Procedures Manual -betweenhumphrey Bulimu Agamu & 1 other v Kenya Civil Aviation Authority & 1 other

THE HONOURABLE ATTORNEY GENERAL ………3RD RESPONDENT ANNE TOO ....………………...………..………...……... 4TH RESPONDENT RULNG ON CONSERVATORY ORDERS Introduction 1. This Ruling determines the Notice of Motion Application dated 27th May 2026 seeking inter alia, conservatory orders to stop the impugned recruitment process for the position of Director General of the Kenya Civil aviation Authority, unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act. The Petitioners/Applicants had also previously sought interim ex-parte orders to halt the process and the Court did grant interim orders staying the recruitment process. 2. At the commencement of the Petition and application for conservatory orders brought under certificate of urgency, this Court declined to grant exparte reliefs and instead directed the Petitioners to file and serve the Respondents with the Petition and the Notice of Motion and further invited the parties for inter-partes directions on 2nd June 2026. On the latter date, The Petitioners’ Counsel urged the Court to grant an interim relief owing to the urgency of the matter and arguing that should the 1 st Respondent not be restrained from continuing with recruitment of the Director General, they will continue with the process and conclude it. 3. In an interlocutory interim Ruling dated 3rd June 2026, this Court granted temporary conservatory orders staying the already commenced process of Page 2 of 38

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recruitment of the Director General of the Kenya Civil Aviation Authority by the 1st Respondent’s Board until the application for conservatory orders is heard and determined. The Petition and Application 4. The Petition dated 27th May 2026 seeks several orders/reliefs namely: (a) A declaration that the resolution of the 1 st Respondent’s Board of Directors to advertise, commence and undertake the competitive recruitment process for the position of Director-General of the 1 st Respondent was unlawful, unconstitutional, null and void for want of the mandatory statutory quorum prescribed under Section 17(2) of the Civil Aviation Act. (b) A declaration that the continued participation and/or holding of office by the 4th Respondent as a member of the 1 st Respondent’s Board of Directors after 20th April 2026 is unlawful, illegal and contrary to Section 13(6) of the Civil Aviation Act. (c) A permanent injunction restraining the 1 st Respondent, whether by itself, its Board of Directors, officers, servants, agents or whosoever acting under its authority, from proceeding with, continuing, concluding or making any appointment pursuant to the impugned recruitment process for the position of Director-General unless and Page 3 of 38

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until the Board is lawfully constituted in compliance with the Civil Aviation Act. (d) A permanent injunction restraining the Board of Directors of the 1 st Respondent from conducting the business and affairs of the 1 st Respondent unless and until the Board is lawfully constituted in compliance with the Civil Aviation Act. (e) An order compelling the 2nd Respondent to undertake and/or ensure compliance with Section 13(6) of the Civil Aviation Act by filling the existing vacancies in the 1 st Respondent’s Board of Directors through an open, transparent and competitive recruitment process in accordance with the Constitution and the law. (f) An order directing that any future recruitment process for the position of Director-General of the 1 st Respondent be conducted strictly in accordance with the Constitution, the Civil Aviation Act, the Kenya Civil Aviation Authority Human Resource Policies and Procedures Manual and the Kenya Civil Aviation Authority Career Guidelines, 2025. (g) Costs of this Petition together with interest thereon. (h)Any other or further relief that this Honourable Court may deem just and fit to grant in the circumstances. 5. Concurrent with the Petition, the Petitioners filed a Notice of Motion dated evenly with the Petition and supported by the 1st Petitioner’s Affidavit Page 4 of 38

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sworn on the 27th May, 2026, seeking conservatory orders pending hearing and determination of the Petition as well as interim reliefs to be granted exparte in the first instance. They prayed for the following Orders: (1). THAT this Application be certified urgent and heard ex-parte in the first instance and on a priority basis. (2). THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of DirectorGeneral. (3). THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to stay the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence or undertake the competitive recruitment process for the position of DirectorGeneral. (4). THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to restrain the 1st Respondent’s Board from transacting the business and affairs of the 1st Respondent before it is properly constituted. Page 5 of 38

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(5). THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to restrain the 1 st Respondent’s Board from transacting the business and affairs of the 1st Respondent before it is properly constituted. (6). THAT pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4th Respondent as a member of the 1 st Respondent’s Board of Directors on the ground that her term lapsed on 20th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace. (7). THAT pending the hearing and determination of this Claim, this Honourable Court be and is hereby pleased to issue an order staying the continued operation and/or participation of the 4 th Respondent as a member of the 1st Respondent’s Board of Directors on the ground that her term lapsed on 20 th April 2026, upon the expiry of the tenure of Dr. Mbogo, whom she was appointed to replace. (8). THAT this court be pleased to fast track the hearing and determination of the Claim. 6. The Application is predicated on the grounds on its face and the 1 st Petitioner’s Supporting Affidavit sworn on 27th May 2026 in which he Page 6 of 38

