1. The Applicants/Petitioners in this matter sought a stay of the proceedings in the Lower Court pending the hearing and determination of the Petition.
2. The Petitioners argue that if the prosecution against them continues, they are likely to suffer reputational damage that will affect their business.
3. The Petitioners argue that by dint of a letter dated 29th January 2026, the DPP had directed the withdrawal of the case against all the accused persons in the case thus their continued prosecution is untenable considering that one of the co-accused persons in the case before the Lower Court has since been set at liberty following those directions and the orders of this court in Petition No. E004/2025.
4. The Petitioners thus, in a sense, argue that the prosecution against them is selective and discriminatory thus this Court should be minded to stay the same.
5. The Respondent and counsel for the victims argued that the matter H.CR Petition No. E004 of 2025 has no bearing on these proceedings and that the Court should not be minded to stay the proceedings in the Lower Court.
6. The Respondent and victims argue that these Petitioners were beneficiaries of the fraudulent scheme that forms the foundation of the charges.
7. The Petitioners on the other hand maintained that they too were victims of the fraud and the petitioner Petition No. E004/2025 having been the person who led them to the fraudsters could not simply have the charges against him quashed by consent of the DPP and leave them to face prosecution yet the case was joint against them.
8. The court in determining an application for stay of proceedings has to be persuaded that if the stay orders are not granted the Petitioner is likely to be defeated, or rendered nugatory, and that the prejudice that one is likely to suffer is irreparable.
9. A Petitioner must also be able to demonstrate on a prima facie basis they have an arguable case that is likely to be compromised if the order of stay is not granted.
10. The Applicant/Petitioners drew the attention of the Court to a letter that the Respondent authored directing that the case against them be withdrawn.
11. The Respondent's counsel did not deny the contents of that letter and was silent as to whether the position of the DPP has since changed.
12. The court is persuaded that the Petitioners have an arguable case on a prima facie basis which merits a conservatory order pending the hearing and determination of the Petition.
13. The Criminal Case No. E202 of 2025 has been pending all along and it cannot therefore be argued that the Respondents and the victim will suffer any prejudice if the matter is held in abeyance to await the outcome of the instant Petition.
14. A Conservatory Order is issued to prevent the dissipation of the substratum of a case. The Petitioners' concern and argument is that they are being unfairly targeted for prosecution yet they were also victims of the alleged fraud and that the person who led them to the fraudsters has since been let of the hook by the respondents.
15. That is a legitimate concern that must be adjudicated upon to its logical end. The court cannot shut its eyes on such a complaint since the exercise of state powers of prosecution must be in an accountable and transparent manner in line with Article 10 of the Constitution. The petitioners have a legitimate expectation that the decision to prosecute must not be selective or oppressive and that is precisely the constitutional prescription under Article 157 (10) and (11) of the Constitution.
16. The Supreme Court in Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024) [2024] KESC 35 (KLR) (26 July 2024) (Ruling) held:
“Conservatory orders were tools of preservation intended to protect and safeguard the substratum of the petition of appeal, in the instant case, the construction of a second bulk grain terminal at the Port of Mombasa, so that the consolidated appeal was not rendered nugatory. Conservatory orders therefore served to offer short-term relief so as not to expose the Constitution or the appellant to preventable perils pending the determination of the dispute.
A conservatory order was a constitutional relief, specifically provided for under article 23 of the Constitution, grantable as a matter of judicial discretion. Conservatory orders had a ‘more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies’ as it was meant to secure the enforcement of the provisions of the Constitution and to also uphold the adjudicatory authority of the court, so that the authority conferred on the courts was not exercised in vain, hence the need to keep the subject matter in dispute in situ.
The principles to be considered before the court could grant a conservatory order or a temporary injunction were;
a. that the appeal was arguable and not frivolous;
b. that unless the orders sought were granted, the appeal were it to eventually succeed, would be rendered nugatory; and
c. that it was in public interest that the conservatory orders be granted.
The court in considering an application for conservatory orders could not ignore the impact of such orders beyond the parties to the case should the order be granted or denied. Consequently, the court would make a general inquiry as to where the public interest lay, considering the parties’ respective rights. All the three conditions, including the third principle must be met for an application for conservatory orders to succeed for the reason that conservatory orders had a public law connotation.”
17. The court is alive to the fact that a prosecution comes with certain consequences that may be psychological, reputational and economic to the accused person. No one should ever face a criminal trial that is not merited in law on the basis of evidential and public interest tests.
18. For the court to be able to deal with the petition the petitioner should not be put through the motions of trial in light of the letter that has be placed before the court emanating from the 1 st respondent.
19. State resources are scarce and should not be deployed towards the prosecution of a matter that may eventually become the subject of quashing by this Court. The public interest in tilts in favor of issuing a conservatory order to obviate such an eventuality.
20. To engage the court in conducting a trial whose foundation is the subject of a challenge is akin to an unnecessary waste of precious judicial time and other resources.
21. The prosecution of a case that involves the spending of public money, which is scarce, and under Article 201(d) of the Constitution, should be used in a prudent and responsible way.
22. If it were to turn out that the letter of 29th January 2026 was the basis for the declaration of the continued prosecution of Abdirizak Kasim Bare unconstitutional, then a constitutional issue arises about the propriety of the prosecution of the petitioners. The Respondent would have to explain to this court why the proceedings against the two Petitioners must continue.
23. The Petitioners have, on a balance of probabilities persuaded the court for the grant of a Conservatory Order to halt the proceedings in the Lower Court in Criminal Case No. E202 of 2025 until the matter is heard and determined.
