Introduction
1. Before this Court are Notice of Motion Applications dated 16th February 2026 and 23rd February 2026. These applications arise from a constitutional challenge to the manner in which the Respondent purported to appoint the 2nd Interested Party as Registrar of Companies and, separately, to appoint Ms Beatrice Osicho as Acting Official Receiver in Insolvency. In a nutshell, the Petitioner's case is that both appointments were made in exercise of powers reserved exclusively to a Cabinet Secretary by section 831(2) of the Companies Act, 2015, and section 701(1) of the Insolvency Act, 2015, an office which the Respondent does not hold and may not assume.
2. The dispute first came before this Court ex parte, resulting in conservatory orders being issued on 18th February 2026, staying the impugned appointments and restraining the Respondent from exercising the powers of a Cabinet Secretary under the two statutes, pending the hearing and determination of the Petitioner's Notice of Motion Application dated 16th February 2026. Dissatisfied with those orders, the Respondent moved the Court to discharge them on the twin grounds that the constitutional threshold for their grant was never met and that they were procured by material non-disclosure of fact and law.
3. The two applications were, with the parties’ concurrence, canvassed together through written submissions and oral highlights. Both turn substantially on a common constitutional question: is the Respondent a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution of Kenya, 2010? If not, could the Respondent lawfully exercise the impugned appointive powers by virtue of the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2)?
The Applications
4. The Petitioner’s Application dated 16th February 2026 was brought under Articles 1, 2, 3, 10, 73, 152, 153, 156, 258 and 259 of the Constitution of Kenya,2010, section 701 of the Insolvency Act, and section 831 of the Companies Act, and sought the following orders:
1. Spent;
2. Spent;
3. Spent;
4. THAT pending the hearing and determination of the Petition herein, the Honourable Court be pleased to issue a conservatory order staying the impugned appointments by the Respondent made vide the letters dated 27th March 2025 and 5th September 2025 and Gazette Notice No. 15747 dated 25th October 2025;
5. THAT pending the hearing and determination of the Petition herein, the Honourable Court be pleased to issue a conservatory order restraining the Respondent from purporting to exercise the powers of a Cabinet Secretary under section 701(1) of the Insolvency Act, 2015 and section 831(2) of the Companies Act, 2015; and
6. THAT costs of this Application be provided for.
5. The Application was supported by the Petitioner's Supporting Affidavit dated 16th February 2026. The gravamen of the affidavit is that the constitutional distinction between the Attorney-General and a Cabinet Secretary is settled by this Court and the Court of Appeal in Attorney General v Bala (Civil Appeal 223 of 2017) [2023] KECA 117; that the appointments were accordingly made without jurisdiction; and that unless restrained, the Respondent's continued assumption of Cabinet Secretarial power would cause irreparable disruption to the operations of the 1st Interested Party.
6. The Application was placed before the duty judge, and on 18th February 2026 the Petitioner was heard ex parte by the Honourable Mr Justice Bahati Mwamuye, MBS, who granted the conservatory orders sought and gave directions on the Application.
7. Dissatisfied with the ex parte orders, the Respondent filed a Notice of Motion Application dated 23rd February 2026, brought under Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking the following orders:
1. Spent;
2. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the orders issued on the 18th day of February 2026; and
3. THAT this Honourable Court be pleased to set aside, vary and/or discharge the ex-parte orders issued on the 18th day of February, 2026.
8. The application was supported by the supporting affidavit deposed to by Charles Mutinda, State Counsel, on the same date as the application. The grounds on the face of the application were that the ex parte orders were made per incuriam and obtained through material non-disclosure, and ought to be set aside ex debito justitiae; that the appointees had already assumed office and discharged their mandates for a material period (over four months in the 2nd interested Party’s case) before the orders were issued, such that the orders had, in effect, nullified subsisting appointments without affording the appointees a hearing; that conservatory orders do not undo completed administrative acts; and that the ex parte orders were affecting service delivery to the public and offended the presumption of regularity of official acts.
The Responses
9. In response to the Notice of Motion application dated 16th February 2026, the Respondent filed a Replying Affidavit, sworn by Charles Mutinda on 31st March 2026. Its core averments were that section 2(b) of the Companies (Amendment) Act No. 28 of 2017 placed the Attorney-General in charge of the administration of the Companies Act by substituting a new definition of "Attorney-General" for the former definition of "Cabinet Secretary" in section 3 of the principal Act; that Executive Order No. 1 of 2025, issued under Articles 132(3)(b) and 156(4)(c) of the Constitution of Kenya, 2010, assigned to the State Law Office functions relating to the national registry systems for companies, partnerships and business names, and the function of Official Receiver in insolvency proceedings, such that the Business Registration Service and the Official Receiver's office now fall under the Respondent.
10. The averments in the affidavit were that section 3 of the Interpretation and General Provisions Act (Cap 2 of the Laws of Kenya) provides that where no Cabinet Secretary is assigned responsibility for matters relating to the legal sector, the Attorney-General shall be responsible for the matter in question; and that the appointments were accordingly lawful. In the alternative, the Respondent deposed that the Petitioner had not met the threshold set out in Gatirau Peter Munya v Dickson Mwenda Kithinji (2014) eKLR for the grant of conservatory orders, that no prima facie case or real prejudice had been demonstrated, that the orders offended the presumption of regularity, and that discharging them would be in the public interest given the disruption occasioned to two public offices in issue in the Petition herein.
11. The 1st Interested Party, the Business Registration Service, filed a Replying Affidavit deponed to by its Director General, Kenneth Gathuma, on 25th February 2026. It deposed to the statutory mandate of the Service under the Business Registration Service Act (Cap 499B); set out sections 831 of the Companies Act and 701 of the Insolvency Act in full, both of which vest the impugned appointive powers in "the Cabinet Secretary"; and deposed that under section 7 of the Business Registration Service Act the Board of the Service is vested with the function of appointing, training, disciplining and removing staff of the Service, and that under the Service's Human Resource Policy and Procedures Manual approved in 2017, the authority to appoint employees is vested in the Board, delegable only in accordance with the specific requirements set out in that policy.
