He didn’t stay gone. Twenty four years later I find him again, not on a campaign poster but on the cover page of a 1st September 2026 Milimani constitutional petition, arguing that when the African Union suspends a Kenyan from an advisory council and the Kenyan state does nothing about it, that silence is itself unconstitutional. He won. The judgment he won is genuinely important, the first of its kind in Kenya. It is also, on close reading, a judgment that borrows the language of a serious remedy without applying the foundation the remedy requires. Both things are true at once, and a practitioner relying on this case needs to understand both.

Background

Ochuodho was suspended, along with seven other members, from the Economic, Social and Cultural Council (ECOSOCC) of the African Union by a letter dated 21st June 2022, signed by the AU Commission’s then Chairperson. He disputed the procedure (no Disciplinary Committee inquiry under ECOSOCC Rule 8.2, no hearing under Rule 9.1(c)) and disputed the authority to act at all, arguing that only the ECOSOCC General Assembly could remove a member. He filed Petition E506 of 2022 against the AU Commission, the ECOSOCC Standing Committee, the ECOSOCC Secretariat, and the Commission’s then Chairperson. He also sued five Kenyan state respondents: the Attorney General, the Ministry and Minister for Foreign Affairs, the Principal Secretary in that State Department, and Kenya’s Ambassador to the AU. That second group is where the case revolves.

The litigation ran in two stages before Aburili J. In a preliminary ruling of 3rd July 2026 confined to jurisdiction, the Court struck out the AU Commission, the ECOSOCC Standing Committee, the ECOSOCC Secretariat, and the Chairperson, holding they enjoyed immunity under the General Convention on the Privileges and Immunities of the Organization of African Unity and Kenya’s own Privileges and Immunities Act, and that no waiver had been shown, relying heavily on the Supreme Court’s own earlier finding in Kandie v Alassane Ba & another [2017] KESC 13 (KLR) that such immunity operates as a reasonable and justifiable limit on the right of access to justice under Article 48 of the Constitution (ruling, paras 36 to 41). The Court kept jurisdiction over the Kenyan respondents, reasoning that while it could not touch the AU’s organs, it could still ask whether Kenya’s own officials had done their constitutional job by a citizen (ruling, para 40).

The substantive judgment followed on 1st September 2026. The Court held that the Foreign Affairs Ministry’s total silence in the face of Ochuodho’s complaint breached his right to fair administrative action under Article 47, which in turn breached his right of access to justice and fair hearing under Articles 48 and 50(1) [64]. Having found reinstatement or damages inadequate, since his ECOSOCC term had already lapsed in December 2022 [70], the Court instead granted what it called a structural interdict: a supervisory mandamus ordering the Attorney General and the Foreign Affairs respondents to, within nine months, “develop and operationalise effective administrative mechanisms for receiving and processing complaints lodged by Kenyan citizens working for international or regional organizations... which organizations enjoy diplomatic immunity from legal process” [75(c)]. That is not relief for Ochuodho alone. It is a forward looking policy order binding the Kenyan state, secured on the strength of one petition that nobody on the other side bothered to defend.

That last point is where this commentary starts, because it explains almost everything wrong with an otherwise necessary judgment.

A remedy applied without its machinery

I have been tracking this particular remedy for a while. Back in October 2020, writing for the Oxford Human Rights Hub, I noted the High Court’s use of a structural interdict as an interlocutory tool in Law Society of Kenya & 7 others v Cabinet Secretary for Health & 8 others; China Southern Co. Airline Ltd (Interested Party) [2020] eKLR, the COVID era case in which Makau J ordered government to present a plan of action on managing flights from China. I highlighted then that the decision sat in real tension with the Court of Appeal’s own, much narrower reading of the remedy four years earlier in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR, which had capped its use. The Supreme Court settled that tension in January 2021, confirming structural interdicts as a legitimate constitutional remedy on appeal in the same Mitu-Bell litigation, [2021] KESC 34 (KLR). Ochuodho falls at the far end of that category, six years and three courts later, and it is the first decision in the chain to apply the remedy’s name while dropping the machinery every earlier decision in it had insisted on.

Just before making the order, the Court sets out, at considerable length, the High Court’s own account of what a structural interdict is meant to look like, drawn from Republic v Council of Legal Education; Commission for University Education (Interested Party); Mount Kenya University (Ex parte) [2016] KEHC 7535 (KLR) [73]. That framework has five stages. First, a declaration naming the breach. Second, a mandate to comply. Third, an order that government file a dated compliance report, usually under oath, setting out its own plan to fix the problem. Fourth, the Court evaluates that plan against the constitutional standard. Fifth, once approved, a final order converts the entire plan into the judgment, and failure to keep to it becomes contempt. The Court cites this framework as its authority, and immediately after relies again on the Supreme Court’s endorsement of the remedy in Mitu-Bell [74].

What the Court then actually does is stop after stage two. A declaration, a mandate, a nine month compliance deadline, and nothing else [75(a) to (c)]. No compliance report ordered. No return date. No mechanism through which the Court will ever look at what the Ministry builds. And the judgment’s last substantive line, at [76], reads simply: “This file is closed.”

That closing line undoes the remedial analysis. The whole point of a structural interdict, the reason courts deploy it over an ordinary mandamus, is the ongoing conversation between bench and executive that Council of Legal Education describes, because you cannot verify compliance with an open ended constitutional duty from a single sitting [73]. Take away the report date and the check in hearing, and what remains is a plain supervisory mandamus dressed in the structural interdict’s vocabulary. If the Ministry misses its nine months, and the judgment gives it very little to work with on what “effective” is even supposed to mean, there is no hearing already on the calendar at which that failure gets tested. A citizen in Ochuodho’s position eighteen months from now starts from zero: fresh contempt or enforcement proceedings under Article 23 of the Constitution, the original judgment as an exhibit, no scheduled forum waiting. If you cite this case for the proposition that Kenyan courts will supervise the executive’s compliance with structural relief, be precise about what was ordered rather than what the judgment says a structural interdict is supposed to do.

Where discretion quietly becomes a duty

The second thing worth reading slowly exists at paragraphs 59 through 66 of the judgment, and it matters before you formulate a fair administrative action claim against the Foreign Ministry on a different set of facts.

At [59] the Court states the orthodox position correctly: “the power to engage in international relations, request a waiver of immunity, or invoke diplomatic dispute resolution mechanisms rests strictly with the Executive branch... diplomatic disputes are matters of state sovereignty and foreign policy and the state possesses broad discretion in choosing if, when, and how to utilize diplomatic channels.” That is a solid statement of the foreign affairs prerogative, and on ordinary principles it should have settled any claim based on what the Ministry chose, substantively, to do or not do.

Before it gets there, the judgment spends paragraphs 52 and 53 building the duty to give reasons under Article 47(2), and it does so by invoking Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) [53], a case which itself imports the duty by analogy from Section 45(2)(a) and (b) of the Employment Act No. 11 of 2007. That is a labour relations statute governing disciplinary hearings between an employer and an employee, not diplomatic protection requests between a citizen and his own government. The analogy might well hold, but the judgment fails to tests it against the very different relationship in front of the Court, it simply borrows the reasoning entirely. That is a second, quieter version of the same problem: doctrine created for one context, transplanted into another without anyone asking whether the transplant is effective.

Instead the Court shifts ground at [60], from the substance of the choice to the process around it, and finds that silence itself, in the face of a formalised complaint, breaches Article 47’s guarantee of expeditious, efficient, lawful, reasonable, and procedurally fair administrative action. It sieves through four failures, complete inaction, absence of procedural fairness, failure to give written reasons, arbitrariness [60] to [63], before arriving at a finding at [64] of a prima facie violation. Nowhere in that analysis stretch does the judgment ask the threshold question: are Article 47 and the Fair Administrative Action Act even directly applicable to the foreign affairs prerogative in the first place? Kenyan courts have historically trodden carefully around prerogative powers, and the non justiciability line of authority in that space would ordinarily need to be confronted, or at least distinguished, before FAAA process obligations get imported into a diplomatic protection request. This judgment neither cites nor distinguishes that authority. It simply isn’t there. Counsel advising any state department on how to answer citizen requests touching foreign relations, defence, or comparable prerogative territory should treat that doctrinal gap, not the process finding at [64], as the pending issue the next case will most likely revolve around.

Relief for a class that was never in the case

The Court itself found, at [70], that even a bare mandamus compelling the Ministry to respond would be an inadequate remedy, since Ochuodho’s ECOSOCC term had expired in December 2022, a month after he filed the petition and more than three and a half years before judgment. On ordinary mootness reasoning that finding should have narrowed the available relief, not widened it. Instead the Court pivots straight from the individual claim being moot to a finding that “such grievances as against international bodies are not unique to the petitioner alone and can affect any person or citizen engaged in such diplomatic relations, hence, the need for a supervisory order” [72], and from there formulates prospective relief that binds the state toward a whole class of people who were never before the Court, never joined, never represented.

There is a respectable argument for that move under Article 22 read with Article 258, and Kenyan courts have taken expansive views of standing before now. But the judgment never makes that argument. It does not touch Article 22 or 258 at all. It moves directly from Ochuodho’s own mootness to a remedy for everyone else, without the safeguards public interest relief ordinarily carries, no notice to the affected class, no amicus invited to weigh in on what an “effective mechanism” should contain. And none of the respondents, AU or Kenyan, ever appeared, filed a response, or made submissions at any stage of either the July ruling or the September judgment [17, 54]. What you have, in substance, is a default judgment against the Kenyan state that has produced a novel, unsupervised, class wide constitutional remedy. Any Attorney General facing a similarly framed petition next time would do well not to repeat that silence. The doctrine here was entrenched without a single argument tested against it.

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What this means for your own files

If you represent a Kenyan working for, or suspended by, an immune international or regional body, this judgment hands you a template cause of action against the Kenyan state for administrative silence. Plead Article 22 or 258 public interest standing expressly if you want the relief to survive your own client’s mootness, and ask for a fixed compliance report date and a scheduled review hearing in your prayers. Do not assume the Court will supply that architecture on its own. This judgment shows it might not.

If you act for the Attorney General or the Foreign Affairs Ministry on a similarly framed petition, file a response. The prerogative powers argument existing at [59] was there for the taking and nobody took it, because nobody showed up.

If you are the one drafting the compliance mechanism on instructions from the Ministry, note that the nine month clock runs from service, not delivery [75(e)], and that the order gives you almost no content for what “effective” is supposed to mean. Read generously, that is room to manoeuvre. Read less generously, it is an invitation for the next petitioner to argue that whatever gets drafted still falls short.

Conclusion

Most people who write about this judgment will focus on the headline: for the first time, a Kenyan court has ordered the state to create a standing channel for citizens whose disputes with immune international organisations fall through a jurisdictional gap. That headline is deserved. Ochuodho could not sue the AU, and without some domestic avenue the Bill of Rights simply runs out at the edge of an immunity clause. Aburili J is right that the gap is real. But the road to that outcome borrows a serious remedy’s name while skipping its supervision, finds a fair administrative action breach without confronting the prerogative powers authority that should have been argued, and grants relief for an entire class on the back of a claim the Court itself had just called moot. None of that makes the destination wrong. It makes the route a soft target for the first Attorney General who turns up to argue the next one.

Kalausi, the whirlwind, is the nickname I still remember most clearly from that Rangwe contest, and it belonged to the man who lost alongside Ochuodho, not to Ochuodho himself. Ngala campaigned like a storm and still went home empty handed in 2002. Ochuodho, the quieter of the two challengers, spent the next twenty four years mostly out of view, then came back with a petition that will now sit in the law reports long after the last person who remembers that election has stopped voting. He got nothing personal out of it in the end: no reinstatement, no damages, his own claim declared moot by the very Court that ruled in his favour. What he got instead was a ruling that exists for everyone who comes after him. There is something fitting in that. It was never the whirlwind who left the mark. It was the man who kept showing up.

This briefing is for general information only and does not constitute legal advice. Paragraph citations in parentheses refer to the numbered paragraphs of the Ochuodho judgment discussed in the sections, as it appears on Kenya Law.

Gody Mwango is an advocate at Mwango Law Advocates, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

The facts and findings

Here are the facts of the case. Macharia, visually impaired, applied for a Customer Experience Executive role at Safaricom in 2016, cleared the oral interview and medical assessment, but could not sit the SHL computerised aptitude test because Safaricom had not procured screen-reader-compatible software. He was told at interview stage that the company was acquiring it, as documented in Safaricom’s own submission, repeated as the court’s own finding (paras 34, 46). He went through the rest of the process anyway. He was informed by phone and email in September 2017 that he had succeeded, invited to sign, and then told the offer had been made erroneously. No written reasons were given.

He pleaded two things. First, he argued that the failure to accommodate was disability discrimination under Article 27 of the Constitution, the PWD Act, and the CRPD. Second, he contended that however the software issue was characterised, the handling of his rejection breached his dignity under Articles 28 and 54(1) and his right to fair administrative action under Article 47 (paras 22–26, 50–52). Safaricom’s answer to the first limb was section 15(2)(c) of the PWD Act, the deeming clause excusing an employer where the accommodation “cannot reasonably be expected” of it (para 38).

Makau J rubberstamped the section 15(2)(c) defence in a finding that there was no discrimination, because the software could not reasonably be expected of Safaricom “in the short run due to budgetary constraints” (para 49). But on the second limb, the court found Safaricom knew from day one that Macharia needed the software, engaged him through the process regardless, confirmed his success, then withdrew it without explanation. On this second limb, the court awarded Kshs 6,000,000 for the dignity and Article 47 breaches (paras 59–60). Petition allowed in part.

For advocates advising on exposure, that outcome of no discrimination, but a substantial award anyway is the headline everyone remembers. It is the reasoning informing the entire judgement and which I disagree with below.

The reasoning’s shortcoming

Two things, and I think they are related rather than separate errors.

First, the cost finding has no cost evidence in it. At paragraph 46 the court records, correctly, that Safaricom tendered nothing on what accommodating Macharia would have cost. It then on its own accord introduces the size-of-operation reasoning on Safaricom’s behalf, noting that a larger employer absorbs what a smaller one cannot, and hardship has to be substantial, probable, tied to the accommodation, not speculative [46]. Fine as a statement of principle. But three paragraphs later, at paragraph 49, the same court finds Safaricom “cannot therefore be reasonably be expected to provide software due to budgetary constraints.” You cannot move from “no cost evidence was led” to “budgetary constraints justify the refusal” without the court discharging the respondent’s evidentiary duty for it. If you are citing Macharia for the proposition that a bare hardship assertion can succeed, that is what exactly you are citing: a finding made on a record the judgment itself calls inadequate.

Second, and this is the one I would highlight more for anyone litigating a similar claim now: the “in-process procurement” fact goes against Safaricom, not for it, and the judgment uses it both ways without noticing. Safaricom’s own case was that it was already sourcing the software at the time of interview (paras 34, 46). The court handles that as a sign of good faith. I would consider it as an admission that the accommodation was obtainable; the only open question was timing, and Safaricom controlled that variable by scheduling the interview before procurement was complete. The judgment arrives at the same conclusion in its assessment of Article 47: it calls the software excuse “an afterthought that was introduced late to the detriment of the petitioner” (para 45), four paragraphs before accepting budgetary constraint as a solid defence to the discrimination claim. You cannot have it both ways on the same set of facts as this judgement does.

The upshot for anyone assessing Macharia’s precedential weight: it stands for analysing “no discrimination” and “dignity/Article 47 violation” as severable findings on identical facts, with the discrimination limb carrying a materially lighter evidentiary bar for the employer than the CRPD’s own definition would allow. Article 2 of the CRPD defines denial of reasonable accommodation as discrimination, full stop; no severability contemplated. Kenyan law, via this judgment, currently disagrees. I do not think that survives analytical rigour, and after reading the 2025 Act, I do not think Parliament thinks so either.

The 2025 Act and Its Implications

I have seen commentaries characterising the 2025 Act as introducing a heightened “undue hardship” test requiring “objective and verifiable evidence.” Having now gone through the Act itself, that is not what it says. The word “hardship” does not appear anywhere in it. I consider what Parliament did as more aggressive than a heightened evidentiary bar, and it is the point I would want every advocate advising employers to have internalised before the next Macharia-type claim lands on their desk.

Section 15(2)(c), which is the standalone employer escape clause Safaricom relied on, has no successor. It is gone, not replaced with a tougher version. What section 21 of the new Act gives you instead is an unconditional duty: no employer “shall discriminate” against a person with disability in recruitment (s.21(1)), and every employer “shall be required to carry out appropriate modifications in their work premises to accommodate the employment of persons with disabilities” (s.21(2)(e)). Essentially, there is no qualifying clause attached. The concept that used to exist in a defence provision has been relocated into the definition of the right itself: “reasonable accommodation” means adjustment “not imposing a disproportionate or undue burden” (section 2). That is an important structural shift every employment advocate should be alive to when advising: there is no longer a discrete affirmative defence for an employer to plead and fail to prove, the way Safaricom failed to prove one in 2021. The employer’s argument now has to be that the accommodation itself fell outside the statutory definition of “reasonable”, which is a much narrower target, and one that does not obviously survive on a record that looks like Safaricom’s, with an admitted, active procurement already underway.

Section 21(7)(c)(iii) puts it beyond argument: “not making reasonable accommodation” is itself listed as an act of discrimination. That addresses the doctrinal gap Macharia exploited: you can no longer plead your way to “not discriminatory, but also not accommodated” as two separate findings. And section 62 transforms the whole scenario into a criminal exposure: discrimination contrary to Article 27, including denial of reasonable accommodation under s.62(2)(k), carries a fine of up to KES 2,000,000 or imprisonment of up to two years or both. Civil redress exists alongside that under section 34, being a direct application to the High Court without prejudice to any other cause of action.

For any advocate current undertaking employer-side risk assessment: the practical consequence is that “we couldn’t afford it” is no longer a pleading you can successfully mount as a standalone defence. It has to be argued as your position that the accommodation was never “reasonable accommodation” in the first place, on the statutory definition, and I would advise documented cost and feasibility analysis behind that from day one of the recruitment process, not assembled after the fact for litigation, which is what Safaricom did not have and what would defeat the size-of-operation inference the court supplied for it in 2021.

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Where I’d focus advice right now

Three things, in order of how often I think they will come up.

Procurement, not policy. Safaricom’s exposure originated in a vendor gap involving a third-party testing tool that did not support screen readers and not a hostile HR decision. Under section 62’s criminal exposure, that kind of gap is now a serious liability which exists inside your client’s procurement contracts, not just their HR handbook. Any advocate drafting or reviewing recruitment-technology agreements relating to ATS platforms, psychometric or video-interview tools, or algorithmic shortlisting urgently needs to obtain an accessibility warranty from the vendor, an indemnity allocating discrimination exposure to whichever party’s tool caused the failure, and disclosure of the vendor’s own accessibility testing before deployment. I have not seen this deployed as standard practice in Kenyan HR-tech procurement yet. It should be, starting with your next negotiation.

Article 47 survives independently of the PWD Act analysis entirely, and I think it is the underappreciated risk for algorithmic recruitment tools specifically. An automated screening system that filters out disabled candidates does it at scale and silently; there is no single administrative decision point the way Macharia had one (a written, then rescinded, offer) to anchor a fair-administrative-action claim on. Any advocate advising a client running AI-assisted shortlisting should note that the absence of an obvious decision point is not a defence; if anything it is an aggravating fact once discovered, because it suggests the failure was systemic rather than a one-off misjudgement.

Do not let a client rely on Macharia‘s severability argument going forward. I have already seen this reasoning given in informal advice to the effect that “no discrimination finding was made against Safaricom, so accommodation failures are not necessarily discriminatory.” That reading was shaky in Macharia in 2021 given the CRPD position, and section 21(7)(c)(iii) closes it outright under current law. For advocates, if a claim on facts like these comes across your desk today, I would expect the discrimination finding and the dignity/Article 47 finding to be tied together, not separately, which changes both settlement valuation and litigation strategy on either side of the table.

Conclusion

Macharia will keep getting cited, and I understand why: it is still the only Kenyan authority on a technology-based accommodation failure, and the KES 6,000,000 award is a genuinely useful reference point on quantum for a dignity and fair-administrative-action claim. But cite it for that, not for the discrimination finding. The discrimination finding was wrong on its own facts even under the more permissive 2003 regime, and the 2025 Act has since removed the very defence the court accepted without proof. To the best of my knowledge, nobody has yet brought a case testing Macharia’s severability reasoning against section 21(7)(c)(iii). I would rather see one advocate make that argument than watch a client accidentally stumble into it or have it made for them by a court.

Brook Mwango researches at the intersection of law, human rights, and governance, with a focus on using law as a tool for policy change on behalf of persons with disability, children, women, and youth.

I do not want to overemphasise the comparison, because the man hidden in the middle of Kafka’s chapter nine never had an underlying claim worth anything. Stichting Rabobank Foundation had a very good one: an admitted debt of USD 230,868.51, correspondence in which both the borrower and the guarantor acknowledged owing it, and a High Court that struck the whole thing out before trial on the strength of a doorkeeper’s objection that Parliament, on a fair reading of the text, never authorised (para 16). That is the case in one sentence. Everything else is analysing how the Court of Appeal got there, whether I think it got there correctly, and what it left for the rest of us to sort out.

The facts, briefly

Stichting Rabobank Foundation v Mwangi & another [2026] KECA 1550 (KLR) was handed down by the Court of Appeal at Nairobi [“the Court”] (Korir, Ndolo & Hassan, JJ.A.) on 31^st July 2026, reversing the High Court judgment (Mongare, J.) of 25^th July 2024. More specifically, in October 2016, Stichting Rabobank Foundation, a Netherlands-incorporated entity, advanced roughly USD 180,116 to AVA Chem Limited under a Financial Support Agreement, with the company’s director, Christopher Irungu Mwangi, standing as guarantor. The parties restructured repayment in 2018. Both the company and the guarantor later acknowledged the debt in correspondence dated 28^th April 2022. When repayment stalled, Rabobank sued in the Commercial Division of the High Court in September 2022 for USD 230,868.51 (paras 9–13).

AVA Chem did not contest owing the money. Its defence, raised by way of preliminary objection dated 24^th May 2024, was founded on two propositions: that Rabobank was not a juristic person capable of instituting the suit, and that the Financial Support Agreement amounted to carrying on business in Kenya in contravention of Part XXXVII of the Companies Act, 2015, in particular section 974, without the registration the statute requires (para 15). Mongare J. agreed in July 2024, holding that non-registration was itself dispositive of locus standi, and struck out the suit (para 16). The Court of Appeal reversed on 31^st July 2026.

The findings

I want to be precise about what the Court held, because the press coverage I have seen collapses three distinct holdings into one headline about “foreign lenders winning.”

First, the Court separated concepts the High Court had examined together without apparent difficulty: legal personality, capacity to sue, locus standi in the conventional sense, and statutory registration, which is a compliance question and nothing more (paras 40–43). A company incorporated in the Netherlands does not become a legal nullity the moment it crosses into Kenyan territory. That much I regard as uncontroversial, and overdue as a matter of stated Kenyan doctrine, since I have seen this same conflation surface in registration disputes under other statutes without a Court of Appeal bench saying so this plainly.

Second, the Court read section 974 for what it says rather than for what a worried borrower’s counsel might wish it said. Subsection (1) prohibits an unregistered foreign company from carrying on business in Kenya. Subsection (3) attaches a penalty to contravention. Nowhere does the section say that an unregistered company ceases to exist, that its contracts are void, or that it may not sue. Since Parliament specified a consequence for breach, the Court declined to graft on a second, harsher one that the text does not contain (paras 44–48). This is ordinary statutory construction, expressio unius in substance if not in name, and I find it hard to fault on the words of the section as drafted.

Third, and this is the part that will be most impactful in future litigation, the Court held that “carrying on business in Kenya” is a fact-sensitive inquiry into the nature, continuity, and territorial connection of the entity’s activities, not a label triggered automatically by cross-border lending; no single factor, including a solitary transaction, is necessarily decisive (paras 49–53). On section 974(2) specifically, the Court accepted that “includes (but is not limited to)” makes the statutory examples non-exhaustive, but held that a loan and a debenture are not invariably synonymous, and declined to treat the mere advancement of cross-border credit as automatically “offering debentures in Kenya” (paras 54–56). That question is not something a court can resolve on a preliminary objection where the underlying facts, on the location, frequency and character of the appellant’s activities, are contested rather than admitted (paras 51–53, 57–58). On that basis, the suit was reinstated for trial before a different judge, with the correctness of the preliminary objection alone now before the Court and the merits of the debt claim expressly left open (paras 67–68, 75).

The English comparison, where it helps, and where it does not

Kenyan commercial counsel quote the English position too casually, usually to say “well, England doesn’t require this,” without checking what England actually does. For this commentary, the comparison applies both ways.

England has had a registration regime for overseas companies with a UK establishment since the Companies Act 1985, now under Part 34 of the Companies Act 2006 and the Overseas Companies Regulations 2009 (SI 2009/1801). On the bare registration and filing obligations under Parts 2 and 3, non-compliance is treated exactly the way the Court of Appeal treated section 974(3): a summary offence carrying a fine, nothing more, and no suggestion that an unregistered overseas company loses its capacity to sue.

But English law does not stop there. Part 7 of the same Regulations, governing trading disclosures, contains a real court-access consequence, and a calibrated one. Regulation 66 provides that proceedings brought to enforce a contractual right, where the company failed to comply with the trading-disclosure requirements at the time the contract was made, must be dismissed if the defendant shows either that it had its own claim under the contract that it was unable to pursue because of the claimant’s non-compliance, or that it suffered financial loss connected with the contract because of that non-compliance, unless the court is satisfied that it is just and equitable to let the proceedings continue.

That is a genuinely measured middle position between “non-registration is fatal” (the High Court’s view here, and the Milimani Small Claims Court’s view of unlicensed lenders a fortnight later) and “non-registration is legally irrelevant to standing” (where our Court of Appeal ultimately landed). It is not automatic because it requires the defendant to show actual prejudice, and even then the court retains a discretion to let the claim proceed.

I do not say the Court of Appeal was wrong to decline to invent such a route out of section 974, which contains no equivalent of regulation 66’s prejudice-and-discretion structure and gives a court no textual permission to create one. But I do think the judgment would have been stronger, and more useful to the bench that has to apply it next, had it said so explicitly: that Kenyan law currently has no regulation 66, that this is a legislative gap rather than a judicial choice, and that Parliament could close it if it wished, without reopening the capacity question the Court has now closed. As it stands, a future defendant facing a genuinely well-founded prejudice argument, evidence that it lost the chance to bring its own claim, or suffered quantifiable loss, because it could not locate or serve the foreign claimant, has nothing in Kenyan statute to hinge that argument on. Rabobank deals with the blunt instrument without offering the fine one in its place.

