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.

For Kenyan practitioners, the judgment is highly relevant because it addresses a fundamental constitutional question, which three Superior Court decisions in Famy Care Limited v Public Procurement Administrative Review Board & others (Petition No. 43 of 2012), Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company & others (Petition 278 of 2011), and Kenya Legal and Ethical Issues Network (KELIN) v Cabinet Secretary, Ministry of Health & AG (Petition E063 of 2021), have examined from only one direction. All three Kenyan cases ask the question: whether a corporate body may obtain information from the State. Up until this point, no Kenyan court has confronted the mirror-image question: whether a corporate body enjoys a constitutional right to resist State compulsion to disclose its own private commercial information, and whether a regulation that makes the impossible mandatory is unconstitutional on its face rather than merely judicially reviewable.

The BSI Belize judgement resoundingly answers both, and it does so by deploying analytical tools which need not be transplanted into Kenya, as they are already available, though unutilised. While not binding on Kenyan courts, the BSI Belize judgement offers a greater comparative value, especially considering that Belize and Kenya enjoy a shared heritage as former British colonies, which inherited and still retain English common law roots and a shared parliamentary framework.

The Kenyan Trajectory: From Hard Exclusion to Statutory Codification

The Kenyan journey commences with two restrictive judgements. In Famy Care, Majanja J was confronted with the Constitution’s Article 35(1) question by an Indian company seeking tender evaluation records from KEMSA. The respondents raised a preliminary objection, arguing that only “citizens” have the right of access to information, and a company is not a citizen, strictly speaking. The court’s ruling reiterated that Article 35(1) is textually limited to citizens, unlike other rights framed around “every person” or “all persons.” [18]. Yes, Article 260 defines “person” to include companies, preserving Bill of Rights rights for juristic persons “to the extent that the right or fundamental freedom itself permits” [21]. Nevertheless, the court ruled that under the Constitution’s Chapter Three, citizenship is founded on birth, descent, registration, and marriage, attributes which are structurally incompatible with corporate existence. A juridical person is neither born nor married. Bearing this in mind, the court was unequivocal that Article 35(1) was unavailable to Famy Care.

The court sitting in the Nairobi Law Monthly v KenGen case arrived at the same conclusion based on facts which were materially identical to Famy Care. While citing Famy Care with approval, Mumbi Ngugi J noted that “the term “citizen” denotes a natural person who is a Kenyan citizen; a body corporate cannot claim corporate Kenyan citizenship irrespective of its ownership structure” [81–82]. This was a dangerously vague finding as the CIPIT Strathmore blog observed contemporaneously, for the reason that it threatened downstream consequences well beyond information rights. For instance, if corporate “personhood” is confined to human-attribute-specific rights, it potentially undermines corporate authorship under the Copyright Act. More specifically, the Copyright Act uses the words “author” and “person” in sections 2(1) and 23(2), which provisions heavily depend on precisely the kind of purposive extension that the citizenship cases were closing off. On the whole, the concern by CIPIT was more structural: courts were using a narrowed interpretative prism for the distinction between citizen and person, which portended broader suppressive implications for the participation of corporate bodies in rights-based frameworks.

Both cases were determined prior to the enactment of the Access to Information Act, No. 31 of 2016 (hereafter “ATI Act”, for short). Section 2 of the ATI Act defines citizen as “any individual who has Kenyan Citizenship, and any private entity that is controlled by one or more Kenyan citizens.” In effect, the Act addressed the gap inherent in the constitution by extrapolating the information access right to juristic persons, which are citizen-controlled, as a legislative redefinition. The concern was whether courts would embrace it.

They did. In KELIN, the petitioner, a Kenyan-registered NGO, sought clarity on whether the NGO Act’s duly registered entity could seek relief for rights violations under the Constitution’s Article 35. Before Mugambi J, the 1^st respondent urged that the pre-ATI Act stance as per Nairobi Law Monthly v KenGen justifiably foreclosed corporate petitioners. The court rejected this invitation, ruling that the ATI Act had instead “enlarged the scope of persons that can seek information by expanding the category to include juristic persons under Section 2” [66-67]. Therefore, the petitioner, KELIN, being a Kenyan citizen-controlled corporate entity, qualified, hence dismissing the “busybody” claim by the respondent [65]. In closing, the court ruled that the petition “raised matters of great public interest, concerning the alleged misappropriation of GAVI donor funds amounting to USD 1.6 million that the Ministry of Health had agreed to reimburse using public money, and any person could bring such a petition under Articles 22 and 258 of the Constitution” [9-11].

