RULING
1. This is a ruling on the Petitioners' Notice of Motion dated 16th June 2026 brought under Articles 2, 10, 19, 20, 21, 22, 23, 38, 40, 47, 50, 159, 165 and 259 of the Constitution and Rules 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 otherwise known as Mutunga Rules .
2. The Petitioners seek a conservatory orders restraining the 1st Respondent from conducting or proceeding with the election of directors in Kapkitui Zone scheduled for 18th June 2026 pursuant to the notice dated 15th May 2026, pending the hearing and determination of the application.
3. The application is supported by the affidavit sworn on 16th June 2026 by the Petitioners, Jeremiah Kimutai Chirchir and Edward Kimutai Cheruiyot. It is opposed through the replying affidavit sworn on 18th June 2026 by Dickson Kirui, the Company Secretary of the 1st Respondent. The 1st Respondent also filed a list of authorities on the doctrines of exhaustion, ripeness and constitutional avoidance.
4. The Petitioners describe themselves as small-scale tea growers and voters under the 1st Respondent's Articles of Association. They aver that they supply green leaf through tea buying centres in Ainamoi Sub-County, namely Kimibei, Kaptebeswet and Kipchebor, and that upon separation of Toror Tea Factory from Tegat Tea Factory, they resolved to supply green leaf to Toror Tea Factory and to be zoned under Toror.
5. Their grievance is that their resolution, protest letters and complaint to the Tea Board of Kenya were not acted upon, and that through the impugned zoning and election arrangements, they are being compelled to remain under the 1st Respondent and participate in a zone contrary to their preference. They contend that the decision violates Articles 10, 38, 40, and 47 of the Constitution, as well as Section 21 of the Tea Act.
6. Counsel for the Petitioners submitted that the Petitioners had attempted to invoke internal mechanisms by writing protest letters and lodging a complaint with the Tea Board of Kenya, but that no meaningful response was given. Counsel urged that the impending election would entrench an unlawful zoning decision and render the Petitioners' rights illusory unless conservatory relief was granted.
7. The 1st Respondent's answer, through Mr Kirui, is that the application is mala fide and calculated to stop directors' elections without a reasonable basis. It avers that the electoral zones, including Kapkitui Zone, were conceived and approved after an extensive public participation and boundary delineation process undertaken in 2024, with shareholder sanction.
8. The 1st Respondent states that the boundary delineation exercise was undertaken by a duly constituted Boundary Delineation Committee in accordance with the Tegat Tea Factory Company Limited Boundaries Delineation Rules, 2022. According to the replying affidavit, Rule 4 required the Committee to consider equity in the representation of tea growers; the number of registered growers in each tea-buying centre; geographical location and coverage; proximity of buying centres; community diversity; social cohesion; and effective shareholder consultation and participation.
9. The 1st Respondent further avers that public participation notices were issued inviting shareholders and tea growers to present proposals on zoning and boundary adjustments. Upon conclusion of that process, the Committee's recommendations were tabled before shareholders at the Annual General Meeting held on 4th December 2025, where the shareholders are said to have unanimously approved the boundary delineations and zoning arrangements for both Tegat Tea Factory and Toror Tea Factory.
10. The 1st Respondent also contends that the dispute is in substance a company governance and election dispute governed by its Memorandum and Articles of Association, its Elections Guidelines and the Companies Act, 2015. It relies on the Election Dispute Resolution Committee under Part II, Clause 4 of the Elections Guidelines and on company law mechanisms, including remedies under Sections 238, 239, 240 and 241 of the Companies Act.
11. It is further deponed that the Petitioners were aware of the zoning process from 2024 but only moved the Court on 16th June 2026, two days before the scheduled election. The 1st Respondent therefore raises laches, prejudice to more than 10,000 shareholders, wastage of financial and human resources already expended on the election, non-exhaustion of available remedies, lack of ripeness and constitutional avoidance.
12. I have considered the application, the Petition, the supporting affidavit, the replying affidavit, the annexures, the authorities filed and the able oral submissions by both counsel . At this interlocutory stage, the Court is not called upon to make final findings on the validity of the boundary delineation, the legality of the zoning, or the ultimate merits of the Petition. The question is whether the Petitioners have met the threshold for conservatory relief.
13. The issues that arise for determination are whether the application is defeated, at this stage, by the doctrines of exhaustion, ripeness and constitutional avoidance; whether the Petitioners have satisfied the threshold for grant of conservatory orders; and what order should be made on costs.