12. The 1st Interested Party did not depose in support of either the grant or the discharge of the conservatory orders in terms, but its evidence, on its face, corroborates the Petitioner's contention that appointive authority over the offices in question does not, as a matter of the governing statutory architecture, repose in the Respondent.
13. The Petitioner swore a Replying Affidavit on 24th March 2026 in which he adopted the contents of the 1st Interested Party's Replying Affidavit as true, and set out, section by section, the provisions of the Companies Act, 2015 and the Insolvency Act, 2015 that separately and consistently address the Attorney-General and the Cabinet Secretary as distinct offices performing distinct, non-overlapping functions, invoking the interpretive maxim verba cum effectu accipienda sunt.
14. He deposed that the Companies (Amendment) Act, 2017 amended only the definitions section of the Companies Act and did not touch a single substantive appointive provision; that the Respondent's own Gazette Notice No. 15747 expressly invokes section 831(2) of the Companies Act, which vests appointive power in "the Cabinet Secretary," an office the Respondent does not hold; that the constitutionally correct course, where no Cabinet Secretary has been assigned responsibility for a given docket, is for the Respondent to advise the Government on filling that lacuna, not to assume the office herself, citing Attorney General v Bala (supra); that neither the 2nd interested Party nor Ms. Osicho was subjected to the merit-based, competitive process required by Article 232(1)(g) of the Constitution of Kenya, 2010, and section 10 of the Public Service (Values and Principles) Act; that, further and in any event, the purported appointment of Ms. Osicho as Acting Official Receiver was made when, on the Petitioner's case, no vacancy existed in that office at all; and that the ex parte orders were properly and lawfully issued in accordance with settled law, so that no case for discharge on grounds of non-disclosure or otherwise had been made out.
15. The 2nd Interested Party did not participate and filed no response to either Application.
Submissions to the Applications
The Petitioner's Submissions
16. The learned counsel for the Petitioner framed three issues; i) whether the Attorney-General is a Cabinet Secretary; ii) whether Executive Order No. 1 of 2025 or the Interpretation and General Provisions Act empower the Attorney-General to exercise Cabinet Secretarial appointment powers; and iii) whether the threshold for grant and maintenance of conservatory orders had been met.
17. On the first issue, counsel relied on the textual structure of Article 152(1) of the Constitution of Kenya, 2010, which enumerates the Attorney-General and Cabinet Secretaries as separate categories of Cabinet membership, and on the Third Schedule to the Constitution of Kenya, 2010, which prescribes an oath for Cabinet Secretaries but none for the Attorney-General, a distinction the Petitioner deposed the Respondent has never satisfied. Counsel also relied on Bala v Attorney General [2017] KEHC 8350 (KLR), affirmed in Attorney General v Bala [2023] KECA 117 (KLR), and on Law Society of Kenya v Attorney General [2021] KEHC 436 (KLR), to support the proposition that the two offices are constitutionally and structurally distinct and may not be conflated.
18. On the second issue, counsel submitted that the 2017 Amendment touched only the definitions section of the Companies Act and left every substantive appointive provision referring to "the Cabinet Secretary" unamended; that Executive Order No. 1 of 2025 expressly disclaims any intention to vary, impede or invalidate existing statutory or constitutional arrangements and cannot, consistently with Article 2(4) of the Constitution of Kenya,2010 be read to confer upon the Attorney-General a power the Constitution and statute reserve to a differently constituted office; and that section 2 of Cap 2 excludes the interpretation of the Constitution from its ambit, while Parliament's consistent, deliberate use of two distinct titles throughout both Acts evidences a contrary intention sufficient to displace any default proviso in Cap 2. Counsel additionally invoked the persuasive analogy of Learning Resources, Inc. v. Trump, 607 U.S. (2026), for the broader proposition that an executive instrument cannot lawfully arrogate to itself powers the legislature has not granted.
19. On the third issue, counsel relied on Ndii & others v Attorney General & others [2021] KEHC 9763 (KLR) and Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 others [2014] eKLR for the applicable criteria, and submitted that a prima facie case had been overwhelmingly demonstrated; that the danger of prejudice from the continued, uncontested exercise of void authority was real, imminent and evident; that there is no doctrine of constitutional fait accompli; that the presumption of regularity could not avail the Respondent where the illegality appeared on the face of her own Gazette Notice, citing Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others [2024] KESC 75 (KLR) and Okoiti & 2 others v Kenya Railways Corporation & 9 others [2026] KEHC 3862 (KLR); and that the balance of proportionality, per Dennis Ndhine Onyino v Martin Ondiek Ayub & 2 others [2013] KEHC 3197 (KLR), favoured maintaining the conservatory orders, since the 1st Interested Party's own governance structures, its Board and Director General, remain fully able to ensure continuity of service pending determination of the Petition.
20. Learned State Counsel for the Respondent framed two issues for consideration by the Court: whether the Petitioner satisfied the constitutional threshold for the grant or continuation of conservatory orders, and whether the ex parte orders ought to be set aside for material non-disclosure.
21. On the first issue, counsel relied on Invesco Assurance Co v MW (Minor suing through next friend and mother HW) [2016] KEHC 5318 (KLR), Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, Ezra Chiloba v Wafula Wanyonyi Chebukati & 7 others [2018] KEELRC 1739 (KLR) and Gikenyi B & 6 others v Attorney General & 2 others [2024] KEHC 9888 (KLR) for the applicable principles, and submitted that the Petitioner's case rested on a fundamental misapprehension of the applicable legal framework: that the constitutional distinction between the two offices, while accepted, did not answer whether the Attorney-General had been lawfully conferred with the relevant appointive functions; that section 2(b) of the 2017 Amendment, Executive Order No. 1 of 2025 and section 3 of Cap 2, taken together, supplied that lawful conferral.
