PART I: INTRODUCTION
1. Interim conservatory orders stand as sentinels over the subject matter of constitutional litigation. Their purpose is to hold the ring until the parties have been heard, not to determine the contest in advance. For that reason, a court may revisit such an order where justice requires, but it must do so cautiously lest, in adjusting the protection, it expose the subject matter to the very harm the order was intended to prevent.
2. Before the Court is the 2nd Respondent’s Notice of Motion dated 26th August 2026. The Motion principally seeks the discharge, vacation or setting aside of the interim conservatory order issued by this Court on 10th August 2026 pursuant to prayer 2 of the Petitioners’ Notice of Motion dated 4th August 2026.
3. In the alternative, the 2nd Respondent seeks variation of the order to permit it, together with its agents, contractors, consultants and technical personnel, to undertake and complete geotechnical research, surveys, mapping, testing, verification and related technical investigations at the project site. It proposes that such activities be permitted on condition that they do not involve the eviction, displacement or relocation of any person, or the demolition of any structure.
4. The Motion is supported by the affidavit of Edwin Manyonge sworn on 26th August 2026. The Petitioners oppose it through the replying affidavit of Mohamed Malim Salat sworn on 1st September 2026. The parties canvassed the Motion by oral submissions on 2nd September 2026. The 1st, 3rd, 4th, 5th, 6th and 7th Respondents, though served, did not participate in the hearing.
5. Alongside the Motion, the 2nd Respondent filed a Chamber Summons dated 26th August 2026 seeking, among other orders, admission of the Motion for hearing during the High Court recess. The Petitioners challenged the propriety of invoking the Court’s jurisdiction during recess without service of that Chamber Summons. Since that objection arises anterior to the merits of the Motion, an issue to be determined in this ruling therefore addresses both the procedural and the substantive application.
PART II: BACKGROUND
6. The Petitioners commenced these proceedings through a Petition and a Notice of Motion, both dated 4th August 2026. They instituted the proceedings on their own behalf, in the public interest, and on behalf of the residents of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres in Bura Constituency, Tana River County.
7. The Petitioners’ grievance concerns what they describe as the threatened eviction, displacement and relocation of the residents of the nine centers in the course of implementing the Bura Irrigation Development Project. They contend that the impugned project activities are being undertaken without public participation, environmental and social safeguards, a resettlement action plan, identification of alternative settlement land, or assessment and payment of compensation.
8. Upon considering the Petitioners’ Notice of Motion ex parte on 10th August 2026, the Court certified it urgent and granted prayer 2 on an interim basis. The order restrained the Respondents, whether by themselves, their agents, servants, contractors or persons acting on their behalf, from continuing, implementing or executing any works, activities or measures under the Bura Irrigation Development Project within or affecting the settlements of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres, pending the hearing and determination of the application.
9. The Court further directed the Petitioners to serve the Petition, the application and the orders upon the Respondents. The Respondents were granted fourteen days from the date of service within which to file and serve their responses. The matter was fixed for mention on 29th September 2026 for further directions.
10. The 2nd Respondent states that the interim order was issued before it had an opportunity to place its position before the Court. Rather than file a response to the Petitioners’ application within the period directed by the Court, it filed the present Notice of Motion and the accompanying Chamber Summons on 26th August 2026.
11. In the Certificate of Urgency accompanying the applications, the 2nd Respondent asserted that specialized contractors and technical personnel had already been mobilized to undertake time-sensitive geotechnical research and survey work. It contended that their engagement was limited to a specified period and that, unless the interim order was discharged or varied before 29th September 2026, their engagement might expire before the exercise was completed, thereby exposing the project to substantial financial and logistical prejudice.
12. The application was placed before me during the August recess, and I fixed it for an inter partes hearing on 2nd September 2026. The 2nd Respondent served the substantive Notice of Motion upon the Petitioners but did not serve the accompanying Chamber Summons seeking admission of the Motion for hearing during recess.
13. At the hearing on 2nd September 2026, the Petitioners raised the alleged procedural irregularity. The Court directed that the parties address both the substantive Notice of Motion and the issues raised in the Petitioners’ replying affidavit, including the propriety of hearing the application during recess. The Court thereafter reserved this ruling.
PART III: THE PARTIES’ RESPECTIVE CASES
A. The 2nd Respondent/Applicant’s Case
14. The 2nd Respondent’s application is supported by the affidavit of Edwin Manyonge, its Assistant Director of the National Irrigation Authority. The deponent states that the subsisting order interferes with ongoing technical works at the project site, including geotechnical research, surveying, mapping, testing and verification.