14. Article 23(3)(c) of the Constitution empowers this Court to grant conservatory orders in proceedings for the enforcement of rights and fundamental freedoms. Conservatory orders are public law remedies intended to preserve the subject matter, safeguard constitutional values and prevent irreparable prejudice pending determination of a dispute.
15. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court stated that conservatory orders bear a public law connotation and are granted on the inherent merit of the case, bearing in mind the public interest, constitutional values and the proportionate magnitude and priority levels attributable to the relevant causes.
16. The application seeks interim Injunctive orders and the court is enjoined to consider whether the Petitioners have established an arguable prima facie case, whether the Petition or application will be rendered nugatory unless the order is granted, whether the balance of prejudice favours the Petitioners, and where the public interest lies.
17. Before applying that test, it is necessary to address exhaustion, ripeness and constitutional avoidance. The doctrine of exhaustion requires a party to pursue available statutory, contractual or internal remedies before invoking the Court's jurisdiction, unless exceptional circumstances are demonstrated. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court held that where a clear procedure for redress is prescribed by law, that procedure should be followed.
18. In the case of Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal reiterated that courts ought to be a forum of last resort and not the first port of call where adequate alternative mechanisms exist. The said approach allows bodies with the relevant mandate and expertise to address disputes in the first instance, while preserving judicial intervention for proper cases.
19. The authorities cited by the 1st Respondent, including Mabeya T/A Gynocare Women and Fistula Hospital v Kenya Power and Lighting Company (Constitutional Petition E024 of 2022) [2023] KEHC 18902 (KLR), Catherine Mwihaki Ngambi v International Leadership University [2022] eKLR, Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR), and KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR), reinforce the same principle: a party should not constitutionalize every ordinary dispute where effective private law, statutory or internal remedies are available, unless a genuine and immediate constitutional question calling for the Court's intervention is disclosed.
20. The Petitioners correctly held the view that the Constitution is supreme and that this Court has jurisdiction to enforce the Bill of Rights. That jurisdiction is not, however, a licence to bypass available and adequate remedial mechanisms. Section 9(4) of the Fair Administrative Action Act permits exemption from exhaustion only where exceptional circumstances are shown and where the Court considers such exemption to be in the interests of justice.
21. The 1st Respondent has placed before the Court the Elections Guidelines, 2026, which establish an Election Dispute Resolution Committee for disputes arising from the electoral process. It has also referred to company law remedies under the Companies Act, where a shareholder is aggrieved by an act or omission of the company's organs or directors. The Petitioners have not shown that those mechanisms were invoked, unavailable, ineffective, biased or incapable of addressing their complaint.
22. The Petitioners' protest letters and complaint to the Tea Board of Kenya may demonstrate that they objected to the zoning. They do not, demonstrate exhaustion of the election dispute mechanism established under the Elections Guidelines, nor do they demonstrate exceptional circumstances warranting immediate judicial intervention under Section 9(4) of the Fair Administrative Action Act.
23. The Court is also required to look at the substance of the dispute. The Petitioners' complaint concerns preferred zoning, the allocation of tea-buying centres, the effect of the separation of Tegat and Toror Tea Factories, and participation in the election of directors. These matters are, at least in the first instance, governed by the company's Articles, the Elections Guidelines, the boundary delineation framework, the Tea Act and the Companies Act.
24. Based on the material placed before the Court, the Petitioners have not been denied the right to vote altogether. Their complaint is that they wish to vote and supply green leaves under a different zone or factory. That issue is intertwined with boundary delineation and company restructuring. It is not a plain denial of suffrage requiring the Court to halt an election at once.
25. The Petitioners say that their preference to supply green leaf to Toror Tea Factory was not considered, and that their protests went unanswered. However, the 1st Respondent has produced material showing that public participation notices were issued, a Boundary Delineation Committee was constituted, the Committee made recommendations, and the recommendations were tabled before and approved by shareholders at the AGM of 4th December 2025.
26. At this stage, the Petitioners have not placed before the Court sufficient material to show that the public participation and AGM process was a sham, unlawful, or incapable of producing the impugned zoning decision. Those questions may require detailed interrogation at the substantive hearing. They do not, on the present material, justify stopping an election scheduled to proceed within two days of the application's filing.
27. Delay is a relevant consideration in an application for conservatory relief. The Petitioners' own pleadings show that the zoning and separation process began in 2024 and that they were aware of it as of at least September 2024. They moved the Court on 16th June 2026, barely two days before the election scheduled for 18th June 2026.