On the substantive “carrying on business” question, the comparison is kinder to the Court of Appeal. English courts grappling with essentially the same phrase, for jurisdictional and enforcement purposes rather than under section 974’s type provisions, have long applied something close to the two-limb test from Adams v Cape Industries plc [1990] Ch 433: a fixed place of business maintained for more than a minimal period, from which the company’s own business is transacted. Our Court of Appeal’s list of relevant factors- the place where contracts are negotiated and concluded, the existence of an office or agents, the duration and continuity of activity, the degree of commercial presence- mirrors that English jurisprudence closely, if more loosely stated (para 50). The purposes are not identical, however. Adams was decided on jurisdiction over a foreign defendant rather than a domestic registration threshold, so the cross-reading is an analogy rather than an authority, but it gives Kenyan counsel something concrete to argue from rather than the open-ended “nature and extent” language of section 974(2) standing alone.

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Where I disagree with the judgment, at least in part

Two things trouble me, and I say this as someone who thinks the outcome, on these facts, was correct.

The first is the complete silence on illegality doctrine, and here I want to be more careful than the judgment itself was tempted to be, rather than only asserting the answer I would prefer. AVA Chem’s argument, unclothed of its logical apparel, was not really a section 974 argument at all; it was an ex turpi causa argument dressed in registration language, namely that a party operating outside a Kenyan regulatory framework should not get the assistance of a Kenyan court in enforcing what it earned by operating outside that framework. The Court of Appeal never engages that argument on its own terms. Instead, it disposes of the “non-existent person cannot sue” submission in three short paragraphs (paras 59–61) without asking whether a genuinely well-pleaded illegality defence, premised not on section 974 but on the general law relating to contracts made in the course of unlawful business, might survive its reasoning even where a bare non-registration argument does not.

I do not think the answer to that question is as settled in Kenyan law as either side would like. English law itself abandoned a rigid rule in favour of Patel v Mirza [2016] UKSC 42, which asks courts to weigh the underlying purpose of the prohibition transgressed, whether denying the claim would enhance that purpose, any other public policy consequences of denial, and whether denial would be a proportionate response, rather than outrightly barring any claim that touches an illegal act (para 101). In my detailed review, I have not found a Kenyan appellate decision squarely adopting that trio of considerations in place of the older, stricter formulations of ex turpi causa non oritur actio still pleaded in our courts, which makes the doctrinal landscape AVA Chem’s argument would have to navigate considerably less settled, in either direction, than “it probably would survive” suggests. What I can say with more confidence is that it is a pending and separate question from the one Rabobank decided, and the Court’s total silence on it leaves it entirely open for the next case. It is worth noting that the Court itself offers the requisite approach for testing that gap: earlier in the judgment it warns that the label attached to an objection does not determine its character, and that an objection dressed as a statutory bar remains unsuitable for preliminary determination if it in truth depends on disputed facts (para 34). That is not a novel proposition; it is the ordinary rule from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, that a preliminary objection raises a pure point of law argued on the ground that the other side’s facts are correct, and cannot properly be used to resolve what is a contested question of fact. Applied consistently, that rule operates against the Milimani rulings’ “illegality” label just as much as it outweighs AVA Chem’s “locus standi” formulation, since whether a given lender’s activities in fact amount to unlicensed banking business is no more a pure point of law than whether Rabobank’s lending amounted to carrying on business in Kenya. The Court failed to sufficiently deploy that approach to appraise the illegality question, because AVA Chem never squarely raised it.

The second is smaller but, for a court that says it wanted to lay down principles “given the importance of the issue and the possibility of recurrence” (para 65), avoidable. The eight numbered principles at paragraph 66 are genuinely useful, and I expect to see them pleaded from both sides within the year. But principle (vi), that non-registration does not “without express statutory language or necessary implication” deprive a company of standing, would have been considerably more useful to trial courts if the Court had spent even a paragraph on what would count as such an implication, rather than leaving the phrase as operative towards all the function it will inevitably be asked to perform in the next unregistered-claimant case that comes up.

The Milimani rulings, and why the resemblance is closer than it first looks, but not exact

Here I can speak from the primary record rather than press paraphrase, since both rulings are now indexed. On 17^th July 2026, a fortnight before Rabobank, Resident Magistrate Gladys W. Kiamah, sitting at the Milimani Small Claims Court, struck out two debt-recovery suits brought by digital lending platforms against individual borrowers: Tri-State Capital Limited v Kang’ethe [2026] SCC 161 (KLR), where the claimant sought Kshs 500,000 on a facility of Kshs 213,500 secured against the respondent’s motor vehicle registration KBZ 817X (para 1), and Mombo iCapital Limited v Kariuki [2026] SCC 168 (KLR), where the claimant sought Kshs 162,297 on a Kshs 65,000 loan carrying Kshs 13,650 interest and a 3.5 percent weekly default penalty (para 1). Both rulings contain eight paragraphs and, paragraph for paragraph, the reasoning is nearly identical.

Before touching the merits in either case, the learned magistrate recorded that the claimant “is not licensed as a digital credit lender by CBK,” and held that section 3 of the Banking Act (Cap 488), which requires all persons or entities carrying on banking or financial business in Kenya to be licensed by the Central Bank, means that conducting lending business without such licensing “amounts to an illegality and economic risk” (para 2). The stated rationale is protective: a party who undertakes “regulated financial activities without the requisite authorisation cannot invoke the aid of the Court” to enforce rights arising from unlawful activity (para 3). For that proposition both rulings rely on Rei-Iman v Succeed Capital Limited (Civil Appeal E1374 of 2024; [2025] KEHC 19316 (KLR)), where the High Court held that allowing an unlicensed person to conduct a banking-type business would be against public policy, with the result that a suit filed by such a lender “was a nonstarter since the Respondent lacked the legal capacity to sue” (para 4). Applying that, the magistrate found in each case that the claimant had not demonstrated the legal capacity and regulatory authority necessary to engage in the lending activities disclosed in the statement of claim, and concluded, in materially identical terms across both rulings, that the claimant “lacks the locus standi to institute or file a suit” (paras 5–7). Both suits were struck out with no order as to costs; the underlying debts never determined on their merits (paras 6, 8).

I should highlight that Rei-Iman is itself a single High Court decision (Chigiti, J.), delivered on an appeal from a lower court, and its own use of “illegality” was tested against the traditional public-policy formulation of ex turpi causa rather than against anything resembling a purpose-and-proportionality analysis. It has not, so far as I have been able to establish, been considered by the Court of Appeal. A magistrate applying it as settled ground does not make it so; it makes it a doctrine built on foundations no higher court has yet examined.

Set the two rulings side by side, and the resemblance is real: an entity that has not complied with a Kenyan licensing requirement is told it cannot use the courts to enforce what it lent. That is exactly the inference the Court of Appeal rejected in Rabobank, paragraph after paragraph: a registration or licensing failure leads to penalty, the judgment says, not to a court-access disability Parliament never enacted.

There is a principled way to analyse the two rulings apart, and it deserves to be taken more seriously than being mentioned in passing. Section 974 is a company-registration statute with its own express, limited penalty, aimed at regulatory oversight of foreign entities; the Banking Act’s section 3 is a market-conduct licensing statute aimed squarely at protecting individual borrowers from unregulated, often predatory lending. If one takes the purpose of the prohibition seriously, as English law now does through Patel v Mirza, the two statutes may not point the same way. Denying Rabobank’s claim would have done nothing to advance section 974’s purpose, which is about the state’s regulatory framework for foreign entities, not the fairness of the underlying loan. Denying an unlicensed digital lender’s claim, by contrast, arguably advances the Banking Act’s protective purpose directly: it removes the financial incentive to lend without the authorisation that exists to protect borrowers such as the respondents in these two cases from unregulated, often punitive credit terms. On that reading, carrying on an unlicensed lending business is a materially different wrong from failing to register a foreign company, and Rabobank does not necessarily speak to it.

I am not persuaded that distinction fully survives the Court of Appeal’s own reasoning, but I hold that view more tentatively than I would have a paragraph ago. Both Milimani rulings transform a regulatory shortfall by the claimant into a threshold standing bar rather than a merits defence available to the defendant, which is the same invention the Court of Appeal criticised as an impermissible judicial graft onto legislative silence. Read paragraphs 2 and 3 of either Milimani rulings again with that criticism in mind: the magistrate moves directly from “not licensed” to “illegality” to “cannot invoke the aid of the Court,” without pausing on whether the Banking Act itself attaches that consequence to non-licensure, in much the same sequence the Court of Appeal faulted the High Court for following under section 974. Nothing in the Rabobank judgment mentions the Banking Act, CBK licensing, or illegality doctrine, and the Court pointedly declined to find, one way or the other, whether Rabobank itself was carrying on business in Kenya. A borrower facing a CBK-licensing objection now has a sound, post-Rabobank argument that locus standi and regulatory compliance are conceptually distinct questions under the Banking Act too. Whether that argument succeeds will likely turn on how firmly the word “illegality” in Rei-Iman and in the Milimani rulings is read: as a substantive contract defect going to the purpose of the Banking Act, which plausibly survives Rabobank’s reasoning on ordinary illegality principle, or as a standing bar dressed in illegality language, which almost certainly does not.

My final take

I think Rabobank is correctly decided on its own facts, and I think it is a necessary correction: the High Court’s approach had been hardening into a real obstacle for offshore credit into Kenya, and a foreign entity’s undisputed debt should not evaporate because of a filing it forgot to make at the Registrar of Companies. On that, I am fully with the Court of Appeal, and I say so having read the commentary from Spencer West, Bowmans, and DLA Piper Africa/IKM Advocates, the last one co-authored by my Parklands classmate and roomie Leonard Thuo, all of whom collectively highlight the ruling, correctly in my view, as restoring predictability for offshore lenders and guarantors funding Kenyan borrowers without a local branch.

The correction also arrives against a documented account of first-instance decisions going the other way, the same Rabobank ruling at first instance among them, which Cliffe Dekker Hofmeyr and Afriwise had each indicted, when the High Court ruling first came down, as reading “carrying on business” too loosely against the statutory examples in section 974(2). I read the Court of Appeal’s judgment as vindicating that criticism rather than breaking new ground of its own.

But I do not think the judgment is the complete statement of principle it presents itself as being. It resolves the registration question carefully and, in my view, correctly. It leaves the illegality question, which is the one informing the reasoning in the Milimani rulings and every unlicensed-lender dispute now filed through the courts, entirely untouched. It tests neither Rei-Iman’s foundations nor the purpose of the Banking Act against the reasoning it applied to section 974, and offers no middle ground of the kind English common law has curated into its own trading-disclosure regime.

Kafka’s doorkeeper never refused the man from the country outright. He let him wait, bargaining, growing old on a stool, in front of a door that was, on the doorkeeper’s own account, made for him and him alone, until the man died without ever finding out whether the answer would have been yes. Rabobank at least ends that particular wait: a foreign creditor with a genuine claim against a Kenyan borrower now knows the registration objection alone will not be allowed to keep it on the stool indefinitely. That much the Court did decide, solidly and finally.

But the door Rabobank closes was only ever the registration door. The illegality door, and the CBK-licensing door the Milimani litigants are sitting in front of, were never opened, never examined, and never even acknowledged as separate doors in this judgment. Advocates on both sides of the next unregistered or unlicensed-claimant dispute should read Rabobank for exactly what it decided, no more, and should test rather than assume whether its reasoning travels to a licensing statute the Court never mentioned. Whether it reaches that far is the genuinely open question this judgment leaves behind. But I surmise it won’t stay that way for long. Somebody is filing that appeal already, and until that appeal is heard, the unlicensed lender and the borrower resisting it are exactly where Rabobank itself was for two years: waiting outside a door nobody has yet told them is open or shut.

This briefing is for general information only and does not constitute legal advice. Paragraph citations in parentheses refer to the numbered paragraphs of the Rabobank judgment discussed in the sections, as it appears on Kenya Law. The Milimani rulings in section “The Milimani line” are each cited by their own internal paragraph numbers (1–8); other UK judgments, discussed elsewhere in the commentary, are cited by their own separate paragraph numbering.

Gody Mwango is an advocate at Mwango Law Advocates, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

Cytonn Investment Partners Twenty LLP (hereafter “CIPT 20”, for short) mounted the same operation on a hotel in Westlands and lost for the same reason. It held shares in the company that owned Cysuites Apartment Hotel; an entitlement, while the company traded, to nothing more than its portion of whatever profit the company chose or was able to distribute. It wanted the asset itself, now, ahead of any winding up, on the theory that money it had put into the shares must mean the underlying building was, in substance, already its own. Justice Fridah Mugambi rejected that reasoning without much ceremony in almost the fable’s own terms: shareholders take the egg, not the goose. CIPT 20 got neither.

The ruling

The ruling is Cytonn Investment Partners Twenty LLP t/a Cysuites Apartment Hotel v Kenya Commercial Bank Ltd, Wasini Resorts Ltd & The Official Receiver, HC Comm Civil Suit No. E352 of 2024, [2026] KEHC 11660 (KLR), delivered on 24^th July 2026 by F. Mugambi J at the Milimani Commercial and Tax Division [1]. Paragraph-level references below are to that ruling.

The facts are straightforward once separated from the corporate apparel wrapped around them. The applicant sought to restrain KCB from disposing of L.R. No. 1870/IV/14 in Westlands, charged to the bank by Wasini Resorts Ltd (”WRL”) as security for facilities advanced to it [1]. More specifically, in April 2018, CIPT 20 acquired one million ordinary shares in WRL from TinkerBird Securities Limited, Tribe Estate Limited and Proactive Enterprises Limited [4], funding the acquisition with Kshs 1,000,000,000 advanced by CHYS LLP (In Liquidation) under a financing agreement dated 11^th April 2018, the express purpose of which was to finance the share purchase [8]. CHYS is now in liquidation, and the Official Receiver appeared as Interested Party. CIPT 20 relied on Clause 3.1.8 of the 2018 Share Purchase Agreement, under which it undertook to service WRL’s outstanding liabilities to the Bank [5], and contended that having made certain repayments and improvements to the property, it had become the property’s beneficial owner [2, 5]. It further argued that ongoing restructuring negotiations with the Bank, and preservation orders issued in the separate CHYS insolvency proceeding, ought to have restrained the auction [2, 22]. The central issue was whether insolvency preservation orders over a parent’s traceable funds could reach a third-party company’s charged asset.

Mugambi J rejected all three limbs. On beneficial ownership: “the WRL’s property therefore belongs exclusively to the company, and its liabilities are borne by the company itself. Shareholders are entitled only to a share in the profits while the company is a going concern, and to a distribution of surplus assets upon winding up. They cannot arrogate to themselves ownership rights over the company’s assets during its subsistence” [12]. On restructuring: “the right to restructure is not a statutory entitlement but a matter of contractual negotiation, dependent entirely upon the consent of the secured creditor” [21]. And on notice: “the Share Purchase Agreement between the applicant and WRL was neither noted in the Charge document nor was the Bank a party to it” [15]. The preservation orders, similarly, “cannot operate to restrain the Bank from exercising its statutory remedies under the Charge” [24].

Four holdings, disposed of correctly on the facts pleaded. They also deserve a greater attention to detail than they were given in the press.

The authority the court got right, and one it should double-check

Nearly every popular account of this ruling reiterates Salomon v A Salomon & Co Ltd as if the court had to be reminded of it, but the ruling itself is doctrinally sound. Mugambi J cites Salomon, as reported at “[1895–1899] All ER 33” [9], for the general proposition of separate corporate personality, then moves directly to Macaura v Northern Assurance Company Limited & Others for the operative holding that a shareholder, even a sole one, “has no legal or equitable interest” in the company’s property, only “a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up” [13]. That sequencing, Salomon for the premise, Macaura for the specific application to a would-be proprietary claim, is jurisprudentially correct, and it is worth saying so plainly, since most commentary on this ruling has credited it with less doctrinal applause than it really deserves.

One small caution for any advocate relying on the case for a pleading: the ruling gives Macaura’s citation as “[1925] AC 610” [13]; the report is in fact at [1925] AC 619. It changes nothing about the holding, but pinpoint citations in a reported ruling are the kind of detail that gets copied forward uncorrected into the next set of submissions, and it is worth checking against the report rather than the ruling before you cite it upward.

The precedent hidden in one paragraph

The more interesting gap is not in the case law the court cited, but in the one it utilised as dispositive without explaining why. At paragraph 17, Mugambi J notes that this “is not merely a matter of principle” because it is “in fact, foreclosed by proceedings between the very entities at the heart of the present dispute”: in Violet Mbeyu v Wasini Resorts Limited; Cytonn Investment Partners Twenty LLP (Objector) [2021] KEELRC 1396 (KLR), CIPT 20 appeared before the Employment and Labour Relations Court (Mbaru J) as objector, resisting execution against WRL’s movable assets on the strength of the same 2018 Share Purchase Agreement now pleaded before the commercial court. The ELRC dismissed the objection, finding the agreement undated and unproven, and holding that “an agreement on its own is not sufficient evidence of legal right and title” [17].

That is a significant fact to carry into a fresh application five years later, and the ruling is right to highlight it as damaging. What it does not do is clarify the doctrine being relied upon. Is a finding made on an objection to execution before the ELRC, a different court, a different cause of action, resisting attachment rather than seeking an injunction, binding as issue estoppel on a subsequent commercial suit relying on the identical instrument? Is it res judicata in the strict sense, or does it simply carry persuasive evidentiary weight regarding whether the 2018 agreement can now be regarded as proved? The ruling uses the word “foreclosed,” which sounds like estoppel, but embarks on the analytical tangent of weighing evidence, which sounds like something short of it. For counsel advising either CHYS’s liquidator or a future SPV structure on relitigating a document that has already failed once before a court of coordinate jurisdiction, that distinction is not academic: an issue-estoppel finding deals with the point outright; an evidentiary finding leaves room to cure the defect with better proof next time.

The line worth reading twice

The single most commercially useful sentence in the ruling is the one delivered almost in passing. Clause 6(k) of the Charge and Further Charge between WRL and the Bank prohibited WRL from permitting any person other than the Bank “to become entitled to any proprietary right or interest (including without limitation the overriding interests set out in Section 28 (b) to (j) of the Land Registration Act) which might affect the value of the Premises” [14]. On that basis, the court found it “manifest that the Share Purchase Agreement between the applicant and WRL was neither noted in the Charge document nor was the Bank a party to it,” and that “no evidence has been adduced to demonstrate that the Bank consented to the creation of any interest in favour of the applicant, or that it was even aware of such agreement” [15].

That holding is not rooted on corporate-personality doctrine at all, but on the charge’s own drafting. A share purchase agreement between a company’s shareholder and a third-party funder is not registrable against land; it is an interest in personalty, with no situs on the land register a competent conveyancer’s search would show, and Clause 6(k) went further, contractually excluding recognition of any third-party proprietary claim other than the narrow category of statutory overriding interests. CIPT 20’s application asked the court to rule that an unregistered, unregistrable equitable claim was binding on a chargee that had expressly contracted against exactly that outcome. For lending counsel, the lesson is less about company law and more about drafting discipline: a well-drafted exclusion clause was more impactful in this ruling than the entire separate-personality analysis that follows.

Restructuring as negotiation, not entitlement

The holding that a charger, or here, a non-chargor purporting to speak for one, cannot compel a lender to accept restructuring instead of enforcement follows directly from the Land Act, 2012. More specifically, section 103 confines the class of persons who may apply for relief against a chargee’s remedies under section 90(3) to the chargor, a joint chargor, a spouse whose consent was required but not given, or a bankruptcy trustee; a list into which CIPT 20, never having been the chargor, does not belong [6]. Absent that standing, or absent an express forbearance agreement, “the Bank retains the unfettered right to enforce its remedies under the Charge and the Land Act,” and neither ongoing negotiation nor partial repayment converts that into an enforceable stay [21]. Nothing in the reported facts suggests the Bank gave anything beyond bare willingness to talk, which is exactly why the point resolved as easily as it did. Counsel citing this ruling for the broader proposition that restructuring talks can never restrain enforcement should hold it to that narrower scope, since a lender’s own conduct, including accepted part payment under an implied standstill or even written assurances relied upon to a chargor’s detriment, remains capable in principle of founding an estoppel on different facts.

Two grounds, one ruling, and which one is the ratio

Here is a point worth highlighting for any advocate tempted to cite this case for its discussion of the Giella v Cassman Brown & Co Ltd injunction test. At paragraph 16, the court disposes of the application in terms that admit no ambiguity: “On this account alone, the application is for dismissal for lack of locus standi.” That is a complete, self-sufficient basis for the outcome. The court then proceeds, “for the sake of finality, and notwithstanding the findings already made on locus standi and the doctrine of separate legal personality” [18], to undertake the full Giella analysis involving the sequential prima facie case, irreparable harm and balance of convenience inquiry now domiciled into Kenyan jurisprudence through Nguruman Limited v Jan Bonde Nielsen & 2 Others and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [18–19]. This assessment is undertaken together with the restructuring holding and the preservation-order holding discussed below.

Nearly all of the press commentary on this ruling, and a good deal of the doctrine that will be cited from it in future applications, comes from that second, avowedly supplementary discussion. Strictly, once locus standi was found wanting at paragraph 16, everything from paragraph 18 onward is an alternative holding rather than the ratio. That does not make the restructuring or preservation-order findings any less correct, and a court is entitled to reason in the alternative for the sake of finality, as this one did. But counsel drafting a submission on this ruling’s analysis of restructuring or of preservation orders should be unequivocal about citing it as a considered alternative holding rather than as the binding basis of the decision. The distinction matters more in a future case where the standing point is not available, and the restructuring or preservation-order point is the only litigation basis available.

Cutting open the wrong goose

This is where the ruling is least examined and most interesting. The Official Receiver, administering the CHYS estate, argued that appointment of a receiver or exercise of the Bank’s power of sale would contravene preservation orders issued in HCCOMMIP No. E063 of 2021 by Mabeya J on 6^th January 2023 [22]. The court held that argument untenable: the preservation orders were issued “to facilitate the tracing of assets linked to CHYS LLP (In Liquidation)” [22], CIPT 20 was “merely a conduit through which the funds were channeled” [23], and “liquidation proceedings, whether by administration or receivership, cannot be invoked to impede the rights of a secured creditor to enforce its security.” This proposition is drawn from East Africa Cables PLC v Ecobank Kenya Limited (Majanja J), where it was held that “a secured creditor is entitled to exercise its rights under the security document or statute in the event of default by the company,” a power “not subject to insolvency proceedings commenced against the company by any other creditor” [23–25].

That holding is correct, for a reason the ruling gestures at without stating outright: a liquidator’s preservation power binds the estate’s own assets; it does not, without more, bind KCB, a stranger to the CHYS insolvency who advanced value against a registered, unencumbered title years before CHYS’s collapse, with no notice of any equitable claim. Tracing under Foskett v McKeown identifies a claim; it does not defeat an intervening bona fide chargee for value without notice, and KCB belongs squarely inside that protected class on the facts as found.

The more useful question, and the one the ruling itself half-answers at paragraph 28, in noting that dismissal of the injunction would “enable the Official Receiver, as Liquidator of CHYS LLP (In Liquidation), to claim the residual value of the property for the benefit of the creditors”, is where the liquidator’s tracing claim, if it exists at all, eventually terminates. On the facts as pleaded, it is almost certainly CIPT 20’s shares, not WRL’s land. If Kshs 1 billion of CHYS estate money bought those shares without CHYS receiving fair value in return, the remedy lies in the ordinary insolvency action against that transaction: a transaction-at-undervalue or preference claim against CIPT 20 under the Insolvency Act, 2015, or a resulting-trust or Quistclose-type claim if the Kshs 1 billion was advanced for the stated, specific purpose of the share acquisition on terms that never contemplated CIPT 20 taking it beneficially. Either route goes to an asset CIPT 20 indisputably holds, against a party who is not a bona fide third party but the actual recipient of the impugned payment. Recovering the shares, or their traceable proceeds, achieves everything the Official Receiver was trying to achieve by attacking KCB’s charge, without disturbing a registered security interest held by a stranger who gave value in good faith. The Official Receiver’s team deployed the dramatic remedy of freezing the real estate when the more pragmatic one, aimed at the shares CIPT 20 holds, remained available and untried. Nothing in this ruling closes that route; if anything, paragraph 28 leaves the door open to it.

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Practice notes

Three points follow for practitioners on the lending side. Charge documentation that expressly excludes and disclaims privity to shareholder-level funding arrangements, as KCB’s Clause 6(k) did, remains the clearest insulation against this style of collateral attack, and should be standard drafting, not an incidental fact that happened to help the bank here. Lenders financing SPV structures capitalised through pooled or collective investment vehicles should examine the source of a borrower’s equity as a serious diligence item, not because it affects the validity of a properly registered charge, but because it is the kind of fact pattern that produces protracted, if ultimately unsuccessful, injunctive litigation at the worst possible moment. And for insolvency practitioners acting on an estate whose money moved into a chargor’s capital structure rather than directly into a chargor’s assets, this ruling signals clearly, and paragraph 28 all but implies so, that the estate’s remedy is against the immediate recipient of its money and the instrument by which that money was applied, not against real property several steps underneath and already charged in favour of a stranger to the impugned transaction.

Conclusion

The farmer in the fable did not lose because geese cannot be owned, or because his goose was somehow not really his. He lost because he mistook the right to the egg for a right to the goose itself, and acted on that mistake before anyone could tell him otherwise. CIPT 20’s error was the same error in commercial dress: a share is a claim on distributions and, eventually, on surplus, not a direct claim on the specific bricks a company happens to own while it is still trading. Mugambi J’s ruling states that proposition correctly, and by the right authority, and disposes of the standing, restructuring and preservation-order points on solid, and, in the last two cases, strictly alternative, ground.

What the ruling does not do, because neither CIPT 20 nor the Official Receiver asked it to as paragraph 28 all but gestures, is address the claim that was available on the table: an avoidance or trust claim against CIPT 20’s shareholding itself, the one asset in this entire structure that both belongs to a party before the court and was, on the pleaded facts, bought with money that may never have been CIPT 20’s to spend. That goose is still alive, and it has not yet been asked for an egg. Whether the CHYS liquidator goes back for it is worth watching for a future Mwango Law Review issue.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

Here’s the analogy of that elasticity. Zeno of Elea built a paradox that has outlived every attempt to laugh it off. Achilles, the fastest runner in the Iliad, races a tortoise that gets a head start. By the time Achilles reaches the tortoise’s starting point, the tortoise has moved on, however slightly. By the time he closes that new gap, it has moved again. The distance keeps halving. It never reaches zero. Mathematicians have spent two and a half thousand years explaining, patiently, why this is a trick of infinite division rather than a fact about racing. While public law enthusiasts will remember the name Edwin Dande best for heralding the duality now built into judicial review law in Kenya, insolvency practitioners do not need the explanation. Sitting at the intersection of public and commercial law, I have watched the trick performed live, in liquidation files that behave exactly like Zeno’s racetrack: the finish line is fixed, the distance to it keeps closing, and something always intervenes to halve what remains. I first met the paradox properly, and not just its reputation, because a professor once sent my project back with a single pencilled line in the margin: read Plato’s Parmenides before you use the phrase infinite regress so loosely again.

