Introduction
1. This ruling determines two related interlocutory applications arising from Kisii Constitutional Petition No. E025 of 2025 and Constitutional Petition No. E026 of 2025. Both applications concern the allocation, disbursement, and intended utilisation of the Road Maintenance Fuel Levy Fund allocated to Kisii County and raise substantially , questions on equity, public participation, accountability, public finance and county road works.
2. In Petition No. E025 of 2025, the Petitioners’ Notice of Motion is dated 19th November 2025. In Petition No. E026 of 2025, the Petitioners’ Notice of Motion is dated 21st November 2025. Since the applications arise from the same broad subject matter and seek substantially similar conservatory reliefs, it is convenient, proportionate and consistent with the overriding objective that they be considered together in one ruling.
3. In the first application, the Petitioners seek, in substance, conservatory orders restraining the Respondents from releasing, transferring, appropriating, reallocating, committing, utilising or otherwise dealing with Road Maintenance Fuel Levy Funds alleged to total Kshs. 60,593,540/= allocated to Kisii County. They also seek an order suspending and cancelling the impugned allocation scheme; an order temporarily barring H.E. Paul Simba Arati, the Governor of Kisii County, from accessing county offices, premises, digital systems and records for ninety days; and an order directing the Ethics and Anti-Corruption Commission to file a preliminary status report.
4. In the second application, the Petitioners likewise challenge what they describe as discriminatory allocation and distribution of the 2024/2025 Fuel Levy Fund among Kisii County wards and seek conservatory relief to restrain implementation pending determination of the Petition.
5. The applications are premised on the contention that the allocation of the Road Maintenance Fuel Levy Fund was skewed, irrational, opaque, discriminatory and contrary to Articles 10, 27, 73, 201 and 232 of the Constitution. The Petitioners also complain that the process was not subjected to meaningful public participation and that the County Assembly did not properly debate, interrogate and approve the impugned allocation.
The Petitioners’ Case
6. The Petitioners’ case is that public resources must be allocated and utilised in an open, accountable, equitable and non-discriminatory manner. They argue that the impugned Fuel Levy allocation offends the constitutional principles of public finance under Article 201 and the national values and principles of governance under Article 10 of the Constitution.
7. The Petitioners in Petition No. E025 of 2025 contend that Bobasi Constituency was allocated over Kshs. 21,000,000/= while Bomachoge Chache Constituency allegedly received Kshs. 1,233,000/=. They further contend that Bassi Chache Ward, which they describe as the Governor’s home ward, received approximately Kshs. 8,000,000/= while Bassi Boitangare Ward and several other wards allegedly received no allocation.
8. The Petitioners contend that eighteen wards were excluded from the allocation. They maintain that the pattern of allocation is prima facie discriminatory and politically skewed and that unless the Court intervenes, the funds will be disbursed and utilised in a manner that will render the Petitions nugatory.
9. The Petitioners further submit that public participation is not a technical procedural requirement but a constitutional command. They argue that the public was not given adequate information, reasonable notice or meaningful opportunity to interrogate the allocation and the proposed works before implementation.
10. They therefore urge the Court to preserve the subject matter of the Petitions pending hearing and determination petitions and to prevent implementation of what they describe as an unconstitutional allocation scheme.
The Respondents’ Case
11. The applications are opposed. In Petition No. E025 of 2025, the 1st to 7th Respondents rely on the replying affidavit sworn by Vincent Nyangwara, the Chief Officer of Finance, County Government of Kisii, dated 15th December 2025, written submissions, a list of authorities and supporting documents.
12. The Respondents’ position is that the Petitioners have not established a prima facie case and that several of the orders sought are final in nature and cannot properly issue at an interlocutory stage.
13. The Respondents contend that the budgetary process and allocation of funds are undertaken by the County Government and relevant organs, including the County Assembly, and not by the Governor acting unilaterally.
14. They aver that allocation of Road Maintenance Fuel Levy Funds is not based on equal arithmetical distribution to each ward or constituency. According to them, the allocation is informed by technical and budgetary considerations, including road length, road condition, terrain, population, traffic, usage, urgency, demand, available resources and approved work plans.
15. The Respondents further contend that the County Government prepares work plans and Bills of Quantities, which are submitted to the Kenya Roads Board for evaluation and approval. They state that the Kenya Roads Board reviewed and approved the revised Annual Road Work Plan for Kisii County.
16. The Respondents have placed before the Court a letter from the Kenya Roads Board dated 3rd November 2025 approving the revised Annual Road Work Plan and indicating that the County had addressed the comments earlier raised by the Board. They have also annexed an Annual Road Works Programme showing roads, wards, sections, scope of works and allocations.
17. On public participation, the Respondents contend that the budgetary process was subjected to public participation and County Assembly approval. They rely on public notices, attendance lists and County Assembly Budget and Appropriations Committee documents.
18. They submitted that the orders sought would paralyse road works, disrupt public service delivery, interfere with county functions and invite the Court, at an interlocutory stage, to substitute its view for that of the County Government and the Kenya Roads Board.
