1. The Court is asked to determine the 1 st respondent’s Notice of Motion application dated 1 st April 2026. The application is brought pursuant to articles 22, 23, 24, 31, 50, 159 and 165 of the Constitution; Rules 3, 4, 19, 20 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and Sections 1A, 1B, 3A and 6 of the Civil Procedure Act. It is further supported by the affidavit of Daniel Mwenja Ndaba sworn on even date as well as written submissions.
2. The application is seeking for orders that:
1. Spent
2. Spent
3. Spent
4. Spent
5. Pending the hearing and determination of Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 Others, there be a stay of further proceedings in this Petition.
6. In the alternative to prayer 5 above, pending the hearing and determination of Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others, there be a stay of the hearing and determination of all issues, allegations, claims, prayers, and reliefs in this Petition insofar as they arise from, are founded upon, or depend upon the alleged disclosure by the 1 st respondent of the 1 st interested party’s subscriber information,, personal data, call data, location data, metadata, SIM registration details, identity data, or any related information.
7. Further or in the alternative, this Honourable Court be pleased to direct that Constitutional Petition No. E126 of 2026; David Ooga Mokaya v Safaricom PLC & 3 Others be heard and determined first.
8. In the alternative to prayer 7 above, this Honourable Court be pleased to direct that Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others be treated as the lead matter, on the overlapping factual and legal questions concerning the alleged disclosure by the 1 st respondent of the 1 st interested party’s subscriber and related data.
9. Costs of this application be provided for.
3. The application is predicated upon the grounds that, the instant petition was filed after Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others (Mokaya Petition) . The Mokaya Petition directly places in issue, as against the 1 st respondent whether the 1 st respondent unlawfully disclosed, processed, transferred, or facilitated the disclosure of David Ooga Mokaya’s subscriber and personal data to investigative agencies, and whether such conduct violated his constitutional and statutory rights.
4. It is contended that the present Petition expressly relies on the Mokaya Petition and on the judgment in Republic v David Mokaya as the principal factual and legal basis for the claims advanced against the 1 st respondent. The central theory of the present Petition, in so far as the 1 st respondent is concerned, is that the Mokaya Petition demonstrates unlawful disclosure by the 1 st respondent of subscriber information to investigative agencies.
5. The 1 st respondent is of the view that the issues raised against it in the present petition substantially overlap with or are materially anchored on the issues already pending in the Mokaya Petition. That allowing the instant petition to proceed before the hearing and determination of the Mokaya Petition, will result in- a real risk of duplication of evidence, witnesses and proceedings; inconsistent determinations and it will be prejudiced.
6. The 1 st respondent is also of the view that the determination of the Mokaya Petition will either answer the present petition in full, or materially narrow and clarify the issues remaining for determination as against it. It is therefore in the interest of justice that the Mokaya Petition be heard and determined first.
Petitioner’s response
7. The petitioner opposed the application through preliminary objection dated 10 th June 2026. The preliminary objection is premised on grounds that: the 1 st respondent lacks locus standi to bring the application, having failed to file a response to the petition; the application is premature, procedurally irregular and an abuse of the court process and the doctrine of sub judice does not apply.
1 st respondent’s submissions
8. The 1 st respondent asserts that this court’s jurisdiction is reinforced by the provisions of articles 22, 23, and 165 of the Constitution; Rules 3(2), 3(3), 3(4), 3(8) of the Mutunga Rules and section 6 of the Civil Procedure Act. Reliance is further placed on the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) which spelt out the purpose and ingredients of sub judice .
9. The 1 st respondent is of the view that the doctrine is concerned with substance rather than form, what counts is whether the controversy in the later suit can be conveniently and properly determined in the earlier one, and whether the issues are substantially the same. Further that the requirement of identity of parties extends to parties litigating under the same title and those claiming through them.
10. Accordingly, it is argued that the LSK Petition is framed as public interest constitutional petition, while the Mokaya Petition is an individual petition. But the difference in procedural clothing does not alter the substantive question raised against the 1 st respondent. In addition, the 1 st respondent cites the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] 696 and Oraro v Mbaja [2005] 1 KLR 141 for the proposition that the preliminary objection does not raise pure points of law.
11. Regarding locus standi, the 1 st respondent contends that standing to make an interlocutory application in a petition flows from being a party to that petition, and not from having first filed a substantive response. To that extent, it was duly served, is expressly named as such, and is directly affected both by the Petition and by the Petitioner’s pending Notice of Motion. It is entitled to invoke the Court’s jurisdiction to regulate the proceedings.
12. It is argued that Rule 19 of the Mutunga Rules imposes no precondition that a respondent must first have filed a response to the Petition before it may make an application. Further, nor do Rules 15 and 16 bear the meaning the Petitioner seeks to place upon them. Rule 15 merely fixes timelines for filing a response while Rule 16(1) prescribes the only consequence for failure to file a response within the stipulated time: that the Court may hear and determine the petition in the respondent’s absence. It is further argued that this provision is permissive, conferring a discretion upon the Court.
13. The 1 st respondent submits that the Petitioner’s objection is self-defeating, since the Motion itself seeks to avoid duplicative merits, litigation pending resolution of the identical legality question in the earlier Mokaya Petition. To require a full substantive response as a precondition to being heard on the stay would be circular and oppressive, treating it as in default while it pursues an application that, if granted, would relieve it of that very obligation. Such an approach elevates form over substance, contrary to Article 159(2)(d) of the Constitution and the overriding objective of the Mutunga Rules.