28. A party that seeks to stop an election at the eleventh hour must give a cogent explanation for the delay and must demonstrate why the disruption of an ongoing governance process is justified. No sufficient explanation has been offered for waiting until the eve of the election, particularly given that the 1st Respondent says extensive financial and human resources had already been deployed and that more than 10,000 shareholders stood to be affected.
29. On the whether the petition will be rendered nugatory, I am not persuaded that refusal of the conservatory order will render the Petition wholly nugatory as f, after hearing the Petition, the Court finds that the delineation or zoning was unlawful, the Court retains the power to grant appropriate relief. Conversely, stopping the election at this late stage would disrupt the governance of the 1st Respondent and prejudice shareholders, candidates, election officials, and the corporate process already set in motion.
30. Public interest, therefore, weighs against the grant of the orders sought. Director elections are central to corporate governance and accountability . The Court should be slow to halt such an exercise at the instance of two growers where the process has been ongoing for a considerable period, where internal mechanisms have not been sufficiently pursued, and where the prejudice to the wider shareholder body is substantial.
31. For those reasons, I find that the Petitioners have not met the threshold for the grant of a conservatory orders. The application is premature for failure to exhaust available internal and statutory remedies; it is affected by delay; and the balance of convenience and public interest favours allowing the electoral process to proceed.
32. The Petitioners remain at liberty to pursue any internal remedies available under the Elections Guidelines, the Articles of Association, the Companies Act, the Tea Act and any appropriate statutory mechanism, and to prosecute the Petition in accordance with directions of the Court.
33. In the upshot, i find that the Notice of Motion dated 16th June 2026 is dismissed.
34. Costs of the application shall abide by the outcome of the Petition.
35. Mention on 16.7.26 for directions on hearing of the main petition .
35. Orders accordingly.
T. A. ODERA
JUDGE
18.6.26
DATED, SIGNED AND DELIVERED AT KERICHO THIS 18TH DAY OF JUNE 2026 IN THE PRESENCE OF MISS NGENO FOR THE PETITIONERS AND MR KIPKORIR FOR THE RESPONDENTS CA BUSIENEI
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1. This is a ruling on the Petitioners' Notice of Motion dated 16th June 2026 brought under Articles 2, 10, 19, 20, 21, 22, 23, 38, 40, 47, 50, 159, 165 and 259 of the Constitution and Rules 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 otherwise known as Mutunga Rules .
2. The Petitioners seek a conservatory orders restraining the 1st Respondent from conducting or proceeding with the election of directors in Kapkitui Zone scheduled for 18th June 2026 pursuant to the notice dated 15th May 2026, pending the hearing and determination of the application.
3. The application is supported by the affidavit sworn on 16th June 2026 by the Petitioners, Jeremiah Kimutai Chirchir and Edward Kimutai Cheruiyot. It is opposed through the replying affidavit sworn on 18th June 2026 by Dickson Kirui, the Company Secretary of the 1st Respondent. The 1st Respondent also filed a list of authorities on the doctrines of exhaustion, ripeness and constitutional avoidance.
4. The Petitioners describe themselves as small-scale tea growers and voters under the 1st Respondent's Articles of Association. They aver that they supply green leaf through tea buying centres in Ainamoi Sub-County, namely Kimibei, Kaptebeswet and Kipchebor, and that upon separation of Toror Tea Factory from Tegat Tea Factory, they resolved to supply green leaf to Toror Tea Factory and to be zoned under Toror.
5. Their grievance is that their resolution, protest letters and complaint to the Tea Board of Kenya were not acted upon, and that through the impugned zoning and election arrangements, they are being compelled to remain under the 1st Respondent and participate in a zone contrary to their preference. They contend that the decision violates Articles 10, 38, 40, and 47 of the Constitution, as well as Section 21 of the Tea Act.
6. Counsel for the Petitioners submitted that the Petitioners had attempted to invoke internal mechanisms by writing protest letters and lodging a complaint with the Tea Board of Kenya, but that no meaningful response was given. Counsel urged that the impending election would entrench an unlawful zoning decision and render the Petitioners' rights illusory unless conservatory relief was granted.
7. The 1st Respondent's answer, through Mr Kirui, is that the application is mala fide and calculated to stop directors' elections without a reasonable basis. It avers that the electoral zones, including Kapkitui Zone, were conceived and approved after an extensive public participation and boundary delineation process undertaken in 2024, with shareholder sanction.