19. The 6th Respondent in Petition No. E026 of 2025, the Kenya Roads Board, filed grounds of opposition to the Notice of Motion dated 21st November 2025. The Board states that the Kisii County Government submitted its Annual Roads Work Programme for the year 2025/2026; that the proposed projects were considered and approved in accordance with Section 6 of the Kenya Roads Board Act; and that the work programme and subsequent disbursement enjoy a presumption of legality.
20. The Kenya Roads Board further contends that the Petitioners have not demonstrated any basis for the grant of conservatory orders or shown how the Petition would be rendered nugatory if the orders are declined. It also argues that the orders, if granted, would delay the disbursement and utilisation of funds approved for the maintenance of roads within Kisii County, thereby delaying repairs and maintenance of the road network, contrary to public interest.
21. The Respondents also submit that no sufficient material has been placed before the Court to justify barring the Governor from office or directing the Ethics and Anti-Corruption Commission to file a preliminary status report.
Issues for Determination
22. Having considered the applications, affidavits, grounds of opposition, written submissions, annexures and authorities cited, the following issues arise for determination:
a. Whether the Petitioners have met the threshold for the grant of conservatory orders;
b. Whether the Court should suspend or cancel the impugned Fuel Levy allocation scheme at this interlocutory stage;
c. Whether the Court should temporarily bar the Governor from accessing county offices, premises, systems and records;
d. Whether the Court should compel the Ethics and Anti-Corruption Commission to file a preliminary status report; and
e. What orders should be issued?
Applicable Principles on Conservatory Orders
23. Conservatory orders are public law remedies intended to preserve the substratum of constitutional litigation and to ensure that the eventual determination of the Court is not rendered nugatory. They are not granted as a matter of course merely because a constitutional question has been raised.
24. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that conservatory orders bear a public law connotation and are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and the proportionate magnitude of the prejudice likely to be suffered. The Court emphasised that conservatory relief is not governed purely by private law considerations of irreparable harm but by broader constitutional and public interest considerations.
25. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the Court held that an applicant seeking conservatory orders must demonstrate a prima facie case with a likelihood of success and show that unless the orders are granted, there is real danger that the applicant will suffer prejudice as a result of the violation or threatened violation of the Constitution.
26. Similarly, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, the Court reiterated that conservatory orders are intended to facilitate ordered functioning within public agencies and to uphold adjudicatory authority of the Court in the public interest.
27. The guiding principles emerging from the authorities are therefore that an applicant must demonstrate: first, a prima facie case with a likelihood of success; second, that unless the conservatory order is granted, there is real danger of prejudice or the Petition being rendered nugatory; and third, that public interest and constitutional values favour the grant of the order.
28. The Court must also be careful not to make final findings of fact or law at the interlocutory stage. In Muslim for Human Rights (MUHURI) & 2 Others v Attorney General & 2 Others [2011] eKLR, the Court cautioned that at an interlocutory stage, the Court should avoid making conclusive determinations on contested questions which properly belong to the substantive hearing.
29. Further, courts are slow to grant final or substantially final orders at an interlocutory stage unless exceptional circumstances are demonstrated. In Locabail International Finance Ltd v Agro-Export & Another [1986] 1 All ER 901, it was stated that mandatory interlocutory relief should be granted sparingly and only in very clear cases. In Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] eKLR, the Court of Appeal adopted that restrictive approach and held that a mandatory injunction at an interlocutory stage should issue only in special circumstances and in the clearest of cases.
30. The same caution applies where a party seeks orders that would effectively dispose of the Petition before a full hearing. In Witmore Investment Limited v County Government of Kirinyaga & 3 Others [2016] eKLR, the Court emphasised that where an interim application seeks orders that effectively resolve contested issues with finality, the Court must exercise restraint.
Public Participation, Public Finance and Equity
31. Article 10 of the Constitution binds all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. The values include participation of the people, good governance, transparency, accountability, equity, inclusiveness and non-discrimination.
32. Article 201 of the Constitution sets out the principles of public finance. These include openness, accountability, public participation in financial matters, equitable sharing of the burden and benefits of the use of resources, responsible use of public money, and prudent and responsible financial management.
33. Public participation is therefore not a procedural ornament. It is a constitutional requirement. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, the Supreme Court stated that public participation must be real and not illusory; it must be purposive and must afford the public a reasonable opportunity to know about the issue and to have an adequate say.
34. In Doctors for Life International v Speaker of the National Assembly & Others [2006] ZACC 11, the Constitutional Court of South Africa held that the duty to facilitate public involvement requires reasonable measures to ensure that the public has an opportunity to participate in the law-making process. That authority has been cited with approval by Kenyan courts.
35. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be qualitative and not merely quantitative. The public must be accorded a reasonable opportunity to participate, and the process must not be reduced to a cosmetic exercise.
36. However, what amounts to public participation depends on the circumstances of each case . It does not require that every individual member of the public must be heard, nor does it require that the views given must prevail. What the Constitution requires is a reasonable, meaningful and inclusive opportunity to participate.
37. On equity, Article 201 of the Constitution provides for equitable sharing of the resources in the country . The said Article does not necessarily require equal arithmetical distribution of resources to every ward or constituency. Equity may, depending on the evidence, require differentiated allocation based on need, urgency, population, road length, road condition, terrain, traffic volume and available resources. Equality and equity are related but not identical concepts.
