REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E214 OF 2026
FRANCIS KALIU MALOMBE…………………………...1 ST PETITIONER
GACHARA GITAU………………………………………..2 ND PETITIONER
VERSUS
NAIROBI CITY COUNTY GOVERNMENT…………..1 ST RESPONDENT
SCRAP METAL COUNCIL…………………………….2 ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………..3 RD RESPONDENT
CHIEF MAGISTRATE’S COURT AT MAKADARA...4 TH RESPONDENT
INSPECTOR GENERAL OF POLICE………...………5 TH RESPONDENT
JOSHUA CHACHA……………………………………...6 TH RESPONDENT
ATTORNEY GENERAL………………………………...7 TH RESPONDENT
KENYA IRON AND SCRAP METAL ASSOCIATION, (KISMA)...…………………………………………….INTERESTED PARTY
RULING ON CONSERVATORY ORDERS
1. On 28 th April, 2026, this Court delivered a ruling in this matter declining to issue interim reliefs to the petitioners before hearing the substantive Notice of Motion seeking conservatory orders to among others, restore the Scrap Metal Dealer’s license to the 1 st petitioner, which license was revoked by the 1 st and 2 nd respondents herein and to also stop the ongoing prosecution of the 2 nd petitioner for allegedly stealing items which seem to be scrap metals, the property of Kenya Power and Lighting Company, Kenya Railways Corporation and the Nairobi City County Government.
2. This Court then fast tracked the hearing of the substantive notice of motion for conservatory orders and on 7/5/2026, parties appeared and argued the said application dated 3 rd May, 2026 orally. The parties relied on the pleadings and affidavits to urge their respective positions. I will therefore in this ruling give the parties’ respective positions as submitted orally, to avoid repetitions, and proceed to determine the question of whether conservatory orders sought are merited.
3. The 1 st Petitioner/ Applicant claims that the police unlawfully raided his premises where he carries on the business as a licensed scrap metal dealer, as licensed by the 1 st and 2 nd respondents herein. He annexes the certificate of registration of his business. that he is also a member of Kenya Iron and Scrap Metal Association, KISMA, the interested party herein. He asserts that subsequent to the said raid by over 100 police officers under the command of the 6 th respondent, the 1 st petitioner’s license issued by the 1 st respondent was unlawfully revoked on 13/3/2026.
4. The 1 st petitioner avers that he has met the thresh hold for grant of conservatory orders. That he has established a prima facie case with likelihood of success because the revocation of the license and permit was done without due process, notice or notice to rectify any misgivings thereby violating Article 40 of the Constitutional on the right not to be deprived of property. That the revocation has deprived him and the many people that he has employed of the their llivelihoodss.
5. The petitioners also claim that they have been discriminated against by selective prosecution of the 2 nd petitioner yet many persons were arrested in the aforesaid raid at the 1 st petitioner’s business premises and that the charges were later withdrawn. Further, that in the ensuing period, the 1 st petitioner has been intimidated by the police to withdraw this petition.
6. The petitioners raised a procedural anomaly that the respondents filed their replying affidavits only a day to the hearing of the application, which was out of the time given by this court.
7. The petitioners assert that there is no credible evidence adduced, of the alleged intelligence report received concerning the alleged illegal business carried out by the 1 st petitioner, to justify the actions against the petitioners. That there is no inventory or forensic report or proof of recovery of material at the petitioner’s premises hence the petitioners plead long victimization.
8. The petitioners aver that they have suffered prejudice noting that the 1 st petitioner has spent many years building a business which is being destroyed by the respondents and that he may never recover as he continues to lose income and good will of his clients and customers, which loss, according to the 1 st petitioner, is irreversible and cannot be compensated by damages.
9. Further, that no prejudice will be suffered by the respondents if conservatory orders are granted. On the part of the 2 nd petitioner, it is stated that he continues to suffer incarceration and reputational damage and that the alleged constitutional violations have irreparable harm.
10. The petitioners also aver that the substratum of this petition is at risk because, if the 1 st petitioner’s business continues shut and the 2 nd petitioner remains in custody, then the petition will be rendered nugatory as the 1 st petitioner will be rendered jobless and the 2 nd petitioner will be subjected to abuse. the 1 st petitioner laments that the 2 nd respondent proceeded to revoke the license issued to the 1 st petitioner, in blatant violation of these proceedings, upon being served with the petition subject of these proceedings.
11. The petitioners urge that the balance of convenience lies and tilts in their favour as the respondents do not suffer any prejudice because, by this Court granting conservatory orders, it does not legitimize alleged illegality or terminate criminal proceedings but only restrains unlawful conduct of state actors. The petitioners also undertake to abide by the law and that denial of the conservatory orders will only serve to entrench the alleged violations.
12. Responding to the replying affidavit filed by the respondents, it was contended that those depositions do not provide any link between the 1 st petitioner and the 2 nd petitioner and that in any event, there are no criminal charges pending against the 1 st petitioner, even after over 30 employees of the 1 st petitioner were arrested and charges against them withdrawn. That there is no alleged criminality against the 1 st petitioner.