The second notable doctrinal contribution of the KELIN case was that it tied Article 35 to the Constitution’s Article 201. Mugambi J ruled that as the matter related to information sought concerning public funds and their usage, the principles of public finance under Article 201(a) (openness and accountability) and 201(d) (prudent and responsible use of public money) operated as an independent constitutional multiplier on the disclosure obligation [105–109]. Failure to avail information regarding the funds’ usage or actions against those responsible “breached not only Article 35 but also Article 201(a)” [107-109]. The petitioner’s prayers were granted.

The Doctrinal Gap in the Kenyan Cases, and What BSI Belize Fills

Collectively, Famy Care, Nairobi Law Monthly, and KELIN establish three things and leave three things open. What they establish are these: a foreign-incorporated entity does not enjoy the Article 35 right [Famy Care [26]]; a juristic entity which is controlled by citizens enjoys Article 35 protection through the expanded scope of the ATI Act [KELIN [67]]; and in instances where information sought concerns State organ held public funds or their usage, Article 201 self-executes an independent constitutional duty of disclosure which further reinforces Article 35 [KELIN [109]]. Here is what the cases, as read together, do not tackle: whether a company enjoys a positive constitutional right to resist compelled disclosure of its own private commercial information; whether Article 201 transcends the context of public funds into other arrangements which are purely private commercial; and, lastly, whether a regulatory instrument imposing mandatory impossible obligations is unconstitutional on its face or merely a subject of judicial review. On all three, BSI Belize speaks directly.

First, regarding the privacy of corporate information, Goonetilleke J ruled that the terminology “person” as found in the privacy provisions of Belize’s Constitution “would include a legal person or a legal entity” [70]. The court adopted a privacy taxonomy made up of three limbs, as formulated in KS Puttaswamy v Union of India (Writ Petition No. 494 of 2012) via Julian Robinson v AG of Jamaica [2019] JMFC Full 04: (a) bodily integrity, (b) informational privacy, and (c) choice privacy [75-76]. Crucially, the court disaggregated the limbs, arguing that the first limb was unavailable for corporate bodies as the attributes such as bodily integrity and human dignity are preserved for natural persons only [78-80]. However, it was “farcical” to arrive at the conclusion that the lack of human dignity automatically extinguishes companies’ informational privacy rights. The court ruled that indeed “privacy is at the core of the operations of commercial entities” [79]. For this reason, confidentiality of commercial contracts is vital because of the potential competition detriment that arises from disclosure. Therefore, the court concluded that “Corporates do have a right to informational privacy no less than the individual” [80].

Juxtaposed, this trajectory of reasoning is available under Article 31 of the Constitution of Kenya, which protects “every person” and not just “every citizen.” Examined together with the definition of “person” under Article 260, which arguably includes companies, and the position under Article 20(2) that every person shall enjoy rights “to the greatest extent consistent with the nature of the right or fundamental freedom,” the three-limb approach in BSI Belize offers an immediate answer to the question Famy Care [21] grappled with but left unanswered. The bottom line is: Informational privacy in commercial contracts is simply compatible with corporate existence, specifically because it requires no human attribute to explain it. The Puttaswamy / Julian Robinson taxonomy cited with approval in BSI Belize is already cited in Kenyan jurisprudence, providing the analytical toolkit to directly say so.

In relation to the scope of Article 201, the ruling in KELIN explained an important limit, which is supported from the other direction by BSI Belize. The justification of the government for compelling private contracts’ disclosure by BSI included Fairtrade premium distribution transparency and accountability between commercial parties in the sugar industry [82]. The court held that “disturbance to the sugar industry… or anxiety of a section of the farmers and their associations” does not fall within the constitutionally permissible grounds for limiting privacy [82-83]. This effectively means that the list of permissible limitations under the Belize Constitution is closed. Contrarily, Article 24 of Kenya’s Constitution is wide open, stating that any limitation must be “reasonable and justifiable in an open and democratic society.” In KELIN, the court found that the disclosure runs through Article 201 specifically, and Article 201 relates to public funds and not private commercial arrangements. In an instance where a State organ compels a private firm’s contractual disclosure regarding its engagement with private international buyers, neither Article 201 nor the public interest values in Article 10 offer sufficient justification for Article 24 by themselves. These aspects considerably heighten the burden of limitation, and neither “industry regulation” nor “transparency” provides sufficient answers.