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challenges on his own behalf and of the 2nd Applicant, the Kenya Civil Aviation Authority (KCAA) Board of Directors’ decision to initiate a recruitment process for the position of Director General following the term expiry of former Director General Emile Nguza Arao on 22nd April 2026. 7. The 1st Petitioner/ Applicant asserts that the Board lacks the mandatory statutory quorum of six members required under Section 17 of the Civil Aviation Act to lawfully conduct business, as it currently consists of only five members. That this composition defect stems from the expiry of the three-year terms of five independent members on 20th April 2026 and the alleged unprocedural appointment of Ann Too, the 4th Respondent without an open, competitive recruitment process as required under the Civil Aviation Act. 8. The 1st Applicant highlights alleged procedural irregularities in the recruitment advertisement, specifically noting that directing applicants to send submissions straight to the Board Chairperson’s email compromises transparency and fairness. That this practice contrasts with previous recruitment protocols such as the February 2022 process, which utilized an independent recruitment secretariat. 9. The deponent further states that the job advertisement fails to adhere to Clause 2.2(c) of the KCAA Career Guidelines (2025) by treating a mandatory four-week leadership course as merely an "added advantage" and completely omitting the required computer proficiency qualification. Page 7 of 38

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10. The Petitioners/ Applicants are apprehensive that these deliberate omissions and the allegedly opaque handling of the recruitment process are intended to favour a specific candidate, thereby violating constitutional principles of good governance, fair competition, public interest and transparency as set out in Articles 10 and 232 of the Constitution, as well as the Kenya Civil Aviation Authority Human Resource Manual and Mwongozo Governance Codes. 11. Citing concerns over operational standard deterioration and governance failures within a critical state corporation responsible for air safety, the 1 st Petitioner/Applicant prays for Court intervention to halt the recruitment process and to declare it null and void. 12. Opposing the Notice of Motion and the Petition, the 1st Respondent the Kenya Civil Aviation Authority filed a Replying Affidavit dated 10th June 2026, sworn by Nicholas Bodo, the Acting Director General of the Kenya Civil Aviation Authority (KCAA). 13. Mr Bodo deposes that the Petitioners lack proper standing and are abusing the court process out of personal dissatisfaction, noting that the 1 st Petitioner is a dismissed former employee and the second is a former Board member whose appointment was revoked. 14. On the issue of Board quorum, Mr. Bodo explains that the decision to advertise the Director General position was lawfully made on 17 th April 2026, when the Board was fully constituted and possessed a valid quorum. Page 8 of 38

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That while the terms of four independent Board members expired shortly thereafter on 20th April 2026, Mr. Bodo deposes that the recruitment process has since been placed in abeyance, with no longlisting or shortlisting conducted, pending the appointment of new independent members to restore full quorum. 15. Addressing the procedural concerns raised by the Petitioners, the deponent defends the use of the designated application email: chairman1@kcaa.or.ke, stating that it is a standard practice across government agencies, governed by secure system logs and separate from the Board Chairperson’s personal work email. He further refutes claims regarding improper job requirements, explaining that making a four-week leadership course an "added advantage" rather than a mandatory requirement aligns directly with Section 19(4) of the Civil Aviation Act. 16. Consequently, the deponent contends that the Petition is premature, speculative and driven by extraneous motives to disrupt a lawful process, and he urges the Court to dismiss the Petition with costs. 17. The 2nd and 3rd Respondents filed joint Grounds of Opposition filed on 9 th June 2026, opposing the Notice of Motion Application and the Petition. Represented by Deputy Chief State Counsel Mr. S.O. Kaumba, the Attorney-General asserts that the Petitioners’ case rests on a flawed factual foundation and speculative assumptions devoid of cogent evidence, failing to establish a prima facie case. Page 9 of 38