13. On public interest, the petitioners contend that the petition highlights abuse of police and state power, misuse of prosecutorial authority and arbitrary administrative actors where a state or public officer without reasons takes administrative action against a law-abiding Kenyan without giving reasons. That conservatory orders sought will uphold the rule of law and prevent abuse of power, thereby protecting legitimate business operations. The petitioners therefore assert that public interest strongly favours judicial intervention at this stage.
14. The interested party swore an affidavit on 27 th April, 2026, wholly supporting the petition and the motion for conservatory orders sought by the petitioners and added that the respondents are extortionists and that the raid and cancellation of the 1 st petitioner’s licenses has exposed the interested party’s members and employees to untold hardship and loss of livelihoods hence, the need to reinstate the licenses as the 1 st petitioner is a law abiding citizen who was issued with a license after he submitted all documents that were verified.
15. Further deposition was that the interested party had complained against police harassment and extortion of its members especially the conduct of Chief Inspector Joshua Chacha, the 6 th respondent herein, a who is alleged to have acted in a very unprofessional manner and used abusive language against the entrepreneur during the raid on the 1 st petitioner’s premises.
16. The 1 st respondent filed grounds of opposition dated 24 th April 2026 opposing the application by the petitioners and contending that the application is misconceived, incompetent and abuse of court process. That the petitioners have not met the threshold for grant of conservatory orders, having failed to establish a prima facie case with likelihood of success, demonstrate real danger of prejudice or show that the public interest favours the grant of the orders sought.
17. According to the 1 st respondent, the petitioners’ own annexture which is the revocation letter demonstrate that the impugned decision was made pursuant to section 17(1) ( c) and ( e) of the Nairobi City County Trade Licensing Act, 2019 hence the decision was within the statutory mandate of the 1 st respondent. That therefore, since the legality and propriety of the revocation of the license is a contested matter, it requires interrogation at a full hearing and cannot be conclusively determined at the interlocutory stage.
18. The 1 st respondent contends that the orders sought are mandatory in nature which are not available at the interlocutory stage in the absence of exceptional and clear circumstances. That there is no demonstration that the respondents acted outside its jurisdiction or in excess of its statutory mandate in regulating trade and licensing within Nairobi City County.
19. Further, that the alleged violation of Article 47 is contested hence the matter requires full evidentiary inquiry.
20. It is contended that the application improperly invites this court to interfere with the ongoing proceedings in the Chief Magistrate’s Court in MCCR E1213 of 2026, contrary to established principles and that there are no compelling or exceptional circumstances warranting stay of criminal proceedings.
21. That the petitioners have not demonstrated any irreparable harm that cannot be compensated by an award of damages and that the balance of convenience tilts in favour of the 1 st respondent to continue exercising its statutory mandate in the regulation of trade and enforcement of county legislation and finally, that the grant of the conservatory orders sought would unjustifiably fetter the statutory powers of the 1 st respondent and undermine the public interest in the enforcement of regulatory laws. The 1 st respondent urges this court to dismiss the application, terming it frivolous, vexatious and abuse of the process of this court.
22. the 3 rd respondent filed a belated replying affidavit deposing and contending in the submissions by Ms Kihara that the decision to charge the 2 nd petitioner was based on sufficient evidence and not malice. That the evidence gathered by the police during investigations were reviewed before the charges were instituted against the 2 nd petitioner. That there was no evidence that the 2 nd petitioner’s rights guaranteed under the Constitution were violated and that only the trial court can interrogate the sufficiency of the evidence in support of the charges preferred against the 2 nd petitioner. she asserted that the petition and application was an abuse of court process intended to delay the conclusion of the criminal case, urging this court not to grant any stay of criminal prosecution of the 2 nd petitioner.
23. The 5 th , 6 th and 7 th respondents filed a replying affidavit sworn on 5 th May, 2026 contending in deposition that the national police service is constitutionally mandated to investigate crime and that the investigations conducted revealed that the petitioners were involved in theft of critical infrastructure of Kenya Railways Corporation, Nairobi City County Government and Kenya Power and Lighting, which items were positively identified. that although the 1 st petitioner had not been arrested, it was because he obtained anticipatory bail orders in Criminal case No, HC CR Misc E060 of 2026. they urged this Court to dismiss the application for conservatory orders.
24. Parties made oral submissions in support of their respective positions on 7/5/2026. they all reiterated their respective positions as summarized above.in addition, Mr. Sumra submitted that at the time of arrest, the 1 st petitioner was there but was not arrested. That according to CCTV evidence, nothing was taken from the premises of the 1 st petitioner. That KPLC was not present during the raid and that 22 employees were arrested. He submitted that the 6 th respondent is always extorting for protection money from the 1 st petitioner and that when the 1 st petitioner refused to give money, he was bombarded with 100 police offices, bundled in a vehicle and taken to Jogoo House and threatened and intimidated to withdraw this petition.