38. Article 27 of the Constitution prohibits discrimination. However, not every differential treatment amounts to unconstitutional discrimination. The question is whether the differential treatment is irrational, unjustifiable, arbitrary or based on a prohibited ground or illegitimate purpose. That determination is intensely fact-sensitive and normally requires a full evidentiary interrogation.
Analysis
39. The Petitions raise serious constitutional questions touching on equitable allocation of public resources, meaningful public participation, legality of county budgetary implementation, accountability in public finance and the constitutional values that govern county administration. However, the existence of serious or arguable constitutional questions does not automatically entitle a party to conservatory relief. The Petitioners must go further and demonstrate that the impugned action is so plainly unconstitutional, irrational or unlawful that preservation by way of conservatory orders is necessary pending hearing of the Petitions. The Petitioners main complaint is that the allocation is discriminatory because some areas received more funds than others while some wards allegedly received no allocation. The Respondents have answered that contention by stating that Road Maintenance Fuel Levy allocations are not distributed equally by ward, but are informed by technical and budgetary considerations including road condition, road length, terrain, population, traffic, usage, urgency and approved work plans.
40. At this interlocutory stage, the Court cannot conclude, without a full hearing, that unequal allocation is necessarily unconstitutional. Article 201 of the Constitution requires equity. It does not invariably command equal distribution in arithmetical terms. Equity may require consideration of need, terrain, population, urgency, road condition, available resources and technical prioritisation.
41. The Respondents have also placed before the Court material indicating that the Annual Road Work Plan was submitted to and approved by the Kenya Roads Board. The letter of approval dated 3rd November 2025 states that the Board had reviewed the work plan, noted that the County had addressed the comments raised, and authorised implementation of the approved works.
42. The Kenya Roads Board, in Petition No. E026 of 2025 has taken the further position that the County’s Annual Roads Work Programme was considered and approved in accordance with section 6 of the Kenya Roads Board Act and that the work programme and subsequent disbursement enjoy a presumption of legality.
43. That approval does not, by itself, immunise the process from constitutional scrutiny. The Constitution is the supreme law under Article 2, and all State organs and public bodies remain bound by constitutional values and principles. Technical approval by the Kenya Roads Board cannot cure a process that is ultimately shown to be unconstitutional.
44. However, the approval is relevant at the interlocutory stage because it weakens the contention that the allocation was a unilateral, arbitrary or wholly private act of the Governor or any single county official. It suggests, at least prima facie, that the allocation was subjected to some statutory and technical process.
45. The Respondents have further exhibited an Annual Road Works Programme showing identified road sections, scope of works and allocated sums. The material suggests, at least prima facie, that the funds are tied to specific road works and not merely to general political allocations. Whether the selection of those roads and works was constitutionally compliant remains a matter for the substantive hearing.
46. The Petitioners also allege lack of public participation. Public participation is a constitutional imperative under Articles 10, 174, 196 and 201 of the Constitution. As stated in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, public participation must be meaningful, reasonable and effective. It must not be a mere formality. The Respondents have placed before the Court public notices, attendance sheets and County Assembly Budget and Appropriations Committee documents suggesting that the budget estimates and supplementary budget process were subjected to public participation and County Assembly consideration.
47. Whether that participation met the constitutional threshold is a matter that requires deeper interrogation at the main hearing of the Petitions. The Court will have to consider the adequacy of notice, the information supplied to the public, the nature of the meetings, the affected persons or wards, the relationship between the public participation material and the impugned road works, and whether the views received were considered.
48 At this stage, I am not persuaded that the Petitioners have demonstrated, on a prima facie basis, a complete absence of public participation sufficient to justify freezing the entire allocation.
49. I have also considered the nature of the prayers sought. The prayer restraining release, transfer, appropriation, reallocation, commitment, utilisation or other dealing with the Fuel Levy Funds would have the immediate effect of freezing county road maintenance works. The prayer seeking suspension and cancellation of the allocation scheme is substantially final in nature because cancellation would determine a core relief sought in the Petitions before hearing.
50. The Court must also weigh the public interest viz a vis the grant of conservatory orders sought as was held in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, The funds in issue are for road maintenance, repair and related public works within Kisii County . Freezing the entire allocation may disrupt public works and service delivery in Kisii county . The financial year 2025/ 2026 is also coming to an end on 30.6.26 and there is a risk of the authourity to spend under this years appropriation lapsing if the monies are not spent before 30.6.26.
51. The Kenya Roads Board has expressly raised the concern that conservatory orders would delay disbursement and utilisation of funds approved for maintenance of roads within Kisii County, thereby delaying repairs and maintenance of the road network.
52. The Petitioners have not demonstrated that the alleged prejudice to them outweighs the public interest in continuation of approved road works pending determination of the Petitions. Nor have they shown that the Petitions will be rendered nugatory if conservatory relief is declined.
53. If the Petitioners ultimately establish that the allocation, approval or implementation of the Fuel Levy Fund was unconstitutional, this Court retains jurisdiction under Article 23 of the Constitution to grant appropriate relief, including declarations, quashing orders, corrective orders, supervisory orders, structural interdicts and any other relief in the interest of justice , The availability of such remedies weakens the argument that only an immediate freeze of the funds can preserve the Petitions.