Relating to the impossibility of regulation, the analysis of Regulation 16 in BSI Belize offers the most benefits to Kenyan regulatory litigators. At its core, the regulation was impugned for requiring BSI to “collect all proceeds, premiums or other benefits” from certified sugar buyers and distribute them to producers, with non-compliance attracting automatic revocation of the licence as the sanction [94–95]. In BSI Belize, the payer of the Fairtrade premium was Tate & Lyle Sugars, a foreign company that had expressly, in writing, refused to adopt the conveyor model and which was beyond Belizean jurisdiction [95], [106]. The court ruled that the word “shall” as used in Regulation 16(1) was imperative under the Interpretation Act of Belize [108]. Consequently, the court declined to read “shall” as “shall where possible”, arguing that courts are not at liberty to insert language that is not there [119]. The constitutional violation was therefore imminent: a regulation creating an obligation that is mandatory, whose performance is premised on a third party that is extraterritorial and a severe sanction that was automatic. In resting, the court characterized the breach as an infringement of the right to protection of the law as the regulation was irrational and unreasonable [116] and a violation of the right to work through its disproportionate measures [118]. The proportionality test failed primarily because the automatic sanction applied “irrespective of whether the licensee could or could not collect the benefits or premiums” [120].

Until now, no Kenyan court has found a regulation unconstitutional for impossible mandatory obligations. Traditionally, the Wednesbury unreasonableness judicial review approach has been deployed, but it inconclusively remedies violations of substantive rights. For Kenyan advocates, the constitutional argument runs through Article 40, which deals with the protection of the right to engage in economic activity, Article 41 on fair labour practices, and Article 47 on fair administrative action, as read with the proportionality standard contained in Article 24. Here is the argument: a licensing or regulatory instrument that imposes a mandatory obligation whose performance depends on a third party or extraterritorial actor through compulsion by the State, supported by automatic severe sanctions such as forfeiture, licence revocation, or deregistration, is not merely a subject of judicial review. Instead, such a regulation is disproportionate at face value, as no extent of compliance by the licensee can avert the sanctions. The argument is directly applicable in Kenya’s agricultural export, capital markets, pharmaceutical and energy sectors, all of which impose compliance obligations with foreign certification bodies, international standard-setters, or cross-border payment systems.

Conclusion

The Kenyan path illustrates an arc from a regime that is more restrictive to a statutory codification of information rights, although this trajectory is faulty for leaving the constitutional weaving of corporate rights incomplete on one critical angle: the protection of information held by corporate entities from disclosure compulsion by the State. KELIN closes that doctrinal gap partly, specifically by confirming that corporate entities controlled by Kenyan citizens can access public information and that Article 201 multiplies the disclosure duty where public funds are in play. However, it fails to vest corporate privacy as a positive right, insufficiently highlights the limitation analysis applicable to compelled commercial disclosure in purely private contexts, or the constitutionality of impossible mandatory regulatory obligations.

BSI Belize speaks directly to all three. It embraces the Puttaswamy three-limb framework for corporate informational privacy, which is directly relevant and available under Article 31, Article 260, and Article 20(2) of the Constitution of Kenya. Its analysis asks a fundamental question: whether the justification for compulsion by the State amounts to a constitutional reason that is cognizable for limiting the right, before proceeding to proportionality. This is, in effect, an argument that Kenyan advocates can and should mount under Article 24. BSI Belize also elevates the impossibility of the regulation from a ground for judicial review to a substantive constitutional basis, which is immediately applicable as a doctrinal step for advocates litigating licensing and regulatory challenges. This analysis ends here: Kenyan courts and practitioners have the doctrinal materials; what has been missing is the desire to deploy them in protecting trade information held by corporate clients.

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

In its decision in Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR) some eleven years ago, the same court did exactly what it now claims cannot be done. LSK was enjoined as an interested party before the High Court and did not participate in the Court of Appeal. At the Supreme Court, none of the principal parties appealed, but the LSK did. The court permitted its appeal to proceed. Contrastingly, in Mbaazi Avenue, the rule is now restated with stark candour that the appeal should never have left the registry in the very first place- dead on arrival. At face value, the two decisions are immediately irreconcilable. The experienced 5-judge apex bench was directly invited to ventilate on this apparent contradiction by the applicants in the ruling’s paragraph 12. Interestingly, the invitation was met with complete silence from the court.