14. It is submitted that the issue that the motion is premature, irregular and an abuse of the court process, does not a pure point of law fit for a preliminary objection. According to the 1 st respondent, a stay application of this character does not depend on contested evidence. Its determination turns on a comparison of two sets of pleadings and the application of section 6 of the Civil Procedure Act. The material facts, the existence, dates, parties, and subject matter of the Mokaya Petition and of this Petition, together with the Petitioner’s own reliance on the Mokaya matter, are matters of record, not disputed fact. The Motion is also supported by an affidavit, which supplies the necessary foundation.
15. It is submitted that the charge of “abuse of process” is not a pure point of law. To sustain it, the Court would have to weigh the purpose and effect of the Motion and exercise a discretionary judgment. In any event the motion does not seek to extinguish the petition but to have the issue common to both petitions be determined first in the forum where it is already directly and contestably in issue. Further, the motion is timely because the petitioner’s own conservatory motion is pending hearing, and it asks this Court to act on the premise that the Mokaya Petition has already established Safaricom’s illegality. The preliminary objection should therefore be dismissed.
16. It is reiterated that the present petition, insofar as it concerns Safaricom, is substantially founded on the same issues pending determination in the Mokaya Petition, namely whether Safaricom unlawfully disclosed or facilitated the disclosure of Mr. Mokaya's personal and subscriber data in violation of his constitutional and statutory rights. It is argued that the LSK Petition expressly relies on the alleged unconstitutional conduct exposed in the Mokaya matter, citing the alleged disclosure of subscriber data without a court order as one of the core wrongs.
17. It is submitted that the LSK petition further pleads that: the Mokaya matter is emblematic of a broader pattern; DCI officers wrote to Safaricom seeking information linked to Mr Mokaya’s number and accounts without a court order; evidence in the criminal case showed that a Safaricom employee furnished police with his private data; and the Mokaya decision determined whether there had been lawful judicial authorisation.
18. According to the 1 st respondent, the allegations in the LSK Petition are not merely contextual but form the factual basis for the reliefs sought against it, including declarations of unlawful disclosure, punitive damages, a public apology, structural interdicts, data-request audits, and disclosure of historical data-sharing practices. It further points to the petitioner's Further Affidavit, which adopts the findings in the Mokaya proceedings as establishing its unlawful conduct, and argues that the petitioner cannot rely on those findings while objecting to the determination of the earlier petition first.
19. The 1 st respondent further contends that Mr. Mokaya's acquittal in the criminal proceedings does not determine Safaricom's constitutional or civil liability for the alleged disclosure, as that issue is the subject of the pending Mokaya Petition. It therefore argues that the petitioner is improperly seeking constitutional declarations against it before the earlier petition is determined. It is in addition contended that although parties in the two proceedings differ, the issues concerning it are directly and substantially the same. The present petition should await the determination of the Mokaya Petition.
20. The 1 st respondent contends that the ingredients of sub judice have been satisfied. There are two proceedings before court of competent jurisdiction: the earlier Mokaya Petition and the later LSK Petition. Second, the key issue in the later petition, so far as Safaricom is concerned, is directly and substantially in issue in the earlier petition. Thirdly, although the parties differ, Safaricom is common to both matters, and the 1 st Interested Party in the LSK Petition is the petitioner in the Mokaya Petition. Lastly, the LSK Petition litigates on the footing of the alleged wrong to Mr Mokaya and treats his experience as the basis for relief against Safaricom.
21. According to the 1 st respondent, The Mokaya Petition is the proper vehicle for first determining whether Safaricom’s alleged conduct towards Mr. Mokaya was lawful. Once that issue is resolved, the present Petition may, if necessary, proceed whatever remains. What it should not do is proceed first, or in parallel, on the very issue already pending.
22. It is opined, if the LSK Petition proceeds now, this Court will be invited to adopt the premise that the Mokaya judgment revealed or confirmed unlawful disclosure of subscriber data by Safaricom, and then to fashion relief on that footing. Yet in the Mokaya Petition itself, Safaricom is entitled to contest directly and fully the legality of the alleged disclosure, the statutory framework, the proper construction of KICA and the Data Protection Act, as well as causation and remedy.
23. It is reiterated that two consequences inevitably follow if both matters proceed in parallel: first, the same or materially similar evidence, records, and witnesses will be deployed in duplicate; and second, two courts or benches may be asked to determine the same central question of legality.
24. The prejudice to the 1 st respondent it is argued is not merely financial but forensic and structural, as it would be unfair to compel it to defend the same core accusation in two constitutional proceedings simultaneously. The risk is heightened by the Petitioner’s pending conservatory Motion, which asks this Court to act now on the footing that Safaricom’s data sharing is unlawful, thereby prejudging the very question reserved to the earlier petition. By contrast, a stay will cause no prejudice to the Petitioner.
25. The 1 st respondent asserts that Articles 22 and 258 do not confer immunity from the ordinary principles that govern the orderly conduct of litigation. Further that public interest is served by orderly adjudication. It thus urges that the application be allowed.
Petitioner’s submissions
26. The petitioner cites the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 ; Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR and Oraro v Mbaja [2005] 1 KLR 141 for the contention that each ground in the preliminary objection raises a pure point of law.