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18. It is contended that the recruitment advertisement was legitimately issued when the Board of the Kenya Civil Aviation Authority (KCAA) possessed a proper quorum. Further, that, due to an intervening quorum defect following the expiration of independent Board members’ terms, the recruitment process has been halted and kept in abeyance, to be resumed only upon attaining a full quorum under the principles of perpetual succession and governance continuity. 19. The 2nd and 3rd respondents in addressing the procedural and qualification complaints raised by the Petitioners, states that treating a leadership course as an ‘added advantage’ rather than a mandatory requirement is fully intravires Section 13(3) of the Civil Aviation Act, which strictly defines mandatory qualifications for the position. 20. Additionally, that using a dedicated, accessible email portal managed by the Board Chairman for receiving applications is defended as an accountable, transparent mechanism designed to prevent unauthorized interference and to promote national inclusivity through online accessibility. 21. Relying on the locus classicus on the threshold for grant of conservatory orders, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, the 2nd and 3rd Respondents stress the presumption of regularity in public agency actions and urge that public interest favours sustaining governance processes at an interlocutory stage. That because the Petitioners face no Page 10 of 38

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risk of irreversible harm or a nugatory suit as any eventual irregular appointment could simply be nullified by the court, the Attorney-General prays for the Petition and Application to be dismissed with costs. 22. In a rejoinder, the Petitioners filed a further Affidavit sworn on 17 th June 2026 by the 1st Petitioner, Humphrey Bulimu Agamu, in which he reiterates that both Applicants possess valid locus standi under Article 258 of the Constitution to challenge the Kenya Civil Aviation Authority (KCAA) recruitment process in the public interest. 23. Rebutting claims made by the 1st and 3rd Respondents, the 1st Petitioner refutes allegations regarding the 2nd Petitioner’s background, annexing Gazette Notices from April 2015 and June 2018 to confirm that Mr. Mwanzia served two full three-year terms on the Board rather than having his term unprocedurally revoked as alleged. 24. The deponent further reiterates that the Respondents acted with improper haste and emphasizes that despite alleging the decision to recruit was made during a quorate meeting on 17th April 2026, the Respondents failed to produce foundational evidentiary records such as the Board minutes, resolutions, meeting agenda or attendance logs. 25. The Petitioners further challenge the validity of the recruitment process, contending that because the Board lost its statutory quorum, it lacked the legal authority to initiate, advertise or receive Applications for the Director General’s post. Page 11 of 38

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26. The Petitioners contest the legality of the 4th Respondent’s appointment, asserting that it lacked competitive recruitment and that her term should have expired in April 2026. Additionally, they contend that the Respondents’ reliance on the presumption of regularity, is a rebuttable presumption once procedural impropriety is demonstrated. 27. The Petitioners maintain that using the Board Chairman’s email address for candidate submissions undermines transparency and governance principles. They expound that the KCAA Career Guidelines (2025) must be strictly followed alongside the Civil Aviation Act. They warn that denying interlocutory conservatory orders could lead to severe financial waste and reputational damage if the recruitment is later voided. They urge the Court to halt the process pending a final determination of the Petition. 28. The parties took directions to canvas the Notice of Motion application by way of written submissions. Submissions 29. The petitioners’/Applicants’ Submissions are dated 17th June 2026 in which Counsel isolated two issues for determination: i. Whether the Petitioners have the locus standi to institute this petition and ii. Whether the Petitioners merit the Conservatory Orders sought. 30. On the first issue, the petitioners/ Applicants argued that they possess locus standi as public-spirited citizens under Article 258 of the Constitution, Page 12 of 38

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citing Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others (2013 & 2014) eKLR and they reject claims that their status as former employees or Board members disqualifies them from instituting the petition. 31. The Petitions submitted that a prima facie case under Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others (2003) eKLR, had been established, noting the Respondents failed to adduce evidence such as Board minutes or resolutions showing that the recruitment was approved prior to losing quorum on 20th April 2026, or that operations were officially halted. 32. It is submitted that the 4th Respondent’s continued service on the 1st Respondent’s Board of Directors is unlawful, arguing that her term should have expired on 20th April 2026, pursuant to Section 13(5) and 13(6) of the Civil Aviation Act, 2013. 33. The Petitioner further submitted that after Dr. Annette Mbogo resigned, the 2nd Respondent bypassed Article 232(1)(f) of the Constitution and Section 13(6) of the Act by appointing the 4th Respondent without an open, meritbased and competitive recruitment process or public advertisement and erroneously granted her an extended term rather than having her serve the remainder of Dr. Mbogo’s term ending 20th April 2026. 34. Further submissions are that requiring applications to be sent to a personal Board chairman email address-chairman1@kcaa.or.ke, violates Articles Page 13 of 38