Judicial silence on a contradictory authority that is directly cited by an applicant cannot be interpreted as neutrality. Coming from a highly experienced bench, it amounts to a choice that carries consequences. It portends deeper ramifications, including for advocates who analyse Mbaazi Avenue, who must deal with two decisions of the apex court which are irreconcilable on the same point. The silence means that the court missed a golden chance to guide on which position prevails, why, or under what specific conditions. It neither overruled, distinguished nor acknowledged the tension from its earlier stance in LSK v Centre for Human Rights. All the court did was reaffirm Macharia & another v DPP & 11 others [2022] KESC 61 and move on. An apex court sitting as the bench of final jurisdiction that refuses to confront a direct contradiction in its precedents does a disservice to the certainty of the precedent doctrine as understood in law.

The distinction is not hard to deal with. The LSK is born of a statute, which directly mandates it to uphold the constitution and the rule of law. At its best, examined from its statutory constitution, it exists to litigate questions relating to the interest of the public, which do not arise only based on its presence in courts below. On the contrary, a residents’ association/community, as was the case in Mbaazi Avenue, lacks such a mandate. Implicitly, its interest is more direct and factual as it is directly affected by the case’s outcome. That is a clear distinction which is not difficult to articulate. One has an affected party interest, and the other a public interest standing. As such, the latter may survive the label as an interested party as its locus is not derived from the procedure but a substantive law creature. The former cannot. The bench sitting in Mbaazi Avenue had ample experience, opportunity, space, and disposition to say this explicitly, but it refused to utilise it.

The ruling presents a deeper structural problem. Violations of the constitution, which touch on public participation failure, degradation of the environment, and zoning abuses, directly impact the communities, which are unlikely to possess the necessary resources to institute suits as principal parties. Such communities seek to be enjoined as interested parties, as that’s all they can afford, either financially or procedurally due to potential exposure. An absolute rule, as laid down in Mbaazi Avenue, without clarity on any exceptions, as per the LSK case, means that the vital constitutional protections under Articles 10, 42, 69, and 70 are rendered inaccessible to the very groups they were tailored to safeguard. This consequence deserved more robust and open engagement from the court than merely restating the rule without accounting for its exception.

The pragmatic position for advocates is direct and immediate. The ruling in paragraph 18(v) of Mbaazi Avenue is the absolute/governing rule until such a time that the court will revisit the issue of whether the stake of a party, be it intergenerational, environmental, or communal, could be a justifiable or sufficient basis for an independent right of appeal for interested parties. Therefore, without any exception, your client must appear as a principal party right from the trial court’s first filing. However, if your client enjoys a public interest mandate under a statute, pivot the LSK case argument directly and invite the bench to once and for all ventilate on that which it has refused to. The court in Mbaazi Avenue was calculative, deliberate, experienced, and unanimous, and its silence on the LSK case was a deferral, not an oversight. At a future point, the deferral must stop because an absolute rule with an exception that is not acknowledged isn’t that absolute. Is it? It becomes an ambush.

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

The summarised factual basis is that both courts below dismissed the petition. Years later, the association sought to appeal to the court, and the question of standing unraveled. Before the apex court, both applicants, the Association and Millennium Gardens Management Ltd, acted as co-petitioners, a potentially problematic and unravelling reclassification. Consequently, among others, the issue before the court was whether an interested party could institute an appeal where none of the principal parties had done so.

The ruling noted that the court had the requisite jurisdiction under Article 163(4)(a), specifically because the issues at the lower courts “turned on the interpretation and application of the Constitution” [18]. Therefore, the appeal satisfied the constitutional trajectory test. The issue of standing immediately unraveled, with the court holding that even though the standing of the management company was unchallenged, the capacity of the association to appeal was not.

More specifically, while citing with approval the ruling in Macharia & another v DPP & 11 others [2022] KESC 61 (KLR), the court was unequivocal that: “An interested party cannot suddenly and on appeal transform itself into a substantive party and take over such a party’s case. In the event, we agree with the 1^st respondent that an appeal by an interested party cannot be sustained” [18]. Crucially, the court relied on its inherent jurisdiction to cure the error apparent on the face of the record by properly reclassifying the association as an interested party. As such, the court permitted the appeal by Millennium Gardens Management Ltd, which was a principal party in the suit in the courts below, to proceed. More striking is the court’s ruling that the correction was possible only because a legitimate principal party remained in the proceedings. Without the management company, there would have been no appeal to save [18].

