REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E010 OF 2025
IN THE MATTER OF ;ARTICLES 1,2,3,10,22,23,47,73,174,185,196 AND 285 OF THE CONSTITUION OF KENYA 2010
AND
IN THE MATTER OF; COUNTY GOVERNMENTS ACT, 2012 AND THE COUNTY ASSEMBLIES POWERS AND PRIVILAGES ACT,2017
AND
IN THE MATTER OF; THE INTERNAL PROCEEDINGS AND COMMITTEE STRUCTURES OF THE COUNTY ASSEMBLY OF MARSABIT
BETWEEN
HON ADHI BINO……………………………………………PETITIONER
VERSUS
THE COUNTY ASSEMBLY OF MARSABIT….1 ST RESPONDENT
THE SPEAKER OF THE COUNTY ASSEMBLY
OF MARSABIT……………………………………….2 nd RESPONDENT
THE CLERK OF THE COUNTY ASSEMBLY
OF MARSABIT……………………………………….3 rd RESPONDENT
MEMBERS OF THE COUNTY BUDGET &
APPROPRIATION COMMITTEE………………….4 th RESPONDENT
MEMBERS OF THE COUNTY PUBLIC ACCOUNTS
& INVESTMENT COMMITTEE……………………5 th RESPONDENT
RULING
A. Introduction .
1. Before the court for determination is the Notice of Motion Application dated 28 th January 2026 filed pursuant to provisions Articles 19,20,21,22,23,159,165(3) and 259 of the Constitution of Kenya 2010, Rules 3,23 and 24 of the constitution of Kenya ( Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, 2013) and all other enabling provisions of law. The Applicant seeks for Orders that;
a) Spent.
b) Spent
c) THAT this Honourable court be pleased to review, set aside, discharge, vacate and/or vary the interim conservatory orders granted by the court on 11 th November 2025 in terms of Prayers (2),(3) and (4) of the Petitioners notice of motion and subsequently extended by the court on 20 th January 2026.
d) That in the alternative to prayer (3), this Honourable court be pleased to vary the interim conservatory orders so as to permit the County assembly and county government of Marsabit to proceed with urgent supplementary budgeting, committee deliberations and approvals strictly limited to interventions responding to the current drought and food insecurity humanitarian emergency in Marsabit Couty.
e) That costs of this Application be in the cause
2. The application is supported by the grounds made on the face of the said Application and the supporting affidavit of MATO CHARE, clerk to the assembly who depones that this court did issue interim orders barring the budget committee from sitting vide its orders issued on 11.11.2025 subsequently extended on 27.11.2025 and more recently on 20.01.2026 pending determination of the substantive petition filed. Be that as it may, he had been advised that the court retained discretion to discharge, vary and/or to set aside the said conservatory orders where it suits the ends of justice, public interest, proportionality or change of circumstances required.
3. The said conservative orders earlier issued, had grounded the counties budget related functions thereby crippling the assemblies ability to undertake timely legislative intervention, including passing and discussing of supplementary budget, which was a time bound public process/fiscal tool intended to respond to emergent realities and unanticipated expenditure needs such as the persisting severe drought currently being experienced and had escalated into humanitarian emergency affecting a substantial number of residence and vulnerable populations within Marsabit county.
4. The said drought situation, was not anticipated at the time of preparation of the earlier budgeting instruments, including the supplementary budget in October 2025, when it was expected that the short rains would be adequate, which expectation did not materialize and consequently the budgetary allocations required urgent revision and relocation of funds to respond to the emergent famine and drought reality, failing of which, irreparable harm would be caused to the lives, health and dignity of the residences of Marsabit County. It was therefore imperative that the assembly be allowed to debate and immediately pass the new supplementary budget, which had adopted allocations in line with the evidence-based recommendations of the drought rapid assessment report.
5. The Applicant had also affirmed that they had initiated the ADR process in compliance with the court’s directive, but such efforts were slowed down and hampered by prevailing political realities, including divergent political camps and competition interest amongst the parties. That notwithstanding they were willing to push through with ADR to resolve the issues raised by the petitioners and urged the court to grant the orders sought considering the public interest at stake.
B. The Response .
6. Upon being served the petitioner/Respondent filed her grounds of opposition and replying affidavit both dated 30 th January 2026 in opposition to the said application and averred that this application was not merited and though guised as a review application, it was in essence an Appeal against the ruling delivered on 20 th January 2026 dismissing the preliminary objection and was also an afterthought as the drought situation was not something unforeseen and had been catered for in the county budget to the tune of Kshs 200 million being 2% of the County budget reserved for unforeseen situations such as drought, diseases outbreak and other related exitigencies.