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10 and 273 transparency principles and lowering job qualifications set in Clause 2.29(c) of the KCAA Career Guidelines, 2025 by making leadership courses an "added advantage" rather than mandatory. 35. It was additionally submitted that the 4th Respondent failed to respond to the Petition, while the 1st Respondent only offered a mere denial without evidence of a competitive recruitment hence, these unrefuted violations establish a prima facie case with a likelihood of success. 36. The Petitioners further submitted that Section 19 (4) of the Civil Aviation Act 2013 sets out the requirements for a Director General, asserting that the list is not exhaustive but is drafted in abstract terms to be a guiding principle in the formulation of Career Guidelines for KCAA. That unless a resolution of the Board is passed, the Board must strictly adhere to these guidelines, which the Board is now failing to do. 37. Evaluating the principles for conservatory orders as established in the Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (2014) eKLR case, the Petitioners/ Applicants submit, on the second threshold for grant of conservatory orders, that the Petition would be rendered nugatory if an appointee assumes office or if the 4 th Respondent continues participating in Board decisions, which could not be easily unwound despite Paragraph 6 of the First Schedule to the Civil Aviation Act. They argue that public interest lies in maintaining legal order and avoiding costly invalid Board actions, noting that an Acting Director General (Mr. Page 14 of 38

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Nicholas Bodo), is currently in office to preserve operational continuity. They urge the Court to grant the conservatory orders sought in the Notice of Motion. 38. The 1st Respondent’s Submissions are dated 23rd June 2026 in which Counsel isolates three issues for determination as follows: i. Whether the Applicants/Petitioners abused Locus Standi enshrined under Article 22 or 258 of the Constitution of Kenya, 2010; ii. Whether the 1st Respondent’s Board was properly constituted as at the time the decision to advertise was made and whether due process was followed; and iii. Whether conservatory orders should issue against the 1st Respondent as well as prayers sought in the Petition. 39. Counsel argues that the Applicants are abusing the expanded locus standi under Articles 22 and 258 of the Constitution and that they are operating out of personal dissatisfaction over their past separation from the entity. Relying on the case of John Wekasa Khaoya v. Attorney-General (2012) eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance (2014) eKLR, the 1st Respondent submits that public interest litigation must be brought in good faith and without personal gain. Reliance was further placed on Communications Commission of Kenya v. Royal Media Services (2014) eKLR in which the Court is said to have stated that Page 15 of 38

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petitioners are obligated to prove a clear link between their grievance and constitutional violations. 40. Counsel for the 1st Respondent submits that the decision to recruit the Director General was made on 17th April 2026, with approval from the 2nd Respondent on 1st April 2026, when the Board was fully quorate prior to four members’ terms expiring on 20th April 2026. Counsel maintains that the process was voluntarily halted suo motu pending Board reconstitution, thereby rendering conservatory orders moot and academic, as was stated in Co-operative Bank of Kenya Ltd v. Banking Insurance & Finance Union (2015) eKLR. 41. Regarding the job qualifications, the 1st Respondent invokes statutory supremacy, contending that Section 19(4) of the Civil Aviation Act sets out mandatory qualifications and that therefore, requiring additional mandatory terms from internal career guidelines would be ultra vires. Reliance was placed on Republic vs. Kenya Revenue Authority Exparte Yaya Towers Limited (2008) eKLR and Westminster Corporation v. London and Northwestern Rail Co. (1905) eKLR. 42. The 1st Respondent denies that there is any irregularities regarding chairman1@kcaa.or.ke e-mail, stating that it is an official institutional portal created solely for recruitment purposes. 43. Addressing the 4th Respondent’s position, Counsel for the 1st respondent submits that she was lawfully appointed under Section 13 on 24th October Page 16 of 38

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2025, for a three-year term, and that in any event, Paragraph 6 of the First Schedule to the Civil Aviation Act protects Board proceedings from invalidation due to defects or vacancies. 44. Relying on several authorities in Kyamue Company Limited v. KeNHA (2023) eKLR, Gatirau Peter Munya (2014) eKLR, Wilson Kaberia Nkunja v. Magistrates and Judges Vetting Board (2016) eKLR, Mrao Ltd (2003) eKLR, Trusted Society of Human Rights Alliance v. KRA (2025) eKLR, Sections 107 and 109 of the Evidence Act, Susan Mumbi v. Kefala Grebedhin (1993) eKLR, Community Advocacy and Awareness Trust v. AG (2012) eKLR, and Jayne Mati v. AG (2011) eKLR, the 1st Respondent submits that the Petitioners/ the Applicants failed to establish a prima facie case, irretrievable harm, or grounds for judicial interference in administrative functions. Counsel for the 1 st Respondent urges the Court to dismiss the Application and lift the interim conservatory orders issued on 3rd June 2026. 45. The 2nd and 3rd Respondents filed their joint Submissions dated 23rd June 2026 through the Attorney General. They ground the framework for interlocutory relief on the well-known case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others (2014) eKLR, and submit that conservatory orders require evaluating an arguable case, whether the petition would be rendered nugatory and the overarching public interest. Page 17 of 38