8. The 1st Respondent states that the boundary delineation exercise was undertaken by a duly constituted Boundary Delineation Committee in accordance with the Tegat Tea Factory Company Limited Boundaries Delineation Rules, 2022. According to the replying affidavit, Rule 4 required the Committee to consider equity in the representation of tea growers; the number of registered growers in each tea-buying centre; geographical location and coverage; proximity of buying centres; community diversity; social cohesion; and effective shareholder consultation and participation.
9. The 1st Respondent further avers that public participation notices were issued inviting shareholders and tea growers to present proposals on zoning and boundary adjustments. Upon conclusion of that process, the Committee's recommendations were tabled before shareholders at the Annual General Meeting held on 4th December 2025, where the shareholders are said to have unanimously approved the boundary delineations and zoning arrangements for both Tegat Tea Factory and Toror Tea Factory.
10. The 1st Respondent also contends that the dispute is in substance a company governance and election dispute governed by its Memorandum and Articles of Association, its Elections Guidelines and the Companies Act, 2015. It relies on the Election Dispute Resolution Committee under Part II, Clause 4 of the Elections Guidelines and on company law mechanisms, including remedies under Sections 238, 239, 240 and 241 of the Companies Act.
11. It is further deponed that the Petitioners were aware of the zoning process from 2024 but only moved the Court on 16th June 2026, two days before the scheduled election. The 1st Respondent therefore raises laches, prejudice to more than 10,000 shareholders, wastage of financial and human resources already expended on the election, non-exhaustion of available remedies, lack of ripeness and constitutional avoidance.
12. I have considered the application, the Petition, the supporting affidavit, the replying affidavit, the annexures, the authorities filed and the able oral submissions by both counsel . At this interlocutory stage, the Court is not called upon to make final findings on the validity of the boundary delineation, the legality of the zoning, or the ultimate merits of the Petition. The question is whether the Petitioners have met the threshold for conservatory relief.
13. The issues that arise for determination are whether the application is defeated, at this stage, by the doctrines of exhaustion, ripeness and constitutional avoidance; whether the Petitioners have satisfied the threshold for grant of conservatory orders; and what order should be made on costs.
14. Article 23(3)(c) of the Constitution empowers this Court to grant conservatory orders in proceedings for the enforcement of rights and fundamental freedoms. Conservatory orders are public law remedies intended to preserve the subject matter, safeguard constitutional values and prevent irreparable prejudice pending determination of a dispute.
15. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court stated that conservatory orders bear a public law connotation and are granted on the inherent merit of the case, bearing in mind the public interest, constitutional values and the proportionate magnitude and priority levels attributable to the relevant causes.
16. The application seeks interim Injunctive orders and the court is enjoined to consider whether the Petitioners have established an arguable prima facie case, whether the Petition or application will be rendered nugatory unless the order is granted, whether the balance of prejudice favours the Petitioners, and where the public interest lies.
17. Before applying that test, it is necessary to address exhaustion, ripeness and constitutional avoidance. The doctrine of exhaustion requires a party to pursue available statutory, contractual or internal remedies before invoking the Court's jurisdiction, unless exceptional circumstances are demonstrated. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court held that where a clear procedure for redress is prescribed by law, that procedure should be followed.
18. In the case of Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal reiterated that courts ought to be a forum of last resort and not the first port of call where adequate alternative mechanisms exist. The said approach allows bodies with the relevant mandate and expertise to address disputes in the first instance, while preserving judicial intervention for proper cases.
19. The authorities cited by the 1st Respondent, including Mabeya T/A Gynocare Women and Fistula Hospital v Kenya Power and Lighting Company (Constitutional Petition E024 of 2022) [2023] KEHC 18902 (KLR), Catherine Mwihaki Ngambi v International Leadership University [2022] eKLR, Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR), and KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR), reinforce the same principle: a party should not constitutionalize every ordinary dispute where effective private law, statutory or internal remedies are available, unless a genuine and immediate constitutional question calling for the Court's intervention is disclosed.
20. The Petitioners correctly held the view that the Constitution is supreme and that this Court has jurisdiction to enforce the Bill of Rights. That jurisdiction is not, however, a licence to bypass available and adequate remedial mechanisms. Section 9(4) of the Fair Administrative Action Act permits exemption from exhaustion only where exceptional circumstances are shown and where the Court considers such exemption to be in the interests of justice.
