REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E154 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
DAVID MUCHOKI MURIUKI…..………………………..…. PETITIONER
VERSUS
KENYA PIPELINE COMPANY PLC……………………...RESPONDENT
RULING
Before the court for determination is the Petitioner/Applicant’s Notice of Motion dated 11 th May 2026 filed under Certificate of Urgency seeking orders that:
1. Spent.
2. Spent.
3. Spent.
4. Pending the hearing and determination of the Petition, this Honourable court be pleased to issue a conservatory order suspending the taking into effect of any restructure and/or re-organization whose effect would alter negatively and lessen the Petitioner’s position as the General Manager (Infrastructure Development) and his Directorate and attendant benefits.
5. Costs of the Application be borne by the Respondent.
The Motion is expressed under Rule 45 (5) and (6), 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and Rule 23 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and based on the grounds enumerated on its face and the Supporting Affidavit of the Applicant sworn on 11 th May 2026 who deposes that the respondent was degazetted as national government entity on 20 th April 2026 and its board structure is scheduled to change as is the structure of Directorates and his Directorate would be wound up with lesser responsibilities and demotion and he had not been consulted.
That the respondent disregarded the contract of employment and no full board meeting had been held to approve the restructuring and the Respondent’s Human Resource Policy and Procedure Manual had not been observed.
Respondent’s case
In opposition to the motion the Respondent filed a Replying Affidavit sworn by Dinah Kirwa, the Respondent’s General Manager Human Resource & Administration on 29 th May 2026 who deponed that the Respondent became a public limited company in January 2026 following an initial public offering and privatized by a Gazette Notice dated 22 nd April 2026 and Board changes had taken place and had no bearing on the petitioner’s employment position and he was not a member of the Board of directors and the changes could not be construed as a precursor to the Applicant’s demotion as to two were not related, and no notice of restructuring, re-organization or redundancy had been issued and the Applicants duties and responsibilities remained intact.
The affiant deponed that the internal memorandum dated 12 th May 2026 was communicating an operational and administration decision on coordination and transfer of on-going projects and constituted only one aspect of the Applicant’s broader responsibilities which were wide ranging and no board resolution was necessary and no restructuring had taken place.
The affiant further deponed that courts do not operate in vain and ought not issue orders in respect of actions already implemented and the respondent had managerial discretion to reorganize project supervision, reporting mechanism and operational responsibilities to enhance efficiency and accountability which was not tantamount to restructuring.
The affiant stated that the respondent should be allowed to undertake its lawful administrative and operational functions without undue judicial interference and the orders sought would unjustifiably impede the management’s internal management and operational mandate.
That the Applicants application was premature, speculative and misconceived as it was based on misconceived threats and had not established a prima facie case warranting the grant of conservatory orders or that he would suffer irreparable harm incapable of compensation by way of damages.
Petitioner’s Submissions
The petitioner placed reliance on the decision in Gatirau Peter Munya v Kithinji & 2 others (2014) KSC 30 (KLR) as well as the decisions in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR and Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 6 others as Interested Parties (2019) eKLR on the requirements of a conservatory order and urge that the applicant had a prima facie case.
Also cited were the decisions in Wilson Kaberia Nkunja v The Magistrates and Judges Vetting Board & others (2016) eKLR and Kauli v Chuphi (2026) KEELRC 2119 (KLR).
Further reliance was placed on the sentiments of the court in David Ndii & others v Attorney General & others (2021) eKLR on what constitutes an arguable case to urge that the Applicant was prior to 12 th May 2026 running six(6) projects and was to hand-over all to user departments and while restructuring and re-organization were permissible compliance with the applicable and necessary policies was essential.
Counsel submitted that the Applicants position would be diminished thereby demoting him and no prejudice would be visited upon the respondent and public interest was in favour of grant of the orders.
When the matter came up on 11 th May 2026 the court issued directions on service, responses and a hearing on 18 th May 2026 when the Respondent prayed for 10 days to file and serve a response. Counsel for the petitioner/Applicant sought the grant of Prayers No. 2 and 3 of the motion and counsel for the Respondent had no objection and the prayers were granted together with directions or reply, right of reply by the Petitioner/Applicant, filing and exchange of submissions and mention for compliance on 22 nd June 2026.
On 22 nd June 2026 the Petitioner/Applicant filed a contempt of court application against the Respondent’s Ag. Managing Director, which was canvassed by way of written submissions and a ruling delivered on 7 th July 2026.