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46. Based on Mrao Ltd v. First American Bank of Kenya Ltd (2003) eKLR and Gachagua & 40 others v. Speaker, National Assembly (2024) eKLR, the AG contends the Applicants failed to demonstrate a prima facie case because their claims rest on incorrect factual assumptions rather than cogent evidence. 47. The AG highlights that the advertisement was issued on 19 th April 2025 prior to the Board losing quorum and the recruitment process has since been properly halted until the Board is reconstituted pursuant to the principle of perpetual succession. 48. The 2nd and 3rd Respondents submit that making a leadership course an ‘added advantage’ is entirely intra vires Section 19(4) of the Civil Aviation Act, which exclusively dictates the statutory mandatory requirements for the Director General. Additionally, it is submitted that using a dedicated chairman email address ensures leadership, accountability and nationwide inclusivity. 49. It is submitted that under Sections 107, 109, and 112 of the Evidence Act and as was held in Ogolla v. Registrar of Political Parties (2026) eKLR and Oyugi v. Attorney General (2019) eKLR, the burden of proof rests on the Petitioners to substantiate allegations with clear evidence rather than speculation. 50. Addressing public interest question and relying on Gachagua v. Speaker, National Assembly (2024) eKLR, the 2nd and 3rd Respondents invoke the Page 18 of 38

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presumption of regularity of governmental actions. Citing Section 20 of the Civil Aviation Act, they Details the critical operational, safety oversight, airspace and statutory responsibilities of the Director General, arguing that public interest heavily favours sustaining essential governance processes rather than stalling recruitment. 51. Finally, the 2nd and 3rd Respondents submit that the petition will not be rendered nugatory without interim relief, as any ultimate appointment found to be irregular can readily be declared null and void by the court upon a full trial. 52. The 4th respondent neither filed a response nor submissions. Analysis and Determination 53. I have considered the application, the responses thereto and the written submissions by the participating parties. From the material placed before this Court, the only issue for determination is whether the Petitioners’ Notice of Motion is merited. To do so, the Court will address the following questions: (i) whether this Court has jurisdiction and whether the Petitioners have locus standi to bring the petition; (ii) Whether the Petitioners have met the threshold for the granting of conservatory orders? i. whether this Court has jurisdiction Page 19 of 38

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54. Jurisdiction is everything. A court of law cannot act without first satisfying itself that it is properly seized of jurisdiction. Without jurisdiction, proceedings or orders are rendered in vain. The Court is empowered to interrogate and determine jurisdiction not only when raised by parties, but suo motu, since jurisdiction is a fundamental question that goes to the root of a court’s competence. As established in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything. Without it, a court has no power to make one more step and must ‘down its tools’ the moment it finds that it lacks jurisdiction. Accordingly, even where parties have not raised the issue, the Court has a duty to satisfy itself that jurisdiction exists before proceeding to the merits. 55. This Court’s jurisdiction is captured under Article 165 of the Constitution. Article 165 (3) (b) which expressly vests the Court with authority to hear and determine any question as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. 56. In addition, Article 165 (3) (d) empowers the High Court to interpret the Constitution, including, determining whether any law or act done under its authority is inconsistent with or contravenes the Constitution. This jurisdiction is original, unlimited and cannot be ousted by statute or administrative mechanism. Page 20 of 38

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57. Accordingly, whenever allegations of constitutional violations are properly brought before it, the High Court is duty-bound to pronounce itself, ensuring the supremacy of the Constitution and the protection of fundamental rights. The question for this Court is whether the dispute centres on an employment question which is specially reserved for the Employment and Labour Relations Court under Article 162 or not, in light of the Supreme Court’s recent binding pronouncement. 58. In Moi Teaching and Referral Hospital (MTRH) & 3 others v Dr. Magare Gikenyi & 74 others (Petition E030 & E033 of 2025 (Consolidated)) [2026] KESC 50 (KLR) (Civ) (3 July 2026) (Judgment), the Supreme Court settled that the ELRC’s jurisdiction extends to pre-employment procedures and processes, such as job advertisements, shortlisting and candidate selection, when brought by candidates, employees, or prospective employees. The Court held that: “[70] Based on our own interpretation and application of Articles 162 (2)(a) and 165(3)(b) of the Constitution, read together with the provisions of the relevant statutes dealing with employment and labour relations, we entertain no doubt that pre-employment labour disputes involving parties identified in Section 12 of the ELRC Act and those in related laws are in the exclusive domain of the ELRC. The jurisdiction of the ELRC therefore goes beyond resolving employer-employee disputes. The list in Section 12 of ELRC is not Page 21 of 38