27. The petitioner submits that the 1 st respondent having failed to file a response to the petition has left the petitioner’s allegations unanswered, the evidence uncontroverted and left the court without any contrary position to weigh. Reliance is placed on the decisions in Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd [2014] eKLR and Daniel Kimani Njihia v Fancis Mwangi Kimani & another [2015] eKLR to support its position.
28. The petitioner cites the decisions in Ramji Bharmal Gudka & 3 others v Barclays Bank of Kenya Ltd [2014] eKLR and Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 5 Others [2014] eKLR for the proposition that the application constitutes an abuse of the court process. It is submitted that the ordinary response to its Notice of Motion was to file a replying affidavit and oppose it at the hearing. Having failed to respond to the Petition, which sets out in detail the grounds for conservatory and preservation orders, the respondent now invites the Court to exercise its discretionary jurisdiction in its favour without placing any evidence before it. In addition, the prejudice to the public interest would be immediate and enormous, while the benefit to justice would be nil.
29. The petitioner relies on section 6 of the Civil Procedure Act and the decision in Kenya National Commission on Human Rights v Attorney General & 2 Others [2019] eKLR to propagate the argument that the sub judice doctrine is not applicable. First, the parties are not the same and are not litigating under the same title. The LSK's constitutional standing is representative and institutional; Mr. Mokaya's is personal and individual.
30. Second the subject matter is not the same. Petition No. E126 of 2026 addresses the disclosure of David Ooga Mokaya's specific subscriber data, arising from a specific post on 13 th November 2024, resulting in a specific arrest and prosecution. The present Petition addresses an institutionalized system of warrantless data-sharing between Safaricom PLC and investigative agencies across Kenya, affecting hundreds of citizens, over an 18-month period, and raises questions of regulatory failure, corporate liability, punitive constitutional damages, structural reform, and the establishment of a national Victims Compensation Fund.
31. Third, the 1 st respondent’s own evidence is conclusive; At paragraph 20 of the Supporting Affidavit of Daniel Mwenja Ndaba, the 1 st respondent concedes that the present Petition 'goes further and frames the Mokaya allegations as evidence of a broader pattern.’ This cannot be the same suit for the purposes of sub judice.
32. The petitioner cites the decisions in Githunguri Constituency Development Fund Committee v Independent Electoral and Boundaries Commission [2018] eKLR and Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2019] eKLR for the contention that the 1 st respondent has not discharged the burden of proof to stay the proceedings. Further that articles 48, 20(3) and 259(1) of the Constitution command a different result. It urges that the Preliminary objection be allowed as prayed.
22 nd interested party’s case
33. The 22 nd interested party submits that a stay of proceedings should be exercised sparingly and only in exceptional cases. It relies on the Court of Appeal decision in Meta Platforms, Inc. & another v Motaung & another; Kenya National Human Rights Equality Commission & 9 others (Interested Parties) [2023] KECA 996 (KLR).
34. The 22 nd interested party is of the view that the application does not meet the exceptional test. First, Petition E126 is a suit by the 1 st Interested party against the action of the 1 st respondent to disclose his personal details to investigative agencies. Petition E126 is limited to this singular occurrence. On the other hand, the current petition is brought by the Law Society of Kenya, asking this Court to address what it terms the scale and systematic nature of the violations spanning hundreds of individuals affected during the June 2024 to December 2025 unlawful arrests, abductions, surveillance and data breaches.
35. Second, because of the systematic nature of the violations, the current petition brings on board the 1 st to 16 th Interested parties who have had their data illegally shared by the 1 st respondent to the Investigative agencies in violation of Article 31. These Interested Parties are listed to provide their own personal accounts of these violations.
36. Third, the remedies sought in the two petitions are different. Petition E126 seeks compensatory relief for the 1 st interested party alone. The current Petition, on the other hand, asks this Court to address systematic violations. The remedies sought are intended to address a troublesome problem, such as creating a compensation fund to compensate all victims. It is accordingly argued that the prejudice suffered, if any, can adequately be addressed by hearing the two petitions together or having the same consolidated.
37. The 22 nd interested party cites the decision in Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission & 9 others [2016] KECA 371 (KLR); (Kinuthia (Suing as the Legal/Personal Representative of the Estate of Loise Gachiku Kinuthia (Deceased) v Rugiri & 3 others [2026] KESC 35 (KLR); (Nicholus v Attorney-General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR); Attorney-General v Kituo Cha Sheria & 7 others [2017] KECA 773 (KLR) and J acqueline Okuta & another v Attorney-General & 2 others [2017] KEHC 8382 (KLR) for the contention that in this case, the Applicant has not shown that no least restrictive measures exist. It is urged that the less restrictive measure is that both petitions be consolidated and heard together.
The 9 th , 12 th ,13 th, 14 th and 15 th Interested Parties’ response
38. They rely on section 6 of the Civil Procedure Act and the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR , that the application does not meet the threshold for sub judice.
39. It is similarly reiterated that the parties in the two proceedings are not the same and are not litigating under the same title and therefore the interests advanced in the two proceedings are distinct. Further, although Safaricom appears as the 1 st respondent in both matters, the mere presence of one common party does not render the parties substantially the same for purposes of the doctrine of sub judice. The legal test requires substantial identity of parties litigating under the same title and in the same capacity.
40. Additionally, the subject matters and issues in the two petitions are fundamentally different. Petition No 126 of 2026 arose out of the Petitioner’s, David Mokaya’s, personal arrest, prosecution and data privacy provisions. In contrast, the present petition raises broad public law questions regarding Safaricom and the authority and institutional practices governing data access and sharing. The orders sought by the Petitioner herein affect the Public. However, the Orders Sought in Petition 126 of 2026 are purely personal.