On 26 th May 2026, the Respondent filed a motion dated 18 th June 2026 seeking orders to discharge, vacate, vary and/or set aside the interim orders granted on 28 th May 2026 on the status quo and on 7 th July 2026, the court, with consent of counsels on record directed that the two applications be dealt with concurrently, submissions filed and exchanged and a ruling on 30 th July 2026.
The only issue for determination is whether the Petitioner/Applicant’s motion dated 11 th May 2026 is merited namely, whether a conservatory order should issue pending the hearing and determination of the petition.
The nature of a conservatory order was underlined by the Pupreme Court of Kenya in Gatirau Peter Munya v Kithinji & 2 others (Supra) where the court stated:
“Conservatory orders” bear a more decided public law connotation: for these are orders to facilitate functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not unlike interlocutory injunctions linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
Similarly, in Nubia Rights Forum & 2 others v Attorney General & 6 others (Supra) the court held;
(92) “The applicable principles for the grant of conservatory orders were detailed by Onguto J in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR.
In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice. Further, the court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of rights and whether if an interim conservatory order is not granted the petition or its substratum will be rendered nugatory, lastly, that the court should consider that public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.
(93) We are also guided by the principle that in determining whether or not to grant conservatory orders, the court must bear in mind that it is not required to enter into a detailed analysis of the facts and the law…”
Applying the foregoing principles to the facts pleaded in this case, it is clear that the Respondent company transitioned from a Government Owned Enterprise to public limited company vide Gazette Notice dated 22 nd April 2026 following an Initial Public Offering (IPO), pursuant to which sixty five (65) percent of the company’s issued ordinary shares were admitted to the Main Investment Market Segment of the Nairobi Securities Exchange on 10 th March 2026 and the Government of Kenya now holds thirty five (35) per cent of the issued share capital of the company as a shareholder.
Although raising of capital was a major driving force in the privatization of Kenya Pipeline Co. Ltd to a publicly listed company, commentators held the view that the company’s full potential could not be realized owing to the perennial challenges faced by state owned enterprises such as structural inefficiencies, budgetary constraints, political interference in decision making among other inefficiencies and privatizing it was one of the ways of unlocking that potential.
As a publicly listed company, the company has been reborn to chart a new path in the dynamic private sector. This is the context in which the present application must be determined.
A reading of the Petitioner/Applicant’s Supporting Affidavit reveals that the Applicant is for the most part contesting one of the Agenda items of the Respondent’s Special Board Meeting scheduled for 11 th May 2026, whose minutes were not availed.
The challenged agenda item was styled as;
“Re-alignment of staff deployment on Engineering for optimal performance”
The Applicants main fear is that a restructuring would lessen his responsibilities and wind up his role. The Respondent on the other hand contended that all it did by an Internal Memo dated 12 th May 2026 was communicate an operational and administrative decision on co-ordination of on-going projects and had no impact on the Applicants position and role.
As correctly submitted by the Petitioner/Applicant’s Counsel, corporate restructuring and/or re-organization is an economic imperative and irresistible when the environment in which the company operates in dictate.
However, such process, whenever envisaged and undertaken, must be guided by the law and the operative organizational structures and policies under the superintendence of the Board of directors and employee interest ought to be safeguarded by inter alia
Consultations for buy-in to ensure smooth transition and avoid unnecessary conflicts and litigation.
In the courts view, although the Petitioner/Applicant has an arguable cause, in the context of the decision of David Ndii & other v Attorney General (Supra ) there does not appear to be any imminent threat to the Petitioner/Applicant’s constitutional rights and/or fundamental freedoms, more significantly, public interest is an important consideration.
For the foregoing reasons, the court is not persuaded that public interest would be in favour of retaining the status quo orders granted on 18 th May 2026 or issuing a conservatory order pending the hearing and determination of the petition, which is not feasible before September, 2026, as this would inter alia u nduly suppress the Respondent’s ability to conceptualize and implement organization changes it may consider necessary for purposes of enhancing sustainability, shareholder value and internal efficiency.
Analogous to internal disciplinary matters, courts seldom interfere with commercial or business or operational decisions made by business organizations based on their appreciation of the business environment the operate in. They only interfere where those decisions infringe or threaten rights and/or fundamental freedoms or other rights of employees.