The ruling is jurisprudentially sound and aligns with other earlier findings: the Macharia case, Muruatetu & another v Republic [2016] KESC 12, and the Senate & 3 others v Speaker of the National Assembly [2025] KESC 11 all reinforce it across civil and constitutional contexts [15]. Curiously, though, the applicant association’s case sought to invoke the apex court’s indulgence based on its earlier contradictory ruling in Law Society of Kenya v Centre for Human Rights and Democracy [2014] KESC 29. LSK, which was previously an interested party in the courts below, was successful in appealing to the court. This position was met with judicial silence by the court, which is telling, as it is left for analysts to infer that perhaps, maybe perhaps, the public interest standing of the LSK is statutorily anchored, a position the association did not enjoy. For now, the distinction remains unclear and will, in time, require being confronted more directly.

The ruling depicts an underlying structural problem. For instance, many community groups that are adversely impacted by a lack of public participation, environmental harm, or zoning abuses often seek enjoinment in suit as interested parties. In this capacity, they build a sound constitutional record, only to discover that their procedural label as interested parties is a judicial ceiling to their appeal right. Indeed, the court found that in their label as an interested party, the Association had not demonstrated, “with sufficient precision,” how their environmental rights were being infringed [18].

The lessons for advocates from this ruling are direct and immediate. Any party with a genuine grievance, be it public participation, environment, or land use, must bring a suit as a principal party right from the trial court. The choice to take part as an interested party in litigation, either to avert procedural exposure or costs, may (permanently) foreclose the right to appeal in the future. The ruling in Mbaazi Avenue is the absolute until such a time that the court will revisit the issue of whether the stake of a party, be it intergenerational, environmental, or communal, could be a justifiable or sufficient basis for an independent right of appeal for interested parties. Until that moment comes, advocates must select their procedural label wisely because it may turn out to be the most consequential choice in the course of the litigation.

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

The facts were that when the applicant, Mariko Mustafa Wasike, went to answer a Chief’s summons, he left with injuries. The man who summoned him, Joseph Kaita, the area Chief, had physically assaulted him at the office. Wasike reported it, got treated at the hospital, and tried to do everything right. Then the system closed around him: The hospital where he was treated refused to sign his P3 form, a necessary document to initiate a criminal charge for assault. Wasike claimed that the Chief’s administrative reach influenced these actions. He notified the ODPP, but they too did nothing. Therefore, a government official allegedly used state machinery to render himself prosecution-proof. So Wasike went to the High Court and asked to prosecute Kaita himself.

In a brief ruling, the court not only said yes. It affirmed that an applicant could approach the court “by whatever means”. In addressing a dangerously vague law area that had been neglected for decades, the court noted that under Kenyan law, although the right to private prosecution exists in the Criminal Procedure Code, the route to exercising it was never codified. The only procedural guidance came from Kimani v Kahara [1983] eKLR, which suggested leave should be sought at the Magistrate’s Court once the accused appeared for plea. That placed the cart before the horse: how do you summon an accused to plead before a court has authorised your prosecution? The framework was circular, and for ordinary citizens facing powerful respondents, practically unusable.

For these reasons, the court was unequivocal that Kimani was decided under the 1969 Constitution. Contrarily, the 2010 Constitution abhorred procedural technicalities for substantive justice. Under Article 165(3), the High Court is vested with unlimited original criminal jurisdiction. The court reasoned that it was empowered to handle anything within the Magistrate’s mandate & could certainly grant leave for matters destined for that court. The Magistrate’s Court, as the court put it, “exists to assist the High Court discharge its mandate” [9].

For all its practical utility, the ruling falls short of resolving all questions. For instance, the ruling failed to clarify the test it applied in granting leave, be it draft charge sheet content assessment, standing, or sufficiency of evidence, given that the application was unopposed. Hopefully, a future contested case will allow the court to engage with these details robustly. Besides, the ruling does not clarify whether the Magistrate’s courts retain a concurrent leave-granting jurisdiction or whether the ruling transfers that function upward entirely. These are not trivial doctrinal gaps. On the whole, however, the ruling’s core holds that where prosecution is obstructed through state capture, private prosecution is not merely a legal procedure but an essential structural safeguard. Wasike v Kaita settles it that the High Court is the proper venue to trigger leave for private prosecution and that procedural technicality will not be used against an applicant- the door is wide open. For a man who visited a government office to answer a summons and was assaulted, this decision is not nothing.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional and human rights law.