41. Lastly, the remedies sought in the two petitions are entirely different. The Petitioner in Petition No. E126 sought relief tailored to their own situation, including a declaration that the 1 st respondent’s collection, processing, utilization, and transfer of the Petitioner’s private data to the 1 st Interested Party were illegal and violated the Petitioner’s right to privacy. By contrast, the Petitioner’s Petition sought a conservatory order to restrain the 1 st , 2 nd , 3 rd , 6 th , 12 th , and 13 th respondents, whether acting themselves, or through any one acting under their instructions from accessing, requesting, processing, retaining, storing, and sharing any personal subscriber data, call data records, geolocation information, IMEI data, or digital metadata of the petitioner or any other Kenyan citizen without a Court Order.
42. On whether the court should stay the proceeding, they rely on the decision in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) and submit that the present petition raises weighty constitutional questions concerning firmamental tights and freedoms guaranteed under articles 29, 31, 49, and 50 of the Constitution. The Petition also challenges the legality of the state's access to subscriber data in compliance with the Data Protection Act and the Communication Act, and the Protection of the constitutional rights of Millions of Kenyans. the Petition raises substantial issues of public importance requiring judicial interrogation. The 1 st respondent has not demonstrated that the Petition is incapable of succeeding in law. They urge that the application be dismissed.
Issues for determination
a) Whether the preliminary objection is merited
b) Whether the Petition is sub judice
c) Arising from (b) and (c) above, what are the consequential orders
Whether the Preliminary Objection is merited?
43. The petitioner’s preliminary objection rests on the contention that the 1st respondent lacks locus standi to move the Court without first filing a response to the Petition. The governing principles are well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , a preliminary objection must be founded on a pure point of law, argued on the assumption that all facts pleaded are correct, and must not require the Court to interrogate contested evidence. The Supreme Court reaffirmed this in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) It stated;
[31]. To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
44. Rule 16(1) of the Mutunga Rules prescribes that the only consequence for failure to file a response within the stipulated time is that Court may hear and determine the petition in the respondent’s absence.
45. There is therefore no requirement that the respondent files a response before filing any interlocutory application. Rule 19 of the Mutunga Rules permits any party to seek interlocutory relief at any stage. The Rules do not impose a sequential obligation that a respondent must first file a replying affidavit before seeking directions on case management. The 1st respondent is a named party, duly served, and directly affected by the Petition and the pending conservatory motion. Its standing flows from that status.
46. To insist on a prior response would elevate form over substance and undermine the constitutional command in Article 159(2)(d). The Court is enjoined to administer justice without undue regard to procedural technicalities. The doors of justice must remain open to all who approach the Court properly, and interlocutory applications, particularly those concerning orderly conduct of proceedings, must not be foreclosed by rigid procedural sequencing.
Whether the Petition is Sub judice?
47. Section 6 of the Civil Procedure Act and the jurisprudence of the Supreme Court in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 others [2020] KESC 54 (KLR) set out the four elements: (1) Two or more suits; (2) Pending before courts of competent jurisdiction; (3) Same parties or parties litigating under the same title; (4) The matter in issue directly and substantially the same.
48. The rationale for the doctrine of sub judice was discussed in David Ndii & others v Attorney General & others [2021] eKLR as follows:
[508]. The rationale behind this provision is that it is vexatious and oppressive for a claimant to sue concurrently in two Courts. Where there are two Courts faced with substantially the same question or issue, that question or issue should be determined in only one of those Courts and the Court will, if necessary, stay one of the claims.
49. Petition E126 OF 2026 and the present Petition share certain factual intersections, particularly concerning the alleged disclosure of subscriber data by the 1st respondent. However, they diverge materially in scope; parties, and reliefs sought. Petition E126 OF 2026 is an individual claim arising from a specific incident; the present Petition is a public interest action alleging systemic, institutionalised practices affecting numerous persons over an extended period.
50. The subject matter is therefore not “directly and substantially the same” within the meaning of section 6. The doctrine of sub judice does not apply.
What are the Consequential Orders arising from the above?
51. The Court however, cannot ignore the practical reality that the two matters raise overlapping factual questions, rely on intersecting evidence, and engage common respondents. The risk of duplication, inconsistent findings, and inefficient use of judicial resources is real. This signals the need for prudent case management.
52. I am persuaded that consolidation is the most proportionate, least restrictive, and constitutionally faithful mechanism for resolving the overlap. Consolidation is defined in the case of Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa (Civil Suit No. 992 of 1994) to mean;
Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.
The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: -
1. some common question of law or fact arises in both or all of them; or
2. the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or
3. for some other reason it is desirable to make an order for consolidating them.
The circumstances in which suits can be consolidated are broadly similar to those in which parties may be joined in one action. Accordingly, actions relating to the same subject matter between the same plaintiff and the same defendant, or between the same plaintiff and the same defendant, or between the same plaintiff and different defendants or between different plaintiffs and the same defendants may be consolidated.
There are however situations where consolidation is undesirable like where in two action a plaintiff in one is a defendant in the other unless the claim in one is to be treated as a counterclaim in the other. The other situation where consolidation is undesirable is where the plaintiffs in two or more actions are represented by different advocates. In such situation the hearing will be longer than take long and the purpose of saving time will be defeated.