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exhaustive. Apart from listing persons, entities, and offices that by definition do not qualify as employees or employers, the Act, in explicit terms, extends the jurisdiction of the ELRC as may be conferred by any other law in respect of employment and labour relations. The three written laws, the Employment Act, the Labour Relations Act, and the Labour Institutions Act, create additional categories of persons and offices who have access to the court but who are neither employees nor employers. They provide in plain language that this category of persons and offices can sue or be sued before the ELRC. The statutes further provide that preemployment grievances involving those categories are justiciable in the ELRC. Any dispute beyond those explicitly stated class must be instituted in the High Court. 71…… [72] As we conclude on this aspect of the appeal, we restate our determination at the beginning of this judgment that the appeal has been brought as of right under Article 163(4)(a) of the Constitution. The question being, whether the Court of Appeal properly interpreted and applied the relevant provisions of the Constitution in arriving at the determination in the impugned judgment; namely whether the 1st to 7th respondents qualified as parties in terms of Section 12 of the ELRC Act, or the other written laws. Did they Page 22 of 38

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petition the High Court as employees/employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment? No. Not in any of those capacities. [75] The 1st to 7th respondents’ petition points to alleged constitutional violations in respect of ethnic and gender considerations in the employment process, the marginalization and discrimination of women and people with disability. Nowhere do they plead on behalf of those who applied for the positions of CEOs or MDs and were not successful. The respondents moved the High Court for the vindication of the alleged breach of specified constitutional rights. The dispute as presented and prosecuted was clearly not one of private law between an employer and employee, but one implicating a contest in the public law regime between citizens and state organs concerning alleged constitutional violations. Those questions could and can only be properly raised for determination before the High Court under Article 165(3)(b) and (d) of the Constitution. [76] From our analysis of the ELRC Act and other laws relevant to the matter under our consideration, there can be no doubt that the jurisdiction of the ELRC goes beyond resolving solely employerPage 23 of 38

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employee disputes. The two courts below, in the result, erred in their restrictive interpretation of Articles 162(2)(a) and 165(3)(b) of the Constitution, and by limiting their consideration of the question of jurisdiction of ELRC to the ELRC Act only and leaving out other statutes. Our conclusion resonates and is relatable with some of the cases, properly decided on the subject, such as Mohammed Vs National Mining Corporation & another; Kitilit (Interested Party) [2025] KEELRC 2101 (KLR) and Njenga Vs Executive Director, Kenya Institute for Public Policy Research and Analysis (KIPPRA) & another [2026] KEHC 145 (KLR). In the latter, the High Court declined jurisdiction over a case involving an employment recruitment dispute, stating that the ELRC was the court with the competence and exclusive jurisdiction for such matters in view of Articles 162(2)(a) and 165(5)(b) of the Constitution. See also Alex Mrefu Vs Rural Electrification & 3 others [2022] KEELRC 14707 (KLR).” 59. The above case made a clear distinction regarding the jurisdiction of the High Court and ELRC and the issue of locus standi and capacity of petitioners who institute public interest litigation. It is discernible that where proceedings are brought not by job applicants or prospective employees seeking private law remedies, but by public-spirited citizens under Articles 3, 22, and 258 of the Constitution to challenge statutory Page 24 of 38

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compliance, Board composition and general governance standards of a public entity, the dispute remains a public law contest. 60. The Petitioners herein describe themselves as residents of Nairobi County and consumers of aviation services suing in their capacity as citizens for the sake of public interest under Article 258 of the Constitution. They do not plead as aggrieved Applicants for the position of Director-General. Their gravamen centres on statutory quorum under Section 17 of the Civil Aviation Act, lawful tenure of Board members under Section 13 and general constitutional values under Articles 10 and 232. 61. Following the binding ratio in the above MTRH v. Dr. Magare Gikenyi case and since this Petition is a public law contest between citizens and state agencies concerning constitutional and statutory legality, rather than a private employment dispute involving a job applicant, this Court finds that it is clothed with its inherent jurisdiction pursuant to Article 165 (3) (b) and (d) of the Constitution and that the Petitioners are well within their rights and legal capacity to institute the present petition under Article 258 of the Constitution. ii. Whether the Petitioners have made out a case for the granting of conservatory orders? 62. Turning now to the core of the Application, the Petitioners/ Applicants seek conservatory orders to bar the recruitment exercise being undertaken by the 1st Respondent to fill the vacant post of its Director General and Page 25 of 38