22. Counsel further submitted that, applying the standard set out in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, the Petitioner had not shown an arguable prima facie case; that no real, as opposed to speculative, prejudice had been demonstrated within the meaning of Martin Nyaga Wambora (supra), given that the appointments had been made, gazetted and implemented well before the Application was filed; and that, per Gatirau Peter Munya (supra), public interest decisively favoured the discharge of the orders, given the disruption to two critical statutory offices.
23. On the second issue, counsel relied on Kenya Association of Air Operators v Kenya Airports Authority & another [2018] KECA 884 (KLR), Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 Others [2014] KECA 689 (KLR) and Jane Njeri Karongo & another v Karongo [2024] KECA 416 (KLR) to support the proposition that strict duty of candour is owed by a party approaching the Court ex parte. Counsel submitted that the Petitioner failed to disclose the existence and effect of the 2017 Amendment, Executive Order No. 1 of 2025 and section 3 of Cap 2, and failed to disclose that the impugned appointments had already been made, gazetted and implemented. Accordingly, the ex parte orders were procured by material non-disclosure and are liable to be set aside ex debito justitiae. This ground alone was sufficient to dispose of the Petitioner's Application.
Analysis and Determination
24. I have carefully considered the two applications, the affidavits filed in support of and in opposition to each, the rival written submissions, and the authorities cited. I have identified the following issues that require determination:
i. Whether the Attorney-General is a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution for purposes of section 831 of the Companies Act and section 701 of the Insolvency Act;
ii. Whether the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2) lawfully clothe the Respondent with the impugned appointive powers;
iii. Whether the conservatory orders issued on 18th February 2026 ought to be discharged; and
iv. What final orders should issue.
Whether the Attorney-General is a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution for purposes of section 831 of the Companies Act and section 701 of the Insolvency Act
25. Article 152(1) of the Constitution of Kenya, 2010, sets out the composition of the Cabinet. It lists the members of the Cabinet as the President, the Deputy President, the Attorney-General, and Cabinet Secretaries, thereby treating the Attorney-General as a category distinct from Cabinet Secretaries under paragraphs (c) and (d) respectively. This textual structure was considered, and the very question now raised was answered, in Bala v Attorney General [2017] KEHC 8350 (KLR), where the High Court held that the Attorney-General is not a Cabinet Secretary for purposes of the Constitution, a finding affirmed by the Court of Appeal in Attorney General v Bala [2023] KECA 117 (KLR) and independently reached in Law Society of Kenya v Attorney General [2021] KEHC 436 (KLR). I am bound by, and respectfully adopt, that reasoning. The Attorney-General, while unquestionably a member of Cabinet under Article 152(1)(c) of the Constitution of Kenya, 2010, is not a Cabinet Secretary within the meaning of Article 152(1)(d) of the Constitution of Kenya, 2010, and cannot, merely by virtue of Cabinet membership, exercise functions which the Constitution and statute reserve to that distinct office.
Whether the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2) clothe the Respondent with the impugned appointive powers
26. The Respondent's position is not that she is a Cabinet Secretary, but that she has been lawfully invested with the relevant Cabinet Secretarial functions by other legal instruments, as set out below.
The Companies (Amendment) Act, 2017
27. The unrebutted evidence, drawn from the 1st Interested Party's and the Petitioner's affidavits, is that the 2017 Amendment made a single change to the Companies Act, 2015, namely the deletion of the definition of "Cabinet Secretary" in section 3(1) and its substitution with a new definition of "Attorney-General." It is common ground that not a single substantive provision of the Act conferring an appointive, regulatory or administrative power was itself amended; those provisions, including section 831(2), continue to speak of "the Cabinet Secretary".
28. An amendment confined to an interpretation section cannot, without more, be read as silently rewriting every one of the substantive provisions outlined in the Petitioner's Replying Affidavit that continue, deliberately and consistently, to use the term "Cabinet Secretary." Had Parliament intended the substitution the Respondent contends for, the natural and obvious course would have been to amend those provisions themselves, as it did, for instance, in redefining "Attorney-General" in the interpretation section.
29. That it did not do so is telling, and I accept the Petitioner's submission, grounded in the maxim verba cum effectu accipienda sunt, that effect must be given to Parliament's deliberate and consistent choice of language in the Act. The Respondent's Gazette Notice No. 15747 of 24th October 2025, which recites that the appointment of Ms Lukwo was made "IN EXERCISE of the powers conferred by section 831(2) of the Companies Act," a provision vesting power in "the Cabinet Secretary," only reinforces this conclusion; the Respondent cannot invoke the specific appointive provision as her source of power while simultaneously contending that the term it uses now means something else entirely.
Executive Order No. 1 of 2025
30. Article 2(1) and (4) of the Constitution of Kenya 2010 establish its supremacy and render void any law, including executive action, inconsistent with it. An Executive Order made under Article 132(3)(b) of the Constitution of Kenya 2010 is an instrument for the organization and coordination of government business; it is not, and cannot be treated as, a vehicle for transplanting a statutory power that Parliament has vested in one constitutional office to another office, particularly where the Constitution treats the two offices as distinct. This is reinforced by the terms of the Executive Order itself, which expressly recites that it does not vary, impede or invalidate existing statutory arrangements.
Section 3 of the Interpretation and General Provisions Act
31. The proviso relied upon by the Respondent operates as a default gap-filler, supplying an answer to the interpretive question of which office is meant by an undefined reference to "the Cabinet Secretary" in ordinary legislation, where no contrary intention appears. It cannot, in my view, be stretched to override the plain, repeated and structurally deliberate use of the specific term "Cabinet Secretary," as opposed to "Attorney-General," throughout two Acts of Parliament that elsewhere expressly and separately legislate for the Attorney-General's own distinct functions, as aptly averred in the Petitioner's Replying Affidavit.
32. Where a statute, on its face, clearly intends to treat two offices as distinct, the general provision in Cap 2 must yield to that specific, contrary legislative intention; generalia specialibus non derogant. I would add that Bala v Attorney General [2017] KEHC 8350 (KLR), at the passage cited by the Petitioner, held that where no Cabinet Secretary has been assigned responsibility for a given legal-sector docket, the Respondent is to advise the Government on filling that lacuna, not to assume the vacant office's statutory powers. I respectfully agree, and I find that neither the 2017 Amendment, nor Executive Order No. 1 of 2025, nor section 3 of Cap 2, either alone or in combination, clothed the Respondent with the power to appoint the Registrar of Companies or the Official Receiver.