25. Mr. Sumra submitted that over 300 members employed by the 1 st petitioner together with suppliers and customers are suffering. That the 1 st petitioner had to get anticipatory bail to protect himself from harassment, which fact they will prove that protection money is what is harming the interested party’s members from the anti-vandalism unit. He maintained that the 1 st petitioner was never given the opportunity to defend himself before the licences were revoked.
26. On behalf of the petitioners, Mr. Otieno submitted in rejoinder, that at page 33, there is a CCTV extract and photographs of the 1 st petitioner seated during the raid. On Section 17 (c) & (e) of the Act, it was submitted that the state cannot act as the complainant, the judge and else whoever. He submitted that the right to fair hearing and fair administrative action are constitutionally guaranteed. It was submitted that the letter of 18/3/2026 attaches the letter of 13/3/2026 showing the cancellation of the licenses were done before communicating the decision hence the 1 st petitioner had no opportunity to be heard. He cited Article 29 of the Constitution arguing that the Article gives authority to this court to intervene in cases of grave violation of the Constitution. Mr. Otieno submitted that the show cause letter dated 27/3/2026 does not make allegations of illegal business and that the 1 st petitioner was never given an opportunity to regularize the alleged irregularities. He added that no inventory of recovered material belonging to KPLC, KR and NCC was filed in court and that anticipatory bail does not bar the investigators to arraign a suspect before a court of law. He urged that the 1 st petitioner has not been summoned to attend court to answer any charges.
Analysis and Determination
27. I have considered the application and the opposition thereto. The main issue for determination is whether the conservatory orders sought are available to the petitioners.
28. The 1 st petitioner is a proprietor of scrap metal business. He claims in his petition and application for conservatory orders, that the respondents arbitrarily and unlawfully revoked his business license and permit which action has effectively shut down his business operations and deprived him and the many employees, of their livelihood.
29. That he was served with a notice to show cause for revocation of his scrap metal license by the 2 nd respondent at the instigation of the 6 th respondent.
30. That the 2 nd petitioner is facing criminal charges of stealing and handling stolen property which include rail steel bar, the property of Kenya Railways Corporation, assorted Kenya Power and Lightning metals and high mast galvanized street pole belonging to Nairobi City County Government. The charges are allegedly fabricated thereby exposing him to unlawful deprivation of liberty and wrongful conviction.
31. The petitioners claim that the respondents are using the police to extort money from them in the name of carrying out an anti-vandalism exercise and raiding the 1 st petitioners’ premises without notice, which conduct is said to be intrusive and amounts to disruptive search.
32. The petitioners further claim that the respondents’ actions amount to violation of the petitioners’ fundamental rights and freedoms. The petition seeks several reliefs including mandamus to restore the licenses revoked, declarations of unconstitutionality of the respondents’ actions, certiorari to quash the decisions taken by the respondents and prohibition of the respondents from maintaining criminal proceedings against the 2 nd petitioner. The petitioners also seek for damages for loss of business as well as exemplary and aggravated damages and compensation among other reliefs.
33. The interested party supports that position asserting that the members of the interested party are suffering due to loss of employment and that the police were harassing and extorting from the petitioners and members of the interested party, including coercion of the petitioners to withdraw this petition.
34. The principles for granting of conservatory orders are now well settled. but first, as to what conservatory orders are, in Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR, Nairobi Civil Appeal 151 of 2011, a conservatory order was defined as:
“5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
35. In Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR the Court stated as follows on the nature of conservatory orders:
“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. “
36. On the nature of conservatory orders, the Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR discussed as follows:
“[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered 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.”
37. Given the nature of conservatory orders, it is argued that there is need for a Court to exercise care in such applications. That proposition is informed by the reason that matters which are the preserve of the main Petition ought not to be dealt with, with finality at the interlocutory stage.
38. Ibrahim, J (as he then was) aptly captured the above position in Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.”
39. Therefore, a Court dealing with an application for conservatory orders must maintain the delicate balance of ensuring that it does not delve into issues which are in the realm of the main Petition. In this application, I will, therefore, restrain myself from dealing with merit issues.
40. Having said so, i identify the law and principles guiding the grant of conservatory orders. Rule 23 of the Mutunga Rules provides that:
23. (1) 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.
41. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed and settled by Courts over time. The locus classicus on conservatory orders is the Supreme Court decision in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR where the apex Court at paragraph 86 stated inter alia, as follows:
“[86] … 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 courses.”
42. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR citing several decisions, the Court rightly so, summarized three main principles for consideration on whether to grant conservatory orders as follows:
(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory ; and
(c) The public interest must be considered before grant of a conservatory order.
43. Additionally, in my view, it is important that Courts ascertain whether the grant of conservatory orders sought will hinder expeditious disposal of the main petition and therefore, the dispute.
44. As to what a prima facie case is, in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:
“…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”
45. In Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR the Court of Appeal dealing with what a prima facie case is, cited with approval Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396 where the learned Judge stated thus:
“If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.”
46. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR .The Court in allowing an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -
“It is wrong in law for the court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of hi complaint... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought.”
47. In totality, in determining whether a prima-facie case is established, the Court must examine the case as a whole, weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law, but refrain from making merit determinations on any of the issues raised in the petition.
48. Applying the above settled principles to this petition and the application for conservatory orders as supported by the affidavit sworn by the 1 st petitioner, and as earlier stated, when the matter came up for interpartes directions, this court did not grant any interim conservatory orders sought by the two petitioners exparte orders sought by the petitioners pending this ruling.
49. The petitioners seek for the restoration of the revoked and cancelled licenses of the 1 st petitioner and that the prosecution of the 2 nd petitioner be stayed. As stated in the first ruling, a conservatory order restoring the revoked or cancelled licenses is a mandatory order whose effect will, in the present circumstances, reverse the Respondent's decision at the interlocutory stage. Therefore, the threshold for the issuance of a mandatory order is quite high, and it demands the presence of an exceptionally clear case. The Court must however, as correctly submitted by the respondents, refrain from deciding the merits of the main petition at this interlocutory stage. That is not to say that the court cannot grant such orders where the applicant has met the threshold for grant of such orders.
50. In the interim ruling, this court stated that it did not find the alleged illegalities to be so obvious as to warrant a mandatory order at that stage of proceedings before hearing the substantive motion for conservatory orders. This Court further observed that it was conscious of the fact that the subject-matter of the dispute is related to a regulated activity, and thus, questions of alleged violation of the law as per the documents annexed to the petition and supporting affidavit including the notification dated 18 th March, 2026 needed to be taken into consideration and interrogated at the substantive hearing. This Court further observed that it ensures that orders which may affect the regulatory scheme of things are not made until all issues are ventilated.
51. Having stated as such, the question now, as regards the 1 st petitioner, is whether he has met the threshold for grant of a conservatory mandatory order restoring the two revoked licenses. From the pleadings and the annexed documents, I note that the 1 st petitioner is a scrap metal dealer who must be licensed by the 1 st and the 2 nd respondents. the two licenses are intertwined. he cannot operate without both, although they are issued by different entities. The nd the interested party 1 st petitioner avers that prior to the revocation of the two licenses, he was never accorded given any opportunity to be heard on any allegations levelled against him. That therefore, his right to fair administrative action that is expeditious, efficient, lawful and procedurally fair, which right is guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act were violated.
52. The 1 st respondent contends that the revocation of the license was lawful pursuant to section 17 (1) (c) and (e) of the Nairobi City County Trade Licensing Act, 2019. Further, that the allegations that the 1 st petitioner’s rights were violated are disputed hence, no conservatory orders should be issued as that would amount to granting final orders in the petition yet no exceptional or clear circumstances have been demonstrated by the 1 st petitioner.
53. I have perused the memo issued by the 1 st respondent’s Trade Licensing Department in which it cancelled the 1 st petitioner’s Unified Business Permit No. UBP246877 for Metakelfin Enterprises Kariobangi North. The latter is the trade name of the 1 st petitioner’s scrap metal business. The said UBP was to expire on 25 th January, 2027. The memo signed by the Director Trade Licensing, Mr. Jason Akongo Abwori is dated 13/3/2026 and is addressed to the 1 st respondent’s County Chief Officer-Security and Compliance. The cancelation is said to be pursuant to section 17 (a) (c) and (e) of the Nairobi City County Trade Licensing Act.
54. The Chief Officer, Security and Compliance was directed in the said memo, to ensure that the original UBP was confiscated and the 1 st petitioner’s business closed with immediate effect.
55. In the said memo, the author refers to copies of letters from the Director-Energy and Lighting, Nairobi City County and Senior Supply Chain Management Officer, Kenya Railways Corporation showing the value of the properties which were allegedly positively identified and recovered from the aforesaid business premises of the 1 st petitioner.
56. The Memo emphasizes that the cancellation was to take effect from 13 th March 2026.
57. On the other hand, the letter written by the 2 nd respondent to the 1 st petitioner on 27 th March 2026 is a show cause letter why the Scrap Metal Collector License No. SMC2025-5950591094 issued on 15 th October, 2025 should not be cancelled. The reasons for the show cause were that it had been established that at the time of such application for the license, the 1 st petitioner submitted documents that were not valid. specifically, that he provided an expired Scrap Metal Association Certificate, an Expired County Government Permit, an expired Tax Compliance Certificate and an expired Certificate of Good Conduct. Additionally, that the 1 st petitioner did not provide a valid NEMA License or approval authorizing him to conduct Scrap metal Business.