15. The 2nd Respondent contends that it has engaged investors who have commenced operations on the ground and who, in turn, have retained specialized contractors and technical personnel to undertake geotechnical investigations within strict timelines. It asserts that the continued availability of those personnel cannot be guaranteed and that the investors continue to incur daily costs while the interim order remains in force.
16. According to the 2nd Respondent, the geotechnical investigations are preliminary and fact-finding in nature. They are intended to establish the physical and technical characteristics of the proposed project site. The investigations do not, in themselves, entail the eviction, displacement or relocation of any person, the surrender of possession of land, or the demolition of any structure.
17. The 2nd Respondent further avers that the investigations are connected to the proposed installation of a sugar factory whose Engineering, Procurement and Construction Contract was awarded on 15th July 2026. It exhibited a portion of the contract between Tana River Sugar Company Limited and M/s Saisidha Engineering Industries Pvt. Limited in its supporting affidavit as “EM-1” .
18. The 2nd Respondent also states that sugarcane seedlings have been established on approximately 350 acres and require timely transplantation. It estimates that failure to transplant the seedlings may occasion a loss of up to Kshs. 1 billion. It further states that more than 350 local employees engaged in the project risk losing their sources of livelihood if the project activities remain suspended.
19. During the hearing, learned counsel for the 2nd Respondent submitted that the wording of the conservatory order is unduly broad. Counsel argued that the order does not distinguish between the activities complained of by the Petitioners, namely, eviction, displacement and relocation, and the 2nd Respondent’s ordinary statutory and operational functions.
20. Counsel submitted that the Bura Irrigation and Settlement Scheme covers approximately 176,000 acres, of which about 12,000 acres have been developed, and approximately 6,300 acres are under crop. The scheme also comprises branch canals, block-feeder canals, pumping stations, night-storage reservoirs and drainage infrastructure. It was submitted that, on a literal reading of the order, routine operation and maintenance of that infrastructure could expose the 2nd Respondent’s officers to proceedings for contempt.
21. The 2nd Respondent maintained that the Petitioners would suffer no irreversible prejudice if the limited technical investigations were permitted to proceed. It offered an undertaking that no person would be evicted, displaced or relocated and that no structure would be demolished during the investigations. It argued that the Petitioners’ substantive complaints concerning public participation, environmental assessment, resettlement and compensation would remain available for determination in the Petition.
22. The 2nd Respondent therefore urged the Court to discharge the interim order. In the alternative, it asked the Court to vary or clarify the order so as to permit the proposed geotechnical and geospatial investigations to proceed. It submitted that the balance of convenience and the public interest favored the continuation of those limited activities.
B. The Petitioners/Respondents’ Case
23. The Petitioners oppose the application through the replying affidavit of Mohamed Malim Salat sworn on 1st September 2026. Their first objection concerns the admission and hearing of the application during the Court recess. They contend that the 2nd Respondent did not comply with the prescribed procedure because the Chamber Summons seeking admission of the Motion for hearing during recess was not served upon them.
24. The Petitioners rely on Article 165(1) of the Constitution, section 10 of the High Court (Organization and Administration) Act, rule 17 of the High Court (Organization and Administration) (General) Rules, 2016 and the High Court (Practice and Procedure) Rules. They argue that whether a matter should be heard during recess is a question for judicial determination and cannot be settled merely by a party filing a Certificate of Urgency.
25. On the merits, the Petitioners contend that the 2nd Respondent was served with the Petitioners’ application and the interim order on 11th August 2026 but did not file the response directed by the Court. They argue that the present application attempts to convert the 2nd Respondent’s failure to comply with those directions into an accelerated reconsideration of the conservatory order.
26. The Petitioners reject the contention that the order has halted the entire Bura Irrigation Scheme. They submit that the order is geographically confined to works, activities or measures undertaken within or affecting the nine expressly named centres. It does not restrain the long-established irrigation and farming activities carried out elsewhere within the wider scheme.
27. The Petitioners state that their complaint concerns a new phase of the project involving the proposed sugar factory and the extension of project activities into the centres occupied by their communities. They contend that the established irrigation operations elsewhere within the scheme are neither challenged in the Petition nor restrained by the interim order.
28. A central plank of the Petitioners’ opposition is that the 2nd Respondent has not disclosed where the approximately 350 acres of sugarcane, the proposed factory site or the intended geotechnical investigations are located. They point out that the supporting affidavit contains no map, survey plan, parcel or land reference number, coordinates or georeferenced photographs identifying the site in relation to the nine centres.