33. I further note, in any event, that the appointments are also impugned as having been made without the merit-based, competitive process mandated by Article 232(1)(g) of the Constitution of Kenya, 2010, and by section 10 of the Public Service (Values and Principles) Act, a matter on which the Respondent's affidavits are notably silent. The 1st Interested Party's own uncontroverted evidence is that the appointive authority over the Service's staff, including, on the Petitioner's case, the offices in question, is vested in its Board under section 7 of the Business Registration Service Act and in its own Human Resource Policy and Procedures Manual. These are independent bases reinforcing the conclusion that a prima facie case of unlawfulness has been made out.
Whether the conservatory orders issued on 18th February 2026 ought to be discharged
34.It is trite law, and was rightly not disputed, that a party who approaches the Court ex parte owes it the fullest and frankest disclosure of material facts, and that non-disclosure may deprive that party of the advantage of any order obtained. See Kenya Association of Air Operators v Kenya Airports Authority & another [2018] KECA 884 (KLR) (supra); Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] KECA 689 (KLR) (supra). The question is not, however, whether the Respondent can now point to matters not expressly canvassed in the application, but whether those matters were material to the exercise of the Court's discretion and whether their omission justified the setting aside orders.
35. I have examined the Petitioner's Application dated 16th February 2026. It discloses the dates and content of both impugned appointment letters, the Gazette Notice, and the Petitioner's central legal contention, supported by citation to Attorney General v Bala [2023] KECA 117 (KLR) (supra), that the Respondent is not a Cabinet Secretary and could not lawfully exercise the powers in question. What was not expressly disclosed was the existence of the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, and section 3 of Cap 2, each of which the Respondent contends provides an alternative legal basis for her actions, together with the fact that, by February 2026, the appointees had already assumed and were discharging their offices for some months.
36. I am unable to find that this omission was of the character of deliberate or calculated concealment contemplated in Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] KECA 689 (KLR) and Kenya Planters’ Cooperative Union v Kenya Commercial Bank Limited & 3 others, Petition No. 8 of 2014 [2014] eKLR. The instruments in question are public instruments, equally within the Respondent's own knowledge and readily available to her; she was, and remains, at complete liberty to place them before the Court, as she promptly did within days of the ex parte orders being issued. Nor is the omission of the kind that renders the Petitioner's case "illusory," as the Respondent contends, for reasons already given under Issue (ii) above: the instruments relied upon by the Respondent do not, on a proper construction, bear the weight she places upon them, so that their absence from the application cannot be said to have been outcome-determinative.
37. As for the fact that the appointees had already assumed office, that fact was in substance before the Court, since the appointment letters and the Gazette Notice were exhibited; what was absent was emphasis on the length of incumbency, a matter going to the weight of the equities rather than to the existence of a duty of candour breached.
38. More fundamentally, this Court is not confined, at this stage, to a bare examination of what was or was not before it when the interim orders of 18th February 2026 were issued. The matter has since been fully argued, and the Respondent and interested Party have had a chance to file their response to the application, which the court has had a chance to review and consider. I note that the issues have now been canvassed and determined substantively on merit on the complete record. Accordingly, the application dated 23rd February 2026 is not merited, and I decline to set aside the orders of 18th February 2026.
39. I now turn to whether the Petitioner has met the threshold for the grant and maintenance of conservatory orders. The applicable principles are well settled and were correctly stated in both parties' submissions. Conservatory orders are public-law remedies granted, per Munya v Kithinji & 2 others [2014] KESC 30 (KLR), on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionality.
40. The applicant must demonstrate an arguable prima facie case, a likelihood of success, that the petition would otherwise be rendered nugatory, a real, as opposed to speculative, danger of prejudice, and that the public interest and a proportionate balance of convenience favour the grant of the orders. See Ndii & others v Attorney General & others [2021] KEHC 9763 (KLR); Wambora v Speaker of the County of Assembly of Embu & 3 others [2014] KEHC 7498 (KLR); and Gikenyi B & 6 others v Attorney General (On behalf of Presidency) & 2 others; Muturi & 4 others (Interested Parties) [2024] KEHC 9888 (KLR).
41. Applying those principles, I find, for the reasons already given under Issue (ii), that the Petitioner has demonstrated a prima facie case going well beyond the modest threshold described in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). On the material before the court, the impugned appointments were made under statutory provisions that, on their proper construction, vest power in an office the Respondent does not hold.
42. As to prejudice, I do not accept the Respondent's characterization of the danger as remote or speculative. The continued, uncontested exercise of statutory power by persons appointed without lawful authority is not a static state of affairs; it compounds daily through further registrations, decisions and administrative acts taken in the name of offices whose legal foundation is now in genuine and substantial doubt, with attendant risk to the interests of third parties, including creditors and persons dealing with the Business Registration Service, who are entitled to certainty as to the lawful constitution of the offices they deal with. That danger is real, evident and actual within the meaning of Wambora & another v Speaker of the Senate & another [2014] KEHC 7080 (KLR) and is not diminished, but rather illustrated, by the fact that the appointees have already been in office for some months; the longer an ultra vires appointment subsists unchallenged, the greater the eventual disruption occasioned by its unwinding, which is precisely the mischief conservatory relief exists to arrest at the earliest opportunity. I find no merit in the submission that the orders should be discharged because the appointments have already been "overtaken by events"; there is, as was correctly submitted for the Petitioner, no doctrine of constitutional fait accompli, and this Court retains full jurisdiction to restrain the ongoing exercise of unlawfully assumed authority notwithstanding the passage of time.