It’s a standing joke in the restructuring circles that insolvency is the one field of law where finality is a rumour rather than an event. Give a sufficiently resourced litigant a fairly large estate, and the appellate ladder offers an infinite number of half steps between judgment and execution, each one couched as a fresh grievance rather than a repeat of the old one. Dande’s Cytonn litigation is the closest thing I’ve seen to that joke playing out in real time. But what makes Dande worth naming rather than analysing as an anonymous pattern is that one thread of his litigation has left an indelible jurisprudential mark independent of how Cytonn itself turns out. Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022, consolidated) [2023] KESC 40 arose from his challenge to the criminal investigation opened against Cytonn’s founders. It produced a judgment I picked apart at the time for the Oxford Human Rights Hub, and it’s the case public law students will keep citing, since it splits judicial review into two tracks: a merit review where the claim is brought under the Constitution, and the older, process-only review under Order 53 of the Civil Procedure Rules where it is not. That duality is Dande’s most durable legacy, genuine, citable public law doctrine that other courts have already put to work: the High Court relied on it four months later in Republic v Public Procurement Administrative Review Board & another, and petitioners were still invoking it before the Supreme Court itself in Standard Chartered Bank Kenya Limited & 10 others v Retirement Benefits Appeal Tribunal & 3 others [2025] KESC 55, two years on. It is a doctrine that exists because a litigant kept pushing a personal grievance up the court structure long after most people would have let it lie. Dande is a lesson in motion on how a private dispute in the hands of a sufficiently resourced litigant can generate a citation trail that outlives the dispute itself, which is what I’ll be watching for with Cytonn: whether it becomes that kind of case, cited for something unrelated to the liquidation years from now, or simply the thirtieth or so entry in a file that eventually closes anyway, the way most of them do.

With that context in place, here’s the ruling itself now.

Yesterday, Ken Baraka laid out the doctrine behind Article 163(4)(a)’s arguability threshold; today, Zeno’s arrow finally lands, in a courtroom where Achilles keeps almost catching the tortoise. Cytonn Investment Partners Four LLP & 6 others v Official Receiver; CHYS Creditors’ Committee & another (Proposed Interested Parties) (Petition (Application) E001 of 2026) [2026] KESC 51, delivered on 3^rd July 2026 by Mwilu DCJ & VP, Wanjala, Ndung’u, Lenaola and Ouko SCJJ, disposes of three notices of motion and a preliminary objection together [1]. The seven appellants are a cluster of LLPs linked to Cytonn: Cytonn Investment Partners Four, Five, Ten, Eleven and Sixteen, Epazec Company, and Cytonn Integrated Project, appealing from the Court of Appeal’s judgment of 21^st November 2025 in Musembi & 351 others v Official Receiver & 2 others (Civil Appeal E927 of 2024, consolidated with E928, E929, E930, E931, E932, E934 of 2024 and E032 of 2025), one of six judgment files the Court of Appeal (Kiage, Jamila Mohammed & Odunga JJA) delivered that day across the wider CHYS/CPN liquidation. The properties at stake are named individually in the ruling: the Alma (Kiambaa/Ruaka/6667), Mystic Plains/Newtown, Riverrun, Taraji, The Ridge, Applewood, and three Kilimani parcels [2(ii)], which tells you this is a fight over specific real estate, not an abstract argument. The Official Receiver moved to dispose of the linked assets by tender; the Supreme Court has now halted that, admitted the CHYS Creditors’ Committee and SBM Bank Kenya Limited as interested parties, and dismissed the Official Receiver’s preliminary objection to its own jurisdiction [15].

What the ruling holds

The Court’s jurisdictional reasoning anchors on two of its own precedents, both named in the ruling itself. Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another (Petition 3 of 2012) [2012] KESC 9 sets the baseline: an appeal under Article 163(4)(a) must originate from a case where the contested issues revolved around interpreting or applying the Constitution, and the appellant must be challenging the Court of Appeal’s own constitutional reasoning, not relabelling an ordinary dispute [14(ii)]. Munya v Kithinji & 2 Others [2014] KESC 38 refines that further: the Court of Appeal’s reasoning must have “taken a trajectory of constitutional interpretation or application,” and the constitutional contestation must transcend the court hierarchy [14(iii)].

Applying that test, the Court finds two pending constitutional issues in the appellants’ pleadings: whether vesting orders issued under sections 444 and 445 of the Insolvency Act can lawfully limit the Article 40 property rights of solvent entities that are not themselves under insolvency, merely because of a relationship between lender and borrower with CHYS or CPN [14(iv)]; and whether the High Court breached Article 50(1) by acknowledging bona fide purchasers’ rights in principle but delegating the actual determination of those rights to the Official Receiver rather than deciding them itself [14(vi)]. A second appellant group before the Court of Appeal, Charles K. Wambu & 6 Others, separately argued Article 36 and Article 47 violations over the denial of a creditors’ meeting on the proposed debt settlement plan, and the Court of Appeal’s own framing of its issues for determination included whether bona fide purchasers’ Article 40 rights, and the appellants’ Article 50 fair hearing rights, had been violated [14(vii)]. On that basis the Supreme Court concludes the Court of Appeal “engaged, albeit partly, in the interpretation and application of the Constitution... notwithstanding that the appeal was ultimately found to be lacking in merit” [14(vii)].

What I find most useful here, more valuable than anything in the ruling’s own headnote, is paragraph 14(viii), where the Court taps into its own reasoning in Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14: whether a dispute qualifies as a constitutional question is “readily determinable for some of them and almost improbable to distinguish constitutional and other underlying issues in others,” and is therefore left to case by case evaluation rather than a fixed test. That’s an honest admission that the Nduttu threshold does not apply itself, and it’s the closest the ruling comes to explaining why a commercial insolvency dispute clears it here. It just doesn’t say much more than that.

The unaddressed doctrinal tension

Insolvency practitioners, start here, because this is where the arguability critique that matters to you begins. The Court is explicit, at paragraph 14(xii), that arguability doesn’t require it to weigh the merits, only to confirm an argument exists: “The Court does not concern itself as to the merit but only as to the existence of the argument, which the appellants have satisfied.” That’s a correct application of the Munya stay principles. They come from the Court’s earlier interlocutory ruling on this same dispute, Application 5 of 2014; 2014 KESC 30, rather than the substantive judgment cited above [14(xi)], and I don’t fault the Court for applying its own settled test correctly. But it’s worth looking again at what that test produces on this record. The High Court and the Court of Appeal both considered the bona fide purchaser question, the debt settlement plan question, and the solvent SPV question already; the Court of Appeal’s own judgment, according to this ruling, framed those exact questions as issues and answered them against the appellants [14(vii)]. What’s “arguable” for Article 163(4)(a) purposes, on this framing, is functionally: were these issues raised and answered below? Not whether they were answered wrongly in a way that plausibly implicates the Constitution beyond how they were already litigated as ordinary insolvency law. I think that’s a lower bar than the profession generally assumes Nduttu and Munya set, and Cytonn is a clear illustration of it.

It’s worth juxtaposing that against a case where the threshold was met. In Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR, the Court struck down the challenge on the basis that the appellants had done nothing more than assert, without demonstrating, that a constitutional question was in play; a bare label, the Court held, was not enough to bring the appeal within Article 163(4)(a). That’s the discipline the threshold is meant to enforce. What distinguishes Cytonn is not that the appellants avoided that trap through any particular skill; it’s that the Court of Appeal’s own judgment happened to frame the same questions the appellants were now raising, which let them point to the lower court’s own language rather than manufacture the constitutional angle themselves. None of that means the Court got the doctrine wrong here, or that Dande is gaming a system that should have caught him. It means the doctrine, correctly applied, benefits whichever litigant manages to get a lower court to engage with constitutional language on the way up, even in a judgment that ultimately rules against them on the merits. If that’s the trajectory of the precedent, I submit that the fix isn’t blaming resourceful litigants for finding it as Dande did. It’s for the Court to ask, at the threshold stage, not merely whether the Court of Appeal touched on Article 40 or Article 50 language, but whether doing so decided anything a straightforward insolvency appeal would not already have decided on its own terms.

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On the nugatory limb, the Court accepts the appellants’ submission that the properties could be valued, sold, and transferred to third parties absent a stay, and finds the resulting harm would likely be irreversible, citing Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others [2024] KESC 47 [14(xiii) and (xiv)]. On public interest, it weighs the more than 3,000 creditors CHYS/CPN was liquidated to protect against the bona fide purchasers whose title remains unresolved, and comes down, at least for now, on the side of freezing everything pending the substantive appeal [14(xv) and (xvi)].

None of this is to say that the appellants are wrong on the constitutional merits; the Court hasn’t decided that yet, and says so. It means that on this record, a comprehensively reasoned Court of Appeal judgment spanning multiple files didn’t insulate against a fresh Article 163(4)(a) petition, once the petition was pleaded with enough particularity around Articles 40, 36, 47 and 50. If I were advising a receiver, liquidator, or secured creditor in a similar insolvency involving multiple parties, I’d highlight that as the novel signal from this ruling, not the property freeze itself.

Practical implications

The immediate effect is that the Official Receiver’s tender process is stopped, and the CHYS Creditors’ Committee, representing more than 3,000 creditors, now litigates as an interested party in a forum one level above where its interests were last vindicated, alongside SBM Bank Kenya Limited, joined as a secured creditor over the Alma property [15(iii) and (iv)]. For those 3,000-plus creditors, that freeze portends far-reaching ramifications. Every month the tender process stays in limbo is a month recovery does not happen, added onto a liquidation that has already been in motion for years and that the arguability threshold, correctly applied, has just extended again. My drafting advice to counsel advising creditors’ committees or receivers elsewhere: anticipate the Article 163(4)(a) route earlier in the appellate sequence rather than taking a Court of Appeal dismissal, however comprehensive, as final. Build the Nduttu central argument into your Court of Appeal submissions defensively, and don’t assume that a finding on bona fide purchaser status or a debt settlement plan, however thoroughly reasoned, is safe from being reframed in Article 40 or Article 50 language at the next appellate level. This ruling suggests that recasting doesn’t need to be very persuasive to clear the arguability threshold, only present.

Zeno’s tortoise was never going to win the race; the paradox only ever described how the race gets narrated, not how it ends. Whether Cytonn proves the same- a procedurally significant halving that still resolves in the Official Receiver’s favour once the substantive appeal is heard, or marks a genuine widening of what counts as an arguable Article 40 question in liquidation disputes- is what the Mwango Law Review will be watching for in the substantive appeal.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

On 3^rd July 2026, a five-judge bench of the Supreme Court delivered a ruling on the latest developments concerning the liquidation of Cytonn Investments and its subsidiaries. The ruling disposed of three applications and one preliminary objection. The Appellants, “Cytonn Investments Partners LLP,” filed the first application seeking conservatory orders pending the hearing and determination of their Appeal. The other two applications were filed by two interested parties, namely CHYS Creditors’ Committee and SBM Bank, seeking to be joined as interested parties in the Petition, while the preliminary objection was filed by the Official Receiver (”Respondent”) as a jurisdictional objection based on article 163(4)(a) of the Constitution. Although the court rejected the preliminary objection and allowed the motions in the end, it would be an understatement to think of this as yet another ordinary ruling in a now protracted insolvency saga of Cytonn, as I demonstrate hereunder.

What the Court Got Right

I begin with what I think the court got right. Granting the conservatory orders was straightforward. The court relied on the principles set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] KESC 38 (KLR) (the Munya Case). In that case, it was held that the Appellants must demonstrate that the appeal or intended appeal is arguable and not frivolous, that unless the orders sought of stay are granted, the appeal or intended appeal would be rendered nugatory were it to succeed, and that it is in the public interest that the orders of stay are granted. For the first limb, the Supreme Court found that the Appellants had raised several constitutional arguments, including on the right to property under Article 40 and the right to fair hearing under article 50 of the Constitution. More importantly, the court emphasized that it would not concern itself with the merits of the case but only with the existence of an argument, which the Appellants had satisfied. For the second limb, the court was inclined toward the preservation of the suit properties, noting that it was the final court whose decision would ultimately determine the parties’ legal position. Without the preservation orders, there was a risk that the suit properties may be valued, sold, and transferred to third parties, thereby rendering the appeal academic. On the public interest aspect, the court recognized the significant interests generated by parties in the proceedings. In some cases, compensation by way of damages may deny stay; however, in cases such as the one herein, reconstruction of titles after land has been sold and transferred through numerous transactions may prove difficult.

On joinder, SBM Bank and CHYS Creditors’ Committee had sufficient direct interest in the outcome of the proceedings, because the orders sought could have an impact on the assets available for recovery and distribution. Additionally, the court would benefit from hearing parties whose interests differed from those of the Official Receiver and the Cytonn businesses.

The Conundrum: When an Insolvency Dispute Became a Constitutional Appeal

This is where things get interesting. Article 163(4)(a) confers appellate jurisdiction on the Supreme Court as a matter of right over matters concerning the interpretation and application of the Constitution. In the present case, the Supreme Court relied on Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] KESC 9 (KLR) (SC Petition No. 3 of 2012) and the Munya Case, which held that an appeal is of right where the Court of Appeal’s reasoning and conclusions leading to the determination of the issue can be said to have taken a trajectory of constitutional interpretation and application, and where the issues of constitutional contestation transcend the court hierarchy. The Supreme Court reasoned that while the substratum of the dispute was a commercial matter involving insolvency proceedings under the Insolvency Act, 2015, the Appellants, in their grounds and submissions, had raised arguments hinging on the interpretation and application of the Constitution. The Appellants there had argued that the rights of bona fide purchasers implicated article 50 of the Constitution. Other parties had also raised articles 36 and 47 when discussing the participation of creditors in the restructuring process. There is a difference, however, between a party invoking a constitutional right under article 40 and a court determining an issue that requires interpretation and application of that article. The question that therefore lingers is whether the Court of Appeal was, in fact, interpreting and applying article 40, or was simply examining whether the High Court, exercising insolvency jurisdiction, had lawfully interpreted its own orders.

There is a clear difference with the Court of Appeal, however. The Court of Appeal concurred with the High Court’s determination and ruled that the primary proceedings involved insolvency. The court relied on the “dominant test” and “predominant test” as espoused in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR). The reasoning in that case is that a matter involving land does not automatically become a land dispute for the purposes of jurisdiction, especially when the primary dispute involves another legal relationship. As a result, it maintained the jurisdiction of the High Court. At the Supreme Court, the characterization changed significantly. The court observed that constitutional issues pertaining to property and fair trial had been raised and adequately taken into consideration to invoke Article 163(4)(a), even though the dispute primarily remained a commercial and insolvency-related one.

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How Far Should Bia Tosha Go?

The Supreme Court relied on Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 others [2023] KESC 14 (KLR) to support the idea that a dispute’s commerciality or constitutionality is determined from how the dispute is prosecuted through litigation: the surrounding issues, the facts, the evidence, and the arguments before the court. In my view, if the inquiry is reduced to “Is there a constitutional argument somewhere in the pleadings?” then article 163(4)(a) risks assuming a wider reach than appears to have been envisaged in the Nduttu and Munya cases. It is almost always possible to reframe any issue using constitutional terminology and rights. Article 40 may apply to property, article 47 may become fair notice, and a shareholder dispute may become articles 27 and 36. In my view, the more pertinent question is whether the constitutional provision was essential to the Court of Appeal’s decision, rather than merely relevant to a party’s discontent with the outcome.

That said, the Supreme Court did not completely abandon the constitutional threshold. It reviewed the Court of Appeal’s ruling and observed that the Court of Appeal had raised issues related to article 40 and fair trial. The issue is that the ruling does not adequately explain why the constitutional issues were fundamental enough to satisfy article 163(4)(a), rather than being incidental concerns arising within an insolvency appeal.

The Insolvency Dimension Should Not Vanish

The existence of Article 40 should not, however, cause the insolvency dimension to vanish. Indeed, one of the most intriguing tensions in the decision is the Supreme Court’s recognition that insolvency remains “the crux upon which the appeal is founded alongside the constitutional issues.” That sentence nearly sums up the whole problem. Yet constitutional characterization alone was enough to unlock the Supreme Court’s appellate jurisdiction. However, the insolvency dispute should not be overshadowed by the constitutional questions. The Supreme Court will have to address the relationship between corporate personality, proprietary rights, constitutional property protection, and insolvency powers, rather than merely deciding whether Article 40 was mentioned.

Conclusion

To pen off, I think the Supreme Court was correct to allow parties with a direct stake to be heard and to preserve the appeal’s subject matter. The harder question is the one Muigai’s caution anticipates: is it sufficient to bring what is essentially an insolvency case under Article 163(4)(a) on the strength of a constitutional argument deriving from the treatment of assets owned by linked companies? If the answer is yes without more, this is precisely the dilution he warned against: ordinary commercial and insolvency questions dressed in constitutional language to reach a court that was never meant to hear them as of right. The stakes go beyond Cytonn: where assets held within a connected corporate structure are said to represent money owed to another entity’s creditors, the substantive appeal may ultimately require the court to define the limits of corporate separateness, and, with it, the limits of its own jurisdiction.

Kennedy Baraka is a law graduate and Advocate-designate currently holding over while awaiting admission to the Kenyan Bar. He specializes in constitutional, public policy, and commercial law, with a passion for demystifying legal concepts for the public.

Counsel for the Speaker of the Meru County Assembly ran the same play in reverse, and lost for the same reason. The ruling is Speaker of the County Assembly of Meru v Independent Electoral & Boundaries Commission & another (Reference E001 of 2026) [2026] KESC 57, handed down on 17^th July 2026. He filed an Article 163(6) reference asking the Supreme Court to settle a question that has been quietly distorting Chapter Six enforcement for years: whether suspension pending appeal of a removal from public office, impeachment included, lets the removed person contest an election while that removal is still being fought over in court. He did not seek the Attorney General’s advice first. He told the Court, on the record, that he had decided not to, deliberately, and that the exception created in Attorney General v Karua [2024] KESC 21 meant he did not have to [2].

He lost the bet. The five-judge bench, Mwilu DCJ, Wanjala, Lenaola, Ouko and Warsame SCJJ, parked the entire reference, interveners and all, and sent him back to the Attorney General to seek that advice before the reference could proceed.

The ruling

The reasoning is short, and that is exactly what makes it useful. The Court reaches back to two lines of its own authority. The first is Rule 53(c) of the Supreme Court Rules, 2020, which lets the Court reject a reference outright where the question could have been resolved by the AG’s advice, and that advice was never sought. The second is the “due process” aspect the Court has infused into that rule since In the Matter of Speaker, County Assembly of Siaya County (Reference 4 of 2017) [2020] KESC 40 and carried forward through County Government of Nairobi v Attorney General [2023] KESC 65, that although seeking the AG’s opinion is not, strictly, a matter of law, an applicant “like other government institutions and agents” should adopt the practice of going to the AG first.

I surmise that every carve-out invites its own erosion. Write an exception narrow enough to fit one applicant, in one set of circumstances, and it is only a matter of time before someone else holds it up to the light and finds the outline generous enough for their case too. Kenyan courts then spend nearly as much energy reclaiming the shape of their own exceptions as they spent drafting them in the first place, and the reclaiming rarely comes for free. Someone pays for having tested the boundary, usually in time, sometimes in costs, and occasionally, like here in Meru, in a reference parked at the door while the applicant is sent off to do the one thing the exception was never meant to excuse him from.

Counsel for the Speaker of the Meru County Assembly found that out the hard way on his new road to Sheria House.

Revisiting my own read of Karua

Counsel’s argument turned entirely on Attorney General v Karua [2024] KESC 21, and it is worth going back to what I argued about that case when it came down. My note for the Oxford Human Rights Hub, “Blazing The Trail: Kenya’s Supreme Court Rejects the Regional Court’s Merit Review of its Judgments,” written with Brooksharon Mwango and published on OxHRH on 25^th June 2024, was about the headline question in that reference: whether the East African Court of Justice could sit in appellate or merit review judgment over this Court’s interpretation of Kenyan constitutional law, arising out of Hon. Martha Karua’s Kirinyaga gubernatorial petition. My argument was that the Court got the hierarchy right by deploying a harmonisation approach instead of treating international and domestic law as outrightly competing for supremacy. Articles 2(5) and 2(6) domesticate international law and treaty obligations, but Articles 2(1) and 2(4) still make the Constitution supreme, so a regional tribunal’s treaty jurisdiction cannot be read to override the apex national court on national constitutional questions. I called that finding laudable, and I still think it was correctly decided.

What I did not dwell on then, because it was not the interesting part of the case, was the AG advice housekeeping the Court did on its way to jurisdiction. Before it could even reach the EACJ question, it first had to establish that it could hear the reference despite the AG never seeking his own advice on it [9]. It excused him for the obvious reason: he was the applicant, acting under Article 156(4)(a) and (b), and it would have been “absurd to require the office of the AG to seek a legal opinion from itself.” That finding was never meant to do more than clear a threshold objection in a case about something else entirely, a narrow, almost mechanical exception built for exactly one kind of applicant.

Two years on, that housekeeping paragraph has grown teeth it was never built to carry. Counsel in Meru tried to stretch a self-referential exception created for the Attorney General into a general licence for any applicant to bypass Rule 53(c), and the bench shuts that down without much ceremony, calling Karua “distinguishable” and reliance on it “obviously misguided.” Fair enough on the facts; that reading of Karua was always going to lose. But the Court also brushes past the one substantive point counsel raised that deserved more than a sentence: that in a devolved system, routing a county organ’s constitutional question through the national Attorney General “might not be the best route to take.” The ruling’s answer, that devolution “does not preclude” the AG from advising on matters of public interest, is true as far as it goes, but it does not engage with why a county Speaker should have to ask the national government’s chief legal adviser to weigh in on county-level electoral eligibility before the apex court will even hear him. That doctrinal tension is left standing, unresolved.

Conclusion

Similar to Shylock’s lesson in The Merchant of Venice, the rule to extract from Meru is narrower than counsel’s submissions projected it to be, and advocates should master it precisely. Karua’s finding that AG referral is “not mandatory as a matter of law” was never a general dispensation; it was jurisdictional housekeeping based on a single fact pattern: an AG applicant under Article 156(4)(a) and (b) who cannot meaningfully seek advice from his own office. Outside that fact pattern, Rule 53(c) continues to operate exactly as the Siaya and Nairobi County line construed it: not as a mandatory precondition capable of grounding a dismissal on the merits, but as a procedural filter the Court will invoke to defer adjudication until the AG has been allowed to advise. The two positions are not in tension once the Karua exception is read for what it truly decided rather than for what it can be made to sound like in isolation.

The operative consequence for practice is that AG referral should be understood as a standing precondition to filing under Article 163(6), not a discretionary courtesy to be weighed against the merits of the substantive question. This remains true irrespective of whether the applicant anticipates that the AG’s advice will be timely, substantive, or favourable; the Rule 53(c) inquiry concerns whether advice was sought, not what it said or how quickly it came. Counsel should accordingly correspond with the AG before filing and ensure that correspondence is capable of being placed on the record, since it is the documented act of seeking advice, not its content, that satisfies the Court. Where an intervener application is contemplated, that risk should also be factored in: the ruling makes clear that intervener applications are parked alongside the primary reference, so a defective referral history stalls every party riding on it, not only the applicant.

Here’s the bottomline: the substantive question, the reach of Chapter Six suspension pending appeal into election eligibility, remains undecided. Whether the AG’s advice resolves the applicant’s position, or the reference returns to the Court for determination on the merits, is worth watching for a future Mwango Law Review Issue.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

On 7^th August 2026, Lady Justice M. Thande of the Malindi High Court delivered judgment in Dr Owiso Owiso, Khelef Khalifa & Ashioya Biko v Attorney General & Independent Electoral and Boundaries Commission, HCCHRPET/E023/2025, and I suspect it will be remembered less for what it declared than for what it declined to enforce. Reading Article 136(2)(a) of the Constitution together with the time computation rule at Article 259(5)(c), the Court held that the next presidential election falls due on 11^th August 2026, not 10^th August 2027, the date IEBC has all along been preparing for. It went further and held that Article 142, which fixes the President’s term as running from the date of swearing in until the successor is sworn in, guarantees no five-year term at all. These are not modest findings. Taken at face value, they rewrite the electoral calendar and shorten the sitting President’s tenure, on paper, three days before the very deadline the Court has just fixed. And then, in the same breath, the Court suspended the consequences of its own holding until after the election it has just declared unlawful has been held, on the very date it has just declared unlawful. The mountain laboured. The mouse walked out, congratulating everyone on being right.

Prospective overruling, properly understood

Before I get to what Thande J. did with this doctrine, it is worth pausing on what the principle is, because a lot of the public commentary you will see on this judgment will analyse a suspended declaration as a synonym for judicial cowardice. It is not that. It is a specific, imported doctrine with its own conditions of use, and those conditions matter.

The idea that a court can find a law or an act unconstitutional and still refuse to give that finding retrospective effect did not start in Kenya. Constitutionalists call this prospective overruling (ex nunc), now dubbed “sunbursting”. Its clearest statement in American law comes from Justice Cardozo’s opinion in Great Northern Railway Co v Sunburst Oil and Refining Co, 287 US 358 (1932), where the United States Supreme Court held that a state court could give a new rule of law prospective effect only, without offending the federal Constitution. The doctrine travelled into Commonwealth constitutional law most influentially through the Indian Supreme Court’s decision in I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643, where Chief Justice Subba Rao used it, drawing on Articles 13 and 368 of the Indian Constitution, to spare constitutional amendments Indians had already relied upon from being unwound by a fresh ruling on Parliament’s amending power. What I think gets lost when people cite Golak Nath as a general licence is that the Indian Supreme Court did not embrace prospective overruling as a discretion any court could reach for. It confined the doctrine, in that same judgment, to constitutional matters and to exercise by the apex court alone. That limitation matters for reasons I come back to.

Kenyan courts had already adopted a version of this doctrine long before Owiso, so Thande J. was right that she was following settled practice rather than inventing something. The High Court used the doctrine to give Parliament twelve months to cure the first Constituencies Development Fund Act, 2013 before it stood invalidated, a suspension the Court of Appeal upheld in National Assembly of Kenya & another v Institute for Social Accountability & 8 others, Civil Appeal 92 and 97 of 2015 (Consolidated), [2017] KECA 170 (KLR). It used the doctrine again in 2024 against the Social Health Insurance Act, the Digital Health Act and the Primary Health Care Act, suspending nullification for 120 days so Parliament could redo public participation under Article 118 and Article 10 of the Constitution, in Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties), Constitutional Petition E473 of 2023, [2024] KEHC 8255 (KLR), 12^th July 2024. The same was true for Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties), Constitutional Petition 178 of 2016, [2024] KEHC 10886 (KLR), where the Constitutional bench ordered CDF programmes to cease at the stroke of midnight on 30^th June 2026. None of this, in other words, is new ground. What I have not seen anyone else notice, and what I think is the real story here, is that the third entry in that Kenyan case lineage has Thande J.’s own name on it.