21. The 1st Respondent has placed before the Court the Elections Guidelines, 2026, which establish an Election Dispute Resolution Committee for disputes arising from the electoral process. It has also referred to company law remedies under the Companies Act, where a shareholder is aggrieved by an act or omission of the company's organs or directors. The Petitioners have not shown that those mechanisms were invoked, unavailable, ineffective, biased or incapable of addressing their complaint.
22. The Petitioners' protest letters and complaint to the Tea Board of Kenya may demonstrate that they objected to the zoning. They do not, demonstrate exhaustion of the election dispute mechanism established under the Elections Guidelines, nor do they demonstrate exceptional circumstances warranting immediate judicial intervention under Section 9(4) of the Fair Administrative Action Act.
23. The Court is also required to look at the substance of the dispute. The Petitioners' complaint concerns preferred zoning, the allocation of tea-buying centres, the effect of the separation of Tegat and Toror Tea Factories, and participation in the election of directors. These matters are, at least in the first instance, governed by the company's Articles, the Elections Guidelines, the boundary delineation framework, the Tea Act and the Companies Act.
24. Based on the material placed before the Court, the Petitioners have not been denied the right to vote altogether. Their complaint is that they wish to vote and supply green leaves under a different zone or factory. That issue is intertwined with boundary delineation and company restructuring. It is not a plain denial of suffrage requiring the Court to halt an election at once.
25. The Petitioners say that their preference to supply green leaf to Toror Tea Factory was not considered, and that their protests went unanswered. However, the 1st Respondent has produced material showing that public participation notices were issued, a Boundary Delineation Committee was constituted, the Committee made recommendations, and the recommendations were tabled before and approved by shareholders at the AGM of 4th December 2025.
26. At this stage, the Petitioners have not placed before the Court sufficient material to show that the public participation and AGM process was a sham, unlawful, or incapable of producing the impugned zoning decision. Those questions may require detailed interrogation at the substantive hearing. They do not, on the present material, justify stopping an election scheduled to proceed within two days of the application's filing.
27. Delay is a relevant consideration in an application for conservatory relief. The Petitioners' own pleadings show that the zoning and separation process began in 2024 and that they were aware of it as of at least September 2024. They moved the Court on 16th June 2026, barely two days before the election scheduled for 18th June 2026.
28. A party that seeks to stop an election at the eleventh hour must give a cogent explanation for the delay and must demonstrate why the disruption of an ongoing governance process is justified. No sufficient explanation has been offered for waiting until the eve of the election, particularly given that the 1st Respondent says extensive financial and human resources had already been deployed and that more than 10,000 shareholders stood to be affected.
29. On the whether the petition will be rendered nugatory, I am not persuaded that refusal of the conservatory order will render the Petition wholly nugatory as f, after hearing the Petition, the Court finds that the delineation or zoning was unlawful, the Court retains the power to grant appropriate relief. Conversely, stopping the election at this late stage would disrupt the governance of the 1st Respondent and prejudice shareholders, candidates, election officials, and the corporate process already set in motion.
30. Public interest, therefore, weighs against the grant of the orders sought. Director elections are central to corporate governance and accountability . The Court should be slow to halt such an exercise at the instance of two growers where the process has been ongoing for a considerable period, where internal mechanisms have not been sufficiently pursued, and where the prejudice to the wider shareholder body is substantial.
31. For those reasons, I find that the Petitioners have not met the threshold for the grant of a conservatory orders. The application is premature for failure to exhaust available internal and statutory remedies; it is affected by delay; and the balance of convenience and public interest favours allowing the electoral process to proceed.
32. The Petitioners remain at liberty to pursue any internal remedies available under the Elections Guidelines, the Articles of Association, the Companies Act, the Tea Act and any appropriate statutory mechanism, and to prosecute the Petition in accordance with directions of the Court.
33. In the upshot, i find that the Notice of Motion dated 16th June 2026 is dismissed.
34. Costs of the application shall abide by the outcome of the Petition.
35. Mention on 16.7.26 for directions on hearing of the main petition .
35. Orders accordingly.
T. A. ODERA
JUDGE
18.6.26
DATED, SIGNED AND DELIVERED AT KERICHO THIS 18TH DAY OF JUNE 2026 IN THE PRESENCE OF MISS NGENO FOR THE PETITIONERS AND MR KIPKORIR FOR THE RESPONDENTS CA BUSIENEI
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