43. On public interest and proportionality, I accept, per Export Processing Zone Authority & 10 others v National Environmen
[...truncated]
1. Before this Court are Notice of Motion Applications dated 16th February 2026 and 23rd February 2026. These applications arise from a constitutional challenge to the manner in which the Respondent purported to appoint the 2nd Interested Party as Registrar of Companies and, separately, to appoint Ms Beatrice Osicho as Acting Official Receiver in Insolvency. In a nutshell, the Petitioner's case is that both appointments were made in exercise of powers reserved exclusively to a Cabinet Secretary by section 831(2) of the Companies Act, 2015, and section 701(1) of the Insolvency Act, 2015, an office which the Respondent does not hold and may not assume.
2. The dispute first came before this Court ex parte, resulting in conservatory orders being issued on 18th February 2026, staying the impugned appointments and restraining the Respondent from exercising the powers of a Cabinet Secretary under the two statutes, pending the hearing and determination of the Petitioner's Notice of Motion Application dated 16th February 2026. Dissatisfied with those orders, the Respondent moved the Court to discharge them on the twin grounds that the constitutional threshold for their grant was never met and that they were procured by material non-disclosure of fact and law.
3. The two applications were, with the parties’ concurrence, canvassed together through written submissions and oral highlights. Both turn substantially on a common constitutional question: is the Respondent a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution of Kenya, 2010? If not, could the Respondent lawfully exercise the impugned appointive powers by virtue of the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2)?
The Applications
4. The Petitioner’s Application dated 16th February 2026 was brought under Articles 1, 2, 3, 10, 73, 152, 153, 156, 258 and 259 of the Constitution of Kenya,2010, section 701 of the Insolvency Act, and section 831 of the Companies Act, and sought the following orders:
1. Spent;
2. Spent;
3. Spent;
4. THAT pending the hearing and determination of the Petition herein, the Honourable Court be pleased to issue a conservatory order staying the impugned appointments by the Respondent made vide the letters dated 27th March 2025 and 5th September 2025 and Gazette Notice No. 15747 dated 25th October 2025;
5. THAT pending the hearing and determination of the Petition herein, the Honourable Court be pleased to issue a conservatory order restraining the Respondent from purporting to exercise the powers of a Cabinet Secretary under section 701(1) of the Insolvency Act, 2015 and section 831(2) of the Companies Act, 2015; and
6. THAT costs of this Application be provided for.
5. The Application was supported by the Petitioner's Supporting Affidavit dated 16th February 2026. The gravamen of the affidavit is that the constitutional distinction between the Attorney-General and a Cabinet Secretary is settled by this Court and the Court of Appeal in Attorney General v Bala (Civil Appeal 223 of 2017) [2023] KECA 117; that the appointments were accordingly made without jurisdiction; and that unless restrained, the Respondent's continued assumption of Cabinet Secretarial power would cause irreparable disruption to the operations of the 1st Interested Party.
6. The Application was placed before the duty judge, and on 18th February 2026 the Petitioner was heard ex parte by the Honourable Mr Justice Bahati Mwamuye, MBS, who granted the conservatory orders sought and gave directions on the Application.
7. Dissatisfied with the ex parte orders, the Respondent filed a Notice of Motion Application dated 23rd February 2026, brought under Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking the following orders:
1. Spent;
2. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the orders issued on the 18th day of February 2026; and
3. THAT this Honourable Court be pleased to set aside, vary and/or discharge the ex-parte orders issued on the 18th day of February, 2026.
8. The application was supported by the supporting affidavit deposed to by Charles Mutinda, State Counsel, on the same date as the application. The grounds on the face of the application were that the ex parte orders were made per incuriam and obtained through material non-disclosure, and ought to be set aside ex debito justitiae; that the appointees had already assumed office and discharged their mandates for a material period (over four months in the 2nd interested Party’s case) before the orders were issued, such that the orders had, in effect, nullified subsisting appointments without affording the appointees a hearing; that conservatory orders do not undo completed administrative acts; and that the ex parte orders were affecting service delivery to the public and offended the presumption of regularity of official acts.
The Responses
9. In response to the Notice of Motion application dated 16th February 2026, the Respondent filed a Replying Affidavit, sworn by Charles Mutinda on 31st March 2026. Its core averments were that section 2(b) of the Companies (Amendment) Act No. 28 of 2017 placed the Attorney-General in charge of the administration of the Companies Act by substituting a new definition of "Attorney-General" for the former definition of "Cabinet Secretary" in section 3 of the principal Act; that Executive Order No. 1 of 2025, issued under Articles 132(3)(b) and 156(4)(c) of the Constitution of Kenya, 2010, assigned to the State Law Office functions relating to the national registry systems for companies, partnerships and business names, and the function of Official Receiver in insolvency proceedings, such that the Business Registration Service and the Official Receiver's office now fall under the Respondent.
10. The averments in the affidavit were that section 3 of the Interpretation and General Provisions Act (Cap 2 of the Laws of Kenya) provides that where no Cabinet Secretary is assigned responsibility for matters relating to the legal sector, the Attorney-General shall be responsible for the matter in question; and that the appointments were accordingly lawful. In the alternative, the Respondent deposed that the Petitioner had not met the threshold set out in Gatirau Peter Munya v Dickson Mwenda Kithinji (2014) eKLR for the grant of conservatory orders, that no prima facie case or real prejudice had been demonstrated, that the orders offended the presumption of regularity, and that discharging them would be in the public interest given the disruption occasioned to two public offices in issue in the Petition herein.
11. The 1st Interested Party, the Business Registration Service, filed a Replying Affidavit deponed to by its Director General, Kenneth Gathuma, on 25th February 2026. It deposed to the statutory mandate of the Service under the Business Registration Service Act (Cap 499B); set out sections 831 of the Companies Act and 701 of the Insolvency Act in full, both of which vest the impugned appointive powers in "the Cabinet Secretary"; and deposed that under section 7 of the Business Registration Service Act the Board of the Service is vested with the function of appointing, training, disciplining and removing staff of the Service, and that under the Service's Human Resource Policy and Procedures Manual approved in 2017, the authority to appoint employees is vested in the Board, delegable only in accordance with the specific requirements set out in that policy.
