1. After hearing the respective counsels in this matter and after perusal of the handwritten proceedings from the lower court in Kithimani, it is now clear to me that as we speak the petitioner is currently in prison following an order to remand him issued by the lower court on 23 rd February, 2026. The order is expected to run until 23 rd March, 2026. That is a whole month. What led to this?
2. The criminal proceedings had been suspended by an order of this court that Justice Mwita had issued on 24 th November, 2025 to pave way for hearing of the constitutional petition that the petitioner had filed challenging the constitutionality of the criminal case.
3. Upon elevation to the Court of Appeal this case was never brought to the attention of any Judge in the Division when the matter came up on 4 th February, 2025 hence the conservatory order technically lapsed by effluxion of time, not by vacation order of any Judge, it lapsed merely because it was not extended.
4. Meanwhile, the Criminal Case came up for mention on 23 rd February, 2026 and the magistrate citing lack of any order from the High Court issued orders despite explanation by counsel for the accused that the conservatory order had lapsed due to elevation of Judge who was handling the matter hence had not been extended.
5. As things stand, the petitioner is now in custody and is supposed to remain there for one month, apparently because the court that remanded him immediately proceeded on leave and is scheduled to resume on 23 rd March, 2026.
6. Meanwhile, the petition upon which the conservatory order was issued is still live.
7. In my view, the DPP has put it clearly, the conservatory orders did not lapse because of vacation by any Judge, or as consequence of any hearing of the application on merit.
8. I thus, do not think that it is proper or fair that the petitioner be made to suffer pursuant to a criminal process that is already the subject of challenge before this court in regard to it s constitutionality when it has has not been determined especially considering that prima facie, the Judge who had dealt with the matter on the first instance was satisfied on the need to maintain a status quo by suspending those criminal proceedings.
9. Consequently, I re-issue the interim conservatory order by Justice Mwita an order that this matter be mentioned before this court on 22 nd April, 2026 when directions shall be issued as to the hearing of the petition and application.
10. Further, I order that the petitioner/Accused who is held in custody via Kithimani MCCR E1055 of 2025 be forthwith released from custody.
Further Orders
11. The directions issued are slight varied to allow parties compliance as follows: -
1. Any response not filed by any respondent be filed within the next 7 days.
2. Upon expiry of 7 days, the petitioner to file further affidavit if need be together with submissions to both the petition and application.
3. Upon receipt of petitioner submissions, the respondent shall file their submissions to petition and application within 7 days from the date of service.
4. Rebuttal submissions to both the application and petition shall be filed within 7 days of receiving respondent’s submissions.
5. For avoidance of doubt, the conservatory order issued shall remain in force until next mention date unless extended and failure to comply by the party enjoying the conservatory order may constitutes a ground to discharge the said order. Mention on 22 nd April, 2026.
Dated, signed and delivered virtually at Nairobi this 27 th day of February, 2026.
………………………………….
L N MUGAMBI
JUDGE
Constitution Petition Number E606 of 2025 – Ruling Page 1 of 1
2. The criminal proceedings had been suspended by an order of this court that Justice Mwita had issued on 24 th November, 2025 to pave way for hearing of the constitutional petition that the petitioner had filed challenging the constitutionality of the criminal case.
3. Upon elevation to the Court of Appeal this case was never brought to the attention of any Judge in the Division when the matter came up on 4 th February, 2025 hence the conservatory order technically lapsed by effluxion of time, not by vacation order of any Judge, it lapsed merely because it was not extended.
4. Meanwhile, the Criminal Case came up for mention on 23 rd February, 2026 and the magistrate citing lack of any order from the High Court issued orders despite explanation by counsel for the accused that the conservatory order had lapsed due to elevation of Judge who was handling the matter hence had not been extended.
5. As things stand, the petitioner is now in custody and is supposed to remain there for one month, apparently because the court that remanded him immediately proceeded on leave and is scheduled to resume on 23 rd March, 2026.
6. Meanwhile, the petition upon which the conservatory order was issued is still live.
7. In my view, the DPP has put it clearly, the conservatory orders did not lapse because of vacation by any Judge, or as consequence of any hearing of the application on merit.
8. I thus, do not think that it is proper or fair that the petitioner be made to suffer pursuant to a criminal process that is already the subject of challenge before this court in regard to it s constitutionality when it has has not been determined especially considering that prima facie, the Judge who had dealt with the matter on the first instance was satisfied on the need to maintain a status quo by suspending those criminal proceedings.
9. Consequently, I re-issue the interim conservatory order by Justice Mwita an order that this matter be mentioned before this court on 22 nd April, 2026 when directions shall be issued as to the hearing of the petition and application.
10. Further, I order that the petitioner/Accused who is held in custody via Kithimani MCCR E1055 of 2025 be forthwith released from custody.
Further Orders
11. The directions issued are slight varied to allow parties compliance as follows: -
1. Any response not filed by any respondent be filed within the next 7 days.
2. Upon expiry of 7 days, the petitioner to file further affidavit if need be together with submissions to both the petition and application.
3. Upon receipt of petitioner submissions, the respondent shall file their submissions to petition and application within 7 days from the date of service.
4. Rebuttal submissions to both the application and petition shall be filed within 7 days of receiving respondent’s submissions.
5. For avoidance of doubt, the conservatory order issued shall remain in force until next mention date unless extended and failure to comply by the party enjoying the conservatory order may constitutes a ground to discharge the said order. Mention on 22 nd April, 2026.
Dated, signed and delivered virtually at Nairobi this 27 th day of February, 2026.
………………………………….
L N MUGAMBI
JUDGE
Constitution Petition Number E606 of 2025 – Ruling Page 1 of 1