53. The principle on consolidation of suits was re-stated in the case of Stumberg and another v Potgieter, (1970) EA 323 where the Court held;
Where there are common question of law
[...truncated]
2. The application is seeking for orders that:
1. Spent
2. Spent
3. Spent
4. Spent
5. Pending the hearing and determination of Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 Others, there be a stay of further proceedings in this Petition.
6. In the alternative to prayer 5 above, pending the hearing and determination of Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others, there be a stay of the hearing and determination of all issues, allegations, claims, prayers, and reliefs in this Petition insofar as they arise from, are founded upon, or depend upon the alleged disclosure by the 1 st respondent of the 1 st interested party’s subscriber information,, personal data, call data, location data, metadata, SIM registration details, identity data, or any related information.
7. Further or in the alternative, this Honourable Court be pleased to direct that Constitutional Petition No. E126 of 2026; David Ooga Mokaya v Safaricom PLC & 3 Others be heard and determined first.
8. In the alternative to prayer 7 above, this Honourable Court be pleased to direct that Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others be treated as the lead matter, on the overlapping factual and legal questions concerning the alleged disclosure by the 1 st respondent of the 1 st interested party’s subscriber and related data.
9. Costs of this application be provided for.
3. The application is predicated upon the grounds that, the instant petition was filed after Constitutional Petition No. E126 of 2026, David Ooga Mokaya v Safaricom PLC & 3 others (Mokaya Petition) . The Mokaya Petition directly places in issue, as against the 1 st respondent whether the 1 st respondent unlawfully disclosed, processed, transferred, or facilitated the disclosure of David Ooga Mokaya’s subscriber and personal data to investigative agencies, and whether such conduct violated his constitutional and statutory rights.
4. It is contended that the present Petition expressly relies on the Mokaya Petition and on the judgment in Republic v David Mokaya as the principal factual and legal basis for the claims advanced against the 1 st respondent. The central theory of the present Petition, in so far as the 1 st respondent is concerned, is that the Mokaya Petition demonstrates unlawful disclosure by the 1 st respondent of subscriber information to investigative agencies.
5. The 1 st respondent is of the view that the issues raised against it in the present petition substantially overlap with or are materially anchored on the issues already pending in the Mokaya Petition. That allowing the instant petition to proceed before the hearing and determination of the Mokaya Petition, will result in- a real risk of duplication of evidence, witnesses and proceedings; inconsistent determinations and it will be prejudiced.
6. The 1 st respondent is also of the view that the determination of the Mokaya Petition will either answer the present petition in full, or materially narrow and clarify the issues remaining for determination as against it. It is therefore in the interest of justice that the Mokaya Petition be heard and determined first.
Petitioner’s response
7. The petitioner opposed the application through preliminary objection dated 10 th June 2026. The preliminary objection is premised on grounds that: the 1 st respondent lacks locus standi to bring the application, having failed to file a response to the petition; the application is premature, procedurally irregular and an abuse of the court process and the doctrine of sub judice does not apply.
1 st respondent’s submissions
8. The 1 st respondent asserts that this court’s jurisdiction is reinforced by the provisions of articles 22, 23, and 165 of the Constitution; Rules 3(2), 3(3), 3(4), 3(8) of the Mutunga Rules and section 6 of the Civil Procedure Act. Reliance is further placed on the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) which spelt out the purpose and ingredients of sub judice .
9. The 1 st respondent is of the view that the doctrine is concerned with substance rather than form, what counts is whether the controversy in the later suit can be conveniently and properly determined in the earlier one, and whether the issues are substantially the same. Further that the requirement of identity of parties extends to parties litigating under the same title and those claiming through them.
10. Accordingly, it is argued that the LSK Petition is framed as public interest constitutional petition, while the Mokaya Petition is an individual petition. But the difference in procedural clothing does not alter the substantive question raised against the 1 st respondent. In addition, the 1 st respondent cites the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] 696 and Oraro v Mbaja [2005] 1 KLR 141 for the proposition that the preliminary objection does not raise pure points of law.
11. Regarding locus standi, the 1 st respondent contends that standing to make an interlocutory application in a petition flows from being a party to that petition, and not from having first filed a substantive response. To that extent, it was duly served, is expressly named as such, and is directly affected both by the Petition and by the Petitioner’s pending Notice of Motion. It is entitled to invoke the Court’s jurisdiction to regulate the proceedings.
12. It is argued that Rule 19 of the Mutunga Rules imposes no precondition that a respondent must first have filed a response to the Petition before it may make an application. Further, nor do Rules 15 and 16 bear the meaning the Petitioner seeks to place upon them. Rule 15 merely fixes timelines for filing a response while Rule 16(1) prescribes the only consequence for failure to file a response within the stipulated time: that the Court may hear and determine the petition in the respondent’s absence. It is further argued that this provision is permissive, conferring a discretion upon the Court.
13. The 1 st respondent submits that the Petitioner’s objection is self-defeating, since the Motion itself seeks to avoid duplicative merits, litigation pending resolution of the identical legality question in the earlier Mokaya Petition. To require a full substantive response as a precondition to being heard on the stay would be circular and oppressive, treating it as in default while it pursues an application that, if granted, would relieve it of that very obligation. Such an approach elevates form over substance, contrary to Article 159(2)(d) of the Constitution and the overriding objective of the Mutunga Rules.