The upshot of the foregoing is that the petitioner’s Notice of Motion dated 11 th May 2026 lacks merit and it is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30 th JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15 th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules , which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
ELRC NAIROBI E154 OF 20262 of 10
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E154 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
DAVID MUCHOKI MURIUKI…..………………………..…. PETITIONER
VERSUS
KENYA PIPELINE COMPANY PLC……………………...RESPONDENT
RULING
Before the court for determination is the Petitioner/Applicant’s Notice of Motion dated 11 th May 2026 filed under Certificate of Urgency seeking orders that:
1. Spent.
2. Spent.
3. Spent.
4. Pending the hearing and determination of the Petition, this Honourable court be pleased to issue a conservatory order suspending the taking into effect of any restructure and/or re-organization whose effect would alter negatively and lessen the Petitioner’s position as the General Manager (Infrastructure Development) and his Directorate and attendant benefits.
5. Costs of the Application be borne by the Respondent.
The Motion is expressed under Rule 45 (5) and (6), 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and Rule 23 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and based on the grounds enumerated on its face and the Supporting Affidavit of the Applicant sworn on 11 th May 2026 who deposes that the respondent was degazetted as national government entity on 20 th April 2026 and its board structure is scheduled to change as is the structure of Directorates and his Directorate would be wound up with lesser responsibilities and demotion and he had not been consulted.
That the respondent disregarded the contract of employment and no full board meeting had been held to approve the restructuring and the Respondent’s Human Resource Policy and Procedure Manual had not been observed.
Respondent’s case
In opposition to the motion the Respondent filed a Replying Affidavit sworn by Dinah Kirwa, the Respondent’s General Manager Human Resource & Administration on 29 th May 2026 who deponed that the Respondent became a public limited company in January 2026 following an initial public offering and privatized by a Gazette Notice dated 22 nd April 2026 and Board changes had taken place and had no bearing on the petitioner’s employment position and he was not a member of the Board of directors and the changes could not be construed as a precursor to the Applicant’s demotion as to two were not related, and no notice of restructuring, re-organization or redundancy had been issued and the Applicants duties and responsibilities remained intact.
The affiant deponed that the internal memorandum dated 12 th May 2026 was communicating an operational and administration decision on coordination and transfer of on-going projects and constituted only one aspect of the Applicant’s broader responsibilities which were wide ranging and no board resolution was necessary and no restructuring had taken place.
The affiant further deponed that courts do not operate in vain and ought not issue orders in respect of actions already implemented and the respondent had managerial discretion to reorganize project supervision, reporting mechanism and operational responsibilities to enhance efficiency and accountability which was not tantamount to restructuring.
The affiant stated that the respondent should be allowed to undertake its lawful administrative and operational functions without undue judicial interference and the orders sought would unjustifiably impede the management’s internal management and operational mandate.
That the Applicants application was premature, speculative and misconceived as it was based on misconceived threats and had not established a prima facie case warranting the grant of conservatory orders or that he would suffer irreparable harm incapable of compensation by way of damages.
Petitioner’s Submissions
The petitioner placed reliance on the decision in Gatirau Peter Munya v Kithinji & 2 others (2014) KSC 30 (KLR) as well as the decisions in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR and Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 6 others as Interested Parties (2019) eKLR on the requirements of a conservatory order and urge that the applicant had a prima facie case.
Also cited were the decisions in Wilson Kaberia Nkunja v The Magistrates and Judges Vetting Board & others (2016) eKLR and Kauli v Chuphi (2026) KEELRC 2119 (KLR).
Further reliance was placed on the sentiments of the court in David Ndii & others v Attorney General & others (2021) eKLR on what constitutes an arguable case to urge that the Applicant was prior to 12 th May 2026 running six(6) projects and was to hand-over all to user departments and while restructuring and re-organization were permissible compliance with the applicable and necessary policies was essential.
Counsel submitted that the Applicants position would be diminished thereby demoting him and no prejudice would be visited upon the respondent and public interest was in favour of grant of the orders.
When the matter came up on 11 th May 2026 the court issued directions on service, responses and a hearing on 18 th May 2026 when the Respondent prayed for 10 days to file and serve a response. Counsel for the petitioner/Applicant sought the grant of Prayers No. 2 and 3 of the motion and counsel for the Respondent had no objection and the prayers were granted together with directions or reply, right of reply by the Petitioner/Applicant, filing and exchange of submissions and mention for compliance on 22 nd June 2026.
On 22 nd June 2026 the Petitioner/Applicant filed a contempt of court application against the Respondent’s Ag. Managing Director, which was canvassed by way of written submissions and a ruling delivered on 7 th July 2026.