12. The 1st Interested Party did not depose in support of either the grant or the discharge of the conservatory orders in terms, but its evidence, on its face, corroborates the Petitioner's contention that appointive authority over the offices in question does not, as a matter of the governing statutory architecture, repose in the Respondent.
13. The Petitioner swore a Replying Affidavit on 24th March 2026 in which he adopted the contents of the 1st Interested Party's Replying Affidavit as true, and set out, section by section, the provisions of the Companies Act, 2015 and the Insolvency Act, 2015 that separately and consistently address the Attorney-General and the Cabinet Secretary as distinct offices performing distinct, non-overlapping functions, invoking the interpretive maxim verba cum effectu accipienda sunt.
14. He deposed that the Companies (Amendment) Act, 2017 amended only the definitions section of the Companies Act and did not touch a single substantive appointive provision; that the Respondent's own Gazette Notice No. 15747 expressly invokes section 831(2) of the Companies Act, which vests appointive power in "the Cabinet Secretary," an office the Respondent does not hold; that the constitutionally correct course, where no Cabinet Secretary has been assigned responsibility for a given docket, is for the Respondent to advise the Government on filling that lacuna, not to assume the office herself, citing Attorney General v Bala (supra); that neither the 2nd interested Party nor Ms. Osicho was subjected to the merit-based, competitive process required by Article 232(1)(g) of the Constitution of Kenya, 2010, and section 10 of the Public Service (Values and Principles) Act; that, further and in any event, the purported appointment of Ms. Osicho as Acting Official Receiver was made when, on the Petitioner's case, no vacancy existed in that office at all; and that the ex parte orders were properly and lawfully issued in accordance with settled law, so that no case for discharge on grounds of non-disclosure or otherwise had been made out.
15. The 2nd Interested Party did not participate and filed no response to either Application.
Submissions to the Applications
The Petitioner's Submissions
16. The learned counsel for the Petitioner framed three issues; i) whether the Attorney-General is a Cabinet Secretary; ii) whether Executive Order No. 1 of 2025 or the Interpretation and General Provisions Act empower the Attorney-General to exercise Cabinet Secretarial appointment powers; and iii) whether the threshold for grant and maintenance of conservatory orders had been met.
17. On the first issue, counsel relied on the textual structure of Article 152(1) of the Constitution of Kenya, 2010, which enumerates the Attorney-General and Cabinet Secretaries as separate categories of Cabinet membership, and on the Third Schedule to the Constitution of Kenya, 2010, which prescribes an oath for Cabinet Secretaries but none for the Attorney-General, a distinction the Petitioner deposed the Respondent has never satisfied. Counsel also relied on Bala v Attorney General [2017] KEHC 8350 (KLR), affirmed in Attorney General v Bala [2023] KECA 117 (KLR), and on Law Society of Kenya v Attorney General [2021] KEHC 436 (KLR), to support the proposition that the two offices are constitutionally and structurally distinct and may not be conflated.
18. On the second issue, counsel submitted that the 2017 Amendment touched only the definitions section of the Companies Act and left every substantive appointive provision referring to "the Cabinet Secretary" unamended; that Executive Order No. 1 of 2025 expressly disclaims any intention to vary, impede or invalidate existing statutory or constitutional arrangements and cannot, consistently with Article 2(4) of the Constitution of Kenya,2010 be read to confer upon the Attorney-General a power the Constitution and statute reserve to a differently constituted office; and that section 2 of Cap 2 excludes the interpretation of the Constitution from its ambit, while Parliament's consistent, deliberate use of two distinct titles throughout both Acts evidences a contrary intention sufficient to displace any default proviso in Cap 2. Counsel additionally invoked the persuasive analogy of Learning Resources, Inc. v. Trump, 607 U.S. (2026), for the broader proposition that an executive instrument cannot lawfully arrogate to itself powers the legislature has not granted.
19. On the third issue, counsel relied on Ndii & others v Attorney General & others [2021] KEHC 9763 (KLR) and Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 others [2014] eKLR for the applicable criteria, and submitted that a prima facie case had been overwhelmingly demonstrated; that the danger of prejudice from the continued, uncontested exercise of void authority was real, imminent and evident; that there is no doctrine of constitutional fait accompli; that the presumption of regularity could not avail the Respondent where the illegality appeared on the face of her own Gazette Notice, citing Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others [2024] KESC 75 (KLR) and Okoiti & 2 others v Kenya Railways Corporation & 9 others [2026] KEHC 3862 (KLR); and that the balance of proportionality, per Dennis Ndhine Onyino v Martin Ondiek Ayub & 2 others [2013] KEHC 3197 (KLR), favoured maintaining the conservatory orders, since the 1st Interested Party's own governance structures, its Board and Director General, remain fully able to ensure continuity of service pending determination of the Petition.
20. Learned State Counsel for the Respondent framed two issues for consideration by the Court: whether the Petitioner satisfied the constitutional threshold for the grant or continuation of conservatory orders, and whether the ex parte orders ought to be set aside for material non-disclosure.
21. On the first issue, counsel relied on Invesco Assurance Co v MW (Minor suing through next friend and mother HW) [2016] KEHC 5318 (KLR), Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, Ezra Chiloba v Wafula Wanyonyi Chebukati & 7 others [2018] KEELRC 1739 (KLR) and Gikenyi B & 6 others v Attorney General & 2 others [2024] KEHC 9888 (KLR) for the applicable principles, and submitted that the Petitioner's case rested on a fundamental misapprehension of the applicable legal framework: that the constitutional distinction between the two offices, while accepted, did not answer whether the Attorney-General had been lawfully conferred with the relevant appointive functions; that section 2(b) of the 2017 Amendment, Executive Order No. 1 of 2025 and section 3 of Cap 2, taken together, supplied that lawful conferral.
22. Counsel further submitted that, applying the standard set out in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, the Petitioner had not shown an arguable prima facie case; that no real, as opposed to speculative, prejudice had been demonstrated within the meaning of Martin Nyaga Wambora (supra), given that the appointments had been made, gazetted and implemented well before the Application was filed; and that, per Gatirau Peter Munya (supra), public interest decisively favoured the discharge of the orders, given the disruption to two critical statutory offices.