Thande J.’s history

On 20^th September 2024, sitting with Kimondo and Aburili JJ., Thande J. declared the National Government Constituencies Development Fund Act, 2015 unconstitutional for breach of the devolution principles in Article 6 and the separation of functions between national and county government under the Fourth Schedule, and suspended that declaration too, fixing the Fund’s programmes to cease at the stroke of midnight on 30^th June 2026, in the Gikonyo case. That judgment was overturned on appeal on 6th February 2026 and now sits before the Supreme Court on notice of appeal, which is a different story for a different issue. What I want to draw out here is the contrast in craftsmanship between the two suspensions she has now written. In Gikonyo, the suspension carried a fixed date. Parliament knew exactly when the clock ran out. In Owiso, the suspension carries no date at all. It runs until after the next general election is held, and left to IEBC’s own preparations, that means the declaration of invalidity only bites once the very election it condemns has already happened and a new government already sworn in under Article 141. A suspended declaration with no defined timeline, I would argue, is not really suspended. It is buried.

I want to be careful here rather than overreach. One secondary account of the deliberations in Gikonyo suggests Thande J. actually pushed for a shorter compliance window than her two co-panellists settled on. I confirmed that against the primary judgment text at paragraph 196. This secondary account by Dr Gautam Bhatia holds up, making the contrast sharper still: the same judge who once argued for tighter discipline is now handing down the most open-ended suspension in the whole Kenyan lineage, in the highest-stakes matter she has yet had before her.

A doctrine the Supreme Court has just begun to walk back

The bigger problem, to my mind, is not internal inconsistency but timing against a completely different bench. In a judgment delivered on 31^st March 2026, the Supreme Court finally decided the long running fight over Parliament’s failure to legislate local tribunals into the Judiciary under Article 169(2), a dispute Okiya Omtatah first brought in 2018 in Okiya Omtatah Okoiti v Judicial Service Commission & 2 others; Katiba Institute (Interested Party), Petition 197 of 2018, [2021] KEHC 461 (KLR), 11^th March 2021 (Mrima J.). The High Court had ordered the Attorney General and Parliament to report back to it within six months on legislative progress, invoking the right of access to justice under Article 48 as the underlying harm. The Court of Appeal upheld that structural interdict. The Supreme Court did not. It agreed Parliament’s Article 169(2) obligation was real and that the delay breached Articles 48 and 169(2). Still, it held that ordering Parliament to report back on its own legislative process cut too deeply into the separation of powers under Article 1 and Article 94, and that a bare declaration was remedy enough.

A guest commentary on the Constitutional Law and Philosophy blog by Kenson Mutethia made this connection within days, and I think the point deserves a wider audience than a blog comment section usually gets. If the Supreme Court will not let a lower court impose a reporting timeline on a coordinate branch in aid of a declared breach, the author asks, what gives any court the standing to impose a suspension timeline, which is the same concern under Aura, under Gikonyo, and now under Owiso. The commentary reads this as sitting in real tension with the Supreme Court’s own earlier tolerance of suspended declarations in the Finance Act, 2023 litigation. Thande J. does not cite the Tribunals Transition case anywhere in Owiso. Four months after the apex court started chipping at the foundations of exactly this remedy, she built straight on top of it as though the ground underneath had not moved at all.

Correcting the Court of Appeal from below

There is a further difficulty in the judgment that nobody else appears to have picked up, and it worries me more than the suspension does, because it touches the hierarchy of the courts rather than the wisdom of a remedy.

Tucked into her reasoning on the computation of time, Thande J. observes that the Court of Appeal, in Attorney General & another v Andrew Kiplimo Sang Muge & others [2024] KECA 1032 (KLR), appears to have miscounted its own dates when applying Article 136(2)(a) read with Article 259(5)(c). The Court of Appeal there found that the fifth year after the 2013 election ran to 8^th August 2022, and that the next general election therefore fell on that date. Thande J. points out, and I have checked this against a calendar myself, that the second Tuesday of August in that fifth year was in fact 9 August, not 8 August. She does not say she is overruling Sang Muge. What she says, in effect, is that she is applying the very formula the Court of Appeal set down, only doing it more carefully than the Court of Appeal itself managed.

I think this is the kind of move a High Court has no business making, however sound the arithmetic behind it. Article 163(7) of the Constitution binds every court other than the Supreme Court to that Court’s decisions, and the wider doctrine of precedent that sits under it, as Kenya Law’s own guidance sets out plainly, binds the High Court to the Court of Appeal in the same way. The older authority for that proposition is Dodhia v National & Grindlays Bank Ltd [1970] EA 195, decided under the old East African Court of Appeal and still cited as the foundation of Kenya’s vertical stare decisis. What that discipline looks like in practice is worth spelling out, and Ibrahim J.’s own conduct as a High Court judge gives a good example, in the dispute that eventually became National Bank of Kenya Limited v Anaj Warehousing Limited, Petition 36 of 2014, [2015] KESC 4 (KLR), handed down on 2^nd December 2015. Bound by the Court of Appeal’s earlier holding in National Bank of Kenya Ltd v Wilson Ndolo Ayah on section 34(1) of the Advocates Act and the validity of documents prepared by an advocate without a practising certificate, Ibrahim J. applied that precedent and declared the charge before him void, whatever reservations he may privately have carried about it. It took a differently constituted Supreme Court, years later, to revisit and eventually reverse that line of authority. That, to my mind, is what fidelity to precedent looks like when a lower court disagrees with an appellate finding. You apply the finding and leave the correcting to the court with the constitutional standing to do the correcting.

Thande J. never says she is defying Sang Muge. But by publicly correcting what she takes to be an arithmetic slip in a binding Court of Appeal precedent, while presenting her own working as the more careful application of that same precedent’s formula, she comes close to marking the Court of Appeal’s homework from a rank below it. I would argue the proper channel for that critique, however correct it may turn out to be on the mathematics, runs through a review to the Court of Appeal or an appeal to the Supreme Court under Article 163, not through obiter remarks at first instance. There is a second irony worth naming here, and it ties back to the earlier discussion of Golak Nath. If prospective overruling was designed, in its most disciplined form, as a power reserved for the highest court in a system because only that court can unsettle a precedent without creating chaos underneath it, then a High Court judgment that both deploys prospective overruling and quietly corrects the Court of Appeal’s sums is reaching, in the same breath, for two instruments comparative doctrine has historically kept several ranks above where this judgment sits.

The case that did not survive Nairobi, misdescribed

There is a smaller inaccuracy worth highlighting too, because it touches how carefully the Court handled its own procedural history rather than the merits. Thande J. records at paragraph 9 that the same petition, filed earlier at the Supreme Court as Petition No. E020 of 2025, was withdrawn after a preliminary objection on jurisdiction was raised. I do not think that is quite what happened. The Supreme Court’s ruling of 15 August 2025, a full bench of seven with Koome CJ presiding, in Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 8 others (Interested Parties), Petition (Application) E020 of 2025, [2025] KESC 52 (KLR) (Civ), struck the application out for want of jurisdiction. Nobody withdrew anything. Nor did the ruling ultimately turn, as one might expect from the way Owiso describes it, on the petitioners’ standing to seek an advisory opinion under Article 163(6). The Attorney General raised that argument in his preliminary objection, but the Supreme Court never had to reach it. It disposed of the matter on two narrower grounds instead: first, that filing a petition and simultaneously asking leave to file the very same petition already on the record was, in the Court’s own word, absurd, and second, that the Supreme Court’s exclusive original jurisdiction under Article 163(3)(a) read with Article 140 only switches on once a president elect has been declared, and cannot be used to pin down an election date in advance. A judgment this attentive to text elsewhere ought to have handled its own litigation history with the same care.

Coast, but not quite the coast one would expect

The question of venue deserves a narrower answer than forum shopping highlighted at the judgement’s paragraph 9, because the record supports something more specific than that. Of the three petitioners, Khelef Khalifa has by far the clearest footprint at the Coast. He has directed Muslims for Human Rights, a Mombasa-based organisation, for decades, and has litigated coastal grievances throughout that period, from police conduct to the Mama Ngina Waterfront to land disputes in Lamu. That gives the petition team a genuine territorial link to the region, and this was not three Nairobi lawyers renting a coastal postcode for the weekend. But Khalifa’s own prior litigation, so far as I can trace it, runs through the Mombasa High Court, not Malindi, under the High Court’s original jurisdiction over constitutional matters at Article 165(3)(d). If the choice of registry was tactical, I would guess the more honest reading is not Coast versus Nairobi at all, but something narrower, a bench-specific calculation aimed at the one sitting Malindi judge with a recent and public record of comfort issuing declarations of unconstitutionality in exactly this kind of high-stakes structural dispute. That is a more serious charge than generic forum shopping, and I think, on what the record actually shows, a more defensible one to put in print. I put it as a question rather than an accusation. Nothing here establishes intent.

The mouse, again

None of this is a disagreement with the Court’s constitutional arithmetic. On Article 136(2)(a) read with Article 259(5)(c), I think Thande J. very likely has the textually correct answer, and it exposes an uncomfortable truth: IEBC has been preparing for the wrong date, and has arguably been doing so since the Court of Appeal’s own miscounted dictum in Sang Muge. My complaint is not with the destination. It is with a court that walks a litigant all the way to the courthouse steps, hands him a declaration under Article 165(3)(d) that the building is on fire, and then tells him the fire brigade will arrive sometime after the building has already burned down and a new one built in its place, using a remedy that comparative doctrine once kept in the hands of courts with the constitutional authority to make it stick, and pausing along the way to mark the Court of Appeal’s own homework. Horace’s mountain laboured for a poem. This one laboured for a mouse with no expiry date written on its lease.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

I went into this ruling expecting to find either a careful jurisdictional analysis or an unremarkable procedural reasoning, and I found neither. What I found instead is a ruling that arrives at an outcome which might well be the right answer: that a claim of this scale and ambition should not be marched through a tribunal created for individual consumer grievances. But I argue that while the first of its kind, the foundation upon which the court’s reasoning is built is weak, and the ruling gets there on one leg. Its entire premise is informed almost by a single paragraph which borrows credibility from a regulation the court fails to analyse closely, and then, in a move I keep going back to reread because I am not sure the court noticed it did this, removes from the case the one party whose word it had just relied on most heavily. For a decision that will likely be the first thing cited the next time someone sues a mobile network operator’s financial arm on constitutional grounds, I think that lapse is worth articulating clearly.

Background

Rogo pleaded that Kshs. 125,658 was stolen from her phone, but the suit was pleaded far beyond that sum. She sued as a representative of “M-Pesa account holders who have been victims of fraud” [1], seeking declarations that Safaricom PLC and M-Pesa Holding Company Limited had violated Article 35 (access to information), Article 46 (consumer rights) and Article 47 (fair administrative action), together with a mandatory order requiring the defendants to build new fraud-prevention systems, establish dedicated victim-reporting lines, and publish fraud statistics in their annual reports within 180 days [1]. The Central Bank of Kenya and the Communications Authority of Kenya were joined as interested parties.

The defendants and CBK raised a preliminary objection: the Kenya Information and Communications Act’s Dispute Resolution Regulations set up a mechanism through the Communications Authority, and the Plaintiff had come to court without exhausting it [3]. CAK and CBK separately applied to be struck out as interested parties [2], [4]. All three applications turned, one way or another, on the same underlying question the ruling had to answer first: is this a consumer complaint for a sector tribunal, or a constitutional claim the Commercial Court may hear directly?

The constitutional escape route, and what it took to open it

The court’s answer, in substance, is that the claim is both a consumer dispute and a constitutional one; and that its constitutional character is what frees it from the exhaustion requirement. “The most compelling argument,” the ruling holds, “is that the Plaintiff’s claim is not merely a consumer complaint but a constitutional challenge alleging systemic violations of rights by an allegedly dominant market player and this is an example of a matter that this court should hear and determine” [8]. I want to be honest about what that sentence does for this ruling: it is the pivot upon which the entire ruling turns. Everything after it, including the court’s refusal to strike out the suit, its retention of CBK, and its striking off CAK, follows from having decided, at the threshold, that constitutional character supersedes sectoral process.

I do not quarrel with the impulse. What I cannot get past is what the court relies on to get there, at exactly the moment a first-impression ruling most needs a solid foundation to anchor it.

I start with the regulation the court analyses. The defendants relied on Regulation 3(a) of the KICA Dispute Resolution Regulations, which provides that “the Commission shall have power to resolve disputes between a consumer and a service provider” [6]. Noteworthy that this is a mandatory provision about the regulator’s jurisdiction. The court’s answer instead focuses on Regulation 4(1), which provides that “a party to a dispute may, within sixty days of the occurrence of a dispute, notify the Commission” [6]. That is permissive language about a complainant’s choice of whether and when to trigger the mechanism. “Regulation 4(1) uses ‘may’ for the initiation of the dispute process which makes this process optional,” the ruling reasons, “and if Parliament intended to make the process mandatory, it would have used the word ‘shall’” [7]. Fine, as far as it goes, but the court does not touch Regulation 3(a) at all, which is the provision the defendants raised to argue that constitutional pleading cannot manoeuvre around a statutory forum Parliament made mandatory for the regulator itself to operate. I kept waiting for the ruling to turn to that argument, but it never does.

Then there is the piece I find harder to ignore. Having decided that the claim’s constitutional character matters, the court still needed a reason the KICA mechanism could not proceed first or alongside it. From the ruling, that reason, as it turns out to be, is CAK’s own submission that its “mandate... is accordingly restricted to consumers of communication services provided by the 1st Defendant and not financial services provided by the 2nd Defendant, which falls squarely under the 1st Interested Party [CBK]” [8]. “If the CAK itself says it cannot resolve the dispute,” the court concludes, “it would be unjust to force the Plaintiff to exhaust a remedy that is effectively unavailable” [8]. Read that again slowly, and I think you will see what I saw: CAK refuses that it possesses jurisdiction over the financial services arm of M-Pesa. It said nothing about the telecommunications aspect, yet mobile money fraudsters in Kenya (now dubbed the “Mulot sharp boys”) often go through that layer: SIM-swaps, unauthorised porting, exploitation of USSD and SMS channels. None of that stops being a telecommunications problem just because the harm that follows is monetary. Crucially, nowhere does the ruling separate which of Rogo’s allegations belong to the telecom side and which belong to the payments side, even though the two defendants, a telecommunications licensee and a separately incorporated financial holding company, belong on either side of exactly that line.

I could live with the findings if CAK’s account of its own jurisdiction were still there to be tested. It is not. Six paragraphs later, the court grants CAK’s own application to be struck out, holding that “the Plaint does not allege any wrongdoing by CAK... no negligence or breach of duty is attributed to it... [and] the court can pass an effective decree in CAK’s absence” [14]. So the regulator whose word the court relies on as the pivotal reason for permitting this claim to bypass its own tribunal is, by the end of the very same ruling, no longer part of the proceedings to have that word tested. Curious right? I do not think the court set out to do this. I think it simply did not notice that the party it was relying on most and the party it was removing were the same party, in the same ruling, a few pages apart.

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Why I think the wobble fractures the court’s reasoning

In an ordinary two-party exhaustion fight, I would call this a footnote and move on. I cannot do that here, because this is not an ordinary two-party dispute. Instead, it is the novel ruling that sets the doctrinal basis for every future claimant against Kenya’s dominant mobile money platform, or any comparable e-money operator, who wants to manoeuvre around KICA’s tribunal by pleading the Constitution. Whoever files the next one of these will cite paragraph 8 for the argument that constitutional framing defeats sectoral exhaustion, and they will not need to re-litigate whether that proposition was ever well-founded, because by then it will just be the law as this court left it. A precedent inherits the strength of its reasoning and not merely its outcome. If the reasoning here is wobbly, what gets passed down is thin too, and Kenya, still without a dedicated e-money ombudsman, will be living with that reality for a while.

In my reading of this ruling, what frustrates me most is that a more concrete path to the same result existed right there, unutilised. The relief Rogo asks for, being a 180-day mandatory order compelling systemic redesign of fraud-prevention architecture, new reporting infrastructure, published fraud disclosures [1], is plainly beyond anything a KICA consumer-dispute Tribunal could ever grant. Exhaustion doctrine, including the Court of Appeal authority the ruling itself cites in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [5], excuses recourse to a statutory mechanism where that mechanism is structurally incapable of delivering the remedy sought. This position has been cemented by the Supreme Court ratio in Abidha Nicholus, which I analysed earlier. That argument needed no reliance on CAK’s contested self-description, no unanswered regulation, nothing left unresolved once the suit was over. It existed in the pleadings the whole time and I do not know why the court did not explore it.

Conclusion

Rogo v Safaricom will probably be remembered as the ruling that let a mobile money fraud claim proceed in the Commercial Court on constitutional bases, ahead of and outside Kenya’s sector-specific dispute machinery. For an economy this dependent on a single mobile money rail, with nothing built to bridge the gap between CAK and CBK, that may turn out to be the right place to land. But I keep going back to how the ruling gets there: misreading the defendants’ textual argument, and building its most important finding on submission from a regulator it discharges from the case in the same breath. First-impression rulings set the pace for everyone who litigates after them. This one, I think, deserved a more robust foundation built to take the jurisprudential weight it is about to carry.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

That’s the disclosure. Now the law.

Determination

Justice Cecilia Githua convicted Zacharia Okoth Obado, Michael Juma Oyamo, and Caspal Ojwang Obiero of Sharon Belyne Otieno’s murder on 23^rd July 2026, closing a file that went through three trial judges, Covid-19 disruption, and sixteen interlocutory applications [5–7]. The story this file closes started in the dense, murky undergrowth of Kodera forest, specifically in the Owade area just adjacent to the forest, where a 26-year-old woman and her unborn child were left for a man herding cattle to find [1–3]. It ended, seven years later, under fluorescent light in a Milimani courtroom, decided in the register of section 111(1) and common intention. A former governor’s motorcade could not outrun that distance, and it showed on the day: Obado arrived for judgment in his SUV and left a few hours later in a prison lorry bound for remand. One relative of Sharon’s broke down in tears the moment the judge read the conviction. The cameras found the faces of her parents and held there long enough for the country to see what looked like a very heavy weight finally lifting off two people’s shoulders. In that moment, I summed up the message elsewhere as follows: political power in Kenya can buy you an entourage to cheer you at the courthouse gate. It cannot buy you out of a forest as dense as Kodera.

Count 2, the murder of “Baby Sharon”, had already been struck at the prima facie stage in the court’s January 2025 ruling, where the learned judge held that a 28-week foetus killed in utero does not meet the born-alive threshold under section 214 of the Penal Code and cannot be a murder victim under section 203 [25–28]. That finding was correct in January and stays correct now, for the reason that the offence that fits those facts is section 228 (killing an unborn child), and nobody was charged under it [28]. Nothing new to say there. Count 1 is where the judgment earns a proper read.

The Court is upfront that this is a fully circumstantial case: forty-two witnesses, none of whom placed any accused at the killing itself [117]. It states the governing test correctly; that the court of appeal in Sawe v Republic requires inculpatory facts incompatible with innocence and incapable of any competing reasonable explanation [123]. Fine so far and I harbour no qualms with the reasoning until this point. The trouble starts in how the Court fills the gaps in that chain of events.

Section 111(1) is not meant to fill evidentiary holes for the prosecution

At [211]–[214], the Court has a record of five phone calls between Obado and Obiero across 2^nd and 3^rd September 2018, which are the two days bracketting the killing, and no direct evidence of what was said on them. Rather than treating that gap as an evidentiary gap, Githua J invokes section 111(1) of the Evidence Act, the provision shifting the burden onto an accused to prove facts bringing his case “within any exception or exemption from, or qualification to” the offence charged. The court then proceeds to hold that since the content of the calls was “especially within the knowledge” of the two men, they bore the burden of explaining them. The accused having offered no explanation, the calls became proof of coordinated planning [212–214].

I submit that, at that point, the court’s reasoning does something section 111(1) was never built to do. Read the text again: it is an exception-and-defence provision dealing with alibi corroboration, statutory authorisation, insanity, that genus. It was never meant to convert an evidentiary silence about the content of a phone call into a persuasive burden on an element of murder. The judgment spends thirty paragraphs earlier reciting Lord Denning in the case of Miller v. Minister of Pensions [1947] 2 ALL ER 372 and the presumption of innocence under Article 50(2)(a) [103]–[107] before turning around and asking two accused men to prove their own innocence out of a phone log. Any advocate conducting a circumstantial murder defence from here on should read [211]–[214] as the paragraphs to distinguish, not follow, and any prosecutor should recognise it for the gift it is, because it will not survive a first appeal untouched if properly argued.

Common intention superseding an alibi the Court itself accepted

Obado’s alibi, that he was in Nairobi, not Migori, on the night Sharon was killed, is accepted as “supported by the evidence on record” [217]. He is convicted anyway, on the doctrine of common intention under sections 20 and 21 of the Penal Code: he supplied “motive, instigation and funds,” Oyamo “operationalised,” Obiero handled “logistical support and concealment” [216]. Doctrinally unremarkable, though, is that Njoroge v Republic confirms common intention needs no express pact and can be read off conduct. What should trouble a careful reader is how the court built the motive limb. Its premise rests almost entirely on the Court disbelieving Obado’s account of his own state of mind: that his continued support for Sharon during the pregnancy “was actually not sincere and was not true” [138], that his professed indifference to the story going public was a performance [142–151]. Collectively, to my mind, all these are inferences piled on inferences, with not one witness testifying to an instruction to kill. That may still clear the cumulative bar the Court sets for itself at [218]. Still, I argue that the judgment fails to ask whether the same scrutiny applied to reading Obado’s absent state of mind was applied against the two men who were physically present at Rongo’s Graca Hotel handing Sharon to her killers.

The contradiction the Court dismisses too quickly

PW9 and PW38 give irreconcilable accounts of whether Oyamo really boarded the vehicle at Graca Hotel before it drove toward Homa Bay [176–177]. The Court calls this peripheral and “not fundamental to the key issues in this case”, effectively citing the settled rule that minor inconsistencies don’t sink a prosecution case [185–189]. I concur that the rule is correctly stated. But this isn’t a peripheral detail in a case built on direct eyewitness testimony; rather, it’s a peripheral detail in a case built entirely on inference. Whether Oyamo was in the vehicle at the exact moment of handover of the deceased is about as close to the root of a circumstantial murder case as a fact can get, and the judgment waves it off too quickly with a confidence the underlying doctrine doesn’t quite permit if subjected to doctrinal and analytical rigour.

Conclusion

I end where I started. Unclothed of its Rodi-Kopany, Rongo’s Graca Hotel and Kodera Forest geographical triangle, the public will remember this case for the theatre that it was: Obado arriving for judgment in his SUV, and a few hours later leaving in a prison lorry bound for remand; a relative of Sharon’s breaking down in tears the moment the judge read out the conviction of the three accused; the cameras finding the faces of Sharon’s parents in the courtroom and holding there long enough for the country to see what looked like a very heavy burden finally lifting off their shoulders. That is the case as Kenya will carry it in memory, and it deserves to be carried that way.

But, more crucially, for a defence advocate handling the next circumstantial murder file, the key lesson is narrower and more useful: [211]–[214] is now the paragraph to cite if you’re prosecuting a case with a relatively limited evidentiary buffer, and the paragraph to attack if you’re defending one. That’s the only doctrine this file exports for practitioners. Everything else, the SUV, the lorry, the tears, the relief on two parents’ faces after seven years, is Migori and Homa Bay’s business, settled at last.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

Background

The case is Softcare Kenya Company Ltd v Mutungi (Employment and Labour Relations Appeal E058 of 2025) [2026] KEELRC 1538 (KLR), delivered at Machakos on 5^th June 2026. The claimant, Phauletta Ndinda Mutungi, worked for Softcare Kenya Company Limited as a diaper packer. Her pleaded case was that she had been employed since 1^st September 2020 and had served the company for two years and nine months of continuous service before her termination on 11^th July 2023 [22], [26]. The company’s pleaded case was materially different: that she had been employed on a fixed-term contract dated 26^th December 2022, expiring 25^th June 2023 [23], [27]. Nobody in this record ultimates answers which of these two accounts is correct, and that gap matters more than the judgment signals, as I will demonstrate.

What is not disputed is the medical history. In April 2023, the claimant was diagnosed with bilateral high-frequency hearing loss, said to be linked to unprotected exposure to noise in the packaging section [26]. Her doctor advised her to avoid noisy environments. The company’s witness account confirmed as much [27]. On 27^th June 2023, two days after the company’s own pleaded expiry date for the fixed-term contract, the company wrote to reassign her from packaging to cleaning duties, expressly citing the medical note as the reason [27]. She refused, asked instead to be moved to the in-house security detail, was told security was outsourced to a third-party contractor and therefore unavailable to her, was taken through a disciplinary process on 6^th July 2023 for declining the reassignment, and days later received a letter headed “Confirmation of Voluntary Termination of Employment Contract” [25].

The trial magistrate (Hon. D.K. Kuto, SPM) found constructive dismissal and awarded twelve months’ salary in compensation, amounting to roughly Kshs 259,668, plus a certificate of service, costs, and interest [15]. On appeal, Lady Justice Jemimah Keli set the award aside in its entirety, holding that the company had “reasonably accommodated” the claimant by offering the transfer. On appeal, the court reasoned that her insistence on a security role the company said did not exist amounted to an unreasonable demand, and that the disciplinary process satisfied section 41 of the Employment Act [32], [33]. The court applied the constructive dismissal test drawn from Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), correctly stating that the test for whether an employer’s conduct amounts to a repudiatory breach is objective [33]. Having found no repudiatory breach, the court substituted an award of one month’s notice pay and an order to issue the outstanding certificate of service, on the narrow basis that the certificate had never been produced, a breach of section 51 of the Employment Act [35].

The first gap: an accommodation offered against a contract nobody proved still existed

Every part of this judgment’s reasoning depends on there being a subsisting employer-employee relationship on 27^th June 2023, the date the reassignment letter went out. If the company’s own pleaded position is taken at face value, there was none. Its witness statement says in as many words that management “agreed that she should be transferred from packaging operations to cleaning services despite expiry of her employment contract” [27]. That was an admission, made in the company’s own evidence, that the fixed-term contract had already lapsed two days before the reassignment it now relies on as the accommodation the claimant unreasonably rejected.

To my mind, that admission should have compelled the court to decide a threshold question before it ever reached the Coca-Cola test: on what contractual basis was the claimant being managed at all after 25^th June 2023? Kenyan employment law does not treat continued engagement past the expiry of a fixed term as a legal vacuum. Where an employer keeps an employee working past the stated expiry date without a fresh written contract, the ordinary inference, which is consistent with the claimant’s own pleaded argument that “failure to give such notice and thereafter continue engaging the employee means that the employee’s contract is automatically renewed” [24], is that the relationship continues on the last agreed terms, whether by renewal or by conduct giving rise to an implied contract. The court never explores this argument at all. It is raised squarely on the record [24], but it disappears from the analysis.

I surmise that the consequence is not academic. If the contract had, on the company’s own account, expired, and continued only by conduct, then the reassignment of 27^th June 2023 was not an exercise of management prerogative under an existing contract of employment. Instead, it was the unilateral imposition of a new term on whatever relationship existed by operation of law, at the very moment the claimant had the least contractual protection and the most reason to expect the company to regularise her position rather than redeploy her out of it. A finding either way, that the contract had lapsed and continued by implication, or that it had in fact been renewed in writing and the company’s own witness misspoke, was necessary in response to this threshold question before the court could safely say the claimant was managed, disciplined and separated pursuant to a contract that authorised any of those steps. Advocates acting for claimants in redeployment disputes involving fixed-term contracts should take note: where the employer’s own witness statement concedes expiry, that concession belongs in the opening submissions, not left for the court to notice, infer or, as here, not notice at all.