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which mandate rests with the Board of the 1 st Respondent, established under section 13 of the Civil Aviation Act (the Act) whole the role of the Board in the appointment of the Director General who is also the Chief Executive Officer of the Authority is vested In the Board by section 19 of the Act. 63. According to the Petitioners, there is no quorum of the Board as required under section 17 of the Act, which mandates that the quorum shall be six members of the Board. They also assert that the 4 th Respondent’s tenure was the remainder term of the Director who resigned hence, she is unlawfully performing functions of a Board member yet her term already expired. The Petitioners therefore seek a conservatory order to stay the recruitment process until the quorum of the Board is attained and in accordance with the Act. 64. The 1st, 2nd and 3rd respondents contend otherwise, that the 1st respondent is acting lawfully and that the 6th Schedule to the Act does provide that lack of quorum cannot invalidate actions of the Board. In Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR the Court defined a conservatory order 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 Page 26 of 38

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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.” 65. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR the Court elucidated the nature of conservatory orders thus: “Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.” 66. The legal principles governing the grant of conservatory orders are now well-established by the Supreme Court in the landmark authority of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] eKLR, wherein the apex court distinguished conservatory orders from ordinary civil interlocutory injunctions, emphasizing their distinctive public-law character as follows: “86. Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory Page 27 of 38

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authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes. [87] The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that: (i) the appeal or intended appeal is arguable and not frivolous; and that (ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. Page 28 of 38

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[88] These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely: (iii) that it is in the public interest that the order of stay be granted. [89] This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.” 67. Similarly, in Nubian Rights Forum & 2 others vs. Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR, the Court restated the principles in regard to the grant of interim conservatory Orders and observed that: “(91) This Court is granted powers to issue conservatory orders in constitutional petition under Article 23(3) (c) of the Constitution and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and procedure Rules 2013. (92) The applicable principles for the grant of conservatory orders were detailed by Onguto J. in Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others Page 29 of 38

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[2015] eKLR. In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether, to gnat or deny a conservatory order. (93) We are also guided by the principle that in determining whether or not to grant conservatory orders, the Court must bear in mind that it is not required to enter into a detailed analysis of the facts and the law. As Musinga, J (as he then was) observed in High Court Petition No.16 of 2011, Nairobi – Centre for Rights Education and awareness (CREAW) & 7 others” “…It is important to point out that the arguments that were advanced by Counsel and that I will take into account 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 Page 30 of 38

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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.” [105] We have already found that the Petitioners have established, and the Respondent have conceded that there is a risk of prejudice being caused to members of the public and their right to privacy by the disclosure of certain types of personal information in the absence of proposals on how that data will be protected. As regards where the public interest falls in light of the respective prejudices that will be caused if the implementation of NIIMS is stayed, we are persuaded by the definition of public interest by the Indian Supreme Court in the case of Dattraj Nathuji Thaware v State of Maharashta, Indian & Others [2004] INSC 755 S.C 755 of 2004 which adopted the meaning of public interest as set out in Stround’s Judicial Dictionary Vol. 4 (v Ed) as: “A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of Page 31 of 38

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community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.” [106]We take the view that it is in the public interest to have an efficient and organized system of registration of persons, and the responsible use of resources in the process, in light of the socioeconomic gains of the system that have been illustrated by the Respondents. There is, however, also a public interest in ensuring that the said system does not infringe on fundamental rights and freedoms. There is thus a need for a balancing of the competing public interest rights while the consolidated Petitions are heard, so as to safeguard rights and resources, and ensure that the Petitions are not rendered nugatory.” 68. From the above decisions, to determine whether a conservatory order should issue, the Court must evaluate three parameters: (a) Whether the applicant has established an arguable case or a prima facie case with a likelihood of success; (b) Whether the Petition would be rendered nugatory or whether the applicant will suffer irreparable prejudice if the order is denied; and (c) Where the overarching public interest lies. 69. On whether the Petitioners have a prima facie case, they argue that the recruitment process was initiated and progressed without statutory quorum Page 32 of 38

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under Section 17(2) of the Civil Aviation Act and that the 4th Respondent’s term expired, making her continued Board participation unlawful under Section 13(6) of the Act. They further raise substantive constitutional issues regarding administrative fairness, integrity, open merit and compliance with career guidelines, asserting that there is breach of Articles Articles 10 and 232 of the Constitution. It is their case that in the absence of primary Board records such as meeting minutes or formal suspension resolutions, the question of statutory compliance is left open to constitutional scrutiny. 70. The Respondents on their part argue that the initial resolution was passed while the Board was still quorate and that the recruitment process is currently in abeyance. The question is whether these claims by the Petitioners constitute a prima facie case. 71. The Court of Appeal considered what constitutes a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) and stated as follows: “So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise Page 33 of 38