23. On the second issue, counsel relied on Kenya Association of Air Operators v Kenya Airports Authority & another [2018] KECA 884 (KLR), Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 Others [2014] KECA 689 (KLR) and Jane Njeri Karongo & another v Karongo [2024] KECA 416 (KLR) to support the proposition that strict duty of candour is owed by a party approaching the Court ex parte. Counsel submitted that the Petitioner failed to disclose the existence and effect of the 2017 Amendment, Executive Order No. 1 of 2025 and section 3 of Cap 2, and failed to disclose that the impugned appointments had already been made, gazetted and implemented. Accordingly, the ex parte orders were procured by material non-disclosure and are liable to be set aside ex debito justitiae. This ground alone was sufficient to dispose of the Petitioner's Application.
Analysis and Determination
24. I have carefully considered the two applications, the affidavits filed in support of and in opposition to each, the rival written submissions, and the authorities cited. I have identified the following issues that require determination:
i. Whether the Attorney-General is a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution for purposes of section 831 of the Companies Act and section 701 of the Insolvency Act;
ii. Whether the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2) lawfully clothe the Respondent with the impugned appointive powers;
iii. Whether the conservatory orders issued on 18th February 2026 ought to be discharged; and
iv. What final orders should issue.
Whether the Attorney-General is a Cabinet Secretary within the meaning of Articles 152 and 156 of the Constitution for purposes of section 831 of the Companies Act and section 701 of the Insolvency Act
25. Article 152(1) of the Constitution of Kenya, 2010, sets out the composition of the Cabinet. It lists the members of the Cabinet as the President, the Deputy President, the Attorney-General, and Cabinet Secretaries, thereby treating the Attorney-General as a category distinct from Cabinet Secretaries under paragraphs (c) and (d) respectively. This textual structure was considered, and the very question now raised was answered, in Bala v Attorney General [2017] KEHC 8350 (KLR), where the High Court held that the Attorney-General is not a Cabinet Secretary for purposes of the Constitution, a finding affirmed by the Court of Appeal in Attorney General v Bala [2023] KECA 117 (KLR) and independently reached in Law Society of Kenya v Attorney General [2021] KEHC 436 (KLR). I am bound by, and respectfully adopt, that reasoning. The Attorney-General, while unquestionably a member of Cabinet under Article 152(1)(c) of the Constitution of Kenya, 2010, is not a Cabinet Secretary within the meaning of Article 152(1)(d) of the Constitution of Kenya, 2010, and cannot, merely by virtue of Cabinet membership, exercise functions which the Constitution and statute reserve to that distinct office.
Whether the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, or section 3 of the Interpretation and General Provisions Act (Cap 2) clothe the Respondent with the impugned appointive powers
26. The Respondent's position is not that she is a Cabinet Secretary, but that she has been lawfully invested with the relevant Cabinet Secretarial functions by other legal instruments, as set out below.
The Companies (Amendment) Act, 2017
27. The unrebutted evidence, drawn from the 1st Interested Party's and the Petitioner's affidavits, is that the 2017 Amendment made a single change to the Companies Act, 2015, namely the deletion of the definition of "Cabinet Secretary" in section 3(1) and its substitution with a new definition of "Attorney-General." It is common ground that not a single substantive provision of the Act conferring an appointive, regulatory or administrative power was itself amended; those provisions, including section 831(2), continue to speak of "the Cabinet Secretary".
28. An amendment confined to an interpretation section cannot, without more, be read as silently rewriting every one of the substantive provisions outlined in the Petitioner's Replying Affidavit that continue, deliberately and consistently, to use the term "Cabinet Secretary." Had Parliament intended the substitution the Respondent contends for, the natural and obvious course would have been to amend those provisions themselves, as it did, for instance, in redefining "Attorney-General" in the interpretation section.
29. That it did not do so is telling, and I accept the Petitioner's submission, grounded in the maxim verba cum effectu accipienda sunt, that effect must be given to Parliament's deliberate and consistent choice of language in the Act. The Respondent's Gazette Notice No. 15747 of 24th October 2025, which recites that the appointment of Ms Lukwo was made "IN EXERCISE of the powers conferred by section 831(2) of the Companies Act," a provision vesting power in "the Cabinet Secretary," only reinforces this conclusion; the Respondent cannot invoke the specific appointive provision as her source of power while simultaneously contending that the term it uses now means something else entirely.
Executive Order No. 1 of 2025
30. Article 2(1) and (4) of the Constitution of Kenya 2010 establish its supremacy and render void any law, including executive action, inconsistent with it. An Executive Order made under Article 132(3)(b) of the Constitution of Kenya 2010 is an instrument for the organization and coordination of government business; it is not, and cannot be treated as, a vehicle for transplanting a statutory power that Parliament has vested in one constitutional office to another office, particularly where the Constitution treats the two offices as distinct. This is reinforced by the terms of the Executive Order itself, which expressly recites that it does not vary, impede or invalidate existing statutory arrangements.
Section 3 of the Interpretation and General Provisions Act
31. The proviso relied upon by the Respondent operates as a default gap-filler, supplying an answer to the interpretive question of which office is meant by an undefined reference to "the Cabinet Secretary" in ordinary legislation, where no contrary intention appears. It cannot, in my view, be stretched to override the plain, repeated and structurally deliberate use of the specific term "Cabinet Secretary," as opposed to "Attorney-General," throughout two Acts of Parliament that elsewhere expressly and separately legislate for the Attorney-General's own distinct functions, as aptly averred in the Petitioner's Replying Affidavit.
32. Where a statute, on its face, clearly intends to treat two offices as distinct, the general provision in Cap 2 must yield to that specific, contrary legislative intention; generalia specialibus non derogant. I would add that Bala v Attorney General [2017] KEHC 8350 (KLR), at the passage cited by the Petitioner, held that where no Cabinet Secretary has been assigned responsibility for a given legal-sector docket, the Respondent is to advise the Government on filling that lacuna, not to assume the vacant office's statutory powers. I respectfully agree, and I find that neither the 2017 Amendment, nor Executive Order No. 1 of 2025, nor section 3 of Cap 2, either alone or in combination, clothed the Respondent with the power to appoint the Registrar of Companies or the Official Receiver.