7. The respondent further averred that the applicants had willfully refused to comply with the law as regards the composition of the budget and appropriation committee and in effected wanted the court to give them a blanket greenlight to discuss the supplementary budget through the illegally constituted committee which push was being made in bad faith and with the intention to circumvent the law and only benefit a few county officials at the expense of majority members of the public.
8. She further noted that the supplementary budget did not deal with the issue of the drought and thus the applicant’s contention in that regard was not truthful as emergency fund did not form part of the supplementary budget estimates and had previously been accommodated in the main budget under administration. The current constitution of the budget and appropriation committee was illegal, unconstitutional and violated the law as pleaded and she thus urged the court to dismiss the review application as it was back door attempt to get the courts blessings to allow them to continue to violate the assemblies standing orders and constitution of kenya.
C. DETERMINATION.
9. I have considered the pleadings filed by the respective parties and find that the only issue that arises for determination is whether the conservatory orders issued on 11 th November 2025 and subsequently extended on 20 th January 2026 pending determination of the main petition should be varied to allow the 1 st respondents budget and appropriation committee to sit, deliberate and pass the supplementary budget, which contains budget lines to help mitigate/alleviate the current drought situation being experienced in Marsabit county.
7. In the case of Richard Nchapi Leiyagu vs. IEBC & 2 others [2013] eKLR the Court of Appeal stated that a court can exercise its discretion to set aside ex-parte orders to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.
8. In the case of Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR the Supreme Court laid down the guiding principles in an application of review of Court orders as follows:
(31) Consequently, drawing from the case law above, particularly Mbogo and Another v Shah , we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:
(i) A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
(ii) Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court.
(iii) An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
(iv) In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.
(v) During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.
(vi) The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
(a) as a result a wrong decision was arrived at; or
(b) it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
9. Reference is also made to Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 ) which provides for the setting aside, varying or discharging Courts orders and the case of Bloggers Association of Kenya (Bake) vs. Attorney General & 5 others [supra] where it was held that the courts must, in varying, setting aside or discharging orders issued under Rule 23 of the said Rules, exercise their discretionary powers with great caution as the orders are meant to correct an error or oversight or to effect a review of the proposed order so that the orders may be able to deal more appropriately with the issues as litigated by the parties.
10. There is no doubt whatsoever that the petition raises contentious constitutional issues, which has been highlighted by this court in its ruling dated 20 th January 2026 and the same has to now be considered in light of the new realities that there is need to pass the Marsabit county supplementary budget, which is time bound to get additional resources to mitigate against the severe drought realties affecting residence of Marsabit county.
11. There applicant averred that public interest outweighed the respondent’s personal interest in this matter, but in the Court's view, the weightier issue, is the public interest in ensuring that such a cornerstone institutions of democracy such as the county assembly are constituted and/or operate in strict adherence to the law, thereby safeguarding its independence and integrity. This was affirmed by the Court in Judicial Service Commission v Speaker of the National Assembly & Another [2013] KEHC 911 (KLR) where the court clarified that conservatory orders are "remedies in rem " meant to preserve a particular state of affairs in the public interest. In affirming this, the court thus stated;
“ Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution , the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
12. In the circumstances of this case I do find that it has not been shown that the court erred and/or misdirected itself in exercise of its discretion to grant the conservatory orders but public interest dictated that “actions to alleviate the drought ” must be given priority while balancing the same with orders to ensure that the county assembly complies with the law in its composition of its various committees.
13. Therefore guided by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act in administering justice, the focus being on substantive justice, and also appreciating that additional funds have been allocated for drought alleviation programs, this tilts the scales of justice to have the said conservatory orders to be varied to a limited extent to allow for a window to pass the forestated supplementary budget.
14. At this point the court also appreciate the sentiments expressed by the High Court in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR that:
“………... However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief .”
DISPOSITION
15. The upshot is that the Notice of motion Application dated 28 th January 2026 is partially successful and is allowed in terms of prayer (4), modified as follows.
(i) “ The interim orders issued on 11 th November 2025 and subsequently extended on 20 th January 2026 are varied to allow the county assembly of Marsabit through its budget and appropriation committee and the whole assembly to sit, debate and pass the supplementary budget currently placed before the said committee/house.
(ii) In line with standing Order No 184- 187 all sectoral committee chairs will be mandatorily included in the said budget and appropriation committee as they discuss the supplementary budget as required by law.
(iii) The costs of this Application will be in the cause.
16. It is so ordered.
Read, signed, and delivered virtually at MARSABIT on this ……………. day of FEBRUARY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ……… day of FEBRUARY 2026.