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issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 72. Without considering whether or not the allegations and rebuttals by the parties herein are merited or proven, I note that the alleged procedural departure from established statutory provisions and the 1st respondent’s internal guidelines raises serious triable questions which to the mind of this court are substantive and not frivolous. It also matters not whether the petition will eventually succeed. In David Ndii & others vs. Attorney General & others [2021] eKLR, the Court expounded on this question as follows: “45. The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and, in this case, arguable constitutional issues.” 73. Accordingly, I find that the Petitioners herein have demonstrated that they have a prima facie case requiring full judicial examination. 74. On the second parameter whether the petition will be rendered nugatory if the conservatory order is denied, it is undeniable that in the absence of Page 34 of 38

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conservatory orders, nothing prevents the 1st Respondent from concluding the recruitment process during the pendency of this Petition and make an appointment to the office of Director General. This is so, considering that no resolution was placed before this Court to show that the process was halted. 75. Accordingly, I find that the appointment of the Director General of a critical public office oversight body could be finalized under potentially flawed statutory processes and albeit it is argued that such a process could be reversed, it is the view of this Court that reversing an executive appointment after an individual has gone through a rigorous process of being shortlisted, interviewed and assumed office creates administrative chaos, legal uncertainty and complex unwinding liabilities to the citizen taxpayer. For good order, I find that maintaining the status quo preserves the subject matter of the Petition and ensures that the court’s final judgment is not pre-empted or rendered academic. 76. I have also considered the issue of public interest and balance of convenience. Under the principles in Gatirau Peter Munya v. Kithinji (supra), the Supreme Court held, courts must guard against the extravagant and wasteful expenditure of public resources resulting from premature administrative processes that may later be declared null and void. This Court is ta a point where it cannot allow an alleged illegality to take place simply because the Court has the power to quash that alleged illegality. Page 35 of 38

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77. This Court takes judicial notice of the fact that the aviation sector is a highly sensitive and dynamic industry whose operations directly implicate public safety, national security and economic stability. It is not just a domestic affair. It involves the international community. KCAA being a regulator of the aviation industry, continuity of leadership and credibility in the appointment of its Chief Executive Officer is critically indispensable. Any any gaps or vacuum in its governance would expose the sector to risks of regulatory paralysis, compromise oversight of safety standards and disrupt the seamless coordination required with international aviation bodies. 78. In recognition of this critical role, this Court affirms that stability in the 1 st Respondent’s leadership is not merely an administrative convenience but a constitutional and statutory imperative to safeguard the public interest. The aviation sector demands strict compliance with governance rules and legal certainty. Therefore, permitting a recruitment process of this magnitude to proceed under a cloud of alleged illegalities regarding Board quorum and constitutional compliance compromises public confidence and will have a far more adverse financial and operational implications if the appointments were to be nullified based on the now alleged illegalities, if proven. It is also burdensome on the tax payer who will bear the financial costs in the end. Page 36 of 38

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79. Conversely, granting a conservatory order causes no prejudice to the Respondents, as an Acting Director General is currently in office to ensure seamless operational continuity. It is therefore this Court’s finding that the public interest heavily favours the proposition that a Director General should be appointed strictly in accordance with the law and constitutional values. 80. Accordingly, I find that the Petitioners have made out a case for the granting of conservatory orders, which I hereby allow as follows: (a) A CONSERVATORY ORDER be and is hereby issued staying the implementation of the resolution of the 1 st Respondent’s Board of Directors to advertise, commence, process, or conclude the recruitment process for the position of Director General of the Kenya Civil Aviation Authority, pending the full hearing and determination of the Petition or until the Board is fully constituted, whichever comes first. (b) As the 1st respondent has acknowledged that it cannot exercise statutory functions until the Board is fully constituted in accordance with section 17 of the Civil Aviation Act, the Court hereby restrains the Board from transacting statutory business requiring mandatory Board quorum unless and until the Board is lawfully constituted. (c) The prayer to restrain the 4th respondent is declined as she can only exercise a function if the Board is fully constituted and since the Page 37 of 38

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Board has been restrained until it is fully constituted, or until this Petition is heard and determine, whichever comes first, this Court will not determine her fate at this moment before hearing the main petition. (d) Costs if any shall abide the outcome of the petition and in any event, to the petitioners. (e) The hearing of the Petition shall be fast tracked. (f) Mention for pretrial directions on the Petition shall be on 6 th October, 2026. 81. Orders accordingly. Dated, Signed & Delivered virtually at Mombasa this 24th Day of August, 2026 R.E. ABURILI JUDGE Page 38 of 38

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