Prayer to Bar the Governor from Office, Premises and Systems
54. The prayer seeking to bar the Governor from accessing county offices, premises, digital systems and records for ninety days is drastic. It would temporarily disable an elected Governor from accessing county offices and systems without any pending criminal charge, investigative application, recommendation or formal process by the relevant constitutional or statutory body.
55. This court has taken note of the allegations of corruption, abuse of office, interference with records or misuse of public resources. However, serious allegations must be supported by cogent evidence. The Court has not been shown specific material demonstrating actual interference with evidence, imminent tampering with records, obstruction of investigations, intimidation of witnesses, or any request by the Ethics and Anti-Corruption Commission that the Governor be barred from office or access to county systems.
56. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal cautioned that courts must avoid descending into factual determinations reserved for constitutionally mandated bodies unless a proper legal foundation has been laid. While courts retain the power to intervene where constitutional violations are shown, that power must be exercised with institutional restraint.
57.The Court must be careful not to convert an interlocutory constitutional application into a supervisory mechanism over investigative agencies or county executive offices without sufficient legal and evidential foundation.
58. I therefore find that the threshold for an order barring the Governor from county offices, premises, digital systems and records has not been met.
Prayer for EACC Status Report
59. On the prayer requiring the Ethics and Anti-Corruption Commission to file a preliminary status report, the Ethics and Anti-Corruption Commission is a constitutional and statutory body with independence in the manner it receives, evaluates and investigates complaints. The Court may intervene where there is a demonstrated failure to perform a legal duty, abuse of power, irrationality, bad faith, or violation of the Constitution. No sufficient basis has been laid to warrant compelling the Interested Party to take a particular investigative step at this stage. To compel EACC to file a preliminary investigative report in the present circumstances would risk drawing the Court into the operational domain of an independent investigative body without a demonstrated constitutional or statutory basis.
Conclusion
61.In the final analysis, the Petitions raise arguable and serious constitutional questions fit for hearing on their merits. However, the Petitioners have not satisfied the threshold for grant of the conservatory, mandatory and substantially final orders sought.
62. The Court is not persuaded, at this interlocutory stage, that the impugned allocation is so plainly unconstitutional, irrational or unlawful as to justify freezing the entire Road Maintenance Fuel Levy allocation pending hearing of the Petitions.
64. The Court is also not persuaded that the Petitioners have demonstrated real danger that the Petitions will be rendered nugatory if the conservatory orders are declined. Public interest, on the material presently before the Court, weighs against freezing funds meant for road maintenance and related public works.
65. The most proportionate course is to decline the interlocutory orders sought but direct that the Petitions be heard on a priority basis.
Disposition
66. The Notice of Motion dated 19th November 2025 in Constitutional Petition No. E025 of 2025 and the Notice of Motion dated 21st November 2025 in Constitutional Petition No. E026 of 2025 are not merited.
67. Accordingly, I make the following orders:
a. The prayer for conservatory orders restraining the Respondents from releasing, transferring, appropriating, reallocating, committing, utilising or otherwise dealing with the Road Maintenance Fuel Levy Funds allocated to Kisii County is declined.
b. The prayer seeking suspension and cancellation of the impugned Fuel Levy allocation scheme is declined.
c. The prayer seeking to temporarily bar H.E. Paul Simba Arati, Governor of Kisii County, from accessing county offices, premises, digital systems and records for ninety days is declined.
d. The prayer seeking to compel the Ethics and Anti-Corruption Commission to file a preliminary status report is declined.
e. The Notice of Motion dated 19th November 2025 in Constitutional Petition No. E025 of 2025 is dismissed.
f. The Notice of Motion dated 21st November 2025 in Constitutional Petition No. E026 of 2025 is dismissed.
g. Since that the Petitions raise public interest questions touching on public finance, equity, public participation and county governance, costs of the two applications shall abide the outcome of the Petitions.
h. Constitutional Petitions No. E025 and E026 of 2025 shall be placed before Hon Justice (Prof) on 23.6.26 for directions on hearing of the main petitions .
68. Orders accordingly.
T.A ODERA
JUDGE
28.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF MAY IN THE PRESENCE OF MISS OMUSI HOLDING BREIF GOR MISS OLOO FOR THE PETITIONER IN E026 OF 2025 , MISS MUMA HOLDING BRIEF FOR MR ONSERIO FOR 1ST AND SECOND RESPONDENTS , MR .OCHIENG OGINGA FOR ALL RESPONDENTS (IN PET E025 OF 2025 AND 3RD TO 6TH RESPONDENTS IN PETITION No E026 of 2026 . MISS WANJUKU HOLDING BRIEF FOR MR ISSA FOR THE 6TH RESPONDENT IN PETITION NO. E026 OF 2025 & CA- BUSIENEI
Miss Wanjuki : we seek leave of 14 days TO file our substantive response .
Muma : We also seek 14 days to confirm compliance and response to the main petition.
Order : Leave to file responses within 14 days is granted.
T.A ODERA
JUDGE
28.5.26
Wanja : I seek a copy of the ruling.
Court : The same will be posted today.