14. It is submitted that the issue that the motion is premature, irregular and an abuse of the court process, does not a pure point of law fit for a preliminary objection. According to the 1 st respondent, a stay application of this character does not depend on contested evidence. Its determination turns on a comparison of two sets of pleadings and the application of section 6 of the Civil Procedure Act. The material facts, the existence, dates, parties, and subject matter of the Mokaya Petition and of this Petition, together with the Petitioner’s own reliance on the Mokaya matter, are matters of record, not disputed fact. The Motion is also supported by an affidavit, which supplies the necessary foundation.
15. It is submitted that the charge of “abuse of process” is not a pure point of law. To sustain it, the Court would have to weigh the purpose and effect of the Motion and exercise a discretionary judgment. In any event the motion does not seek to extinguish the petition but to have the issue common to both petitions be determined first in the forum where it is already directly and contestably in issue. Further, the motion is timely because the petitioner’s own conservatory motion is pending hearing, and it asks this Court to act on the premise that the Mokaya Petition has already established Safaricom’s illegality. The preliminary objection should therefore be dismissed.
16. It is reiterated that the present petition, insofar as it concerns Safaricom, is substantially founded on the same issues pending determination in the Mokaya Petition, namely whether Safaricom unlawfully disclosed or facilitated the disclosure of Mr. Mokaya's personal and subscriber data in violation of his constitutional and statutory rights. It is argued that the LSK Petition expressly relies on the alleged unconstitutional conduct exposed in the Mokaya matter, citing the alleged disclosure of subscriber data without a court order as one of the core wrongs.
17. It is submitted that the LSK petition further pleads that: the Mokaya matter is emblematic of a broader pattern; DCI officers wrote to Safaricom seeking information linked to Mr Mokaya’s number and accounts without a court order; evidence in the criminal case showed that a Safaricom employee furnished police with his private data; and the Mokaya decision determined whether there had been lawful judicial authorisation.
18. According to the 1 st respondent, the allegations in the LSK Petition are not merely contextual but form the factual basis for the reliefs sought against it, including declarations of unlawful disclosure, punitive damages, a public apology, structural interdicts, data-request audits, and disclosure of historical data-sharing practices. It further points to the petitioner's Further Affidavit, which adopts the findings in the Mokaya proceedings as establishing its unlawful conduct, and argues that the petitioner cannot rely on those findings while objecting to the determination of the earlier petition first.
19. The 1 st respondent further contends that Mr. Mokaya's acquittal in the criminal proceedings does not determine Safaricom's constitutional or civil liability for the alleged disclosure, as that issue is the subject of the pending Mokaya Petition. It therefore argues that the petitioner is improperly seeking constitutional declarations against it before the earlier petition is determined. It is in addition contended that although parties in the two proceedings differ, the issues concerning it are directly and substantially the same. The present petition should await the determination of the Mokaya Petition.
20. The 1 st respondent contends that the ingredients of sub judice have been satisfied. There are two proceedings before court of competent jurisdiction: the earlier Mokaya Petition and the later LSK Petition. Second, the key issue in the later petition, so far as Safaricom is concerned, is directly and substantially in issue in the earlier petition. Thirdly, although the parties differ, Safaricom is common to both matters, and the 1 st Interested Party in the LSK Petition is the petitioner in the Mokaya Petition. Lastly, the LSK Petition litigates on the footing of the alleged wrong to Mr Mokaya and treats his experience as the basis for relief against Safaricom.
21. According to the 1 st respondent, The Mokaya Petition is the proper vehicle for first determining whether Safaricom’s alleged conduct towards Mr. Mokaya was lawful. Once that issue is resolved, the present Petition may, if necessary, proceed whatever remains. What it should not do is proceed first, or in parallel, on the very issue already pending.
22. It is opined, if the LSK Petition proceeds now, this Court will be invited to adopt the premise that the Mokaya judgment revealed or confirmed unlawful disclosure of subscriber data by Safaricom, and then to fashion relief on that footing. Yet in the Mokaya Petition itself, Safaricom is entitled to contest directly and fully the legality of the alleged disclosure, the statutory framework, the proper construction of KICA and the Data Protection Act, as well as causation and remedy.
23. It is reiterated that two consequences inevitably follow if both matters proceed in parallel: first, the same or materially similar evidence, records, and witnesses will be deployed in duplicate; and second, two courts or benches may be asked to determine the same central question of legality.
24. The prejudice to the 1 st respondent it is argued is not merely financial but forensic and structural, as it would be unfair to compel it to defend the same core accusation in two constitutional proceedings simultaneously. The risk is heightened by the Petitioner’s pending conservatory Motion, which asks this Court to act now on the footing that Safaricom’s data sharing is unlawful, thereby prejudging the very question reserved to the earlier petition. By contrast, a stay will cause no prejudice to the Petitioner.
25. The 1 st respondent asserts that Articles 22 and 258 do not confer immunity from the ordinary principles that govern the orderly conduct of litigation. Further that public interest is served by orderly adjudication. It thus urges that the application be allowed.
Petitioner’s submissions
26. The petitioner cites the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 ; Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR and Oraro v Mbaja [2005] 1 KLR 141 for the contention that each ground in the preliminary objection raises a pure point of law.
27. The petitioner submits that the 1 st respondent having failed to file a response to the petition has left the petitioner’s allegations unanswered, the evidence uncontroverted and left the court without any contrary position to weigh. Reliance is placed on the decisions in Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd [2014] eKLR and Daniel Kimani Njihia v Fancis Mwangi Kimani & another [2015] eKLR to support its position.