The facts of the case are straight-forward. HSO, a seventeen year old teenager, was arrested alongside his sixteen-year-old partner after a missing person report and charged with defilement under Section 8 of the Act. In another case, AMO faced similar charges after a consensual relationship with TA, who was then seventeen years old, led to pregnancy and cohabitation. TA herself was never charged, but was at some point interrogated without a lawyer and forced to testify against her own partner. In both cases, charges were eventually dropped once prosecutors confirmed the accused were minors. The petitioners sued, arguing that withdrawal of charges did not cure the constitutional harm already done [19–21]. On the contrary, the Respondents urged that the matter was technically res judicata, effectively citing an earlier decision in CKW v Attorney General, Eldoret Petition 6 of 2023 to the effect that it conclusively settled the matter.

The petition raised one narrower issue: whether the Act’s application without differentiation between exploitative adult conduct and consensual peer relationships passed a proportionality analysis under Article 24 [19–123].

I surmise that the distinction highlighted in this core issue is sound. Less convincing is what the court did with it. In the petition, the learned Judge ruled that there were infringements of Articles 27, 28, 31, 43 and 53, which relate to dignity, equality, privacy, health and the best interests of the child, respectively. In effect, the court’s finding flowed from what the judge described as a regime that operates “without an internal mechanism to distinguish between conduct that causes harm and conduct that is developmentally consensual and non-exploitative” [136]. Yes, to my mind, the proportionality reasoning under Article 24 is carefully constructed, and the reliance on Teddy Bear Clinic for Abused Children v Minister of Justice (CCT 12/13) [2013] ZACC 35 is appropriate given how closely Kenya’s constitutional framework mirrors South Africa’s on these issues [138]. As a comparative rights jurisprudence, I do not quarrel with the destination. It is the route that troubles me, as I will analyse in the subsequent paragraphs.

The judgment instructed the DPP to immediately gazette its existing internal guidelines, the police to align their protocols, and the health and education ministries to develop adolescent-friendly service frameworks [184(D)–(F)]. Understandably, these are interpreted as structural orders towards the executive, effectively serving as the exercise of the court’s judicial authority in the most assertive sense. However, the court did not stop there. The learned Judge went further and declared Sections 8, 9, and 11 of the Act unconstitutional insofar as they apply to consensual peer conduct. All this was done without the intervention of the Parliament, for example, in a response through legislative enactment. On this basis, therefore, the argument by the Respondents that any perceived deficiencies or shortcomings in the legislative provisions fell squarely within the purview of Parliament and needed no judicial intervention received lesser engagement from the court than it deserved [57].

My main concern with the judgement, however, is contained in paragraph 180. Up until this point in the decision, the court’s entire premise is woven around the aspect of the unconstitutionality of criminalising conduct between adolescents of “close age proximity”. Curiously, the court then declined to clarify the exact meaning or remit of the phrase “close age proximity”, in effect leaving this definition at the mercy of the DPP, police and other agencies to work out among themselves. That is an important gap in the court’s interpretation of the law, which could build or break the substratum or “soundness” of the entire judgment.

Crucially, a declaration of unconstitutionality of statutory provisions that hinges on a terminology the court failed to define does not provide sufficient and reliable guidance to the police officer on the ground, the prosecutor reviewing a file, or the magistrate taking a plea. So, essentially, such a declaration yields the very inconsistent and discretion-heavy type of enforcement which the court sought to prevent in the very first place. The court has a constitutional authority to find these provisions overbroad. But that is not all – it is arguable that the court also had an obligation to clearly delineate the boundaries of the exception it purported to carve out.

The court emphasized that the DPP already had an unpublished internal policy against prosecuting minors [150]. This finding is candidly striking and damning in these circumstances. For instance, had the said policy been applied consistently, it would have averted both sets of proceedings the petitioners were subjected to. To this extent, the court’s finding was sound in ordering that the policy be formalized. But with the same token of precision, the finding highlights a relatively uncomfortable question which the judgment fails to address: if the substratum of the entire case was an enforcement problem as opposed to statutory design, how would the court justify an unconstitutionality declaration against the provision of the primary Act itself? Curious, right?

In conclusion, none of this is to claim that the petitioners deserved the wrong that was visited upon them; they did not. The harm suffered by the petitioners was real, and there were constitutionally disproportionate conducts by the prosecution which justified appropriate structural orders as directed by the court. But there exists a distinction between a court rewriting a statute, say due to the failure by the Parliament, and a court sitting to correct a failure in enforcement of a policy. This judgment by Mwamuye J. does important work in developing Kenya’s sexual offence jurisprudence to align it with international best standards. Whether it stays within proper judicial limits is a question worth sitting with.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional and human rights law.

Mwango Law Review | Mombasa, Kenya

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