T.A ODERA
JUDGE
28.5.26
1. This ruling determines two related interlocutory applications arising from Kisii Constitutional Petition No. E025 of 2025 and Constitutional Petition No. E026 of 2025. Both applications concern the allocation, disbursement, and intended utilisation of the Road Maintenance Fuel Levy Fund allocated to Kisii County and raise substantially , questions on equity, public participation, accountability, public finance and county road works.
2. In Petition No. E025 of 2025, the Petitioners’ Notice of Motion is dated 19th November 2025. In Petition No. E026 of 2025, the Petitioners’ Notice of Motion is dated 21st November 2025. Since the applications arise from the same broad subject matter and seek substantially similar conservatory reliefs, it is convenient, proportionate and consistent with the overriding objective that they be considered together in one ruling.
3. In the first application, the Petitioners seek, in substance, conservatory orders restraining the Respondents from releasing, transferring, appropriating, reallocating, committing, utilising or otherwise dealing with Road Maintenance Fuel Levy Funds alleged to total Kshs. 60,593,540/= allocated to Kisii County. They also seek an order suspending and cancelling the impugned allocation scheme; an order temporarily barring H.E. Paul Simba Arati, the Governor of Kisii County, from accessing county offices, premises, digital systems and records for ninety days; and an order directing the Ethics and Anti-Corruption Commission to file a preliminary status report.
4. In the second application, the Petitioners likewise challenge what they describe as discriminatory allocation and distribution of the 2024/2025 Fuel Levy Fund among Kisii County wards and seek conservatory relief to restrain implementation pending determination of the Petition.
5. The applications are premised on the contention that the allocation of the Road Maintenance Fuel Levy Fund was skewed, irrational, opaque, discriminatory and contrary to Articles 10, 27, 73, 201 and 232 of the Constitution. The Petitioners also complain that the process was not subjected to meaningful public participation and that the County Assembly did not properly debate, interrogate and approve the impugned allocation.
The Petitioners’ Case
6. The Petitioners’ case is that public resources must be allocated and utilised in an open, accountable, equitable and non-discriminatory manner. They argue that the impugned Fuel Levy allocation offends the constitutional principles of public finance under Article 201 and the national values and principles of governance under Article 10 of the Constitution.
7. The Petitioners in Petition No. E025 of 2025 contend that Bobasi Constituency was allocated over Kshs. 21,000,000/= while Bomachoge Chache Constituency allegedly received Kshs. 1,233,000/=. They further contend that Bassi Chache Ward, which they describe as the Governor’s home ward, received approximately Kshs. 8,000,000/= while Bassi Boitangare Ward and several other wards allegedly received no allocation.
8. The Petitioners contend that eighteen wards were excluded from the allocation. They maintain that the pattern of allocation is prima facie discriminatory and politically skewed and that unless the Court intervenes, the funds will be disbursed and utilised in a manner that will render the Petitions nugatory.
9. The Petitioners further submit that public participation is not a technical procedural requirement but a constitutional command. They argue that the public was not given adequate information, reasonable notice or meaningful opportunity to interrogate the allocation and the proposed works before implementation.
10. They therefore urge the Court to preserve the subject matter of the Petitions pending hearing and determination petitions and to prevent implementation of what they describe as an unconstitutional allocation scheme.
The Respondents’ Case
11. The applications are opposed. In Petition No. E025 of 2025, the 1st to 7th Respondents rely on the replying affidavit sworn by Vincent Nyangwara, the Chief Officer of Finance, County Government of Kisii, dated 15th December 2025, written submissions, a list of authorities and supporting documents.
12. The Respondents’ position is that the Petitioners have not established a prima facie case and that several of the orders sought are final in nature and cannot properly issue at an interlocutory stage.
13. The Respondents contend that the budgetary process and allocation of funds are undertaken by the County Government and relevant organs, including the County Assembly, and not by the Governor acting unilaterally.
14. They aver that allocation of Road Maintenance Fuel Levy Funds is not based on equal arithmetical distribution to each ward or constituency. According to them, the allocation is informed by technical and budgetary considerations, including road length, road condition, terrain, population, traffic, usage, urgency, demand, available resources and approved work plans.
15. The Respondents further contend that the County Government prepares work plans and Bills of Quantities, which are submitted to the Kenya Roads Board for evaluation and approval. They state that the Kenya Roads Board reviewed and approved the revised Annual Road Work Plan for Kisii County.
16. The Respondents have placed before the Court a letter from the Kenya Roads Board dated 3rd November 2025 approving the revised Annual Road Work Plan and indicating that the County had addressed the comments earlier raised by the Board. They have also annexed an Annual Road Works Programme showing roads, wards, sections, scope of works and allocations.
17. On public participation, the Respondents contend that the budgetary process was subjected to public participation and County Assembly approval. They rely on public notices, attendance lists and County Assembly Budget and Appropriations Committee documents.
18. They submitted that the orders sought would paralyse road works, disrupt public service delivery, interfere with county functions and invite the Court, at an interlocutory stage, to substitute its view for that of the County Government and the Kenya Roads Board.