28. The petitioner cites the decisions in Ramji Bharmal Gudka & 3 others v Barclays Bank of Kenya Ltd [2014] eKLR and Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 5 Others [2014] eKLR for the proposition that the application constitutes an abuse of the court process. It is submitted that the ordinary response to its Notice of Motion was to file a replying affidavit and oppose it at the hearing. Having failed to respond to the Petition, which sets out in detail the grounds for conservatory and preservation orders, the respondent now invites the Court to exercise its discretionary jurisdiction in its favour without placing any evidence before it. In addition, the prejudice to the public interest would be immediate and enormous, while the benefit to justice would be nil.
29. The petitioner relies on section 6 of the Civil Procedure Act and the decision in Kenya National Commission on Human Rights v Attorney General & 2 Others [2019] eKLR to propagate the argument that the sub judice doctrine is not applicable. First, the parties are not the same and are not litigating under the same title. The LSK's constitutional standing is representative and institutional; Mr. Mokaya's is personal and individual.
30. Second the subject matter is not the same. Petition No. E126 of 2026 addresses the disclosure of David Ooga Mokaya's specific subscriber data, arising from a specific post on 13 th November 2024, resulting in a specific arrest and prosecution. The present Petition addresses an institutionalized system of warrantless data-sharing between Safaricom PLC and investigative agencies across Kenya, affecting hundreds of citizens, over an 18-month period, and raises questions of regulatory failure, corporate liability, punitive constitutional damages, structural reform, and the establishment of a national Victims Compensation Fund.
31. Third, the 1 st respondent’s own evidence is conclusive; At paragraph 20 of the Supporting Affidavit of Daniel Mwenja Ndaba, the 1 st respondent concedes that the present Petition 'goes further and frames the Mokaya allegations as evidence of a broader pattern.’ This cannot be the same suit for the purposes of sub judice.
32. The petitioner cites the decisions in Githunguri Constituency Development Fund Committee v Independent Electoral and Boundaries Commission [2018] eKLR and Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2019] eKLR for the contention that the 1 st respondent has not discharged the burden of proof to stay the proceedings. Further that articles 48, 20(3) and 259(1) of the Constitution command a different result. It urges that the Preliminary objection be allowed as prayed.
22 nd interested party’s case
33. The 22 nd interested party submits that a stay of proceedings should be exercised sparingly and only in exceptional cases. It relies on the Court of Appeal decision in Meta Platforms, Inc. & another v Motaung & another; Kenya National Human Rights Equality Commission & 9 others (Interested Parties) [2023] KECA 996 (KLR).
34. The 22 nd interested party is of the view that the application does not meet the exceptional test. First, Petition E126 is a suit by the 1 st Interested party against the action of the 1 st respondent to disclose his personal details to investigative agencies. Petition E126 is limited to this singular occurrence. On the other hand, the current petition is brought by the Law Society of Kenya, asking this Court to address what it terms the scale and systematic nature of the violations spanning hundreds of individuals affected during the June 2024 to December 2025 unlawful arrests, abductions, surveillance and data breaches.
35. Second, because of the systematic nature of the violations, the current petition brings on board the 1 st to 16 th Interested parties who have had their data illegally shared by the 1 st respondent to the Investigative agencies in violation of Article 31. These Interested Parties are listed to provide their own personal accounts of these violations.
36. Third, the remedies sought in the two petitions are different. Petition E126 seeks compensatory relief for the 1 st interested party alone. The current Petition, on the other hand, asks this Court to address systematic violations. The remedies sought are intended to address a troublesome problem, such as creating a compensation fund to compensate all victims. It is accordingly argued that the prejudice suffered, if any, can adequately be addressed by hearing the two petitions together or having the same consolidated.
37. The 22 nd interested party cites the decision in Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission & 9 others [2016] KECA 371 (KLR); (Kinuthia (Suing as the Legal/Personal Representative of the Estate of Loise Gachiku Kinuthia (Deceased) v Rugiri & 3 others [2026] KESC 35 (KLR); (Nicholus v Attorney-General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR); Attorney-General v Kituo Cha Sheria & 7 others [2017] KECA 773 (KLR) and J acqueline Okuta & another v Attorney-General & 2 others [2017] KEHC 8382 (KLR) for the contention that in this case, the Applicant has not shown that no least restrictive measures exist. It is urged that the less restrictive measure is that both petitions be consolidated and heard together.
The 9 th , 12 th ,13 th, 14 th and 15 th Interested Parties’ response
38. They rely on section 6 of the Civil Procedure Act and the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR , that the application does not meet the threshold for sub judice.
39. It is similarly reiterated that the parties in the two proceedings are not the same and are not litigating under the same title and therefore the interests advanced in the two proceedings are distinct. Further, although Safaricom appears as the 1 st respondent in both matters, the mere presence of one common party does not render the parties substantially the same for purposes of the doctrine of sub judice. The legal test requires substantial identity of parties litigating under the same title and in the same capacity.
40. Additionally, the subject matters and issues in the two petitions are fundamentally different. Petition No 126 of 2026 arose out of the Petitioner’s, David Mokaya’s, personal arrest, prosecution and data privacy provisions. In contrast, the present petition raises broad public law questions regarding Safaricom and the authority and institutional practices governing data access and sharing. The orders sought by the Petitioner herein affect the Public. However, the Orders Sought in Petition 126 of 2026 are purely personal.