58. The 2 nd respondent gave the 1 st petitioner 14 days to show cause why his afore stated license should not be recalled and or cancelled for noncompliance with the applicable legal requirements. The 1 st petitioner was also required to appear before the 2 nd respondent, the Scrap Metal Council on 9 th April, 2026 at 10.am with his written explanation together with valid and up to
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E214 OF 2026
FRANCIS KALIU MALOMBE…………………………...1 ST PETITIONER
GACHARA GITAU………………………………………..2 ND PETITIONER
VERSUS
NAIROBI CITY COUNTY GOVERNMENT…………..1 ST RESPONDENT
SCRAP METAL COUNCIL…………………………….2 ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………..3 RD RESPONDENT
CHIEF MAGISTRATE’S COURT AT MAKADARA...4 TH RESPONDENT
INSPECTOR GENERAL OF POLICE………...………5 TH RESPONDENT
JOSHUA CHACHA……………………………………...6 TH RESPONDENT
ATTORNEY GENERAL………………………………...7 TH RESPONDENT
KENYA IRON AND SCRAP METAL ASSOCIATION, (KISMA)...…………………………………………….INTERESTED PARTY
RULING ON CONSERVATORY ORDERS
1. On 28 th April, 2026, this Court delivered a ruling in this matter declining to issue interim reliefs to the petitioners before hearing the substantive Notice of Motion seeking conservatory orders to among others, restore the Scrap Metal Dealer’s license to the 1 st petitioner, which license was revoked by the 1 st and 2 nd respondents herein and to also stop the ongoing prosecution of the 2 nd petitioner for allegedly stealing items which seem to be scrap metals, the property of Kenya Power and Lighting Company, Kenya Railways Corporation and the Nairobi City County Government.
2. This Court then fast tracked the hearing of the substantive notice of motion for conservatory orders and on 7/5/2026, parties appeared and argued the said application dated 3 rd May, 2026 orally. The parties relied on the pleadings and affidavits to urge their respective positions. I will therefore in this ruling give the parties’ respective positions as submitted orally, to avoid repetitions, and proceed to determine the question of whether conservatory orders sought are merited.
3. The 1 st Petitioner/ Applicant claims that the police unlawfully raided his premises where he carries on the business as a licensed scrap metal dealer, as licensed by the 1 st and 2 nd respondents herein. He annexes the certificate of registration of his business. that he is also a member of Kenya Iron and Scrap Metal Association, KISMA, the interested party herein. He asserts that subsequent to the said raid by over 100 police officers under the command of the 6 th respondent, the 1 st petitioner’s license issued by the 1 st respondent was unlawfully revoked on 13/3/2026.
4. The 1 st petitioner avers that he has met the thresh hold for grant of conservatory orders. That he has established a prima facie case with likelihood of success because the revocation of the license and permit was done without due process, notice or notice to rectify any misgivings thereby violating Article 40 of the Constitutional on the right not to be deprived of property. That the revocation has deprived him and the many people that he has employed of the their llivelihoodss.
5. The petitioners also claim that they have been discriminated against by selective prosecution of the 2 nd petitioner yet many persons were arrested in the aforesaid raid at the 1 st petitioner’s business premises and that the charges were later withdrawn. Further, that in the ensuing period, the 1 st petitioner has been intimidated by the police to withdraw this petition.
6. The petitioners raised a procedural anomaly that the respondents filed their replying affidavits only a day to the hearing of the application, which was out of the time given by this court.
7. The petitioners assert that there is no credible evidence adduced, of the alleged intelligence report received concerning the alleged illegal business carried out by the 1 st petitioner, to justify the actions against the petitioners. That there is no inventory or forensic report or proof of recovery of material at the petitioner’s premises hence the petitioners plead long victimization.
8. The petitioners aver that they have suffered prejudice noting that the 1 st petitioner has spent many years building a business which is being destroyed by the respondents and that he may never recover as he continues to lose income and good will of his clients and customers, which loss, according to the 1 st petitioner, is irreversible and cannot be compensated by damages.
9. Further, that no prejudice will be suffered by the respondents if conservatory orders are granted. On the part of the 2 nd petitioner, it is stated that he continues to suffer incarceration and reputational damage and that the alleged constitutional violations have irreparable harm.
10. The petitioners also aver that the substratum of this petition is at risk because, if the 1 st petitioner’s business continues shut and the 2 nd petitioner remains in custody, then the petition will be rendered nugatory as the 1 st petitioner will be rendered jobless and the 2 nd petitioner will be subjected to abuse. the 1 st petitioner laments that the 2 nd respondent proceeded to revoke the license issued to the 1 st petitioner, in blatant violation of these proceedings, upon being served with the petition subject of these proceedings.
11. The petitioners urge that the balance of convenience lies and tilts in their favour as the respondents do not suffer any prejudice because, by this Court granting conservatory orders, it does not legitimize alleged illegality or terminate criminal proceedings but only restrains unlawful conduct of state actors. The petitioners also undertake to abide by the law and that denial of the conservatory orders will only serve to entrench the alleged violations.
12. Responding to the replying affidavit filed by the respondents, it was contended that those depositions do not provide any link between the 1 st petitioner and the 2 nd petitioner and that in any event, there are no criminal charges pending against the 1 st petitioner, even after over 30 employees of the 1 st petitioner were arrested and charges against them withdrawn. That there is no alleged criminality against the 1 st petitioner.