The second gap: “reasonable accommodation” applied without asking whether the accommodation was reasonable

The court’s finding that the claimant was “reasonably accommodated by the transfer” [32] is an operative statement that is never tested against the one fact that ought to have decided it. The claimant’s own reply, unchallenged in the material the court had before it, pleaded that “the would-be new workstation for the Claimant (as a toilet cleaner) is well inside the factory and within the vicinity of the factory noise” and that the respondent “has not denied” this [24]. That is a direct, on-the-record allegation that the accommodation offered would have exposed a claimant with a medically documented noise-sensitivity condition to the very hazard her doctor told her to avoid, and the judgment records that the company never rebutted it.

A reasonable accommodation analysis, properly conducted, does not ask only whether the employer offered something other than the original noisy post. Rather, it asks very firmly whether what was offered correctly addressed the medical restriction. An employer facing a noise-related medical restriction discharges its duty by locating a genuinely quiet role, not by moving the employee to a different room inside the same noisy building and calling it cleaning rather than packaging. The judgment’s sole engagement with proximity is the observation that “the toilet is next to the gate” [31], drawn from the company witness’s cross-examination, which, if anything, corroborates the claimant’s pleaded case that the new post remained inside the factory perimeter rather than answering it. Nowhere does the court make an affirmative finding that the cleaning role removed the claimant from the noise she needed to avoid. It only asserts reasonableness and moves to the next issue.

The security-role alternative is handled in the same way in reverse: the company’s assertion that security was outsourced and therefore unavailable is accepted without any inquiry into whether the company made any effort to explore that avenue with its contractor, or whether packaging and toilet-cleaning genuinely exhausted the universe of roles open to a two-year-plus employee with a documented workplace injury. A reasonable accommodation inquiry, properly conducted under the standard that this line of Kenyan cases is edging toward, explores the available options; it does not accept a singular choice alluded to by the employer as the full extent of what was possible. Counsel advising employers on similar redeployment files should not read this judgment as authority that any alternative posting discharges the accommodation duty. Advocates advising claimants should plead the proximity and adequacy of the offered accommodation as a standalone issue, supported by an independent noise assessment if one can be obtained, rather than leaving it to inference from the correspondence as happened here.

The wording the court overlooked against the conduct it produced

The termination letter is headed “Confirmation of Voluntary Termination of Employment Contract” and recites that the claimant “expressed your decision to resign” [25]. The company’s own witness statement, describing the same sequence of events, says instead that “the Claimant’s refusal to take up her new role left the management with no choice but to accept her voluntary separation from the Company” [27], which is a fundamentally different explanation. A resignation is an act of the employee; “management ... accept[ing]” a separation is, on ordinary language, an act of the employer accepting the consequence of the employee’s non-compliance, which is closer to a dismissal for misconduct than to a resignation. The disciplinary invitation letter of 4^th July 2023 does not once use the word resignation or separation; it describes the 6^th July meeting as being convened “to discuss more on how the management can accommodate you ... and to summarise all other discussions in order to find a better solution” [28]. A meeting earlier mentioned to the employee as a further accommodation discussion produced, within days, a letter redefining the outcome as her own voluntary exit. Curious right?

The Coca-Cola v Kagai test the court correctly cites requires an objective evaluation of the employer’s conduct, not acceptance of whichever label the correspondence trail settles on [33]. The court applies that objectivity rigorously to defeat the claimant’s construction of events, and not at all to the company’s own categorisation of the separation as voluntary. That disconnect in analysis is the resounding technical weakness in the judgment: the same doctrinal tool that disposed of the constructive dismissal claim was never deployed when it came to the resignation label or wording, yet the entire disposition rests on it.

It shows up again in the relief the court eventually grants. Having found the separation voluntary and the dismissal claim unproven, the court nonetheless orders the company to pay one month’s notice pay [35], a remedy that ordinarily flows from an employer-initiated termination without notice, not from an employee’s resignation, where notice obligations run the other way. The judgment gives no reasoning to bridge that inconsistency; it seems to follow simply from the outstanding breach of the certificate of service under section 51, which is a different statutory wrong entirely and does not, on its own, generate a notice-pay entitlement. Counsel appealing or defending awards with a similar pattern of facts should isolate this point specifically: an order for notice pay is very hard to reconcile with a simultaneous finding that the employee resigned.

Conclusion

The court reaches a defensible outcome that an employer is not to be penalised in unfair-termination damages every time it redeploys an employee for a documented medical reason, and the employee refuses. But the learned judge arrives there by skipping two questions that the record itself expressly puts in issue. The questions are: whether there was a contract in force permitting the redeployment of the claimant in the first place, and whether the redeployment on offer really answered the medical restriction it was said to address. Advocates litigating the next noise-injury redeployment file, on either side, now have a template for what this court will accept as reasonable accommodation reasoning; and, read carefully, a formula for exactly where that reasoning can be attacked on the facts it left unexamined.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

That is the personal reason why I read this judgment line by line rather than skimming for the headline. What follows is the professional reason it matters for advocates who will act on it, not summarise it, and it is not the reason most commentary on this case will give.

Background

Between 2007 and 2020, the Governments of Kenya and Japan concluded sixteen bilateral financing agreements covering infrastructure and development projects, among them the Mombasa Port Development Project, the Mombasa Special Economic Zone works, and several Olkaria geothermal projects [3]. The Cabinet Secretary for the National Treasury and Planning gave effect to the tax terms of those agreements through Legal Notice No. 15 of 2021, issued under section 13(2) of the Income Tax Act, exempting Japanese companies, consultants, and employees engaged on the projects from Kenyan income tax to the extent specified in the respective agreements [2]. The Notice was tabled before the National Assembly’s Committee on Delegated Legislation, which found it properly issued and not subject to public participation because it recorded an intergovernmental understanding. Accordingly, the Committee’s report was adopted by the House on 19^th May 2021 [5].

Eliud Matindi, acting in person, challenged the Notice by way of Constitutional Petition No. E280 of 2021, arguing that any tax waiver required primary legislation under Article 210(1), that the Committee had wrongly perceived the Notice as exempt from the Statutory Instruments Act’s public participation requirements, and that the selective exemption was discriminatory [6] and [7]. Magare J agreed, quashing the Notice, declaring section 13(2) unconstitutional to the extent of its inconsistency with Article 210, and describing the differential treatment of Kenyan and Japanese workers on the same projects as amounting to “economic apartheid” [13], [18]. The National Assembly, the Speaker, the CS Treasury, and the Attorney General appealed. The Court of Appeal (Musinga P, Lesiit, and Achode, JJA.) allowed the consolidated appeals, holding that the Notice was executive rather than legislative in character and therefore fell outside the Statutory Instruments Act altogether [22] and [23]. Matindi’s second appeal, decided on 17^th July 2026 by the apex court, is the judgment currently under review.

The first novelty: the disclosure gap

The Supreme Court affirms the Court of Appeal’s position, holding that the Notice is “administrative” rather than “legislative” because it merely gives effect to bilateral agreements already in force and creates no independent rule [68]. The test the Court applies, administrative if the instrument “guides the implementation of standards in law and policy,” legislative if it “varies or repeals general laws... affecting the public at large” [67], is uncomfortable when assessed against the Court’s own recitation of the trial record. Section 13(2) does not authorise the Cabinet Secretary to publicise anything; it authorises him to create a tax exemption “to the extent specified in such notice” [54]. An instrument that determines who among persons earning identical income sourced in Kenya pays tax and who does not is a variation of the general incidence of income tax, not an administrative function of it. The Court records Magare J’s “economic apartheid” finding at the trial court without disturbing it [13], which makes the “administrative” label the operative holding rather than a settled premise.

The consequence for the discrimination ground, at paragraph [77], is the part every litigator handling a similar file should read twice. Having found the Notice not legislative in character, and therefore free of any Statutory Instruments Act disclosure obligation, the Court then holds against the appellant on discrimination because he never produced the terms of the underlying financing agreements, agreements the judgment itself records he had specifically asked the High Court to compel disclosure of [77]. Denied a participatory right at the point the Notice was made, and denied the particulars that would have substantiated a discrimination claim at the point of review, he is then held to a burden only those particulars could discharge. That is not incidental to this case; it is a holding that will recur in every future challenge to a gazetted exemption tied to an underlying agreement that has not been disclosed. For advocates, the pleading answer is to make disclosure of the underlying instrument a standalone prayer under Article 35, filed and seeking an interlocutory determination before the constitutional merits are argued, rather than a subsidiary prayer that a court can interpret as unnecessary once it has already disposed of the classification question.

A second, narrower gap exists alongside it. Article 210(2) requires a public record of every tax waiver, with reasons, reported independently to the Auditor General, a distinct obligation from the section 13(3) tabling requirement [51]. The Court analyses compliance with tabling as though it exhausts Article 210 [69] through [72]; it makes no finding that the Auditor General’s record was ever produced or reported. That omission is not fatal to this judgment, but it is a pending fact in issue for the next case, and counsel should plead for the record directly rather than assume the point was tested here.

The second novelty: the operative instrument was never challenged

Section 13(3) of the Income Tax Act, the same subsection that governs tabling, also contains a savings clause: annulment of a Notice by parliamentary resolution operates only prospectively, “without prejudice to the validity of anything previously done thereunder, or to the issuing of a new notice” [54]. That clause, not the core holding, is what has protected every Japanese company, consultant or employee who has already claimed the exemption on income already earned under the Notice. Whatever the outcome, I surmise that their position was therefore never at risk in this litigation.

What remains at risk is prospective. The same clause that protects past reliance leaves the exemption open to annulment by ordinary resolution at any sitting of the National Assembly, and this judgment offers no procedural ground to resist that. A Notice held to be administrative rather than legislative attracts no public participation right at the point it was made, and nothing in the judgment suggests annulment would require any process beyond the resolution itself [54], [68]. For counsel negotiating the next financing agreement that will rest behind a section 13(2) exemption, that is the operative risk, and it must be addressed in the drafting room, not in the courtroom. Two practical implications follow for advocates from this judgement. Build a tax adjustment or indemnity clause into the financing agreement itself, triggered by future annulment or successful constitutional challenge to the Notice, rather than handling the Gazette Notice as the end of the certainty analysis. Also, obtain and file the Article 210(2) Auditor General record contemporaneously with the Notice, because this judgment demonstrates that a court can uphold an exemption’s validity for years without that record ever being placed in evidence.

Conclusion

Most commentary on this judgment will analyse it as settling with finality the validity of Legal Notice No. 15 of 2021. That is the right question for a constitutional lawyer. And I think that it overstates the position on both fronts examined here. It is close to the wrong question for an in-house counsel, a deal counsel, or a CFO looking at a tax-exempt financing structure and asking what really protects the numbers on the model. The classification finding at [68] puts to rest one argument relating to bare reliance on the Statutory Instruments Act, without closing the disclosure route through Article 35 or the Article 210(2) evidentiary or doctrinal gap left open at [72]. Both remain available to a litigant who comes better prepared with their papers in order in the next case. And the provision that effectively determines exposure for past and future beneficiaries of the exemption is not the holding anyone will cite; it is the savings clause at [54], which remains untested in the same subsection everyone read past on the way to the constitutional question. Counsel on either side of the next gazetted tax exemption litigation should read the judgment for what it left open on the untested tax shield for Japanese companies, consultants or employees, not only for what it decided.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

I start with what the Court got right. It did not, unlike some petitions arriving under a similar label, get waved through on the strength of the word “religion.” At [49] the Court accepts Rastafari as a religion entitled to Article 32 protection, and does so on solid ground, which I find consistent with JWM (alias P) v Board of Management [particulars withheld] High School & 2 others [2019] KEHC 10897 (KLR), where Mwita J held it “no longer contestable” that Rastafari qualifies for constitutional protection in the dreadlocks-in-school context. That’s the correct starting point insofar as settled law is concerned, and the Court doesn’t hedge on it. Equally, the judgment resists the temptation to mischaracterise the claim as a bid for blanket decriminalisation; instead, it takes the Petitioners at their word that the relief sought was narrower: sacramental use in private homes and designated tabernacles [7, 21]. A lazier judgment would’ve just gone after the easy target instead. This one does well to directly engage the narrower ask by the petitioners.

The Court also ran a trial. Three witnesses gave evidence, were cross-examined and re-examined [11]; the judgment’s findings on inconsistency in the testimony [50–56] are grounded in a transcript, not asserted from the bench. Whatever one thinks of the conclusion drawn from that inconsistency, the process that produced it was procedurally sound. I note that the court held a full hearing, not a summary dismissal. And the closing reflection, Peter Tosh lyrics and matatu livery included [76–78], however unusual because before them the court ruled that it lacked jurisdiction, is a genuine strength rather than a stylistic showboating. A court that dismisses a petition and then candidly tells the country the underlying policy question deserves a national conversation independent of litigation is doing something judges rarely do: naming the limits of what adjudication can fix, without pretending the limits don’t exist.

I now get to the part that undoes some of that credit. The Court’s holding that the Petition is premature for want of exhaustion [47] is, on its own terms, a complete disposal, nothing else needed deciding after this paragraph. And yet the judgment continues for a further 27 paragraphs [48–74] fully adjudicating Articles 27, 28, 31, 32, 36, and Article 24, as if it had jurisdiction all along. A court that has just held it lacks jurisdiction cannot then bind anyone on the merits it says it can’t reach. It is simple: everything past [47] is obiter by the judgment’s own reasoning and lack of jurisdiction, however confidently it’s written. That’s not a small tension; it’s the same concern I’ve highlighted before in MLR Issue 008, analysing Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR): dispose on threshold grounds, then write the merits ruling anyway, as though holding two positions at once.

The ruling on the exhaustion doctrine itself doesn’t fully earn its confidence. It rests on Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others [2023] KESC 113 (KLR), quoted at [40] for the rule that exhaustion yields where the alternative mechanism is inadequate, tested case-by-case. As I argued in my analysis of Abidha Nicholus in January 2025, what the citation omits is that Nicholus applied that exact test and came out against exhaustion. In Nicholus, the Supreme Court’s nuanced approach to exhaustion found the EPRA/NEMA route inadequate for a constitutional claim and sent the matter back to the ELC. The Rastafari judgment now borrows the phrase without doing the applicability the phrase demands: it never asks whether a licensing board built under s.16 to authorise commercial “importation, exportation, diversion, sale, manufacture, production, or distribution” of narcotics [36] is fit to process an individual’s claim to private sacramental possession, an entirely different angle of analysis from the industrial licences the Board exists to grant. That gap matters more here than it would in an ordinary regulatory dispute, because criminal liability is what is at stake for the Petitioners.

The merits reasoning, for its part, is not balanced in the way it handles the evidence from the two sides. The Court holds the Petitioners to a higher standard on centrality: inconsistency among their own witnesses on whether cannabis use is doctrinally mandatory is treated as effectively fatal [50–56], while accepting NACADA’s unproven prevalence and dependency figures [67–69]. All this happens without asking why an affidavit containing averments, rather than the underlying survey data, should carry more evidentiary weight than sworn oral testimony tested under cross-examination. The Petitioners’ own submission that NACADA filed no primary data [19] goes unanswered on its own terms. A court demanding rigor from one side while accepting assertion from the other isn’t obviously balancing the scales that Article 24(3) puts in its hands.

And the comparative jurisdictional analysis focuses more on authority that doesn’t agree with itself. Employment Division v Smith, 494 U.S. 872 (1990), which ruled no case-by-case exemptions for neutral laws, is cited at [58–59] together with Gonzales v O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), at [20], whose central holding was that the state must show specifically why a narrow exemption can’t be granted. Gonzales exists, by its own account, because Congress passed RFRA to legislatively overturn Smith. Citing both as if they point in the same direction perceives a resolved American disagreement as a lead to a solution rather than a history. I have also cross-checked and the Prince citations have a similar problem: what the judgment calls “Prince 1” at [16] is actually the second Constitutional Court judgment in that litigation, Prince v President of the Law Society of the Cape of Good Hope [2002] ZACC 1; the real first, Prince v President of the Law Society of the Cape of Good Hope and Others (CCT36/00) [2000] ZACC 28, isn’t cited at all. Effectively, what the court calls “Prince 2” at [17] is an unrelated case filed by different litigants fifteen years later on a privacy theory. And the exhaustion doctrine’s anchor citation at [35], referring to “Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others” doesn’t match Kenya Laws available record, which lists the case as Muthinja, Geoffrey & Robert Banda Ngombe v Samuel Muguna Henry & 1750 others, [2015] KECA 304 (KLR). I surmise that this is an error the judgment draws from years of prior misquotation rather than originates, but one that still sends anyone searching Kenya Law by the name given here to an empty results page.

Considered from all angles, this is a judgment that cumulatively does the harder, more honest thing at the level of process, including allowing for full trial and directly engaging the narrower relief sought. Crucially, the court, in an unusually frank language, diagnoses where the real solution lies. But its undoing is evident in how it then undermines its own authority at the level of reasoning, by writing a merits ruling it said it had no jurisdiction to write, on a citation base that doesn’t hold up to a citator check and analytical rigour. The part advocates will want to rely on is the part least availed. The part best articulated, which deals with the recognition of Rastafari as a protected faith, and the closing call for a legislative intervention was never really in doubt, and didn’t need twenty-five pages to say.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.

I start with the central holding. At paragraph 70, the Court states, without qualification, 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.” That is a subject-matter statement: it is about what kind of dispute this is, not about who is bringing it. The Court gets there by a genuinely useful piece of statutory synthesis: it reads the word “including” in Section 12(1) as illustrative rather than exhaustive [58], and then, applying the in pari materia canon endorsed by the South African Constitutional Court in The Independent Institute of Education v KwaZulu-Natal Law Society and adopted locally in Njuguna v Republic [2025] KECA 850 (KLR) [56], imports “prospective employee” and “person seeking employment” into ELRC’s jurisdiction via Section 5 of the Labour Relations Act and Sections 5, 9(9) of the Employment Act [61–69]. This is a sound and persuasive analysis. But the Court never asks the question that ejusdem generis would demand of it: does the genus of persons expressly listed in Section 12(2), including employees, employers, trade unions, the Registrar of Trade Unions, the Cabinet Secretary, share a common character that should determine how far “any other written law” can stretch, or is the phrase an open door? The Court squarely asserts extension without testing restriction, which matters because the same interpretive lens, run the other way, is exactly what the High Court and Court of Appeal used to reach the opposite conclusion on the same words.

Here is where the reasoning wobbles. Two paragraphs after declaring exclusive ELRC domain over pre-employment disputes, the Court upholds the High Court’s jurisdiction over such a dispute involving the challenge to the CEO and MD appointments at four parastatals, which the Court itself delineates as concerning “the manner in which the advertisement of the vacancy is done, the manner in which the shortlisting of the applicants... is done, the interview process and the selection of the successful candidates” [47]. Final order (iii) upholds the Court of Appeal “to the extent that it found that the High Court, on the facts before it, had jurisdiction over the dispute” [82(iii)], in the same breath as order (i) sets aside the Court of Appeal’s finding “that the jurisdiction of the ELRC does not extend to pre-employment disputes” [82(i)(a)]. I surmise that both cannot be true of the same recruitment file unless something other than subject matter is guiding the Court’s reasoning. That something is capacity, and it is embedded deep in paragraphs 72 to 75: the 1st to 7th respondents pleaded themselves not as rejected applicants or prospective employees under Section 12 or its related statutes, but as “human rights activist, patriotic citizens of Kenya, law-abiding citizens, public-spirited individuals, and human rights defenders” invoking Article 22(2)(c) public interest standing [73–74]. That is the ratio. The Court never states it as a rule; it states the opposite rule at paragraph 70, in absolute terms, and then reaches its result through an unarticulated exception. A rule announced as subject-matter jurisdiction, applied through the capacity of the litigant, is not a rule any competent advocate can safely rely on when advising a client on where to file, because the Court has given the bar no test applicable when a pleading crosses from “aggrieved applicant” into “public-spirited citizen”. Crucially, this is an increasingly important question given that Kenyan courts have historically been wary of public interest litigation being used to bypass proper party requirements where identifiable victims exist and could sue in their own right (the concern evident in the Kenya Tea Growers Association v NSSF Board of Trustees litigation). On the strength of this judgment, any advocate wishing to escape ELRC’s newly created “exclusive domain” over recruitment disputes needs only to draft the petition from the constitutional citizenship angle rather than personal grievance. The Court has, in substance, handed practitioners a forum-selection clause clothed as a jurisdictional holding.

The second difficulty is more substantive still, and goes to what actually binds. If the case turns, as I have argued, on capacity rather than subject-matter, then paragraphs 55 to 71, which are the entire reasoning establishing ELRC’s “exclusive domain” over pre-employment disputes generally, were not necessary to dispose of the appeal before the Court. The appeal could have been resolved in a single paragraph: since the 1st to 7th respondents sued as public interest litigants under Article 22(2)(c), not in any capacity contemplated by Section 12 of the ELRC Act or its related statutes, the High Court properly retained jurisdiction, without more. Everything else is guidance on a question the facts did not require the Court to answer to dispose of this appeal; classically obiter, however well reasoned. Yet the Court incorporates that guidance directly into the formal orders, expressly setting aside a limb of the Court of Appeal’s judgment on the strength of it [82(i)(a)–(b), 82(ii)(a)]. This is not a lazy distinction. Whether paragraphs 55 to 71 bind lower courts under Article 163(7) as ratio, or merely persuade as considered dicta, will determine how much weight an ELRC judge or High Court judge is entitled to give it the next time a rejected tenderer or unsuccessful candidate brings a petition ambiguously worded between personal grievance and public interest, and the Court has given the profession no signal that it turned its mind to the distinction at all. Advocates should also note that this same bench declined, at paragraph 78, to exercise Article 163(4)(a) jurisdiction over the territorial jurisdiction and conservatory-order questions raised in the very same consolidated appeal, holding those questions did not “constitute a matter relating to the interpretation or application of the Constitution.” That is a defensible position taken alone, but read against paragraphs 38 to 45, where the Court struggled to establish its own jurisdiction over the appeal at all, given that the appellants invoked both limbs of Article 163(4) and the cross-appellants cited no limb whatsoever, rescued only by an oral clarification from the bar [38, 45], it confirms that this Court now perceives Article 163(4)(a) jurisdiction as something to be assessed issue-by-issue within a single appeal, rather than appeal-wide once jurisdiction is established on one ground. That fragmentation is itself worth noting to any advocate drafting grounds of appeal: a single notice of appeal may clear the constitutional threshold on one ground and be summarily locked out on another, entirely within the same file.

Finally, and to my mind most consequentially for practice, the judgment fails to engage the Fair Administrative Action Act 2015, as it should have. The recruitment and appointment of a state corporation’s CEO is a law 101 “administrative action” within the meaning of Section 2 of that Act, ordinarily the subject of a review in the High Court under Order 53 of the Civil Procedure Rules read with Section 8 of the FAAA, giving effect to Article 47. If ELRC’s jurisdiction over pre-employment procedural disputes, including advertisement, shortlisting, interview, selection [79], is now “exclusive” whenever the complainant is an applicant or prospective employee rather than a public-interest citizen, does that oust the established judicial review avenue under the FAAA for that same category of litigant challenging the same category of decision? The judgment is silent, and the silence is not trivial: it yields uncertainty for every rejected candidate in a state recruitment process, uncertain whether their remedy lies in an FAAA judicial review at the High Court or a constitutional petition at the ELRC. This is implicitly the “muddle” that the Court itself laments at paragraph 46 that litigants had to endure historically. Here’s the bottomline: An apex court setting the record straight on the jurisdictional boundaries between courts of the same status has a duty to reconcile that restatement with the statute Parliament passed specifically to govern administrative decision-making of this kind. This judgment, similar to the decision of the Court analysed in this author’s thesis in MLR Issue 001 embedded below, does not attempt it.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

Base Titanium shipped its last bulk cargo of Kwale ore out of the Mombasa port terminal in February 2025, eleven years after the Commissioner of Mines and Geology granted it a licence to strip titanium, rutile, zircon, and ilmenite out of the ground near Msambweni [3]. The heavy machinery is currently being decommissioned. The tailings storage facility, which is forty-five million tonnes of slime spread across roughly 270 hectares, is now somebody else’s fifteen-year rehabilitation and stabilisation problem. By any ordinary commercial lens, the story of Base Titanium in Kwale is over, but its litigation is not.

On 15^th May 2026, the Supreme Court dismissed the appeal by Base Titanium in a dispute that has now taken five years, circled across three courts, survived a preliminary objection on the Court’s own jurisdiction, and a rebuke to counsel delivered from the bench; and sent the underlying petition back to the Environment and Land Court to be tried on the merits. All this has happened years after the mine that supposedly caused the harm stopped operating [43-45]. That alone would make an odd footnote. What elevates it from a footnote to this headline is what the Court had to decide to get there: for the first time at the apex level, it was forced to settle the jurisdictional contest between the Environment and Land Court and the specialised administrative dispute mechanism built into section 155 of the Mining Act. This standoff, on the reasoning adopted here, extends well past mining to every sectoral statute that mandates a regulator as a first instance port of call at disputes before a claimant can approach the court.

This author highlighted this case the same day it was delivered, in the usual short IRAC note that went round the WhatsApp groups back when this publication was nothing more than that: a post, not a platform. It deserved more than a heads-up then, and it still hasn’t had any practitioner commentary anywhere since, until now. Kenya Law shows zero documents citing this judgment as of the time of this writing, which, for a ruling with this many implications across the extractives and regulatory bar, is itself a matter worth concern. But the more useful exercise is unpacking exactly what the Court settled, what it left wide open, and how a five-judge bench that spent nine paragraphs defending its own jurisdiction to hear the appeal at all moved rather quickly through the substantive question everyone would be citing this case for.

II. The Facts

Michael Kiswili, suing on his own behalf and for sixty-five other residents of Mavumo “B” village in Msambweni, filed ELC Petition No. 3 of 2021, alleging that Base Titanium had commenced and conducted its mining operations without a proper Environmental Impact Assessment and without adequate public participation, causing environmental degradation, water pollution, excessive noise, and adverse health effects to the village [4]. He sought declarations that the residents’ Article 42 rights had been violated, an order compelling environmental restoration, and, crucially, orders compelling NEMA to revoke the EIA licence and the Commissioner of Mines to revoke the mining licence itself [5-6].