On 26 th May 2026, the Respondent filed a motion dated 18 th June 2026 seeking orders to discharge, vacate, vary and/or set aside the interim orders granted on 28 th May 2026 on the status quo and on 7 th July 2026, the court, with consent of counsels on record directed that the two applications be dealt with concurrently, submissions filed and exchanged and a ruling on 30 th July 2026.
The only issue for determination is whether the Petitioner/Applicant’s motion dated 11 th May 2026 is merited namely, whether a conservatory order should issue pending the hearing and determination of the petition.
The nature of a conservatory order was underlined by the Pupreme Court of Kenya in Gatirau Peter Munya v Kithinji & 2 others (Supra) where the court stated:
“Conservatory orders” bear a more decided public law connotation: for these are orders to facilitate functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not unlike interlocutory injunctions linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
Similarly, in Nubia Rights Forum & 2 others v Attorney General & 6 others (Supra) the court held;
(92) “The applicable principles for the grant of conservatory orders were detailed by Onguto J in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR.
In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice. Further, the court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of rights and whether if an interim conservatory order is not granted the petition or its substratum will be rendered nugatory, lastly, that the court should consider that public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.
(93) We are also guided by the principle that in determining whether or not to grant conservatory orders, the court must bear in mind that it is not required to enter into a detailed analysis of the facts and the law…”
Applying the foregoing principles to the facts pleaded in this case, it is clear that the Respondent company transitioned from a Government Owned Enterprise to public limited company vide Gazette Notice dated 22 nd April 2026 following an Initial Public Offering (IPO), pursuant to which sixty five (65) percent of the company’s issued ordinary shares were admitted to the Main Investment Market Segment of the Nairobi Securities Exchange on 10 th March 2026 and the Government of Kenya now holds thirty five (35) per cent of the issued share capital of the company as a shareholder.
Although raising of capital was a major driving force in the privatization of Kenya Pipeline Co. Ltd to a publicly listed company, commentators held the view that the company’s full potential could not be realized owing to the perennial challenges faced by state owned enterprises such as structural inefficiencies, budgetary constraints, political interference in decision making among other inefficiencies and privatizing it was one of the ways of unlocking that potential.
As a publicly listed company, the company has been reborn to chart a new path in the dynamic private sector. This is the context in which the present application must be determined.
A reading of the Petitioner/Applicant’s Supporting Affidavit reveals that the Applicant is for the most part contesting one of the Agenda items of the Respondent’s Special Board Meeting scheduled for 11 th May 2026, whose minutes were not availed.
The challenged agenda item was styled as;
“Re-alignment of staff deployment on Engineering for optimal performance”
The Applicants main fear is that a restructuring would lessen his responsibilities and wind up his role. The Respondent on the other hand contended that all it did by an Internal Memo dated 12 th May 2026 was communicate an operational and administrative decision on co-ordination of on-going projects and had no impact on the Applicants position and role.
As correctly submitted by the Petitioner/Applicant’s Counsel, corporate restructuring and/or re-organization is an economic imperative and irresistible when the environment in which the company operates in dictate.
However, such process, whenever envisaged and undertaken, must be guided by the law and the operative organizational structures and policies under the superintendence of the Board of directors and employee interest ought to be safeguarded by inter alia
Consultations for buy-in to ensure smooth transition and avoid unnecessary conflicts and litigation.
In the courts view, although the Petitioner/Applicant has an arguable cause, in the context of the decision of David Ndii & other v Attorney General (Supra ) there does not appear to be any imminent threat to the Petitioner/Applicant’s constitutional rights and/or fundamental freedoms, more significantly, public interest is an important consideration.
For the foregoing reasons, the court is not persuaded that public interest would be in favour of retaining the status quo orders granted on 18 th May 2026 or issuing a conservatory order pending the hearing and determination of the petition, which is not feasible before September, 2026, as this would inter alia u nduly suppress the Respondent’s ability to conceptualize and implement organization changes it may consider necessary for purposes of enhancing sustainability, shareholder value and internal efficiency.
Analogous to internal disciplinary matters, courts seldom interfere with commercial or business or operational decisions made by business organizations based on their appreciation of the business environment the operate in. They only interfere where those decisions infringe or threaten rights and/or fundamental freedoms or other rights of employees.
The upshot of the foregoing is that the petitioner’s Notice of Motion dated 11 th May 2026 lacks merit and it is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30 th JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15 th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules , which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
ELRC NAIROBI E154 OF 20262 of 10