19. The 6th Respondent in Petition No. E026 of 2025, the Kenya Roads Board, filed grounds of opposition to the Notice of Motion dated 21st November 2025. The Board states that the Kisii County Government submitted its Annual Roads Work Programme for the year 2025/2026; that the proposed projects were considered and approved in accordance with Section 6 of the Kenya Roads Board Act; and that the work programme and subsequent disbursement enjoy a presumption of legality.
20. The Kenya Roads Board further contends that the Petitioners have not demonstrated any basis for the grant of conservatory orders or shown how the Petition would be rendered nugatory if the orders are declined. It also argues that the orders, if granted, would delay the disbursement and utilisation of funds approved for the maintenance of roads within Kisii County, thereby delaying repairs and maintenance of the road network, contrary to public interest.
21. The Respondents also submit that no sufficient material has been placed before the Court to justify barring the Governor from office or directing the Ethics and Anti-Corruption Commission to file a preliminary status report.
Issues for Determination
22. Having considered the applications, affidavits, grounds of opposition, written submissions, annexures and authorities cited, the following issues arise for determination:
a. Whether the Petitioners have met the threshold for the grant of conservatory orders;
b. Whether the Court should suspend or cancel the impugned Fuel Levy allocation scheme at this interlocutory stage;
c. Whether the Court should temporarily bar the Governor from accessing county offices, premises, systems and records;
d. Whether the Court should compel the Ethics and Anti-Corruption Commission to file a preliminary status report; and
e. What orders should be issued?
Applicable Principles on Conservatory Orders
23. Conservatory orders are public law remedies intended to preserve the substratum of constitutional litigation and to ensure that the eventual determination of the Court is not rendered nugatory. They are not granted as a matter of course merely because a constitutional question has been raised.
24. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that conservatory orders bear a public law connotation and are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and the proportionate magnitude of the prejudice likely to be suffered. The Court emphasised that conservatory relief is not governed purely by private law considerations of irreparable harm but by broader constitutional and public interest considerations.
25. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the Court held that an applicant seeking conservatory orders must demonstrate a prima facie case with a likelihood of success and show that unless the orders are granted, there is real danger that the applicant will suffer prejudice as a result of the violation or threatened violation of the Constitution.
26. Similarly, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, the Court reiterated that conservatory orders are intended to facilitate ordered functioning within public agencies and to uphold adjudicatory authority of the Court in the public interest.
27. The guiding principles emerging from the authorities are therefore that an applicant must demonstrate: first, a prima facie case with a likelihood of success; second, that unless the conservatory order is granted, there is real danger of prejudice or the Petition being rendered nugatory; and third, that public interest and constitutional values favour the grant of the order.
28. The Court must also be careful not to make final findings of fact or law at the interlocutory stage. In Muslim for Human Rights (MUHURI) & 2 Others v Attorney General & 2 Others [2011] eKLR, the Court cautioned that at an interlocutory stage, the Court should avoid making conclusive determinations on contested questions which properly belong to the substantive hearing.
29. Further, courts are slow to grant final or substantially final orders at an interlocutory stage unless exceptional circumstances are demonstrated. In Locabail International Finance Ltd v Agro-Export & Another [1986] 1 All ER 901, it was stated that mandatory interlocutory relief should be granted sparingly and only in very clear cases. In Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] eKLR, the Court of Appeal adopted that restrictive approach and held that a mandatory injunction at an interlocutory stage should issue only in special circumstances and in the clearest of cases.
30. The same caution applies where a party seeks orders that would effectively dispose of the Petition before a full hearing. In Witmore Investment Limited v County Government of Kirinyaga & 3 Others [2016] eKLR, the Court emphasised that where an interim application seeks orders that effectively resolve contested issues with finality, the Court must exercise restraint.
Public Participation, Public Finance and Equity
31. Article 10 of the Constitution binds all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. The values include participation of the people, good governance, transparency, accountability, equity, inclusiveness and non-discrimination.
32. Article 201 of the Constitution sets out the principles of public finance. These include openness, accountability, public participation in financial matters, equitable sharing of the burden and benefits of the use of resources, responsible use of public money, and prudent and responsible financial management.
33. Public participation is therefore not a procedural ornament. It is a constitutional requirement. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, the Supreme Court stated that public participation must be real and not illusory; it must be purposive and must afford the public a reasonable opportunity to know about the issue and to have an adequate say.
34. In Doctors for Life International v Speaker of the National Assembly & Others [2006] ZACC 11, the Constitutional Court of South Africa held that the duty to facilitate public involvement requires reasonable measures to ensure that the public has an opportunity to participate in the law-making process. That authority has been cited with approval by Kenyan courts.
35. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be qualitative and not merely quantitative. The public must be accorded a reasonable opportunity to participate, and the process must not be reduced to a cosmetic exercise.
36. However, what amounts to public participation depends on the circumstances of each case . It does not require that every individual member of the public must be heard, nor does it require that the views given must prevail. What the Constitution requires is a reasonable, meaningful and inclusive opportunity to participate.
37. On equity, Article 201 of the Constitution provides for equitable sharing of the resources in the country . The said Article does not necessarily require equal arithmetical distribution of resources to every ward or constituency. Equity may, depending on the evidence, require differentiated allocation based on need, urgency, population, road length, road condition, terrain, traffic volume and available resources. Equality and equity are related but not identical concepts.