In the presence of;
………………………………….for Petitioner
………………………………….for Respondent
………………………………….Court Assistant
IN THE HIGH COURT OF KENYA AT MARSABIT
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E010 OF 2025
IN THE MATTER OF ;ARTICLES 1,2,3,10,22,23,47,73,174,185,196 AND 285 OF THE CONSTITUION OF KENYA 2010
AND
IN THE MATTER OF; COUNTY GOVERNMENTS ACT, 2012 AND THE COUNTY ASSEMBLIES POWERS AND PRIVILAGES ACT,2017
AND
IN THE MATTER OF; THE INTERNAL PROCEEDINGS AND COMMITTEE STRUCTURES OF THE COUNTY ASSEMBLY OF MARSABIT
BETWEEN
HON ADHI BINO……………………………………………PETITIONER
VERSUS
THE COUNTY ASSEMBLY OF MARSABIT….1 ST RESPONDENT
THE SPEAKER OF THE COUNTY ASSEMBLY
OF MARSABIT……………………………………….2 nd RESPONDENT
THE CLERK OF THE COUNTY ASSEMBLY
OF MARSABIT……………………………………….3 rd RESPONDENT
MEMBERS OF THE COUNTY BUDGET &
APPROPRIATION COMMITTEE………………….4 th RESPONDENT
MEMBERS OF THE COUNTY PUBLIC ACCOUNTS
& INVESTMENT COMMITTEE……………………5 th RESPONDENT
RULING
A. Introduction .
1. Before the court for determination is the Notice of Motion Application dated 28 th January 2026 filed pursuant to provisions Articles 19,20,21,22,23,159,165(3) and 259 of the Constitution of Kenya 2010, Rules 3,23 and 24 of the constitution of Kenya ( Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, 2013) and all other enabling provisions of law. The Applicant seeks for Orders that;
a) Spent.
b) Spent
c) THAT this Honourable court be pleased to review, set aside, discharge, vacate and/or vary the interim conservatory orders granted by the court on 11 th November 2025 in terms of Prayers (2),(3) and (4) of the Petitioners notice of motion and subsequently extended by the court on 20 th January 2026.
d) That in the alternative to prayer (3), this Honourable court be pleased to vary the interim conservatory orders so as to permit the County assembly and county government of Marsabit to proceed with urgent supplementary budgeting, committee deliberations and approvals strictly limited to interventions responding to the current drought and food insecurity humanitarian emergency in Marsabit Couty.
e) That costs of this Application be in the cause
2. The application is supported by the grounds made on the face of the said Application and the supporting affidavit of MATO CHARE, clerk to the assembly who depones that this court did issue interim orders barring the budget committee from sitting vide its orders issued on 11.11.2025 subsequently extended on 27.11.2025 and more recently on 20.01.2026 pending determination of the substantive petition filed. Be that as it may, he had been advised that the court retained discretion to discharge, vary and/or to set aside the said conservatory orders where it suits the ends of justice, public interest, proportionality or change of circumstances required.
3. The said conservative orders earlier issued, had grounded the counties budget related functions thereby crippling the assemblies ability to undertake timely legislative intervention, including passing and discussing of supplementary budget, which was a time bound public process/fiscal tool intended to respond to emergent realities and unanticipated expenditure needs such as the persisting severe drought currently being experienced and had escalated into humanitarian emergency affecting a substantial number of residence and vulnerable populations within Marsabit county.
4. The said drought situation, was not anticipated at the time of preparation of the earlier budgeting instruments, including the supplementary budget in October 2025, when it was expected that the short rains would be adequate, which expectation did not materialize and consequently the budgetary allocations required urgent revision and relocation of funds to respond to the emergent famine and drought reality, failing of which, irreparable harm would be caused to the lives, health and dignity of the residences of Marsabit County. It was therefore imperative that the assembly be allowed to debate and immediately pass the new supplementary budget, which had adopted allocations in line with the evidence-based recommendations of the drought rapid assessment report.
5. The Applicant had also affirmed that they had initiated the ADR process in compliance with the court’s directive, but such efforts were slowed down and hampered by prevailing political realities, including divergent political camps and competition interest amongst the parties. That notwithstanding they were willing to push through with ADR to resolve the issues raised by the petitioners and urged the court to grant the orders sought considering the public interest at stake.
B. The Response .
6. Upon being served the petitioner/Respondent filed her grounds of opposition and replying affidavit both dated 30 th January 2026 in opposition to the said application and averred that this application was not merited and though guised as a review application, it was in essence an Appeal against the ruling delivered on 20 th January 2026 dismissing the preliminary objection and was also an afterthought as the drought situation was not something unforeseen and had been catered for in the county budget to the tune of Kshs 200 million being 2% of the County budget reserved for unforeseen situations such as drought, diseases outbreak and other related exitigencies.