29. The Petitioners submit that if the activities relied upon by the 2nd Respondent are situated outside the nine centres and do not affect them, the conservatory order does not impede those activities. Conversely, if they are being undertaken within or affect the nine centres, the activities fall within the geographical scope of the order and reinforce the need to preserve the subject matter pending the inter partes hearing.
30. The Petitioners also challenge the evidence tendered in support of the alleged urgency. They observe that the Engineering, Procurement and Construction Contract exhibited by the 2nd Respondent is between Tana River Sugar Company Limited and M/s Saisidha Engineering Industries Pvt. Limited. The 2nd Respondent is not a party to that contract.
31. They further contend that the portion of the contract exhibited relates to the design, engineering, procurement, construction, commissioning and testing of a sugar factory rather than to the limited geotechnical investigations described in the application. In their view, the 2nd Respondent has not produced evidence identifying the geotechnical contractors, their period of engagement, the asserted daily costs or the date upon which their engagement will expire.
32. The Petitioners argue that allowing surveying, mapping and geotechnical investigations to continue within the protected centers would advance implementation of the impugned project before questions concerning public participation, environmental assessment, resettlement and compensation have been determined. They maintain that an undertaking against immediate eviction or demolition would not adequately preserve their rights.
33. The Petitioners consequently urged the Court to dismiss the application and preserve the interim conservatory order pending the inter partes hearing of their Notice of Motion dated 4th August 2026.
PART IV: ISSUES FOR DETERMINATION
34. I have anxiously considered the Notice of Motion and Chamber Summons dated 26th August 2026, the affidavits filed in support of and opposition to the application, the parties’ oral submissions, and the record of the proceedings.
35. Although the 2nd Respondent’s Motion contains several substantive and consequential prayers, they all turn on whether a proper basis has been established for disturbing the conservatory order issued on 10th August 2026. The Petitioners’ objection to the hearing of the Motion during recess raises a distinct procedural question which must be determined first.
36. Accordingly, the following two issues arise for determination:
i) Whether the 2nd Respondent’s application offends the prescribed procedure for invoking the Court’s jurisdiction during recess; and
ii) Whether the 2nd Respondent has met the threshold for discharging, varying or setting aside the conservatory order issued on 10th August 2026.
PART V: APPLICABLE LEGAL PRINCIPLES
A. Admission of urgent applications during recess
37. The Petitioners’ first objection concerns the procedure by which the 2nd Respondent invoked the Court’s jurisdiction during recess. Rule 17(2) of the High Court (Organization and Administration) (General) Rules, 2016 permits the Court to hear an urgent application during recess where the Court is satisfied that the circumstances warrant immediate judicial intervention. Whether the asserted urgency meets that standard is a matter for judicial determination, not one a party may conclusively determine by filing a Certificate of Urgency.
38. In Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others [2017] KEHC 9419 (KLR) , the Court considered an objection founded on the applicant’s failure to obtain leave for a matter to be heard during vacation. Chacha Mwita J., as he then was, held that the requirement to seek such leave was procedural and that non-compliance did not, without more, deprive the Court of jurisdiction to hear an urgent matter.
39. Rule 3(1) of the High Court (Organization and Administration) (General) Rules requires the Rules to be applied in a manner that facilitates the just, expeditious, proportionate and accessible resolution of disputes. Rule 3(2) then provides that:
“A proceeding before the Court shall not be rendered invalid merely because a party has failed to comply with any aspect of these Rules, but the Court has the discretion to invalidate any proceedings for reasons to be recorded.”
40. That provision must be read together with Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities. Article 159(2)(d) does not abolish procedural rules or permit parties to disregard them at will. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR , Kiage JA emphasized that procedural rules are the handmaidens of justice and serve to make adjudication fair, certain and even-handed. The Court must therefore avoid both extremes: sacrificing substantive justice at the altar of a curable procedural omission and treating binding procedural requirements as dispensable.
41. The decisive consideration is the nature and effect of the non-compliance. The Court should consider whether the affected party received notice of the substantive relief sought, whether that party was afforded a fair opportunity to respond, whether the omission caused actual prejudice and whether any resulting prejudice could be cured without compromising the fairness of the proceedings. A procedural irregularity which causes no irremediable prejudice does not ordinarily invalidate an otherwise competent proceeding.