The defence mounted by Base Titanium was never about the facts. Instead, the company moved to strike out the petition on a pure jurisdictional objection: section 155(b) of the Mining Act vests the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs with original jurisdiction over “any wrongful act committed or omitted in the course of prospecting and mining operations”. It argued that the ELC’s role is confined to an appeal under section 157 once the Cabinet Secretary has ruled [8], [9], [40]. NEMA and the Attorney General equally brought a separate objection grounded in the exhaustion doctrine: section 129 of EMCA, section 9(2) and (3) of the Fair Administrative Action Act, Article 159(2) of the Constitution. On their part, they argued that the petition was a nullity for having bypassed the Authority’s own internal dispute mechanisms [10]. Justice Dena then sitting at the ELC in Kwale (and now at Winam Court, Siaya) rejected both objections on 10^th February 2022, holding that a claim seeking a declaration that Article 42 rights had been denied fell within the Court’s original jurisdiction under Article 162(2)(b) as read with section 13(2) and (3) of the ELC Act [11].

The Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJ.A) affirmed this ruling on 18^th July 2025. But, more importantly, it did so by introducing a specific analytical angle: the “predominant purpose test”, holding that the dominant purpose of Kiswili’s petition was the enforcement of the right to a clean and healthy environment, and that section 155 of the Mining Act therefore did not oust the ELC’s constitutional jurisdiction [13]. Base Titanium’s appeal to the Supreme Court, filed as of right under Article 163(4)(a), not only faulted that finding directly, but also raised something else: that the Court of Appeal violated the company’s right to a fair hearing under Article 50 by introducing and applying the predominant purpose test without inviting submissions from any party on it [19]. In response, Kiswili filed a preliminary objection of his own, arguing that Base Titanium’s appeal touched no constitutional question at all and, absent certification under Article 163(4)(b), had no business being before the Supreme Court in the first place [16], [21]. And in a detail that is worth close attention here, the Commissioner of Mines and the Attorney General, who were perceived to be on Base Titanium’s side of the dispute as far as jurisdiction was concerned, filed their own Notice of Grounds Affirming the Decision taking the position that whereas the “predominant purpose test” was never “an issue framed for determination,” it was merely the Court of Appeal’s own case analysis of the pleadings before it [18]. Before the apex Court, therefore, were three respondents, three different theories of what the test even was. This is why the Supreme Court had rather more sorting out to do than the eventual length of the judgment it produced.

III. Determination

A. The Court Restates Its Own Jurisdiction (paras 24–32)

Before touching the merits, the Court had to clear Kiswili’s threshold objection that no Article 163(4)(a) appeal lay at all. It did so by restating the settled test from Lawrence Nduttu, Joho v Shahbal, and John Florence Maritime Services; all for the proposition that jurisdiction as of right attaches only where a specific constitutional provision was genuinely in issue for interpretation or application before both the High Court (or courts of equal status) and the Court of Appeal [26–27], [31]. Applying that test, the Court found that “at the heart of this dispute” was the interpretation and application of Article 162(2)(b), and that both superior courts below had in fact interpreted that provision in reaching their conclusions on jurisdiction [29–30]. Therefore, the objection was overruled, effectively allowing the appeal to proceed [32].

B. Counsel, Read the Constitution (para 33)

Then, without being moved by any party or based on any ground of appeal, the Court paused to address something that happened at the bar during oral highlighting on 12^th March 2026. Counsel for Kiswili, the very respondent who had filed the preliminary objection insisting no Article 163(4)(a) jurisdiction existed absent certification under 163(4)(b), was asked to clarify his position, and told the bench that a party moving the Supreme Court on appeal is required to rely on both Article 163(4)(a) and 163(4)(b) simultaneously [33]. The Court’s response is worth quoting in full for what it says about the state of appellate advocacy before it: “This is an incorrect position, and we must point out that this Court has numerous decisions on the said issue” [33]. The Court relays this simply as “a caution to all counsel appearing before this Court” rather than a direct chastising of one advocate [33]. But five justices of the apex court taking the trouble to correct a licensed advocate’s basic misunderstanding of the two limbs of Article 163(4), on the record, in a reported judgment, is not a small thing. It should be interpreted alongside a worrying pattern this publication has tracked before: Counsel arriving at the Supreme Court without having done the reading.

C. Section 155 Loses (paras 34–43)

On the substance, the Court set out Article 162(2) and (3) and section 13 of the ELC Act in full [35–37], and characterised the statutory grant of jurisdiction to the ELC over “mining, minerals and other natural resources” disputes, read with the saving clause preserving the Court’s power to hear Article 42, 69 and 70 claims, as leaving “no room for conjecture” [36–37]. It then applied, without fully harmonising whether it was applying a formal legal test or simply endorsing a factual characterisation, the predominant purpose framework to Kiswili’s pleadings, concluding that “the dominant issue in this case was the impact of the mining activities undertaken by the appellant, on the 1^st respondent’s right to a clean and healthy environment” [38–39].

Having set out the five specific heads of Cabinet Secretary jurisdiction under section 155, including boundary disputes, wrongful acts in the course of mining operations, pump and pipeline claims, water priority disputes, and compensation assessment [40], the Court then delivered its central finding in a single sentence: “the Cabinet Secretary has no jurisdiction to determine alleged violations of the Constitution, this is a preserve for the ELC” [41]. Its reasoning for this holding is informed by the Ramogi “bootstraps” doctrine, effectively citing the High Court’s position that a claim genuinely seeking to enforce constitutional rights (as opposed to one merely dressed in Bill of Rights language as a pretext for court access) is not barred by the exhaustion doctrine [41]. The Court similarly relies on its own earlier nuanced approach in Nicholus v Attorney General that the mere availability of an alternative remedy does not oust constitutional jurisdiction where that remedy is inadequate [42]. The appeal was dismissed, the Court of Appeal affirmed, and in the line that will matter most to anyone still standing in this litigation, the ELC petition was ordered to proceed to a full merits hearing five years after it was filed and roughly two years after the mine itself stopped running [43-45].

IV. Critique

A. The Fair Hearing Argument That the Court Refused to Unpack

Ground (v) of Base Titanium’s petition of appeal was not a wishaway point. It alleged that the Court of Appeal had violated the company’s Article 50 right to a fair hearing by introducing and relying on the predominant purpose test without any party having made submissions on it [19]. That is a serious procedural complaint, and by relying on its own analysis, the Court failed to test this argument. However, examined from all angles, the Supreme Court’s analysis in full, at paragraphs 34 to 43, contains no single sentence addressing it directly. The Court proceeds to apply the very same predominant purpose framework itself, effectively ratifying the Court of Appeal’s approach by using it, without ever pronouncing on whether introducing it without submissions was procedurally sound in the first place. A specific, pleaded ground of appeal simply went unanswered. For advocates whose bread and butter is finding exactly this kind of gap in an otherwise tidy judgment, it is difficult to imagine a more obvious one.

B. Test or Description? The Court Fails to Tell

The Commissioner of Mines and the Attorney General, parties with every institutional motivation to demand clarity on the jurisdiction question, specifically warned the Court that “the predominant purpose test” was not a legal test at all, but the Court of Appeal’s own case-specific characterisation of the pleadings, facts, and evidence before it [18]. This is not a lazy distinction. If predominant purpose is a formal jurisdictional test of general application, every advocate drafting a petition against a licensed operator in a regulated sector, be it mining, energy, water, fisheries, now has a template: plead the Bill of Rights violation as the dominant relief sought, relegate the sectoral claim to a subsidiary prayer, and the specialised administrative mechanism (the sector’s own statute built for exactly this dispute) becomes optional. If, on the other hand, it is merely a descriptive label the Supreme Court borrowed to explain why these pleadings, on these facts, happened to sound predominantly constitutional, then its implication as a precedent is far narrower, and every future case will turn on its own facts regardless of how cleverly the petition is drafted. The Supreme Court had this distinction placed directly in front of it by two respondents and simply did not speak unequivocally about it [18], [38–39]. The result is that advocates must now grapple with the ambiguity.

C. A Bare Assertion Where Ramogi Demanded Analysis

Paragraph 41 is the fulcrum of this judgment, and it is one sentence of assertion rather than a carefully drafted explanation or application of the doctrine it seeks to restate. Having just set out, in the Court’s own words, that section 155(b) of the Mining Act gives the Cabinet Secretary jurisdiction over “any wrongful act committed or omitted in the course of prospecting and mining operations, by any persons against any other person” [40], the Court simply declares that the Cabinet Secretary “has no jurisdiction to determine alleged violations of the Constitution” and moves on [41]. Crucially, the language deployed by the Court in paragraph 40 is overly expansive, broad enough on its face to capture environmental degradation and pollution claims as wrongful acts, with head (e) further covering “assessment and payment of compensation” [40]. The Court quotes Ramogi‘s bootstraps language in full, including the specific warning that constitutional relief is unavailable where the claimed violation is “merely framed in Bill of Rights language as a pretext to gain entry to the Court” [41]. But it never tested Kiswili’s petition against that standard. Was this a genuine constitutional claim, or a wrongful-act-and-compensation claim clothed in an Article 42 apparel to bypass a statutory mechanism that would have required proof of loss and a Cabinet Secretary’s inquiry rather than a full constitutional trial? The Court had the time, disposition, and space to answer that question conclusively as the crux of this judgment, and chose not to utilise it.

D. The Structural Problem in Paragraphs 24 to 32

There is a structural problem here that nobody appears to have noticed, including the parties. Kiswili’s preliminary objection said the Supreme Court had no business hearing this appeal at all absent certification under Article 163(4)(b) [16], [21]. The Court answered that by holding the appeal fell within 163(4)(a) because the dispute involved an interpretation of Article 162(2)(b) below [29–32], which is to say, the Court used its conclusion on the merits question (does Article 162(2)(b) confer original ELC jurisdiction over this kind of dispute) to manufacture its own threshold jurisdiction to decide that very question. Every jurisdictional appeal of this nature can be pleaded the same way: draft the underlying jurisdictional dispute as a question of “interpretation and application” of whichever constitutional provision an advocate chooses as operative, and Article 163(4)(a) caves in as of right, no certification required. If that reasoning is taken at face value, Article 163(4)(b)’s certification requirement has very little left to do in jurisdictional appeals specifically. This would be a strange outcome for the Court to arrive at in a judgment that spends nine paragraphs examining its own jurisdiction as a serious threshold question [24–32], then ultimately responds to it by assumption.

V. Key Takeaways for Advocates

Plead the constitutional claim as dominant, and push for it. Where a client’s grievance against a mining, energy, or water sector operator falls partly in a specialised statutory mechanism and partly in Article 42, 69, or 70, this judgment rewards framing the constitutional relief as the pivot point of the petition. But given the unresolved Ramogi bootstraps question at IV.C above, frame it in a genuine way by pleading specific, non-duplicative constitutional harm, not merely a constitutional breach over a compensation claim. This is because a future bench, which is more conservative than this one, may actually apply the bootstraps test the Supreme Court quoted but did not use.

Section 155 of the Mining Act is no longer a reliable jurisdictional shield. Advocates defending petitions relating to environmental or health harm can no longer assume a strike-out application grounded in section 155 will succeed merely because the underlying facts touch mining operations. This holding will be cited well beyond mining, expect it to be argued as obiter against the Energy Act’s section 36 mechanism, EMCA’s section 129 process, and any other sectoral ADR clause standing between a claimant and the ELC or High Court.

Do not assume “predominant purpose” is a settled doctrine. Instead, argue its status, not just its application. Given the unaddressed tension detected at the judgement’s IV.B, counsel on either side should not simply argue whether the test is satisfied on the facts; argue, as the 3^rd and 4^th respondents tried to do here, what the test actually is and whether it should be elevated beyond this case’s own facts.

Get your Article 163(4) submissions right before you appear before the Court. Paragraph 33 is not incidental. The distinction between the “as of right” route under 163(4)(a) and the certification route under 163(4)(b) is foundational Supreme Court practice, and getting it very wrong at the bar invites exactly the kind of public correction recorded here.

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VI. Conclusion

Uncloth it of the Kwale geography and the titanium, and what the Supreme Court did on 15^th May 2026 was resolve, casually, in a judgment that spends more paragraphs on its own jurisdiction than on the substantive question everyone actually cares about, a structural question that defines every sectoral regulatory dispute in the country. That structural question is this: when does a specialised administrative dispute mechanism give way to constitutional litigation before the ELC or the High Court? The answer the Court gave is charitable to claimants but correspondingly brutal to operators, and it arrived without the doctrinal rigour the question deserved. The judgement leaves wide open an unaddressed fair hearing ground, an unexplained status for its own central analytical framework, and a fulcrum paragraph that asserts rather than reasons. Base Titanium got its (procedural) day in court relating to the jurisdiction question, but lost it completely on substance: Kiswili and his sixty-five co-petitioners now get the merits trial they have been waiting five years for, against a mine that no longer exists. Here’s the bottom line: Everyone else practising in this space now has a precedent whose limits nobody has yet tested, in a corner of the law reports that, until this piece, nobody had bothered to read closely.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

While Kenyan legal Twitter and Advocates’ Branch WhatsApp groups spent the better part of 2025 dissecting the Dock Workers saga, Omtatah v Portside, Finance Bill, and the latest instalment of public debt litigation, a Supreme Court judgment of genuine doctrinal significance was delivered, published, and almost immediately forgotten. Kenya Wildlife Service v Sea Star Malindi Limited (Petition E022 of 2024) [2025] KESC 42 (KLR) was handed down on 27 June 2025 by a bench comprising the Chief Justice and four Supreme Court Justices. This case only surfaced in the 17 June 2026 Kenya Law’s general Weekly Newsletter feed, a year following its delivery. To this author’s best knowledge, the judgement has attracted no law-blog commentary, no practitioner thread, and no journal note. It has a single citing case: an unrelated Employment and Labour Relations Court ruling.

This is not entirely surprising. The existing ecosystem of legal commentary across practitioner blogs and social media platforms, which has mushroomed since 2020, has exhibited a compelling gravitational pull towards public interest litigation with high visibility, including cases such as Gachagua, the Laikipia Ebola quarantine centre, SHA, BBI, housing levy challenges, finance bill petitions, and media freedom. Such cases attract commentary partly due to their identifiable public protagonists, partly because of their political heat and immediacy, and partly because the issues they deal with often feel “large”. Sea Star involves a hotel in Malindi, a wildlife agency, and a construction dispute that began in 1997. It possesses none of that energy or celebrity status.

It has, however, something more durable: it represents the first decision of the Supreme Court to directly confront and offer a binding principle on the link between the outcomes of judicial review in the pre-2010 era and civil liability in subsequent constitutional litigation. Sea Star portends deeper ramifications through a sub silentio ruling about coastal foreshore title ownership, which could unsettle registered property along the entire coastline of Kenya. And, crucially, the judgement candidly exposes the problem of judicial role abdication, including the outsourcing of a past determination of liability to a subsequent civil proceeding, which has been quietly normalised across the ELC and High Court for years. None of that is footnote material. But all of it has been missed by advocates.

This critique bridges the gap by providing what has been absent: the judgement’s close, critical reading by zooming in on the precise paragraph references, directed at advocates who must urgently comprehend what the Court said, its silences, and what the emergent legal landscape demands of practitioners handling administrative law claims and coastal foreshore property disputes in Kenyan courts.

II. The Litigation in Précis

The facts are straightforward: they span nearly three decades and three different sets of proceedings, itself a symptom worth attention. In 1994, Sea Star Malindi Limited purchased LR No 3170 Malindi, a parcel adjacent to the Malindi Marine National Reserve and Park, to build a hotel. Construction began in 1996 with approved building plans. In April 1997, the Kenya Wildlife Service (KWS) issued a stop-order claiming the construction encroached on a protected area, specifically the zone within 100 feet of the high-water mark designated under Legal Notice No 99 of 1968. KWS briefly granted conditional permission to continue in June 1997, then withdrew it in August 1997, citing, among other things, installation of a septic tank on porous coral reefs and continued encroachment [3]. KWS wardens occupied the land in November 1997.

Sea Star challenged the August 1997 decision by judicial review (Misc Suit No 982 of 1997). In November 2002, Onyango Otieno J issued certiorari quashing that decision, finding the land to be private, unaffected by Legal Notice No 99, and the appellant’s conduct “manifestly unjust” [8]. Critically, the 2002 court also observed, without apparent resolution, that the suit land extended to the high-water mark.

Sea Star had also filed a civil suit in 1998 (HC Civil Suit No 579 of 1998, later ELC No 56 of 2016). When the ELC eventually heard that suit, Olola J treated the 2002 judicial review decision as conclusively determining liability, confined his analysis to quantum, and, in July 2018, awarded Kshs. 90 million in reconstruction costs and Kshs. 30 million in general damages [9–10]. The Court of Appeal (Nyamweya and Odunga JJA, Gatembu JA dissenting) upheld liability, reduced general damages to Kshs. 3 million, and maintained the special damages award [13–18]. The Supreme Court, in the judgment currently under review, allowed KWS’s further appeal, set aside the Court of Appeal judgment, and remitted the matter for re-evaluation of liability on a “priority basis,” noting the case was first filed in 1998, as its final orders [15].

III. Determination

A. The Central Holding: Judicial Review Does Not Establish Civil Liability (Paras 33–35, 41–44)

The Court’s central holding proceeds that during the pre-2010 Constitutional regime, judicial review was confined to examining lawfulness, rationality, and procedural fairness, without addressing the merits of the decision or civil liability [33]. As such, the available relief at common law and statutorily, including certiorari, prohibition, and mandamus, did not include damages. That is a settled point insofar as the historical position goes, and I have no qualms about it. What makes the judgment significant is the consequence the Court draws from it.

The Court rules that a judicial review finding, even one that characterises administrative conduct as “excessive,” “irrational,” or in breach of procedure, does not automatically satisfy the elements of a civil cause of action or constitutional tort [41-44]. Crucially, the Court breaks down the trouble with this judicial abdication approach, noting that the trial court “wholly adopted” the 2002 decision on liability without evaluating KWS’s defence in the civil suit, and without assessing whether the elements of civil responsibility, distinct from administrative unlawfulness, had been met [42-43]. That failure was further amplified by the Court of Appeal, which upheld it.

The holding that a civil suit liability requires an independent evidential assessment would sound obvious to most advocates. The novelty here is that both superior courts below had treated it as unnecessary, and the Supreme Court is now saying, in clearest terms, that this approach is constitutionally and procedurally warped. The Court frames this as a violation of the fundamental right to a hearing on liability [44]: KWS was denied an independent assessment of the civil claim made against it.

This is a point which must be noted carefully by advocates dealing with claims against public bodies, especially those where a judicial review application has preceded the substantive suit. In Sea Star, the 2002 certiorari order signalled that the 1997 conduct of KWS was procedurally unlawful. What it did not say was that KWS is liable in damages to Sea Star. Those are two distinct questions, and following the ratio in Sea Star, they must be answered independently.

B. The Retrospectivity Error: Misapplying Saisi (Paras 34, 37–40)

The analysis route adopted by the Court of Appeal showed a level of sophistry that deserves a deeper scrutiny before being outrightly rejected. The Court built its ratio on its decision in Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6, where, by a majority, it reasoned that post-2010 judicial review under Article 47 and the Fair Administrative Action Act allowed a merits review (see this author’s commentary at OxHRH on the duality of Kenyan JR Law post 2010). Therefore, the Court was of the view that, given this background, the 2002 decision should be read as having conducted that kind of review [23].

In rejecting this proposition, the Supreme Court dismantles this ratio completely [37-40]. The point is fundamental: Saisi was decided in the post-2010 constitutional framework, under the FAA Act. The 2002 judicial review proceeding was conducted under Order 53 of the Civil Procedure Rules and the Law Reform Act, a regime that expressly excluded merit review. To read the 2002 decision through the lens of Article 47 and the FAA Act is not constitutional interpretation; it is a retrospective rule-change. Ultimately, the Court surmises that the Court of Appeal’s approach “lacks a sound jurisprudential basis.” [40].

This is a major statement refuting a tendency that has become notorious in Kenyan courts post-2010: reaching backwards to re-read pre-2010 proceedings through the expanded constitutional framework. The temptation for the benches to do so is understandable because the 2010 Constitution transformed Kenyan public law, and there is a natural temptation to treat that transformation as comprehensive and retroactive. But as the Court correctly finds, what a proceeding determined is fixed by what the law at the time authorised it to determine. You cannot expand the scope of a judgement delivered in 2002 to fit into 2018 by citing a 2015 statute and a 2010 Constitution.

The Court safeguards a distinction that is critical here, and it is a distinction which advocates would do well to understand and apply correctly: the Court draws a line between the Saisi-style limited merit review of administrative decisions within a judicial review application, and the holistic transplanting of a determination of civil liability to a subsequent suit based on the earlier outcome of judicial review. Even under the post-2010 framework, the former is bounded; the latter is impermissible.

C. The Foreshore Bomb (Held Section, Para 8)

The judgement’s most significant holding, yet the least examined, is carved out as an obiter in the determination section [8]. This is framed as an observation while “not addressing the question of liability that was before the trial court”, and the Court says:

Section 45 of the Survey Act, read with Regulation 110 of the Survey (Amendment) Regulations 1994, provides for a coastal offshore reservation. Any title purporting to cover the 60-metre coastal strip is invalid unless expressly exempted by the Minister. The 60-metre high-water mark zone is held by the State in public trust as a protective buffer adjacent to the territorial sea, and alienation of this land to private parties without lawful exemption is both unlawful and void. Section 82 of the Government Lands Act (repealed) outrightly forbade the conferment of any right to the foreshore [8].

This is tailored as a statutory viewpoint of the Court, expressly advising the Court of Appeal on what exactly it is expected to assess on remittal. But consider what this actually means. The 2002 judicial review decision ruled, and this was adopted by every subsequent court, that the suit land was private freehold property, unaffected by Legal Notice No 99 of 1968 (para 8 of the facts). In this decision, the apex Court is now saying that even if that is correct as far as Legal Notice No 99 goes, there is an entirely separate legal regime comprising the Survey Act, the Government Lands Act, and public trust doctrine, under which any part of the land within 60 metres of the high-water mark is state land, inalienable by private conveyance, and under which any registered title to that strip is void.

The viewpoint is framed as obiter. But an obiter from the apex Court in Kenya and expressly written in the context of offering direction to the Court of Appeal to illuminate its path on remittal does more than just being a rationale of reasoning. The word “void” is expressly deployed, and the direction to analyse whether the extension of the suit land to the high-water mark means it encroaches on the inalienable coastal strip is explicit.

For advocates handling or advising on coastal property in Kenya for conservation bodies, county governments, financiers dealing with coastal land as security, or developers, this paragraph should be invoked to trigger an urgent review of coastal registered titles. The position that a freehold title extending to the high-water mark may be void, not voidable but void, has carefully found its way into this judgement of the Supreme Court. It has not been overruled and will definitely be argued in future cases.

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IV. Points of Critique

A. The Jurisdictional Stretch Is Underdeveloped

The respondent challenged the jurisdiction of the Court under the Constitution’s Article 163(4)(a), contending that the dispute presented to it failed to elicit any questions of constitutional interpretation or application. The Court disposed of this by a preliminary ruling on 20 December 2024, finding that the suit had “taken a trajectory of constitutional interpretation and application” [31]. As a matter of outcome, the finding is correct because the civil suit at the trial court invoked Article 47 and Article 40. However, the jurisdictional analysis of the Court in the judgement is narrow, and the preliminary ruling is not reproduced or engaged with in any depth.

This matters because the doctrinal basis on which a constitutional dimension is found affects the scope of the intervention possible for the Court. The Court proceeded to give what amounts to a comprehensive restatement of the liability framework, but without fully articulating why this is a constitutional question rather than an ordinary civil appeal on the application of common law tort principles. The outcome is a judgement that portends deeper practical implications but an underdeveloped jurisdictional basis. Advocates relying on Sea Star in future cases must pay attention to this gap, which opponents may utilise to argue that the ratio applies only where constitutional causes of action are pleaded.

B. KWS Led No Evidence, and the Court Does Not Adequately Address This

One disturbing attribute of the record below is documented in paragraph 8 of the facts, stating that KWS called no witnesses and tendered no evidence in the ELC proceedings. The Court appreciates this aspect but stops short of drawing its implications. Having failed to lead any evidence in defence of its central contentions, such as the encroachment allegation and the foreshore boundary claim, KWS went to the Court of Appeal, then the Supreme Court, complaining that those contentions were not adjudicated.

The response of the Court says that the trial court had a duty to assess the evidence of KWS, notwithstanding that it was not led simply because the pleaded defence raised issues material to liability [6-7]. This is important because the duty of the court to examine the elements of a cause of action does not evaporate because the defendant elects not to testify, but how the Court handles the evidentiary failure by the KWS is too brief. Through its remittal message, the uncomfortable undertone from the Court is that the Court of Appeal can now find KWS not liable based on defences that KWS itself declined to prove. That is a significant benefit conferred on a party whose evidentiary conduct during litigation was grossly inadequate.

The better approach for the Court would have been to directly address this shortfall, for example, through an acknowledgement that even though the trial court erred in its analysis of liability, the failure by KWS to lead evidence materially reduces the ability of the Court of Appeal on remittal. It does not say this. Arguably, the result is that the remittal order is wider in scope than the evidentiary position of KWS justifies.

C. The Risk of Double-Damages Is Left Unresolved

The Judgement is well-informed of what is possibly the most urgent practical problem in the case, but it nonetheless leaves it unresolved: the risk that Sea Star will be compensated twice for the same underlying loss [14–17]. The third suit against the County Government of Kilifi (ELC No 47 of 2006, arising from the 2005 alleged demolition of the partially completed hotel) had, by the time of the Supreme Court hearing, resulted in an ELC award of Kshs. 709,828,966 in reconstruction costs, general damages, loss of income, and professional fees [11]. That award is not before the Supreme Court. The Court correctly notes the risk of “unjust enrichment” but leaves it for the Court of Appeal to deal with on remittal.

This unresolved gap matters because it amounts to an abdication of judicial function. Both suits concern losses arising from the same asset, which is LR No 3170 Malindi, and the uncompleted hotel. The causal chain between KWS’s 1997 stop-order and the eventual losses is intertwined with the 2005 demolition allegedly undertaken by the County Government. Setting aside Kshs. 120 million in awards (Kshs. 90 million special damages plus Kshs. 30 million general damages, even as reduced), while a Kshs. 709 million award in a related suit is pending and unaddressed, which is a failure of systemic case management at the highest level. The Court had the power to consolidate or to issue clearer guidance on the apportionment of liability. It chose to pass the problem downward to the Court of Appeal.

In the dissenting opinion at the Court of Appeal, the now President of the Court, Gatembu JA, was inclined towards consolidation and single assessment of the court, which is the correct approach [17]. It is baffling that the judgement by the Court fully appreciates this risk but outrightly refuses to confront it. Advocates acting for KWS and Sea Star will, moving forward, be compelled to balance the link between the two sets of proceedings cautiously, given the absence of clear guidelines on how to do so by the Supreme Court.

D. The Res Judicata Analysis Is Elliptical

The central finding of the Court is framed as a procedural law matter and judicial review’s limits, but the ghost haunting the judgement’s entire premise is res judicata. More specifically, there remains unaddressed tension as to whether the 2002 judicial review decision gave rise to issue estoppel in the subsequent civil suit. The respondent appears to have run a case in the courts below whose litigation strategy was this: the 2002 decision finally determined that KWS was in the wrong, and that finding is binding in these proceedings.