38. Article 27 of the Constitution prohibits discrimination. However, not every differential treatment amounts to unconstitutional discrimination. The question is whether the differential treatment is irrational, unjustifiable, arbitrary or based on a prohibited ground or illegitimate purpose. That determination is intensely fact-sensitive and normally requires a full evidentiary interrogation.
Analysis
39. The Petitions raise serious constitutional questions touching on equitable allocation of public resources, meaningful public participation, legality of county budgetary implementation, accountability in public finance and the constitutional values that govern county administration. However, the existence of serious or arguable constitutional questions does not automatically entitle a party to conservatory relief. The Petitioners must go further and demonstrate that the impugned action is so plainly unconstitutional, irrational or unlawful that preservation by way of conservatory orders is necessary pending hearing of the Petitions. The Petitioners main complaint is that the allocation is discriminatory because some areas received more funds than others while some wards allegedly received no allocation. The Respondents have answered that contention by stating that Road Maintenance Fuel Levy allocations are not distributed equally by ward, but are informed by technical and budgetary considerations including road condition, road length, terrain, population, traffic, usage, urgency and approved work plans.
40. At this interlocutory stage, the Court cannot conclude, without a full hearing, that unequal allocation is necessarily unconstitutional. Article 201 of the Constitution requires equity. It does not invariably command equal distribution in arithmetical terms. Equity may require consideration of need, terrain, population, urgency, road condition, available resources and technical prioritisation.
41. The Respondents have also placed before the Court material indicating that the Annual Road Work Plan was submitted to and approved by the Kenya Roads Board. The letter of approval dated 3rd November 2025 states that the Board had reviewed the work plan, noted that the County had addressed the comments raised, and authorised implementation of the approved works.
42. The Kenya Roads Board, in Petition No. E026 of 2025 has taken the further position that the County’s Annual Roads Work Programme was considered and approved in accordance with section 6 of the Kenya Roads Board Act and that the work programme and subsequent disbursement enjoy a presumption of legality.
43. That approval does not, by itself, immunise the process from constitutional scrutiny. The Constitution is the supreme law under Article 2, and all State organs and public bodies remain bound by constitutional values and principles. Technical approval by the Kenya Roads Board cannot cure a process that is ultimately shown to be unconstitutional.
44. However, the approval is relevant at the interlocutory stage because it weakens the contention that the allocation was a unilateral, arbitrary or wholly private act of the Governor or any single county official. It suggests, at least prima facie, that the allocation was subjected to some statutory and technical process.
45. The Respondents have further exhibited an Annual Road Works Programme showing identified road sections, scope of works and allocated sums. The material suggests, at least prima facie, that the funds are tied to specific road works and not merely to general political allocations. Whether the selection of those roads and works was constitutionally compliant remains a matter for the substantive hearing.
46. The Petitioners also allege lack of public participation. Public participation is a constitutional imperative under Articles 10, 174, 196 and 201 of the Constitution. As stated in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, public participation must be meaningful, reasonable and effective. It must not be a mere formality. The Respondents have placed before the Court public notices, attendance sheets and County Assembly Budget and Appropriations Committee documents suggesting that the budget estimates and supplementary budget process were subjected to public participation and County Assembly consideration.
47. Whether that participation met the constitutional threshold is a matter that requires deeper interrogation at the main hearing of the Petitions. The Court will have to consider the adequacy of notice, the information supplied to the public, the nature of the meetings, the affected persons or wards, the relationship between the public participation material and the impugned road works, and whether the views received were considered.
48 At this stage, I am not persuaded that the Petitioners have demonstrated, on a prima facie basis, a complete absence of public participation sufficient to justify freezing the entire allocation.
49. I have also considered the nature of the prayers sought. The prayer restraining release, transfer, appropriation, reallocation, commitment, utilisation or other dealing with the Fuel Levy Funds would have the immediate effect of freezing county road maintenance works. The prayer seeking suspension and cancellation of the allocation scheme is substantially final in nature because cancellation would determine a core relief sought in the Petitions before hearing.
50. The Court must also weigh the public interest viz a vis the grant of conservatory orders sought as was held in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, The funds in issue are for road maintenance, repair and related public works within Kisii County . Freezing the entire allocation may disrupt public works and service delivery in Kisii county . The financial year 2025/ 2026 is also coming to an end on 30.6.26 and there is a risk of the authourity to spend under this years appropriation lapsing if the monies are not spent before 30.6.26.
51. The Kenya Roads Board has expressly raised the concern that conservatory orders would delay disbursement and utilisation of funds approved for maintenance of roads within Kisii County, thereby delaying repairs and maintenance of the road network.
52. The Petitioners have not demonstrated that the alleged prejudice to them outweighs the public interest in continuation of approved road works pending determination of the Petitions. Nor have they shown that the Petitions will be rendered nugatory if conservatory relief is declined.
53. If the Petitioners ultimately establish that the allocation, approval or implementation of the Fuel Levy Fund was unconstitutional, this Court retains jurisdiction under Article 23 of the Constitution to grant appropriate relief, including declarations, quashing orders, corrective orders, supervisory orders, structural interdicts and any other relief in the interest of justice , The availability of such remedies weakens the argument that only an immediate freeze of the funds can preserve the Petitions.
