; Ms Kwamboka and Mr Ogecho for the 5th Petitioner; No appearance for the 8th Petitioner; Mr Nelson Mandela for the 9th Petitioner; No appearance for the 1st, 2nd and 3rd Respondents; Ms Kiramana, for the 4th and 6th Respondents; Mrs Manani, for the 5th Respondent; Ms Esther Muchiri, for the 7th Respondent; No appearance for the 8th Respondent; No appearance for the 9th Respondent; and Ms Neema Lwambia - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13151/eng@2026-07-03 11

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