13. On public interest, the petitioners contend that the petition highlights abuse of police and state power, misuse of prosecutorial authority and arbitrary administrative actors where a state or public officer without reasons takes administrative action against a law-abiding Kenyan without giving reasons. That conservatory orders sought will uphold the rule of law and prevent abuse of power, thereby protecting legitimate business operations. The petitioners therefore assert that public interest strongly favours judicial intervention at this stage.
14. The interested party swore an affidavit on 27 th April, 2026, wholly supporting the petition and the motion for conservatory orders sought by the petitioners and added that the respondents are extortionists and that the raid and cancellation of the 1 st petitioner’s licenses has exposed the interested party’s members and employees to untold hardship and loss of livelihoods hence, the need to reinstate the licenses as the 1 st petitioner is a law abiding citizen who was issued with a license after he submitted all documents that were verified.
15. Further deposition was that the interested party had complained against police harassment and extortion of its members especially the conduct of Chief Inspector Joshua Chacha, the 6 th respondent herein, a who is alleged to have acted in a very unprofessional manner and used abusive language against the entrepreneur during the raid on the 1 st petitioner’s premises.
16. The 1 st respondent filed grounds of opposition dated 24 th April 2026 opposing the application by the petitioners and contending that the application is misconceived, incompetent and abuse of court process. That the petitioners have not met the threshold for grant of conservatory orders, having failed to establish a prima facie case with likelihood of success, demonstrate real danger of prejudice or show that the public interest favours the grant of the orders sought.
17. According to the 1 st respondent, the petitioners’ own annexture which is the revocation letter demonstrate that the impugned decision was made pursuant to section 17(1) ( c) and ( e) of the Nairobi City County Trade Licensing Act, 2019 hence the decision was within the statutory mandate of the 1 st respondent. That therefore, since the legality and propriety of the revocation of the license is a contested matter, it requires interrogation at a full hearing and cannot be conclusively determined at the interlocutory stage.
18. The 1 st respondent contends that the orders sought are mandatory in nature which are not available at the interlocutory stage in the absence of exceptional and clear circumstances. That there is no demonstration that the respondents acted outside its jurisdiction or in excess of its statutory mandate in regulating trade and licensing within Nairobi City County.
19. Further, that the alleged violation of Article 47 is contested hence the matter requires full evidentiary inquiry.
20. It is contended that the application improperly invites this court to interfere with the ongoing proceedings in the Chief Magistrate’s Court in MCCR E1213 of 2026, contrary to established principles and that there are no compelling or exceptional circumstances warranting stay of criminal proceedings.
21. That the petitioners have not demonstrated any irreparable harm that cannot be compensated by an award of damages and that the balance of convenience tilts in favour of the 1 st respondent to continue exercising its statutory mandate in the regulation of trade and enforcement of county legislation and finally, that the grant of the conservatory orders sought would unjustifiably fetter the statutory powers of the 1 st respondent and undermine the public interest in the enforcement of regulatory laws. The 1 st respondent urges this court to dismiss the application, terming it frivolous, vexatious and abuse of the process of this court.
22. the 3 rd respondent filed a belated replying affidavit deposing and contending in the submissions by Ms Kihara that the decision to charge the 2 nd petitioner was based on sufficient evidence and not malice. That the evidence gathered by the police during investigations were reviewed before the charges were instituted against the 2 nd petitioner. That there was no evidence that the 2 nd petitioner’s rights guaranteed under the Constitution were violated and that only the trial court can interrogate the sufficiency of the evidence in support of the charges preferred against the 2 nd petitioner. she asserted that the petition and application was an abuse of court process intended to delay the conclusion of the criminal case, urging this court not to grant any stay of criminal prosecution of the 2 nd petitioner.
23. The 5 th , 6 th and 7 th respondents filed a replying affidavit sworn on 5 th May, 2026 contending in deposition that the national police service is constitutionally mandated to investigate crime and that the investigations conducted revealed that the petitioners were involved in theft of critical infrastructure of Kenya Railways Corporation, Nairobi City County Government and Kenya Power and Lighting, which items were positively identified. that although the 1 st petitioner had not been arrested, it was because he obtained anticipatory bail orders in Criminal case No, HC CR Misc E060 of 2026. they urged this Court to dismiss the application for conservatory orders.
24. Parties made oral submissions in support of their respective positions on 7/5/2026. they all reiterated their respective positions as summarized above.in addition, Mr. Sumra submitted that at the time of arrest, the 1 st petitioner was there but was not arrested. That according to CCTV evidence, nothing was taken from the premises of the 1 st petitioner. That KPLC was not present during the raid and that 22 employees were arrested. He submitted that the 6 th respondent is always extorting for protection money from the 1 st petitioner and that when the 1 st petitioner refused to give money, he was bombarded with 100 police offices, bundled in a vehicle and taken to Jogoo House and threatened and intimidated to withdraw this petition.