41. Lastly, the remedies sought in the two petitions are entirely different. The Petitioner in Petition No. E126 sought relief tailored to their own situation, including a declaration that the 1 st respondent’s collection, processing, utilization, and transfer of the Petitioner’s private data to the 1 st Interested Party were illegal and violated the Petitioner’s right to privacy. By contrast, the Petitioner’s Petition sought a conservatory order to restrain the 1 st , 2 nd , 3 rd , 6 th , 12 th , and 13 th respondents, whether acting themselves, or through any one acting under their instructions from accessing, requesting, processing, retaining, storing, and sharing any personal subscriber data, call data records, geolocation information, IMEI data, or digital metadata of the petitioner or any other Kenyan citizen without a Court Order.
42. On whether the court should stay the proceeding, they rely on the decision in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) and submit that the present petition raises weighty constitutional questions concerning firmamental tights and freedoms guaranteed under articles 29, 31, 49, and 50 of the Constitution. The Petition also challenges the legality of the state's access to subscriber data in compliance with the Data Protection Act and the Communication Act, and the Protection of the constitutional rights of Millions of Kenyans. the Petition raises substantial issues of public importance requiring judicial interrogation. The 1 st respondent has not demonstrated that the Petition is incapable of succeeding in law. They urge that the application be dismissed.
Issues for determination
a) Whether the preliminary objection is merited
b) Whether the Petition is sub judice
c) Arising from (b) and (c) above, what are the consequential orders
Whether the Preliminary Objection is merited?
43. The petitioner’s preliminary objection rests on the contention that the 1st respondent lacks locus standi to move the Court without first filing a response to the Petition. The governing principles are well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , a preliminary objection must be founded on a pure point of law, argued on the assumption that all facts pleaded are correct, and must not require the Court to interrogate contested evidence. The Supreme Court reaffirmed this in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) It stated;
[31]. To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
44. Rule 16(1) of the Mutunga Rules prescribes that the only consequence for failure to file a response within the stipulated time is that Court may hear and determine the petition in the respondent’s absence.
45. There is therefore no requirement that the respondent files a response before filing any interlocutory application. Rule 19 of the Mutunga Rules permits any party to seek interlocutory relief at any stage. The Rules do not impose a sequential obligation that a respondent must first file a replying affidavit before seeking directions on case management. The 1st respondent is a named party, duly served, and directly affected by the Petition and the pending conservatory motion. Its standing flows from that status.
46. To insist on a prior response would elevate form over substance and undermine the constitutional command in Article 159(2)(d). The Court is enjoined to administer justice without undue regard to procedural technicalities. The doors of justice must remain open to all who approach the Court properly, and interlocutory applications, particularly those concerning orderly conduct of proceedings, must not be foreclosed by rigid procedural sequencing.
Whether the Petition is Sub judice?
47. Section 6 of the Civil Procedure Act and the jurisprudence of the Supreme Court in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 others [2020] KESC 54 (KLR) set out the four elements: (1) Two or more suits; (2) Pending before courts of competent jurisdiction; (3) Same parties or parties litigating under the same title; (4) The matter in issue directly and substantially the same.
48. The rationale for the doctrine of sub judice was discussed in David Ndii & others v Attorney General & others [2021] eKLR as follows:
[508]. The rationale behind this provision is that it is vexatious and oppressive for a claimant to sue concurrently in two Courts. Where there are two Courts faced with substantially the same question or issue, that question or issue should be determined in only one of those Courts and the Court will, if necessary, stay one of the claims.
49. Petition E126 OF 2026 and the present Petition share certain factual intersections, particularly concerning the alleged disclosure of subscriber data by the 1st respondent. However, they diverge materially in scope; parties, and reliefs sought. Petition E126 OF 2026 is an individual claim arising from a specific incident; the present Petition is a public interest action alleging systemic, institutionalised practices affecting numerous persons over an extended period.
50. The subject matter is therefore not “directly and substantially the same” within the meaning of section 6. The doctrine of sub judice does not apply.
What are the Consequential Orders arising from the above?
51. The Court however, cannot ignore the practical reality that the two matters raise overlapping factual questions, rely on intersecting evidence, and engage common respondents. The risk of duplication, inconsistent findings, and inefficient use of judicial resources is real. This signals the need for prudent case management.
52. I am persuaded that consolidation is the most proportionate, least restrictive, and constitutionally faithful mechanism for resolving the overlap. Consolidation is defined in the case of Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa (Civil Suit No. 992 of 1994) to mean;
Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.
The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: -
1. some common question of law or fact arises in both or all of them; or
2. the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or
3. for some other reason it is desirable to make an order for consolidating them.
The circumstances in which suits can be consolidated are broadly similar to those in which parties may be joined in one action. Accordingly, actions relating to the same subject matter between the same plaintiff and the same defendant, or between the same plaintiff and the same defendant, or between the same plaintiff and different defendants or between different plaintiffs and the same defendants may be consolidated.
There are however situations where consolidation is undesirable like where in two action a plaintiff in one is a defendant in the other unless the claim in one is to be treated as a counterclaim in the other. The other situation where consolidation is undesirable is where the plaintiffs in two or more actions are represented by different advocates. In such situation the hearing will be longer than take long and the purpose of saving time will be defeated.
53. The principle on consolidation of suits was re-stated in the case of Stumberg and another v Potgieter, (1970) EA 323 where the Court held;
Where there are common question of law
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