24. The Court therefore grants an order staying those proceedings until the Petition is heard and determined.
25. It is so ordered.
2. The Petitioners argue that if the prosecution against them continues, they are likely to suffer reputational damage that will affect their business.
3. The Petitioners argue that by dint of a letter dated 29th January 2026, the DPP had directed the withdrawal of the case against all the accused persons in the case thus their continued prosecution is untenable considering that one of the co-accused persons in the case before the Lower Court has since been set at liberty following those directions and the orders of this court in Petition No. E004/2025.
4. The Petitioners thus, in a sense, argue that the prosecution against them is selective and discriminatory thus this Court should be minded to stay the same.
5. The Respondent and counsel for the victims argued that the matter H.CR Petition No. E004 of 2025 has no bearing on these proceedings and that the Court should not be minded to stay the proceedings in the Lower Court.
6. The Respondent and victims argue that these Petitioners were beneficiaries of the fraudulent scheme that forms the foundation of the charges.
7. The Petitioners on the other hand maintained that they too were victims of the fraud and the petitioner Petition No. E004/2025 having been the person who led them to the fraudsters could not simply have the charges against him quashed by consent of the DPP and leave them to face prosecution yet the case was joint against them.
8. The court in determining an application for stay of proceedings has to be persuaded that if the stay orders are not granted the Petitioner is likely to be defeated, or rendered nugatory, and that the prejudice that one is likely to suffer is irreparable.
9. A Petitioner must also be able to demonstrate on a prima facie basis they have an arguable case that is likely to be compromised if the order of stay is not granted.
10. The Applicant/Petitioners drew the attention of the Court to a letter that the Respondent authored directing that the case against them be withdrawn.
11. The Respondent's counsel did not deny the contents of that letter and was silent as to whether the position of the DPP has since changed.
12. The court is persuaded that the Petitioners have an arguable case on a prima facie basis which merits a conservatory order pending the hearing and determination of the Petition.
13. The Criminal Case No. E202 of 2025 has been pending all along and it cannot therefore be argued that the Respondents and the victim will suffer any prejudice if the matter is held in abeyance to await the outcome of the instant Petition.
14. A Conservatory Order is issued to prevent the dissipation of the substratum of a case. The Petitioners' concern and argument is that they are being unfairly targeted for prosecution yet they were also victims of the alleged fraud and that the person who led them to the fraudsters has since been let of the hook by the respondents.
15. That is a legitimate concern that must be adjudicated upon to its logical end. The court cannot shut its eyes on such a complaint since the exercise of state powers of prosecution must be in an accountable and transparent manner in line with Article 10 of the Constitution. The petitioners have a legitimate expectation that the decision to prosecute must not be selective or oppressive and that is precisely the constitutional prescription under Article 157 (10) and (11) of the Constitution.
16. The Supreme Court in Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024) [2024] KESC 35 (KLR) (26 July 2024) (Ruling) held:
“Conservatory orders were tools of preservation intended to protect and safeguard the substratum of the petition of appeal, in the instant case, the construction of a second bulk grain terminal at the Port of Mombasa, so that the consolidated appeal was not rendered nugatory. Conservatory orders therefore served to offer short-term relief so as not to expose the Constitution or the appellant to preventable perils pending the determination of the dispute.
A conservatory order was a constitutional relief, specifically provided for under article 23 of the Constitution, grantable as a matter of judicial discretion. Conservatory orders had a ‘more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies’ as it was meant to secure the enforcement of the provisions of the Constitution and to also uphold the adjudicatory authority of the court, so that the authority conferred on the courts was not exercised in vain, hence the need to keep the subject matter in dispute in situ.
The principles to be considered before the court could grant a conservatory order or a temporary injunction were;
a. that the appeal was arguable and not frivolous;
b. that unless the orders sought were granted, the appeal were it to eventually succeed, would be rendered nugatory; and
c. that it was in public interest that the conservatory orders be granted.
The court in considering an application for conservatory orders could not ignore the impact of such orders beyond the parties to the case should the order be granted or denied. Consequently, the court would make a general inquiry as to where the public interest lay, considering the parties’ respective rights. All the three conditions, including the third principle must be met for an application for conservatory orders to succeed for the reason that conservatory orders had a public law connotation.”
17. The court is alive to the fact that a prosecution comes with certain consequences that may be psychological, reputational and economic to the accused person. No one should ever face a criminal trial that is not merited in law on the basis of evidential and public interest tests.
18. For the court to be able to deal with the petition the petitioner should not be put through the motions of trial in light of the letter that has be placed before the court emanating from the 1 st respondent.
19. State resources are scarce and should not be deployed towards the prosecution of a matter that may eventually become the subject of quashing by this Court. The public interest in tilts in favor of issuing a conservatory order to obviate such an eventuality.
20. To engage the court in conducting a trial whose foundation is the subject of a challenge is akin to an unnecessary waste of precious judicial time and other resources.
21. The prosecution of a case that involves the spending of public money, which is scarce, and under Article 201(d) of the Constitution, should be used in a prudent and responsible way.
22. If it were to turn out that the letter of 29th January 2026 was the basis for the declaration of the continued prosecution of Abdirizak Kasim Bare unconstitutional, then a constitutional issue arises about the propriety of the prosecution of the petitioners. The Respondent would have to explain to this court why the proceedings against the two Petitioners must continue.
23. The Petitioners have, on a balance of probabilities persuaded the court for the grant of a Conservatory Order to halt the proceedings in the Lower Court in Criminal Case No. E202 of 2025 until the matter is heard and determined.
24. The Court therefore grants an order staying those proceedings until the Petition is heard and determined.
25. It is so ordered.