1. The law on issuance of conservatory orders is anchored on Article 23(2) (c) of the Constitution as further reinforced by Rule 23 of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules 2013. Rule 23 provides that:
“Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.”
2. In Wilson Kaberia Nkunja Vs Magistrate & Judges Vetting Board and Others (2016) eKLR the court laid down the following pre-conditions for grant of conservatory orders.
i) Applicant must demonstrate he has a prima facie case with a likelihood of success that that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of violation or threatened violation.
ii) Whether the conservatory order is not granted, the petition alleging violation of, or threat of violation rights will be rendered nugatory.
iii) Public interest must be considered before granting the conservatory order.
3. In demonstrating the prima facie case, it should be clear to the court it is not hearing the main petition to determine the issues in dispute as that is a function to be accomplished through a trial on merits.
4. All the court is required at this stage is to take a reasonable view of assessing the facts before it on a preliminary basis to assist it in considering whether to grant or not grant a conservatory order; it is not called upon to make a definite final finding.
5. In the present case, the petitioner/applicant wants the court to order the respondent to allow her to sit for the exam, but the respondent has opposed this because of the fact that the student has been suspended by the training hospital (Kenyatta National Hospital) which collaborates with the university due to the students ethical/disciplinary concerns touching on patients.
6. The petitioner responds by questioning the report that the respondent relied on to bar her from sitting for the exam, terming it a forgery. She compares the signature in the report and other letters authored by signatory of the report to claim that the report is a forgery.
7. In my view, that comparison is a rudimentary way of comparing signatures. I do not think I would attach much weight to it.
8. The authenticity of the signature is a matter that would probably require forensic examination. Moreover, the complexity of such an issue cannot be determined at this preliminary level. For how, the University cannot be faulted for relying on that report as allegations of forgery remain just that. The report confirms the petitioner has been suspended by supervising institution - Kenyatta National Hospital.
9. Moreover, in granting or denying conservatory orders, the court must also have regard to public interest. Public interest refers to common good or well-being of the general public.
10. Training of doctors has a direct impact on the public at large for the health of the population depends on the professionals in that filed. The court cannot thus take lightly the reservations of training institutions and it would thus be prudent if these grievances are determined after a full hearing.
11. I do not think insistence of a full hearing will render this petition nugatory as the petitioner shall have a chance of sitting another exam in future if her petition is successful.
12. The application for conservatory orders is therefore declined.
13. The directions on hearing of main petition are as follows:
i) Respondent to file substantive affidavit in response to the main petition within 14 days.
ii) Petitioner to file any further affidavit in support of the main petition if need be together with closing submissions within 14 days from date of receipt of respondent responses.
iii) Respondent to file submissions to main petition 14 days from date of service of the petitioner’s submissions.
iv) Mention on 22nd October, 2025 for further directions.
Dated, signed and delivered virtually at Nairobi this 28th day of July, 2025.
…………………………………..
L N MUGAMBI
JUDGE
“Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.”
2. In Wilson Kaberia Nkunja Vs Magistrate & Judges Vetting Board and Others (2016) eKLR the court laid down the following pre-conditions for grant of conservatory orders.
i) Applicant must demonstrate he has a prima facie case with a likelihood of success that that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of violation or threatened violation.
ii) Whether the conservatory order is not granted, the petition alleging violation of, or threat of violation rights will be rendered nugatory.
iii) Public interest must be considered before granting the conservatory order.
3. In demonstrating the prima facie case, it should be clear to the court it is not hearing the main petition to determine the issues in dispute as that is a function to be accomplished through a trial on merits.
4. All the court is required at this stage is to take a reasonable view of assessing the facts before it on a preliminary basis to assist it in considering whether to grant or not grant a conservatory order; it is not called upon to make a definite final finding.
5. In the present case, the petitioner/applicant wants the court to order the respondent to allow her to sit for the exam, but the respondent has opposed this because of the fact that the student has been suspended by the training hospital (Kenyatta National Hospital) which collaborates with the university due to the students ethical/disciplinary concerns touching on patients.
6. The petitioner responds by questioning the report that the respondent relied on to bar her from sitting for the exam, terming it a forgery. She compares the signature in the report and other letters authored by signatory of the report to claim that the report is a forgery.
7. In my view, that comparison is a rudimentary way of comparing signatures. I do not think I would attach much weight to it.
8. The authenticity of the signature is a matter that would probably require forensic examination. Moreover, the complexity of such an issue cannot be determined at this preliminary level. For how, the University cannot be faulted for relying on that report as allegations of forgery remain just that. The report confirms the petitioner has been suspended by supervising institution - Kenyatta National Hospital.
9. Moreover, in granting or denying conservatory orders, the court must also have regard to public interest. Public interest refers to common good or well-being of the general public.
10. Training of doctors has a direct impact on the public at large for the health of the population depends on the professionals in that filed. The court cannot thus take lightly the reservations of training institutions and it would thus be prudent if these grievances are determined after a full hearing.
11. I do not think insistence of a full hearing will render this petition nugatory as the petitioner shall have a chance of sitting another exam in future if her petition is successful.
12. The application for conservatory orders is therefore declined.
13. The directions on hearing of main petition are as follows:
i) Respondent to file substantive affidavit in response to the main petition within 14 days.
ii) Petitioner to file any further affidavit in support of the main petition if need be together with closing submissions within 14 days from date of receipt of respondent responses.
iii) Respondent to file submissions to main petition 14 days from date of service of the petitioner’s submissions.
iv) Mention on 22nd October, 2025 for further directions.
Dated, signed and delivered virtually at Nairobi this 28th day of July, 2025.
…………………………………..
L N MUGAMBI
JUDGE