33. I further note, in any event, that the appointments are also impugned as having been made without the merit-based, competitive process mandated by Article 232(1)(g) of the Constitution of Kenya, 2010, and by section 10 of the Public Service (Values and Principles) Act, a matter on which the Respondent's affidavits are notably silent. The 1st Interested Party's own uncontroverted evidence is that the appointive authority over the Service's staff, including, on the Petitioner's case, the offices in question, is vested in its Board under section 7 of the Business Registration Service Act and in its own Human Resource Policy and Procedures Manual. These are independent bases reinforcing the conclusion that a prima facie case of unlawfulness has been made out.
Whether the conservatory orders issued on 18th February 2026 ought to be discharged
34.It is trite law, and was rightly not disputed, that a party who approaches the Court ex parte owes it the fullest and frankest disclosure of material facts, and that non-disclosure may deprive that party of the advantage of any order obtained. See Kenya Association of Air Operators v Kenya Airports Authority & another [2018] KECA 884 (KLR) (supra); Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] KECA 689 (KLR) (supra). The question is not, however, whether the Respondent can now point to matters not expressly canvassed in the application, but whether those matters were material to the exercise of the Court's discretion and whether their omission justified the setting aside orders.
35. I have examined the Petitioner's Application dated 16th February 2026. It discloses the dates and content of both impugned appointment letters, the Gazette Notice, and the Petitioner's central legal contention, supported by citation to Attorney General v Bala [2023] KECA 117 (KLR) (supra), that the Respondent is not a Cabinet Secretary and could not lawfully exercise the powers in question. What was not expressly disclosed was the existence of the Companies (Amendment) Act, 2017, Executive Order No. 1 of 2025, and section 3 of Cap 2, each of which the Respondent contends provides an alternative legal basis for her actions, together with the fact that, by February 2026, the appointees had already assumed and were discharging their offices for some months.
36. I am unable to find that this omission was of the character of deliberate or calculated concealment contemplated in Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] KECA 689 (KLR) and Kenya Planters’ Cooperative Union v Kenya Commercial Bank Limited & 3 others, Petition No. 8 of 2014 [2014] eKLR. The instruments in question are public instruments, equally within the Respondent's own knowledge and readily available to her; she was, and remains, at complete liberty to place them before the Court, as she promptly did within days of the ex parte orders being issued. Nor is the omission of the kind that renders the Petitioner's case "illusory," as the Respondent contends, for reasons already given under Issue (ii) above: the instruments relied upon by the Respondent do not, on a proper construction, bear the weight she places upon them, so that their absence from the application cannot be said to have been outcome-determinative.
37. As for the fact that the appointees had already assumed office, that fact was in substance before the Court, since the appointment letters and the Gazette Notice were exhibited; what was absent was emphasis on the length of incumbency, a matter going to the weight of the equities rather than to the existence of a duty of candour breached.
38. More fundamentally, this Court is not confined, at this stage, to a bare examination of what was or was not before it when the interim orders of 18th February 2026 were issued. The matter has since been fully argued, and the Respondent and interested Party have had a chance to file their response to the application, which the court has had a chance to review and consider. I note that the issues have now been canvassed and determined substantively on merit on the complete record. Accordingly, the application dated 23rd February 2026 is not merited, and I decline to set aside the orders of 18th February 2026.
39. I now turn to whether the Petitioner has met the threshold for the grant and maintenance of conservatory orders. The applicable principles are well settled and were correctly stated in both parties' submissions. Conservatory orders are public-law remedies granted, per Munya v Kithinji & 2 others [2014] KESC 30 (KLR), on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionality.
40. The applicant must demonstrate an arguable prima facie case, a likelihood of success, that the petition would otherwise be rendered nugatory, a real, as opposed to speculative, danger of prejudice, and that the public interest and a proportionate balance of convenience favour the grant of the orders. See Ndii & others v Attorney General & others [2021] KEHC 9763 (KLR); Wambora v Speaker of the County of Assembly of Embu & 3 others [2014] KEHC 7498 (KLR); and Gikenyi B & 6 others v Attorney General (On behalf of Presidency) & 2 others; Muturi & 4 others (Interested Parties) [2024] KEHC 9888 (KLR).
41. Applying those principles, I find, for the reasons already given under Issue (ii), that the Petitioner has demonstrated a prima facie case going well beyond the modest threshold described in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). On the material before the court, the impugned appointments were made under statutory provisions that, on their proper construction, vest power in an office the Respondent does not hold.
42. As to prejudice, I do not accept the Respondent's characterization of the danger as remote or speculative. The continued, uncontested exercise of statutory power by persons appointed without lawful authority is not a static state of affairs; it compounds daily through further registrations, decisions and administrative acts taken in the name of offices whose legal foundation is now in genuine and substantial doubt, with attendant risk to the interests of third parties, including creditors and persons dealing with the Business Registration Service, who are entitled to certainty as to the lawful constitution of the offices they deal with. That danger is real, evident and actual within the meaning of Wambora & another v Speaker of the Senate & another [2014] KEHC 7080 (KLR) and is not diminished, but rather illustrated, by the fact that the appointees have already been in office for some months; the longer an ultra vires appointment subsists unchallenged, the greater the eventual disruption occasioned by its unwinding, which is precisely the mischief conservatory relief exists to arrest at the earliest opportunity. I find no merit in the submission that the orders should be discharged because the appointments have already been "overtaken by events"; there is, as was correctly submitted for the Petitioner, no doctrine of constitutional fait accompli, and this Court retains full jurisdiction to restrain the ongoing exercise of unlawfully assumed authority notwithstanding the passage of time.
43. On public interest and proportionality, I accept, per Export Processing Zone Authority & 10 others v National Environmen
[...truncated]