7. The respondent further averred that the applicants had willfully refused to comply with the law as regards the composition of the budget and appropriation committee and in effected wanted the court to give them a blanket greenlight to discuss the supplementary budget through the illegally constituted committee which push was being made in bad faith and with the intention to circumvent the law and only benefit a few county officials at the expense of majority members of the public.
8. She further noted that the supplementary budget did not deal with the issue of the drought and thus the applicant’s contention in that regard was not truthful as emergency fund did not form part of the supplementary budget estimates and had previously been accommodated in the main budget under administration. The current constitution of the budget and appropriation committee was illegal, unconstitutional and violated the law as pleaded and she thus urged the court to dismiss the review application as it was back door attempt to get the courts blessings to allow them to continue to violate the assemblies standing orders and constitution of kenya.
C. DETERMINATION.
9. I have considered the pleadings filed by the respective parties and find that the only issue that arises for determination is whether the conservatory orders issued on 11 th November 2025 and subsequently extended on 20 th January 2026 pending determination of the main petition should be varied to allow the 1 st respondents budget and appropriation committee to sit, deliberate and pass the supplementary budget, which contains budget lines to help mitigate/alleviate the current drought situation being experienced in Marsabit county.
7. In the case of Richard Nchapi Leiyagu vs. IEBC & 2 others [2013] eKLR the Court of Appeal stated that a court can exercise its discretion to set aside ex-parte orders to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.
8. In the case of Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR the Supreme Court laid down the guiding principles in an application of review of Court orders as follows:
(31) Consequently, drawing from the case law above, particularly Mbogo and Another v Shah , we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:
(i) A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.
(ii) Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court.
(iii) An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.
(iv) In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.
(v) During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.
(vi) The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:
(a) as a result a wrong decision was arrived at; or
(b) it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
9. Reference is also made to Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 ) which provides for the setting aside, varying or discharging Courts orders and the case of Bloggers Association of Kenya (Bake) vs. Attorney General & 5 others [supra] where it was held that the courts must, in varying, setting aside or discharging orders issued under Rule 23 of the said Rules, exercise their discretionary powers with great caution as the orders are meant to correct an error or oversight or to effect a review of the proposed order so that the orders may be able to deal more appropriately with the issues as litigated by the parties.
10. There is no doubt whatsoever that the petition raises contentious constitutional issues, which has been highlighted by this court in its ruling dated 20 th January 2026 and the same has to now be considered in light of the new realities that there is need to pass the Marsabit county supplementary budget, which is time bound to get additional resources to mitigate against the severe drought realties affecting residence of Marsabit county.
11. There applicant averred that public interest outweighed the respondent’s personal interest in this matter, but in the Court's view, the weightier issue, is the public interest in ensuring that such a cornerstone institutions of democracy such as the county assembly are constituted and/or operate in strict adherence to the law, thereby safeguarding its independence and integrity. This was affirmed by the Court in Judicial Service Commission v Speaker of the National Assembly & Another [2013] KEHC 911 (KLR) where the court clarified that conservatory orders are "remedies in rem " meant to preserve a particular state of affairs in the public interest. In affirming this, the court thus stated;
“ Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution , the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
12. In the circumstances of this case I do find that it has not been shown that the court erred and/or misdirected itself in exercise of its discretion to grant the conservatory orders but public interest dictated that “actions to alleviate the drought ” must be given priority while balancing the same with orders to ensure that the county assembly complies with the law in its composition of its various committees.
13. Therefore guided by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act in administering justice, the focus being on substantive justice, and also appreciating that additional funds have been allocated for drought alleviation programs, this tilts the scales of justice to have the said conservatory orders to be varied to a limited extent to allow for a window to pass the forestated supplementary budget.
14. At this point the court also appreciate the sentiments expressed by the High Court in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR that:
“………... However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief .”
DISPOSITION
15. The upshot is that the Notice of motion Application dated 28 th January 2026 is partially successful and is allowed in terms of prayer (4), modified as follows.
(i) “ The interim orders issued on 11 th November 2025 and subsequently extended on 20 th January 2026 are varied to allow the county assembly of Marsabit through its budget and appropriation committee and the whole assembly to sit, debate and pass the supplementary budget currently placed before the said committee/house.
(ii) In line with standing Order No 184- 187 all sectoral committee chairs will be mandatorily included in the said budget and appropriation committee as they discuss the supplementary budget as required by law.
(iii) The costs of this Application will be in the cause.
16. It is so ordered.
Read, signed, and delivered virtually at MARSABIT on this ……………. day of FEBRUARY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ……… day of FEBRUARY 2026.
In the presence of;
………………………………….for Petitioner
………………………………….for Respondent
………………………………….Court Assistant