25. Mr. Sumra submitted that over 300 members employed by the 1 st petitioner together with suppliers and customers are suffering. That the 1 st petitioner had to get anticipatory bail to protect himself from harassment, which fact they will prove that protection money is what is harming the interested party’s members from the anti-vandalism unit. He maintained that the 1 st petitioner was never given the opportunity to defend himself before the licences were revoked.
26. On behalf of the petitioners, Mr. Otieno submitted in rejoinder, that at page 33, there is a CCTV extract and photographs of the 1 st petitioner seated during the raid. On Section 17 (c) & (e) of the Act, it was submitted that the state cannot act as the complainant, the judge and else whoever. He submitted that the right to fair hearing and fair administrative action are constitutionally guaranteed. It was submitted that the letter of 18/3/2026 attaches the letter of 13/3/2026 showing the cancellation of the licenses were done before communicating the decision hence the 1 st petitioner had no opportunity to be heard. He cited Article 29 of the Constitution arguing that the Article gives authority to this court to intervene in cases of grave violation of the Constitution. Mr. Otieno submitted that the show cause letter dated 27/3/2026 does not make allegations of illegal business and that the 1 st petitioner was never given an opportunity to regularize the alleged irregularities. He added that no inventory of recovered material belonging to KPLC, KR and NCC was filed in court and that anticipatory bail does not bar the investigators to arraign a suspect before a court of law. He urged that the 1 st petitioner has not been summoned to attend court to answer any charges.
Analysis and Determination
27. I have considered the application and the opposition thereto. The main issue for determination is whether the conservatory orders sought are available to the petitioners.
28. The 1 st petitioner is a proprietor of scrap metal business. He claims in his petition and application for conservatory orders, that the respondents arbitrarily and unlawfully revoked his business license and permit which action has effectively shut down his business operations and deprived him and the many employees, of their livelihood.
29. That he was served with a notice to show cause for revocation of his scrap metal license by the 2 nd respondent at the instigation of the 6 th respondent.
30. That the 2 nd petitioner is facing criminal charges of stealing and handling stolen property which include rail steel bar, the property of Kenya Railways Corporation, assorted Kenya Power and Lightning metals and high mast galvanized street pole belonging to Nairobi City County Government. The charges are allegedly fabricated thereby exposing him to unlawful deprivation of liberty and wrongful conviction.
31. The petitioners claim that the respondents are using the police to extort money from them in the name of carrying out an anti-vandalism exercise and raiding the 1 st petitioners’ premises without notice, which conduct is said to be intrusive and amounts to disruptive search.
32. The petitioners further claim that the respondents’ actions amount to violation of the petitioners’ fundamental rights and freedoms. The petition seeks several reliefs including mandamus to restore the licenses revoked, declarations of unconstitutionality of the respondents’ actions, certiorari to quash the decisions taken by the respondents and prohibition of the respondents from maintaining criminal proceedings against the 2 nd petitioner. The petitioners also seek for damages for loss of business as well as exemplary and aggravated damages and compensation among other reliefs.
33. The interested party supports that position asserting that the members of the interested party are suffering due to loss of employment and that the police were harassing and extorting from the petitioners and members of the interested party, including coercion of the petitioners to withdraw this petition.
34. The principles for granting of conservatory orders are now well settled. but first, as to what conservatory orders are, in Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR, Nairobi Civil Appeal 151 of 2011, a conservatory order was defined as:
“5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
35. In Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR the Court stated as follows on the nature of conservatory orders:
“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. “
36. On the nature of conservatory orders, the Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR discussed as follows:
“[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered 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.”
37. Given the nature of conservatory orders, it is argued that there is need for a Court to exercise care in such applications. That proposition is informed by the reason that matters which are the preserve of the main Petition ought not to be dealt with, with finality at the interlocutory stage.
38. Ibrahim, J (as he then was) aptly captured the above position in Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.”
39. Therefore, a Court dealing with an application for conservatory orders must maintain the delicate balance of ensuring that it does not delve into issues which are in the realm of the main Petition. In this application, I will, therefore, restrain myself from dealing with merit issues.
40. Having said so, i identify the law and principles guiding the grant of conservatory orders. Rule 23 of the Mutunga Rules provides that:
23. (1) 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.
41. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed and settled by Courts over time. The locus classicus on conservatory orders is the Supreme Court decision in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR where the apex Court at paragraph 86 stated inter alia, as follows:
“[86] … 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 courses.”
42. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR citing several decisions, the Court rightly so, summarized three main principles for consideration on whether to grant conservatory orders as follows:
(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory ; and
(c) The public interest must be considered before grant of a conservatory order.
43. Additionally, in my view, it is important that Courts ascertain whether the grant of conservatory orders sought will hinder expeditious disposal of the main petition and therefore, the dispute.
44. As to what a prima facie case is, in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:
“…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”
45. In Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR the Court of Appeal dealing with what a prima facie case is, cited with approval Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396 where the learned Judge stated thus:
“If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.”
46. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR .The Court in allowing an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -
“It is wrong in law for the court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of hi complaint... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought.”
47. In totality, in determining whether a prima-facie case is established, the Court must examine the case as a whole, weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law, but refrain from making merit determinations on any of the issues raised in the petition.
48. Applying the above settled principles to this petition and the application for conservatory orders as supported by the affidavit sworn by the 1 st petitioner, and as earlier stated, when the matter came up for interpartes directions, this court did not grant any interim conservatory orders sought by the two petitioners exparte orders sought by the petitioners pending this ruling.
49. The petitioners seek for the restoration of the revoked and cancelled licenses of the 1 st petitioner and that the prosecution of the 2 nd petitioner be stayed. As stated in the first ruling, a conservatory order restoring the revoked or cancelled licenses is a mandatory order whose effect will, in the present circumstances, reverse the Respondent's decision at the interlocutory stage. Therefore, the threshold for the issuance of a mandatory order is quite high, and it demands the presence of an exceptionally clear case. The Court must however, as correctly submitted by the respondents, refrain from deciding the merits of the main petition at this interlocutory stage. That is not to say that the court cannot grant such orders where the applicant has met the threshold for grant of such orders.
50. In the interim ruling, this court stated that it did not find the alleged illegalities to be so obvious as to warrant a mandatory order at that stage of proceedings before hearing the substantive motion for conservatory orders. This Court further observed that it was conscious of the fact that the subject-matter of the dispute is related to a regulated activity, and thus, questions of alleged violation of the law as per the documents annexed to the petition and supporting affidavit including the notification dated 18 th March, 2026 needed to be taken into consideration and interrogated at the substantive hearing. This Court further observed that it ensures that orders which may affect the regulatory scheme of things are not made until all issues are ventilated.
51. Having stated as such, the question now, as regards the 1 st petitioner, is whether he has met the threshold for grant of a conservatory mandatory order restoring the two revoked licenses. From the pleadings and the annexed documents, I note that the 1 st petitioner is a scrap metal dealer who must be licensed by the 1 st and the 2 nd respondents. the two licenses are intertwined. he cannot operate without both, although they are issued by different entities. The nd the interested party 1 st petitioner avers that prior to the revocation of the two licenses, he was never accorded given any opportunity to be heard on any allegations levelled against him. That therefore, his right to fair administrative action that is expeditious, efficient, lawful and procedurally fair, which right is guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act were violated.
52. The 1 st respondent contends that the revocation of the license was lawful pursuant to section 17 (1) (c) and (e) of the Nairobi City County Trade Licensing Act, 2019. Further, that the allegations that the 1 st petitioner’s rights were violated are disputed hence, no conservatory orders should be issued as that would amount to granting final orders in the petition yet no exceptional or clear circumstances have been demonstrated by the 1 st petitioner.
53. I have perused the memo issued by the 1 st respondent’s Trade Licensing Department in which it cancelled the 1 st petitioner’s Unified Business Permit No. UBP246877 for Metakelfin Enterprises Kariobangi North. The latter is the trade name of the 1 st petitioner’s scrap metal business. The said UBP was to expire on 25 th January, 2027. The memo signed by the Director Trade Licensing, Mr. Jason Akongo Abwori is dated 13/3/2026 and is addressed to the 1 st respondent’s County Chief Officer-Security and Compliance. The cancelation is said to be pursuant to section 17 (a) (c) and (e) of the Nairobi City County Trade Licensing Act.
54. The Chief Officer, Security and Compliance was directed in the said memo, to ensure that the original UBP was confiscated and the 1 st petitioner’s business closed with immediate effect.
55. In the said memo, the author refers to copies of letters from the Director-Energy and Lighting, Nairobi City County and Senior Supply Chain Management Officer, Kenya Railways Corporation showing the value of the properties which were allegedly positively identified and recovered from the aforesaid business premises of the 1 st petitioner.
56. The Memo emphasizes that the cancellation was to take effect from 13 th March 2026.
57. On the other hand, the letter written by the 2 nd respondent to the 1 st petitioner on 27 th March 2026 is a show cause letter why the Scrap Metal Collector License No. SMC2025-5950591094 issued on 15 th October, 2025 should not be cancelled. The reasons for the show cause were that it had been established that at the time of such application for the license, the 1 st petitioner submitted documents that were not valid. specifically, that he provided an expired Scrap Metal Association Certificate, an Expired County Government Permit, an expired Tax Compliance Certificate and an expired Certificate of Good Conduct. Additionally, that the 1 st petitioner did not provide a valid NEMA License or approval authorizing him to conduct Scrap metal Business.
58. The 2 nd respondent gave the 1 st petitioner 14 days to show cause why his afore stated license should not be recalled and or cancelled for noncompliance with the applicable legal requirements. The 1 st petitioner was also required to appear before the 2 nd respondent, the Scrap Metal Council on 9 th April, 2026 at 10.am with his written explanation together with valid and up to
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