In rejecting this proposition, the Court insufficiently delves into or engages with the res judicata doctrine. Interestingly, the case of John Florence Maritime Services Limited v Cabinet Secretary Transport & Infrastructure [2021] KESC 39 is cited to support the finding that a judicial review decision cannot be res judicata in a subsequent constitutional petition [34]. But my trouble with this proposition is that John Florence was concerned with a different procedural gap, specifically exploring the potential difference between judicial review jurisdiction and constitutional petition jurisdiction. The issue in Sea Star is narrower and more difficult: whether a specific finding within a judicial review ruling, that the suit land is private property unaffected by Legal Notice No 99, constitutes issue estoppel in a civil suit raising the same question.

The Court indirectly answers this question by explaining the different scope of judicial review proceedings rather than directly addressing the question of issue estoppel. That evasion and missed opportunity are important for advocates mainly because the 2002 finding of the court on the private status of the land was not merely procedural, but rather a merits finding about property rights. Whether that finding binds the Court of Appeal on remittal (KWS cannot re-litigate the question of whether the land is private) versus what is open for re-examination (whether KWS’s conduct in that context was civilly tortious) is a distinction the judgment grapples with without conclusively drawing the implications.

V. Key Takeaways for Advocates

For advocates handling claims on administrative law damages: Given the finding of Sea Star, a prior successful judicial review cannot be used in substitution for leading evidence on the elements of the substantive cause of action in a civil suit. Yes, while the judicial review outcome is admissible evidence as confirmed by the Court at paragraph 14, it is not conclusive on liability. You must advise your clients accordingly. If a judicial review has been won, the civil suit still requires full pleading and proof of the cause of action, including whatever defences the defendant raises that go to merit rather than procedure.

Retrospectivity: When opposing arguments that rely on post-2010 judicial review standards in pre-2010 proceedings, Sea Star is now a binding authority [37-40]. The expanded Article 47/FAA Act framework does not apply backwards. Proceedings are governed by the legal regime operative at the time.

For advocates with a client holding, financing, or seeking to acquire coastal land: The Judgement’s paragraph 8 of the held section is a powerful weapon in your toolbox, which you must read, review, and act upon with immediacy. The Court has placed on record that Section 45 of the Survey Act and Regulation 110 of the Survey (Amendment) Regulations 1994 operate to invalidate any title purporting to cover the 60-metre coastal strip without ministerial exemption. Title searches and due diligence exercises must now treat this as a live inquiry, not a historical curiosity. Whether a particular title falls within or outside that strip, and whether any ministerial exemption was obtained, are questions that must be answered in conveyancing, in security documentation, and in litigation.

The problem of double-damages: In any property or environmental case involving multiple defendants where related suits are running in parallel courts, promptly seek to consolidate or, at the bare minimum, seek judicial direction on the sequencing of quantum assessments. Sea Star is a clear lesson for advocates on your fate when this is not done: Kshs. 709 million in one court, Kshs. 93 million (as reduced) in another, with no binding direction by the Supreme Court, and a 27-year-old dispute is still circulating between courts.

Carefully lead your evidence. The failure by KWS to call a single witness in the ELC proceedings is baffling, given the factual complexity of the claim against it. The encroachment allegation, the foreshore boundary, and the ecological justification for the stop-order, yet none of this was tested. A defendant who pleads a full factual defence and then leads no evidence has chosen a litigation strategy with very little margin for error. The Supreme Court has given KWS a second bite at the cherry and a lifeline that its own conduct at trial did not deserve.

VI. Conclusion

Kenya Wildlife Service v Sea Star Malindi Limited [2025] KESC 42 is not a case that anyone was watching. It is not a case involving fundamental rights in the register that generates Twitter commentaries, Advocates Branch WhatsApp group discussions, or law-blog heat. It is, however, a case that will matter in administrative law practice, in coastal property transactions, and in the management of multi-proceeding damages claims in ways that the cases generating the commentary do not.

The apex Court has laid down binding authority that pre-2010 judicial review decisions cannot serve as an extension for civil liability; that post-2010 constitutional standards cannot be applied retrospectively to pre-2010 proceedings; and that freehold title purporting to cover the coastal 60-metre strip is, on the face of the relevant legislation, void. Each of these propositions has practical consequences that extend far beyond the Malindi hotel that started this saga in 1994.

That the case has gone unnoticed is an indictment of the existing system of legal commentary, which prioritises political relevance or clout over doctrinal weight. For advocates with clients in administrative law disputes or with coastal property exposure, the appropriate response is simple: read the judgment immediately and apply it accordingly.

Paragraph references are to the judgment text as published on Kenya Law. “Held, para [n]” refers to the numbered paragraphs in the Held section of the Kenya Law headnote, which summarise the court’s reasoning. “Para [n]” without qualification refers to the numbered paragraphs of the judgment itself.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

In the judgement’s paragraph 30, the court states explicitly that “at the material time, section 40A was the operative route for protection of geographical indications in Kenya, the dedicated Geographical Indications Act only being enacted in 2019.” The problem with this position is that the legislation, the Geographical Indications Act, presumably enacted in Kenya in 2019, is nonexistent. A Geographical Indications Bill was introduced in the National Assembly and debated, but it lapsed without becoming law. To date, Kenya has not enacted standalone, sui generis GI legislation. The court cited a ghost statute, in effect weaving its judgement around a piece of legislation that does not appear in the statute book.

This matters beyond the embarrassment of a factual inaccuracy in a Court of Appeal judgment. In an instance where an official record of a judgement of the court contains an error that was detected but never corrected, it doesn’t just affect this case; instead, it sits there as citable “law” for anyone who retrieves the judgment later from the Kenya Law Reports official database. In APEDA, the reference to the non-existent 2019 GI Act is not a mere slip or a one-time mention that is easily correctable, but a legal premise that is deeply intertwined with the entire judgement’s structure. The reference to the statute performs an essential structural function by permitting the court to locate section 40A of the Trade Marks Act (Cap. 506) as a transitional provision currently replaced by a dedicated GI regime, which is more sophisticated. If that 2019 Act does not exist, the judgement’s doctrinal foundation begins to crumble: the GI protection framework in Kenya today is exactly what it was in 2009 when Krish made an application for its marks, as there has not been any legislative upgrade. What this means is that the question of the protection available to GI rights holders in Kenya is still founded on section 40A of the Trade Marks Act and nothing else.

In APEDA, the court issued a correcting slip some eleven days following the judgement delivery. But can a correcting slip cure the underlying structural deficiencies if the statute that formed the substratum of the judgement does not exist? The Kenya Law Reporting database, which is the platform from which appellate benches, trial courts, and advocates obtain citations, still retains the erroneous paragraph. As such, any advocate referring to this judgement for the argument that the GI Act 2019 was enacted in Kenya cites a legislation that does not exist. As of the time of this publication, the slip, as yet, has not been effected to cure that risk.

The second problem is much deeper. The case pleaded by APEDA was entirely statutory, primarily because it contended that “Basmati” was a geographical indication under TRIPS and section 40A, and that Krish’s composite marks should accordingly be refused or expunged. It did not expressly plead passing off. That omission was fatal as it left on the table a cause of action that the reasoning of the court does not, and could not, close. The rationale is that it is a settled point of law in Kenya that parties are bound by their pleadings. At common law, passing off requires proof of three different elements: goodwill attaching to the claimant’s mark or indication in the relevant market; a misrepresentation by the defendant likely to lead the public to believe that its goods are the goods of, or are associated with, the claimant; and damage to that goodwill, actual or likely. Therefore, registration is not necessary. The cause of action is founded on tort law, and not the law governing the registration of intellectual problem, which proposition is expressly preserved by section 103 of the Kenyan Trade Marks Act as a fall-back position alongside the legislative regime.

From comparative jurisprudence, the English Court of Appeal sitting in Taittinger SA v Allbev Ltd [1993] FSR 641 restrained a non-alcoholic sparkling drink from trading under the name “Elderflower Champagne” on passing-off grounds, without any reliance on the geographical indications register. The question squarely before the bench was whether the public would be misled as to origin and whether producers with a legitimate claim to the goodwill in “Champagne” would suffer damage as a result. The decision of the UK Court of Appeal in Taittinger, and in particular to a passage from the judgment of the Master of the Rolls noted as follows in respect of the action for passing off: “This proprietary right recognised by the law [of passing off] is not a right in the name, mark or get-up itself: it is a right in the reputation or goodwill of which the name, mark or get-up is the badge or vehicle” [674-675]. Correspondingly, the US Lanham Act’s section 43(a) stipulates that a geographical mark that has acquired secondary meaning is actionable without prior registration as a certification mark. A secondary meaning connotes where consumers associate it with a particular origin rather than treating it as a generic description. In both jurisdictions, common law and quasi-common law routes have been formulated to protect geographical distinctiveness that operates outside the statutory registration regime.

Critically, however, the mentioned common law trajectories are similarly extinguished by the same evidence that defeats a GI claim under the legislation: proof that the term has become generic in the relevant market. At common law, a mark that has passed into general descriptive use, what English courts have called “degeneration” and what article 24(6) of TRIPS recognises as a term “customary in common language”, is incapable of grounding a claim for passing off. The reasoning is that such a mark lacks the requisite goodwill capable of being appropriated by a defendant who is merely using a descriptor. Juxtaposed, this point shows with precision that double-edged evidence quality in APEDA v Krish. Here, the court observed that “Basmati” was used descriptively across the Kenyan market by several importers, including locally grown aromatic rice from Mwea and Ahero, with no exclusive consumer association pointing to the Indian subcontinent. That finding alone destroyed the GI claim by APEDA for the reason that there was no domestic recognition through formal registration, hence no exclusivity. This same finding would have simultaneously extinguished a claim on passing off as it confirmed that “Basmati” operated as a generic descriptor for a type of rice rather than as a badge of origin pointing exclusively to a particular geographical source. Assessed from all angles, the real strength of the claim in Krish did not lie in the statutory argument. Rather, it lay in the market evidence of generic use, and the court’s findings of fact confirmed it in passing.

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APEDA v Krish judgement leaves advocates with a correctly resolved statutory question and an uncorrected error of fact with consequential implications for the state of Kenyan GI law. Crucially, the judgement is silent on the common law route, whether intentionally, as it was not expressly pleaded, or inadvertently due to the framing of paragraph 46 in the broad language which forecloses any questions which were never posed to the court directly.

Advocates advising clients of GI matters in Kenya must adopt a dual parallel track at the same time. The legislative track is followed under section 40A registration as the primary route, which requires a deeper comprehension that there is no dedicated GI Act enacted in Kenya to complement it, notwithstanding the error on record contained in paragraph 30 of APEDA v Krish. The common law route requires gathering of evidence that the mark functions as a badge of origin rather than a category description, including trade use patterns documentation and consumer surveys establishing origin-specific goodwill, long before a dispute crystallises. In the absence of that evidentiary buffer, both routes are slippery, and neither is available.

The judgement in APEDA v Krish candidly cautions advocates about what does not work. On the contrary, the question relating to whether passing off, properly pleaded and grounded in Kenyan consumer evidence, can fill the gap that section 40A leaves open is the live question the judgment leaves unanswered. That is the case waiting to be brought.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

Right from the outset, it is noteworthy that the Court deserves commendation for engaging with the issues carefully and delivering a judgement of intellectual seriousness on a debutant case. But there is no synonymity between intellectual seriousness and analytical contradictions, doctrinal gaps, and remedial failures in the judgement, which every advocate must comprehend for purposes of challenging them in subsequent cases or appeals and working around them in future litigation. For ease of reference, this critique adopts a thematic structure that aligns with the judgement itself.

I. The Finding on Fair Trial: The Right Answer, Fatally Under-Remedied

The most substantive finding by the Court was that the Senate violated Articles 47 and 50 rights of H.E. Gachagua upon its refusal to adjourn when his opponents finished their adversarial presentation during the proceedings [449-468]. In this sense, the Court’s “equality of arms” reasoning is properly hinged, as further supported by the evidence from the Hansard, which demonstrated that the Senators had information about the illness but proceeded to vote all the same [458]. By the Speaker’s own words, it was procedurally open to have an adjournment to Saturday 19 October [464]. On the strength of these facts, the Court held that this amounted to a structural violation of rights and not a simple imperfection in procedure, as Gachagua was not given the opportunity to present his case after his opponent completed their presentation.

The remedies show contradiction, which immediately fractures the judgement’s foundation. The Court found, and rightly so, that Article 25(c) unequivocally makes Article 50’s fair trial right non-derogable [467]. The term “non-derogable” possesses a precise constitutional import and is not merely celebratory. It implies that the right is unlimited under Article 24; it cannot be displaced by other competing constitutional interests or yield to temporal finality, political expediency/urgency, or institutional convenience.

Yet, strikingly, the Court awarded Kshs. 50 million and a declaration, while the impeachment stands [509]. The rationale for refusal to quash is premised on two doctrines: dual incumbency risk and Article 145(7) constitutional finality. Neither of the two doctrines from the reasoning of the Court survives analytical rigour, as will be shown.

First, on constitutional finality, Article 145(7) expressly stipulates that if two-thirds of Senators vote to uphold an impeachment charge, the President shall cease to hold office. In the analysis, the Court takes an approach that renders the vote by the Senate unreviewable and makes its actions permanent. But that analysis is wobbly for the reason that it conflates two different doctrines: the legal effect of a Senate vote that is constitutionally invalid and the legal effect of a Senate vote that is constitutionally valid. Article 145(7) explains what happens in a case where the power of the Senate is lawfully exercised. Therefore, there is no rational reason to interpret it as entrenching the implications of a vote by the Senate undertaken in breach of a right that is non-derogable. Interpreting it otherwise is to say that the more fundamental the constitutional infringement, the more immunised the results are likely to be. This premise is jurisprudentially warped and doctrinally unsound because it inverts the normative hierarchy, a creation of the Constitution itself no less.

Curiously, no comparative jurisprudential analysis, Supreme Court precedent, or constitutional text is cited by the Court in this regard in support of its proposition that, through the operation of Article 145(7), constitutional finality is bestowed upon a Senate vote that is constitutionally infirm. At paragraph 18, the Court cites the precedent in Sonko v County Assembly of Nairobi [2022] KESC 76 (KLR), a case whose gist was whether the removal of a governor was justiciable. Sonko was limited to justiciability, and the Supreme Court was not invited to ventilate, and did not determine, whether an impeachable undertaking in violation of a right that is non-derogable is irreversible by operation of the Constitution.

Secondly, on the dual incumbency risk, the analysis by the Court perceives the risk of simultaneously having two Deputy Presidents in office as a potential problem that must be prevented. But, unclothed of its doctrinal bases, here is what the court says: that a constitutionally valid process was swiftly undertaken by the State to replace H.E. Gachagua, and the swiftness cured the underlying rights infringement from the deserved remedy. Implicitly, the finding affirms that a wronged party is less likely to recover if the State moves with speed to undertake that wrongful removal from office. This structure of constitutional interpretation is pervasive because it promotes institutional or State velocity as an instrument to extinguish non-derogable private rights. In its closing, while the Court expressly appreciates “dual incumbency” as a perverse issue attributed to the State’s swift action, the bench nevertheless fails to draw any logical implications from its statement.

The analysis by the Court manifests an even deeper problem by simultaneously ruling that: (a) fair trial right is non-derogable; (b) the right was breached; and (c) no consequence arises to the constitutionality of the act that breached the individual right. This is far from constitutional law. It is a constitutional contradiction, principally because non-derogability is either a distinct class or it is not. The Court cannot have a middle ground on this settled constitutional law principle.

For advocates, the correct approach for the Court would have been to explore a conditional quashing order to defeat the resolution of the Senate while stipulating that the quashing does not extend to Kindiki’s appointment as the Deputy President, an independent and constitutionally compliant process undertaken under Article 149(1). These two processes are legally distinct. The finding of the Court reiterated the validity of Kindiki’s appointment, which means it was not dependent on the validity of the resolution by the Senate. To quash the resolution by the Senate would have, by operation of law, restored Gachagua to office, while the constitutionally independent appointment of Kindiki is not declared void either. The “crisis” or risk of dual incumbency that the Court grapples with would then become an issue for the political branches, which is constitutionally resolved by invoking Article 148(7), which provides for vacation of office through resignation. The Court declined to directly confront this Constitutional architecture, elevating a potential political difficulty into a legal impossibility.

II. The Special Committee: Principled Analysis, Unjustified Surrender

This finding by the Court begins as intellectually stimulating but eventually becomes the judgement’s most frustrating aspect [423-448]. The section begins with a detailed tracing of the impeachment provisions’ drafting history through the Bomas Draft (mandatory committee), the Wako Draft (mandatory committee), and the Harmonised Draft to locate them in the proper context and history [423]. At the end, the Court ruled that the consistency in history justified its premise that the drafters meant to have a mandatory committee. The Court formulates an Article 145(3)(b) interpretation that is highly sophisticated and built on two phases: firstly, the Senate hearing and resolution to admit the motion; and secondly, the procedure upon the motion’s admission. The argument by the Court proceeds that the term “may” as used under Article 145(3)(b) applies to phase 1, which means that the Senate enjoys the choice whether to proceed or not, but once it makes the decision to proceed, it must do so through a special committee. The rationale is that Article 145(4), (5), and (6) speak very exclusively to the functions of special committees and do not allude to a plenary alternative. It highlights the absurdity that would arise in law were the Senate to investigate itself and shortly thereafter report the same findings to itself. Up until this point, the Court’s interpretation is historically supported, textually grounded and contextually coherent. The trouble lies in what the Court does with it next.

Having built a strong foundation in its analysis, the Court adopts the finding of the Supreme Court in Sonko, which ruled that proceedings of the Senate can occur in plenary or through a special committee [18]. By surrendering itself to Sonko “unreservedly and with the deepest respect”, the Court’s singular problem becomes that this decision was made in proceedings relating to a governor’s removal under the County Governments Act. The Court came close to naming it, specifically that the Act’s section 33 permits a dual-track method: “(h) by resolution, appoint a Special Committee... or (ii) investigate the matter in plenary.” Correspondingly, Standing Order 80 under the Senate Standing Orders, which governs proceedings for a governor’s removal is framed in the two alternatives approach. On the contrary, Standing Order 79 under the Senate Standing Order relating to the removal of a Deputy President stipulates a special committee but omits the plenary sitting option. The disconnect is not by accident. The analysis by the Court affirms as much that where framers intended that a plenary investigation would be undertaken, they expressly said so, as they provided for in the case of governors. For the removal of the President and the Deputy President, they omitted that alternative.

The ratio in Sonko did not analyse or interpret Article 145 [18]. Instead, the apex Court was invited to interpret the County Governments Act, and extrapolating the word “may” contained in the Act’s Section 13, which provides a discretionary mechanism for governors, does not transplant that same meaning to the Constitution’s Article 145(3)(b) in relation to Deputy Presidents. The doctrinal reason is that there is a structural difference between constitutional and statutory contexts. The Court relies on its stare decisis duty which demands that it align with the rationes decidendi of superior court decisions, but the Sonko ratio was not delivered to interpret Article 145. Utilising the ratio as the Court did to justify the distinction between the gubernatorial dual-track as contained in the Act and the single-track mechanism for the President and Deputy Presidents under the Constitution is doctrinally warped. The Court explains no further.

This point is particularly vital for future litigation. The Court’s deference to Sonko here is binding on future decisions of the High Court. However, it is not binding on the Court of Appeal, which will have the chance to ventilate whether the ratio in Sonko is directly applicable in answering the constitutional question arising under Article 145(3)(b). The Court of Appeal must directly confront this distinction. Until then, the Bench has candidly laid the groundwork supporting the proposition that the Constitution foresees a mandatory committee, although the Senate is not bound to embrace it.

III. The Finding on “Necessary Modifications”: Strong Finding, But Unworkable Consequence

The Court found that the Parliament had failed to discharge its obligation under Article 150(2), specifically arguing that “with necessary modifications” is not a mere drafting convenience, and rightly so. The Bench was unequivocal that, given the architectural disconnect between the immunity enjoyed by the President under Article 143 versus the Deputy President, who does not enjoy the same immunity, a wholesale application of the framework for the removal of the President to the Deputy President would overlook the important constitutional distinction. Standing Order 79 and its National Assembly counterpart do not specify any modification and instead cross-reference the Constitution’s Article 145 directly without introducing any modifications. Towards this end, the Court is correct that there is a legislative gap.

From a logical prism, right here at this point, the judgement generates analytical tension it cannot resolve. If the Bench says that the impeachment framework was indeed structurally inadequate, if the Parliament had a duty to enact the necessary modifications but failed, then naturally it follows that the impeachment happened under a framework that was constitutionally defective. The question becomes: how would a framework that is constitutionally infirm yield an outcome that is constitutionally valid?

The answer provided by the Court is that under Articles 144 and 145, the Constitution itself creates “the minimum threshold” for undertaking such proceedings and that the Parliament relied on this floor. But the problem with this answer is that it conflates constitutional adequacy with constitutional minimum. Article 150(2) envisages that the framework for the removal of the President is not the constitutional minimum for the removal of the Deputy President and that adaptations are necessary. In this case, therefore, if Parliament applies the framework under Article 145, which in effect satisfies Article 150(2), what this means is that Article 150(2) is rendered obsolete, and it becomes a superfluous constitutional provision. This kind of outcome in constitutional interpretation is what the constitutional purposivism and ejusdem generis adopted by the Court are supposed to avert. On the whole, the Court cannot find that Parliament failed in its constitutional obligation to adapt the necessary modifications and at the same time say that an action undertaken in breach of the obligation yielded a process or outcome that is constitutionally sufficient. The unyielding attempt to say otherwise depicts the pressure to avoid quashing the impeachment.

IV. Public Participation: Doctrinal Coherence at the Cost of Political Realism

The National Assembly Finding

The Bench ruled that the public participation by the National Assembly attained the stipulated constitutional baseline [309-355]. This holding is potentially problematic and portends far-reaching implications for future litigation. The BAT ratio, which the Court rightly alludes to, is the yardstick, and it demands subject matter clarity, an influence that is balanced, process commitment in a way that outcomes can be influenced by views, and the capacity to engage, including prior sensitisation [335]. At the National Assembly, the public received a 48-hour notice; the template for participation contained the prosecution’s case only and no responses relating to Gachagua’s. Ultimately, only 200,000 people of the total population of 52 million Kenyans participated, while Keiyo South had a 162.78% participation rate [340]. This, the Court dismissed, following its own recalculation of the date, even though there is a lack of clarity as to whether the error identified by the Petitioners is the same as that which the Court assessed in its 98.41% favourable outcome [340]. But no underlying data was produced in the judgement itself to evidence this disconnect in computation, and advocates will want to examine the original report in depth.

The finding by the Bench that upon opening of the door, the duty to facilitate is exhausted, and that any short-notice-related low turnout is not primarily the problem of the state, tramples upon the BAT ratio, which advocates for “reasonable notice and reasonable opportunity” as key ingredients of the process. The question is this: can a notice about a debutant and most consequential constitutional act of Kenyan Parliament, which records a participation of 0.5%, be deemed reasonable? The Court refused the invitation to delve into the arithmetic.

Crucially, the Court found that not availing the response of Gachagua to the public did not vitiate the exercise, primarily because the public was not required to adjudicate but only to express a view. But we were told in the BAT ratio that “opportunity for balanced influence” is critical. Flowing from this, if only the framing of the prosecution is available to the public, there cannot be a balanced influence. Once again, the Bench shunned the chance to confront this framework from BAT.

The Senate Finding

The finding that the Senate did not have any obligation towards an independent public participation is textually defensible but cracks when subjected to analytical rigour. The reasoning based on ejusdem generis through which the Court interpreted Article 118(1)(b) “other business” as meaning only those businesses whose character is legislative demands a prior legislative context assessment to ascertain what “legislative” means. While impeachment may be construed as non-legislative in the statute-making angle, it nonetheless remains a core business of the parliament as it discharges its constitutional duties. The Court relies on the Mwangaza decision as the basis for its “primary body” principle [345]. But this ratio revolved around the Senate and county assembly dynamics, which do not transplant comfortably to national impeachment in a case where it wields the Article 145(7) determinative vote, not merely confirmatory as is the case in the county assembly.

Under Article 145, the Senate does more than just confirm the decision of the National Assembly; it removes, which makes its vote the operative constitutional act by triggering the end of office holding. Therefore, on this premise, the argument mounted by the Court that the Senate is exempted from the Article 118 requirement because it sits as a quasi-judicial body is wobbly. There is no clear-cut exemption of quasi-judicial bodies from hearing the other party; instead, they are not expected to offer the same participation type as other bodies that are purely legislative. In its judgement, the Court handles this as a simple matter by examining whether public participation is required because Article 118 applies or it is not based on the exemption of quasi-judicial status. What the Judgement falls short of doing is to critically examine whether a modified public participation duty arises given the determination vote of the Senate.

The Article 149(1) Finding

The Court ruled that the vote by the National Assembly in respect of the nominee for Deputy Presidency amounts to an electoral act which attaches no public participation duty. This doctrinal claim is ambitious, and the linguistic separation between “approve” and “vote” is clever. But, as will be analysed, it stands on shaky ground.

The primary concern is that under Article 148(1), the requirements for the office of the Deputy President are directly tied to those of the President under Article 137. The mechanism for filling any vacancy is triggered under Article 149(1), although this provision stops short of creating a regime for new qualifications. Therefore, sui generis reading of Article 149(1) by failing to consider any of the substantive constitutional architecture that builds the office of the Deputy President, such as the absence of qualifications in Article 137, no vetting, no public participation, and no IEBC, represents a major interpretation disconnect. The Bench found that the 60-day window is intended not for the occurrence of public participation but for the Assembly voting process to happen. Read literally, the text states that the Assembly shall vote within 60 days of receiving the nomination. Nothing stops it from undertaking public participation simultaneously during that period. The interpretation that since “public participation” wording is omitted shows prohibition is jurisprudentially flawed, for the simple reason that silence simply does not require, but it does not prohibit.

V. The Bias Analysis: Correct Outcome, Thin Reasoning on the Speakers

In its judgement, the Court was right to separate predetermination from predisposition by finding that mere belonging to an impeachment supporting party does not itself disqualify legislators [294-308]. In this sense, the ruling was correct because objective evidence is required under the test stipulated in Rai/Rawal/Tunoi. Thus, political alignment alone cannot disturb political decision-making [304]. Nevertheless, the position of the Bench concerning the Speaker’s demands more assessment. The Court stated that the function of the Speakers is “facilitative and procedural” as they do not vote or debate the impeachment charges; hence, their pre-hearing statements made publicly do not meet the threshold for constitutional bias [306]. This analysis is right as it goes. But it is incomplete, principally because the procedural role of the Speakers impacts fair hearing directly. A presiding officer in an adversarial environment guides the debate conduct, adjournment decisions, time management, evidence admissibility rulings, procedural applications’ grant or refusal, and the order of the business. In the scenario of the Senate, the Speaker made a ruling on the constitutionality of the ten-day period, which was not, because the ten-day window is applicable not to plenary but to proceedings of the special committee. Additionally, the Speaker clothed the application for Senate adjournment in a way that encouraged the House’s refusal. These were not neutral actions of procedure. The portend substantive implications for the Petitioners. The Bench correctly appreciates the misdirection by the Speaker concerning the ten-day window in its fair trial analysis, but it fails to link this outcome to the bias aspect. If the ruling of the House Speakers substantively affected the proceedings given their public commitment to a given predetermined outcome, then the objective observer test yields a more nuanced outcome than the Court gave.