Prayer to Bar the Governor from Office, Premises and Systems
54. The prayer seeking to bar the Governor from accessing county offices, premises, digital systems and records for ninety days is drastic. It would temporarily disable an elected Governor from accessing county offices and systems without any pending criminal charge, investigative application, recommendation or formal process by the relevant constitutional or statutory body.
55. This court has taken note of the allegations of corruption, abuse of office, interference with records or misuse of public resources. However, serious allegations must be supported by cogent evidence. The Court has not been shown specific material demonstrating actual interference with evidence, imminent tampering with records, obstruction of investigations, intimidation of witnesses, or any request by the Ethics and Anti-Corruption Commission that the Governor be barred from office or access to county systems.
56. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal cautioned that courts must avoid descending into factual determinations reserved for constitutionally mandated bodies unless a proper legal foundation has been laid. While courts retain the power to intervene where constitutional violations are shown, that power must be exercised with institutional restraint.
57.The Court must be careful not to convert an interlocutory constitutional application into a supervisory mechanism over investigative agencies or county executive offices without sufficient legal and evidential foundation.
58. I therefore find that the threshold for an order barring the Governor from county offices, premises, digital systems and records has not been met.
Prayer for EACC Status Report
59. On the prayer requiring the Ethics and Anti-Corruption Commission to file a preliminary status report, the Ethics and Anti-Corruption Commission is a constitutional and statutory body with independence in the manner it receives, evaluates and investigates complaints. The Court may intervene where there is a demonstrated failure to perform a legal duty, abuse of power, irrationality, bad faith, or violation of the Constitution. No sufficient basis has been laid to warrant compelling the Interested Party to take a particular investigative step at this stage. To compel EACC to file a preliminary investigative report in the present circumstances would risk drawing the Court into the operational domain of an independent investigative body without a demonstrated constitutional or statutory basis.
Conclusion
61.In the final analysis, the Petitions raise arguable and serious constitutional questions fit for hearing on their merits. However, the Petitioners have not satisfied the threshold for grant of the conservatory, mandatory and substantially final orders sought.
62. The Court is not persuaded, at this interlocutory stage, that the impugned allocation is so plainly unconstitutional, irrational or unlawful as to justify freezing the entire Road Maintenance Fuel Levy allocation pending hearing of the Petitions.
64. The Court is also not persuaded that the Petitioners have demonstrated real danger that the Petitions will be rendered nugatory if the conservatory orders are declined. Public interest, on the material presently before the Court, weighs against freezing funds meant for road maintenance and related public works.
65. The most proportionate course is to decline the interlocutory orders sought but direct that the Petitions be heard on a priority basis.
Disposition
66. The Notice of Motion dated 19th November 2025 in Constitutional Petition No. E025 of 2025 and the Notice of Motion dated 21st November 2025 in Constitutional Petition No. E026 of 2025 are not merited.
67. Accordingly, I make the following orders:
a. The prayer for conservatory orders restraining the Respondents from releasing, transferring, appropriating, reallocating, committing, utilising or otherwise dealing with the Road Maintenance Fuel Levy Funds allocated to Kisii County is declined.
b. The prayer seeking suspension and cancellation of the impugned Fuel Levy allocation scheme is declined.
c. The prayer seeking to temporarily bar H.E. Paul Simba Arati, Governor of Kisii County, from accessing county offices, premises, digital systems and records for ninety days is declined.
d. The prayer seeking to compel the Ethics and Anti-Corruption Commission to file a preliminary status report is declined.
e. The Notice of Motion dated 19th November 2025 in Constitutional Petition No. E025 of 2025 is dismissed.
f. The Notice of Motion dated 21st November 2025 in Constitutional Petition No. E026 of 2025 is dismissed.
g. Since that the Petitions raise public interest questions touching on public finance, equity, public participation and county governance, costs of the two applications shall abide the outcome of the Petitions.
h. Constitutional Petitions No. E025 and E026 of 2025 shall be placed before Hon Justice (Prof) on 23.6.26 for directions on hearing of the main petitions .
68. Orders accordingly.
T.A ODERA
JUDGE
28.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF MAY IN THE PRESENCE OF MISS OMUSI HOLDING BREIF GOR MISS OLOO FOR THE PETITIONER IN E026 OF 2025 , MISS MUMA HOLDING BRIEF FOR MR ONSERIO FOR 1ST AND SECOND RESPONDENTS , MR .OCHIENG OGINGA FOR ALL RESPONDENTS (IN PET E025 OF 2025 AND 3RD TO 6TH RESPONDENTS IN PETITION No E026 of 2026 . MISS WANJUKU HOLDING BRIEF FOR MR ISSA FOR THE 6TH RESPONDENT IN PETITION NO. E026 OF 2025 & CA- BUSIENEI
Miss Wanjuki : we seek leave of 14 days TO file our substantive response .
Muma : We also seek 14 days to confirm compliance and response to the main petition.
Order : Leave to file responses within 14 days is granted.
T.A ODERA
JUDGE
28.5.26
Wanja : I seek a copy of the ruling.
Court : The same will be posted today.
T.A ODERA
JUDGE
28.5.26