VI. The Standing Orders Analysis: Conditional Constitutionality Without Conditions

The Bench introduces a nuanced approach to its analysis of Standing Order 64(2) by showing the distinction between a provision that is “conditionally constitutional” and a provision that is “unconstitutional on its face” [357]. The variation is a constitutional law’s legitimate category as observed from a comparative jurisdictional lens through the doctrine of “as applied” challenges, which works in a similar way in the US. However, the Court insufficiently explains the specific unconstitutionality-triggering conditions. It asserts an implementation-related infirmity as opposed to the timeline itself, without offering implementation guidance that could be effected in the seven days, the court should examine relating to adequacy or the remedial aspects for a timeline that is compliant or deficient in terms of implementation. Thus, the ruling on “conditional constitutionality” is more academic and devoid of practical operational teeth [356-386]. Advocates involved in future impeachment proceedings will not have the information on the requisite court to approach, the timeline, or relief in a case where Parliament breaches constitutional substance while formally complying with Standing Order 64(2). Lastly, the recommendation from the Court for timeline extension by Parliament lacks any legal force; it is simply obiter. The Parliament embraces the seven-day window fully aware of the constitutional duties at hand, and as such, a recommendation to reconsider this timeline will likely be perceived as abstract, unable to yield any legislative moment without any compulsion from the judiciary.

VII. The Finding on Article 150(2) Lacuna and the Mandamus: Right Conclusion, Wrong Framing

The judgement grants mandamus to compel Parliament to enact the Article 150 regime [507]. The holding is right in principle but potentially problematic in practice: what happens if Parliament fails to comply? The mechanism for legislative defaults stipulated in Article 261 includes High Court petitions seeking orders directed towards Parliament or dissolution advice in case of refusal. However, this Bench steers clear of Article 261 and simply refuses to engage the toolbox at its disposal. The Court issues a blanket mandamus order that does not specify the timelines, minimum content, or any enforcement mechanism in case of failure. In practice, a mandamus absence compliance mechanism is a positive declaration clothed as a compulsory order. More crucially, if at this point in the judgement the Court now finds that the lack of framework impugns the impeachment process, then are there any constitutional implications for future impeachments amidst its continued absence? The Bench says none, and that the minimum constitutional dictates are adequate. So, then, the Parliament can securely ignore the mandamus with full knowledge that the court will similarly uphold any vitiated impeachments it may conduct in the future. In short, the mandamus is toothless.

VIII. Damages: The Quantum Problem and the Pension Non-Decision

Quantum

The Court rules that Kshs. 50 million is a sufficient remedy, an adjustment from Kshs. 15 million in Gitobu Imanyara’s more than ten years ago. But the Bench says little about where the adjustment is from; it is, at best, arbitrary because it fails to document any methodology or comparative baseline it used. It quotes with approval the Privy Council sitting in Ramanoop by saying that vindicatory damages “public outrage, the importance of the constitutional right, the gravity of the breach, and [deter] further breaches.”

An elected Deputy President’s removal from office through a vitiated procedure that overturns the will of the populace is the gravest possible constitutional rights breach in Kenya. And an award of Kshs. 50 million, which translates to US$385,000 at the time of this publication, is hard to classify as proportionate to the magnitude of the harm or deterrence driven. The principle laid down in Ramanoop similarly pre-empts an “additional award” which transcends compensatory damages to depict the violation’s constitutional dimension. In the judgement, the Bench conflates the compensation function with the vindicatory function by failing to distinguish both properly. The advocates for Gachagua prayed for quantified damages of Kshs. 42 million in lost salary, Kshs. 22 million in gratuity, while others included damages for pension, transport allowances, and security benefits. The Court refuses to directly confront these figures, instead handling pension as a matter improperly before it and emoluments as forming part of the general award. The arithmetic fails because the awarded vindicatory damages are far below the total special damages prayed for.

The Pension Decision

The Court declines to decide whether a Deputy President who is impeached is a “retired Deputy President” for purposes of the Retirement Benefits Act. This is a major doctrinal gap in the judgement. The Bench claims the issue was not argued before it properly, but it was expressly pleaded by Gachagua through the prayer for pension entitlements. The parties addressed the Court on damages, which aspect was argued by Counsel, and to say the issue was not improperly before the Court since “none of the parties addressed us on this issue” regarding the specific point on statutory interpretation deserves more scrutiny. The interpretation question may not have been clothed in those exact words, but entitlement was an issue squarely before the Court.

The practical implication of this finding is that Gachagua must approach a different forum, be it the High Court or the Employment and Labour Relations Court, with a judicial review application to hear and make a determination about pension entitlements. The next forum will have to confront these same questions the Court refused to address. What the silence of the Court does is to defer a live question which it was in the best position to resolve once and for all.

IX. The Omission on Ground 8

Another issue that the Court declined to answer relates to Ground 8 of the impeachment charges based on Section 132 of the Penal Code, a challenge mounted by Gachagua. The provision was declared unconstitutional in Robert Alai v Attorney General [2017] KEHC 6090 (KLR), and the question posed to the Court was whether a motion of impeachment, which is premised on a repealed or unconstitutional statutory provision, can constitute a valid ground. This constitutional question has far-reaching implications for future advocates in impeachment proceedings, and the silence of the Court was conspicuous. The question was not even tackled in the analysis relating to public participation, effectively leaving it unresolved and wide open whether such a charge can be supported within the constitutional test meaning.

X. The Structural Critique: What the Judgment Reveals About Kenya’s Constitutional Architecture

Away from the inconsistencies inherent in its internal analysis, the judgement serves a pivotal function of highlighting the Kenyan constitutional architecture. At its core, it candidly identifies that the Constitution exemplifies what it calls a “constitutional dilemma”, meaning there exists a salient tension between the need to vindicate individual rights infringed in the course of the vote on one hand and Article 145(7) finality on the other. To cure this “dilemma”, the Court proposes an amendment to the Constitution. The analysis is right, even though the Court should have expounded further by identifying the specific flaws in systemic design which were exposed in the case.

Secondly, the judgement exposes the lack of judicial intervention during the pre-impeachment phase. The Petitioners decried that the conservatory orders preventing Kindiki’s swearing-in were lifted before hearing of the petition, yet the constitutional architecture offered no mechanism allowing courts to stop impeachment pending a review of the constitutionality. What this means is that at the point when the court pronounces itself, the political facts have crystallised. Article 150 regime, which the Parliament may enact, must consider this aspect, and the Court should have been categorical in specifying this in the mandamus order it issued.

Third is the problem of the dual function of the Speakers, including their role in presiding over the proceedings, notwithstanding their public utterances committing to a particular outcome. There is no constitutional requirement that demands Speakers’ recusal from the proceedings during impeachment, notwithstanding their bias. There is urgency to address this gap in any statutory regime to clarify whether a Speaker who has declared a position could be replaced by another member of the panel.

Fourth, there is the misdirection relating to the ten-day window. The Court reiterates, based on its constitutional analysis of facts, that Article 145(4)(b) was misread by the Senate, which allowed it to introduce a non-existent 10-day plenary proceedings deadline. The ten days were meant for the process in the special committee, a major constitutional error by the Speaker, which hastened the proceedings and denied adjournment. In its fair trial analysis, the Court rightly observes this, but it fails to draw any further consequence emanating from it directly. If the timeline of the Senate was accentuated by constitutional interpretation misdirection by the Speaker, this directly implicates the entire proceedings and transcends the specific denial of adjournment. The Court should have said so explicitly.

Conclusion for Practitioners

Gachagua is an important decision for all constitutional litigants. Its most fruitful facet is the analysis of a fair trial, specifically the principle of equality of arms, which is analysed in detail from its adversarial angle. This principle is immediately relevant and directly applies to quasi-judicial proceedings of the Parliament. But the judgement fails in its remedial analysis: it speaks to the claim that a right that is non-derogable can be safely infringed and compensated through an award without the violating act being quashed. That is a proposition from a judicial authority, a constitutional bench of the Kenyan High Court no less, which, if left unchecked on appeal, could impede constitutional litigation for many years to come.

The judgement’s most pragmatic implication relates to the legislative orders directing the Parliament to enact an Article 150 statutory regime. What this means is that any future challenge to impeachment of a Deputy President undertaken with that proposed law, or if the Standing Orders remain unadapted, will experience a challenge that is structurally more robust than this case. Advocates advising clients in future proceedings would do well to document, in real time, every procedural (mis)step against the constitutional requirements this judgment has now articulated.

But the Court leaves wide open the question whether the doctrine of “constitutional finality” as constructed in this decision is a principle of constitutional resignation or a principle of constitutional supremacy. Here, the Court elected to uphold constitutional stability over constitutional fidelity. That choice by this constitutional bench deserves and will undergo intense scrutiny at the appellate level.

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

I. Introduction

There is something quietly disturbing about a case that takes 16 years before it is finally determined that the appellant filed the case at the wrong forum. That, unclothed of its doctrinal bases, is what the Kenyan Court of Appeal [“the Court”] (Karanja, Muchelule & Ngugi JJA.) found on 3 October 2025 in their judgement in APEDA v Krish Commodities Ltd [2025] KECA 1587. In the appeal, the Agricultural and Processed Food Products Development Authority (hereafter “APEDA”, for short), which is a statutory body created under Indian law for purposes of promoting agricultural exports, spent sixteen years litigating the question of whether the “Basmati” should restrict the registrations of composite trade marks in Kenya. The Court answered in the negative, not necessarily because Basmati is not a geographical indication (GI), but because the appellant, APEDA, failed to register it as such under Kenyan law before filing an objection with the Registrar of Trade Marks in opposition to another party’s application. The Court dismissed the appeal, reaffirming the High Court and the Registrar’s concurrent findings.

This note analyses the judgement, highlighting its terms before narrowing down to the harder questions it refused to address. The reasoning of the court in respect of procedure is sound, and the finding is legally defensible, but the decision is not generous intellectually. At its core, it settles a single procedural aspect that required clarification. What the judgement does not do, in light of the underdeveloped GI jurisprudence of Kenya or what it was required to do, is to explain the meaning of GI substantively as localised under Kenyan law, specifically for generic words, or whether international law’s domestication in the Constitution impacts the requirement of registration. These silences are analysed and practical implications drawn.

II. The Facts

On 13 October 2009, Krish Commodities Limited applied to register six different word marks in Class 30, including Wali Basmati Rice, Rouz Basmati Rice, Pilau Basmati Rice, Nawab Basmati Rice, Rajah Basmati Rice, and Al-Hannan Basmati Rice. Each of the six words expressly disclaimed exclusivity in “Rice” and “Basmati” [2]. In response, APEDA opposed the application, arguing that “Basmati” is a GI denoting a special long-grain aromatic rice which is grown at the Himalayas’ foothills (a special agro-climatic zone) in India and Pakistan. It was their case that, given this reason, the only justifiable path was a refusal of the applicant’s registration as granting the mark would mislead the public [3].

The objection by APEDA was dismissed by the Registrar of Trade Marks sometime in May 2013 because the objector failed to prove its proprietary rights in the word “Basmati” under Kenyan law [4]. Crucially, the Registrar quipped that no registration was sought for “Basmati” as a collective or certification mark in Kenya and that APEDA had not presented sufficient evidence to demonstrate that the inclusion of the disclaimed word as composite marks would be misleading to consumers in Kenya regarding origin [4]. These findings by the Registrar were upheld by the High Court (Mbogholi-Msagha J.) in April 2017, with the court reiterating that through its statutory declaration at the time of filing its opposition, APEDA conceded that the word “Basmati” was not formally registered as a GI even in India [6]. That admission was damaging. The same finding was made by the Court of Appeal sitting as the third successive adjudication forum.

III. The Legal Framework

The relevant international instrument provisions are Articles 22 to 24 of the Agreement on Trade-Related Intellectual Property Rights (TRIPS) 1995. Critically, GI is defined under Article 22(1) as an indication that identifies goods originating in a territory or a region within it where a given quality, reputation, or other characteristic is essentially attributable to that geographical origin. The two provisions under Articles 22(2) and 22(3) create an obligation for member states to set legal mechanisms to avert misleading uses and to refuse or invalidate trademarks that mislead as to origin. However, the exception in Article 24(6) permits a member state not to protect a GI that has become generic in common language within its territory.

At a domestic level, the relevant law at the time of application was section 40A(5) of the Trade Marks Act (Cap. 506). The section stipulates that “geographical names or other indications of geographical origin may be registered as collective trademarks or service marks.” The Court similarly reiterated that, subsequent to the commencement of the dispute, Kenya had enacted a dedicated Geographical Indications Act; this left section 40A as the applicable statutory provision [25]. The constitutional claim by APEDA arose from Article 2(5) and (6) of the Constitution of Kenya 2010, which incorporates international law and any treaties ratified as part of Kenyan law. The argument was that even without domestic registration, the obligations under TRIPS attached through the Constitution’s receptive clause, which addressed the gap in the Trade Marks Act [15]. The court declined this proposition, and correctly so, as will be analysed.

IV. What the Court Got Right

The core holding of the judgement is that a GI’s formal registration is a prerequisite for any successful opposition to a mark application on the grounds of GI. This finding is correct and long overdue at the level of the Court of Appeal. The reasoning of the court is laid down in paragraphs 34 to 40, and it is crucial to understanding why the finding is correct and not merely convenient in the circumstances.

The analysis by the Court commences from a settled point of Constitutional law that TRIPS is not self-executing in Kenya’s legal framework [34]. The premise is that obligations under a Treaty bind the state and not directly on private litigants. In the scenario of GI, Kenya fulfils its obligations under the TRIPS through the Trade Marks Act’s section 40A(5). Therefore, the provision facilitates the collective or certification marks’ registration as geographical names. Protection commences upon registration, and not a minute earlier. The Court stated this explicitly, finding that in the same way that rights relating to trademark arise from registration, so too is true for the GI, whose protection must yield from recognition under the statute [36].

The Court proceeded to address the interpretive question which formed the core of APEDA’s appeal [39]. It ruled that the word “may” as utilised in section 40A(5) does not permit another parallel or optional informal recognition route [39]. Instead, the wording implied the registration eligibility of geographical names either as collective or certification marks, and upon registration, only then does protection commence. In so doing, the Court deployed an ordinary purposive construction, which yielded the correct outcome in the circumstances. Right outcome because the proposed interpretation of “may” by APEDA meant that formal registration would have morphed all trademark disputes on foreign-origin descriptors into a GI inquiry in the first instance. As such, the Registrar would have been converted into an ad hoc tribunal on GI without the necessary institutional capacity, evidentiary framework, or administrative process to assess factual issues inherent in the process of GI recognition. Such questions touch on the claimed exclusivity’s scope, trade practice, consumer perception and historical use [27].

The Court’s finding relied on the Speaker of the National Assembly v Karume [1992] KECA 42 to ground its principle that in instances where a redress procedure is circumscribed by law, it must be strictly adhered to [28]. The position holds, primarily because a GI recognition process involves a specialist factual inquiry which courts are ill-equipped to undertake in proceedings. Similarly, on the question of misleading marks, the Court is also right. APEDA had the evidentiary burden to demonstrate that using “Basmati” as composite marks would be misleading to consumers in Kenya regarding origin. Instead, evidence pointed to the contrary: that “Basmati” was utilised in a descriptive way to denote an aromatic long-grain rice variety, notwithstanding the importer, including for other rice varieties which are domestically grown, such as Ahero or Mwea [46]. Therefore, as observed by the Court, the public deception claims by APEDA remained “at the level of mere assertion” as there was no sufficient evidence advanced in support.

One aspect of the original ruling by the Registrar, which resonated with the Court, deserves further highlighting. In the ruling, the Registrar noted the need to regularise the specifications of goods in all six applications for them to read “Basmati Rice”. This accepted the exclusivity disclaimers over the word “Basmati” by the Respondent [45]. Crucially, under the Trade Marks Act, a disclaimer is not nothing: it serves as a valid legal instrument which inhibits the registered owner of the mark from exercising proprietary rights in the element that is disclaimed. On the whole, therefore, the concern by APEDA that the respondent would “claim proprietary right” over “Basmati” was in effect disgorged by the procedural requirement of the Registrar itself, a point that may have deserved a more robust engagement by the Court than it received.

V. The Critique: What the Judgment Left Unsaid

First, the Court’s judgement is procedurally conservative, which means that at every invitation to robustly shape the jurisprudence, the bench took the narrowest path out. The restraint is defensible, for the simple reason that a second appeal is limited to matters of law. The net effect of this restraint is that the Kenyan Court of Appeal has delved into the concept of GI at length without laying the substantive basis for the actual legal meaning of what GI entails under Kenyan law. There was a chance, but the court shunned the opportunity to use it at every turn.

Second is the question of genericness. The TRIPS’ Article 24(6) stipulates that member states do not have an obligation to protect GI where it has become generic in the territory’s common language. This issue was raised directly by the respondent: the evidence showed that “Basmati” was used as a common descriptor in the Kenyan market for aromatic long-grain rice from multiple sources, including domestically grown varieties [20]. This is not a non-issue because a successful registration of “Basmati” in Kenya under section 40A(5) would still be challengeable if indeed it is generic. The Court refused to pronounce itself on GI status, but it equally remained silent about the concept of genericness, its potential interaction with the registration regime, the evidential threshold it requires, or where the onus of proof lies. Kenya is increasingly generating its own products, such as Taita baskets, Mwea rice, or Mombasa coffee, which will at some point in the future raise these questions at a municipal level. The Court missed a valuable opportunity to begin developing the Kenyan GI jurisprudence.

A comparative analysis renders the Court’s silences even more pronounced. The Court observed that the TRIPs does not expressly sanction any single model of compliance. It briefly examines the provisions under Regulation (EU) No 1151/2012 as the sui generis regime of the EU, the certification mark model of the US, and the approach linked to unfair competition as embraced in other best practices [37]. But the attempted comparative assessment does no more than justify the procedural premise that Kenya embraced the trademark route instead of clearly highlighting the GI status’ substantive test, the standard of evidence or the conditions precedent to registration denial or acceptance. Strikingly, for the Indian case, where APEDA is domiciled, the registration of “Basmati” as a GI was undertaken only in 2023, following more than 20 years of domestic legal procedure. This timeline justifies what the Court suggests: a dedicated process with an elaborately developed evidentiary record. The lesson from a comparative jurisdictional lens is readily available; the Court only stopped short of explicitly localising it jurisprudentially.

Thirdly, the constitutional angle to the dispute is addressed in the most limited way possible. The argument by APEDA, as premised under Article 2(5) and (6) of the Constitution, was not pedestrian or frivolous. The issue of whether the reception clause under the Kenyan Constitution generates a residual duty on the Registrar, even without registration domestically, to decline marks which could be misleading based on their geographic origin deserves more robust engagement by the Court. The Article 22(3) TRIPS obligation is directed at the member state’s legal machinery and not just the registers of registration. The Court treats as obvious the question whether the Constitution, as read with section 40A(5) of the Trade Marks Act, exhausts the obligations of Kenya under the provision [34]. From the judgement, the answer to this question is anything but obvious. The bench concludes that section 40A(5) is the implementing route for TRIPS, as the latter is not self-executing in Kenya. The assessment is right as it goes. What it fails to address is whether Article 2(5) and (6) constitutional monism suggests that the courts retain an aspect of policing’s residual role, potentially allowing for misleading uses of established GIs even before obtaining formal registration. That question will come up again.

Fourth, and lastly, the Court mentions Kenya’s dedicated GI Act 2019 as a sui generis (standalone) legal framework for Geographical Indications (GIs) [25]. In reality, no such Act was ever passed into law. The Geographical Indications Bill, 2007, and unpublished Geographical Indications Bills, 2019 and 2024, were not enacted into law. At the time of this publication, the GI Bill 2026 is still pending before the parliament. The error by the Court is not defensible, as Kenya’s dedicated GI Act 2019 as a sui generis (standalone) legal framework for Geographical Indications (GIs) was not raised directly before it by either party. All these are practical concerns every advocate advising a foreign GI holder or any Kenyan exporter must grapple with at length. Overall, the judgement does the bare minimum in jurisprudential advancement, as the Court squandered the opportunity to begin laying the foundation for the underdeveloped GI law in Kenya.

VI. Way Forward

The most practically relevant facet of the Judgement is not in its holding but rather what it exemplifies. Through its insistence that Kenya’s protection of GIs derives from statutory recognition, the Court has candidly cautioned foreign GI holders, including Indian agricultural authorities such as APEDA, to engage directly with Kenya’s GI statutory framework, currently under the Trade Marks Act [36, 40]. As such, any foreign GI holder desirous of Kenyan market protection must first register as the primary step; approaching the court is secondary. Therefore, if APEDA intends to avert any issues with registering a composite trademark, such as those that characterised this case, it should have filed for recognition by now.

There exists another structural problem arising from the judgement which is unresolved. APEDA is a statutory Indian export authority seeking to exercise rights over a foreign GI within the market of a third country, as opposed to being a private trader. Under Intellectual Property law, the territorial logic, which the Registrar correctly appreciated, suggests that an Indian recognition does not in itself confer rights in Kenya. But the main question relates to the correct position of foreign governmental agencies in GI proceedings in Kenya, or whether they enjoy preferential treatment. These are complex policy questions Kenya must grapple with in the GI Bill 2026, as the trade and agricultural export market of East Africa rapidly evolves.

VII. Conclusion

The judgement in APEDA v Krish Commodities settles one procedural question well before deferring most substantive concerns. Procedurally, for the first time at an appellate court level, the court authoritatively held that formal recognition or prior registration in Kenya is an essential requirement for any successful trademark application opposition on the grounds of GI [36, 41]. The decision ends any arguments advocating for information recognition based on the “may” wording as mounted by APEDA. The lesson from the court is this: if a GI is not formally recognised or registered in Kenya, it cannot be used as a bar to another’s mark registration.

But while the judgement ends the procedural debate, it does little to advance substantive law. The questions it fails to directly confront or resolve relate to genericness, the TRIPS domestication under the Constitution’s reception clause, and the GI recognition evidential standard. Kenya trades, exports, and grows by producing varieties of agricultural produce that are geographically distinctive, and these questions are likely to arise again. The Kenyan GI jurisprudence is still underdeveloped, and the Court had a chance here to lay the groundwork, but chose to defer it. The most procedurally significant takeaway for advocates from the judgement is this: if your client wants GI protection, register it first, and court second; not the other way around.

This article is accompanied by an abridged version for readers seeking a concise overview. Read the summary →

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.

On 13 October 2009, the defendant, Krish Commodities Limited, applied to register six different word marks in Class 30, including Wali Basmati Rice, Nawab Basmati Rice, and Rajah Basmati Rice. Each of the six words expressly disclaimed exclusivity in the word “Basmati.” The Indian statutory export body, the Agricultural and Processed Food Products Development Authority of India (hereafter “APEDA”), filed opposition notices against the applications. It argued that the word “Basmati” is a geographical indication (GI) which denotes aromatic long-grain rice grown at the Himalayan foothills of India and Pakistan. Therefore, allowing registration would mislead Kenyan consumers and give Krish an unfair advantage over a geographical product that was already protected elsewhere.

After sixteen years of court litigation, the answer to APEDA’s objection to Krish’s application to register “Basmati” was still no. Crucially, on 3^rd October 2025, for the first time at an appellate level, the Kenyan Court of Appeal [“the Court”] (Karanja, Muchelule and Ngugi JJA.) rejected the second appeal by APEDA in its judgement in APEDA v Krish Commodities Ltd [2025] KECA 1587. The ruling was straightforward: that, without a formal recognition or prior registration of “Basmati” as a geographical indication (GI) under Kenyan law, the appellant, APEDA, had no legal basis to object to the trademark applications by Krish. This was a procedural finding, but the silences echoing from the judgement are as important to consider as its rulings, and there is urgency for practitioners to comprehend both.

At the time of the filing of the marks’ application, the operative provisions for GI under Kenyan law was section 40A(5) of the Trade Marks Act (Cap. 506), which permitted the registration of geographical names as certification or collective marks. APEDA argued that the term “may” in the provision suggested optional registration, submitting that, on the strength of this claim, “Basmati” could be informally protected based on its global reputation and the reception clause in the Kenyan constitution’s Article 2(5) and (6) of the Constitution, which domesticates the TRIPS Agreement. The Court rejected this invitation, holding that TRIPS is not self-executing in Kenya and that it is domesticated through section 40A. The justification was that the word “may” implied registration eligibility and not optionality, which could permit an informal route of recognition. Expressly, protection commences upon formal registration, and not a minute earlier. The Court explicitly drew a line: no registration in Kenya, no legal capacity to object to a registration application by another party.

The judgement disappoints on various fronts. The Court refused to determine the GI status of “Basmati” at all, rightly reiterating that it lacked the jurisdiction to delve into a fact-finding of the first instance at a second appeal. But in doing so, the Court missed the chance to lay the jurisprudential foundations on “genericness”, which is a pending question, especially given the claim of descriptive usage of “Basmati” in the Kenyan market for other local products such as Ahero and Mwea rice. The judgement’s engagement of the constitutional issues is also narrow, surface-level even. It leaves wide open the question whether the Constitution’s Article 2(5) and (6) create any residual judicial role in policing manifestly misleading uses of established GIs before formal registration is obtained. And lastly, the Court mentions Kenya’s dedicated GI Act 2019 as a sui generis (standalone) legal framework for Geographical Indications (GIs) [25]. In reality, no such Act was ever passed into law. The Geographical Indications Bill, 2007, and unpublished Geographical Indications Bills, 2019 and 2024, were not enacted into law. At the time of this publication, the GI Bill 2026 is still pending before the parliament. On the whole, the Court squandered the opportunity to begin laying the foundation for the underdeveloped GI jurisprudence in Kenya.

For advocates, the Court’s message is procedural but urgent. Foreign GI holders desirous of Kenyan protection must engage the domestic legislation directly, now the Trade Marks Act (Cap. 506), as the primary route, and approach the court second. The Court was unequivocal: registration is the baseline, not a technicality. APEDA could have filed for recognition many years ago. It failed to do so and paid a hefty price throughout the judiciary.

The Judgement in APEDA v Krish Commodities is conclusive on one thing: it ends the “may” debate; there is no optionality under Kenyan law, which permits an informal route of recognition. What it fails to do is to substantively advance the underdeveloped Kenyan GI jurisprudence. There is an urgent need for clarity on genericness and international IP obligations’ constitutional reception. These questions remain wide open, and the next litigant who approaches the court with their registration in order will compel the Court to confront them directly.

This is an extract from the full case commentary in Mwango Law Review — Issue 003, going live tomorrow, Tuesday 16 June at 1:00 PM. Read the complete analysis, including paragraph-level citations, comparative law, and a critique of the constitutional dimension, at mwangolawreview.com

Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.