B. Jurisdiction to discharge, vary or set aside a conservatory order
42. The Court’s jurisdiction to reconsider an interim conservatory order is expressly conferred by Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Rule provides:
“An order issued under rule 23 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.”
43. The jurisdiction exists to ensure that an interim order continues to serve the interests of justice as the proceedings develop. It enables the Court to correct an error or oversight, respond to a material change of circumstances, consider material evidence which was not previously available, or adjust an order whose terms have proved wider, narrower or less workable than the circumstances require.
44. In Bloggers Association of Kenya (BAKE) v Attorney General & 5 others [2018] KEHC 9469 (KLR) , the High Court held that, although Rule 25 confers jurisdiction to discharge, vary or set aside a conservatory order, the power must be exercised with great caution. The Court observed that the power is ordinarily exercised to correct an error or oversight or to adjust the order so that it deals more appropriately with the issues being litigated.
45. The caution prescribed in Bloggers Association of Kenya is important for two reasons. First, an application under Rule 25 is not an appeal by the Court from its own interim order. Secondly, it should not be converted into a rehearing of the original application on substantially the same material. A dissatisfied party must demonstrate a proper juridical and evidential basis for disturbing the existing order. The mere fact that the order was issued before that party was heard entitles the party to approach the Court, but does not make discharge or variation automatic.
C. Nature and purpose of conservatory orders
46. The nature of conservatory relief informs the manner in which the Rule 25 jurisdiction should be exercised. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] KESC 30 (KLR) , the Supreme Court explained that conservatory orders bear a public-law character. They preserve the ordered functioning contemplated by law, uphold the Court’s adjudicatory authority and must be considered in light of the public interest, constitutional values and the proportionate magnitude and priority of the competing causes.
47. Further, in Gatirau Peter Munya , the Supreme Court explained that conservatory orders are not ordinary private-law injunctions. They are granted to preserve the subject matter and maintain the constitutional equilibrium pending the determination of the dispute. The Court must therefore consider not only the inconvenience asserted by the immediate parties but also the public interest and the need to ensure that the constitutional proceedings are not rendered nugatory.
48. It follows that, when invited to discharge or vary a conservatory order, the Court must ask whether the protective purpose which justified the order continues to exist; whether the order remains proportionate to that purpose; and whether the proposed discharge or variation would expose the subject matter to irreversible change before the dispute is heard. The Court must balance the prejudice allegedly caused by maintaining the order against the risk that lifting or diluting it will defeat the proceedings or impair the effectiveness of any eventual relief.
49. Conservatory relief should nevertheless extend no further than is reasonably necessary to preserve the subject matter. An order shown to restrain lawful activity unrelated to the constitutional dispute, or to impose a burden disproportionate to the threatened harm, may properly be tailored. The party seeking that intervention must, however, identify with precision the alleged overbreadth and place before the Court sufficient material from which a clear, proportionate and enforceable variation may be formulated.
D. Evidential burden and limits of interlocutory determination
50. The burden of establishing the factual basis for discharge or variation rests upon the party seeking that relief. Assertions of financial loss, operational paralysis, expiring contracts or prejudice to third parties must be supported by evidence sufficiently specific to demonstrate the connection between the conservatory order and the alleged harm. Where the complaint concerns the geographical reach of an order, the applicant must identify the location of the affected activities with sufficient precision to enable the Court to determine whether those activities fall within the order.
51. Finally, the Court must avoid determining the substantive constitutional dispute at the interlocutory stage. In Muslims for Human Rights (MUHURI) & 2 Others v Attorney General & 2 Others [2011] eKLR , the High Court cautioned that, when considering interlocutory relief, the court must be careful not to reach final conclusions and to make final findings. On an application under Rule 25, the Court should determine whether a proper basis for disturbing the interim protection has been established without prejudging contested questions of land rights, environmental compliance, public participation, displacement, resettlement or compensation reserved for the substantive hearing.
PART VI: ANALYSIS AND DETERMINATION
A. Whether the application offends the procedure for invoking the Court’s jurisdiction during recess
52. The Petitioners challenge the propriety of hearing the 2nd Respondent’s application during the Court recess. They contend that the Chamber Summons seeking admission of the substantive Motion for hearing during recess was not served upon them, it was an afterthought and that, in the absence of a properly prosecuted application for leave, the Court would be acting without jurisdiction.
53. The record shows that the 2nd Respondent filed the Notice of Motion dated 26th August 2026 together with a Chamber Summons of even date. The principal relief sought in the Chamber Summons was the admission of the substantive Motion for hearing during the High Court recess. The 2nd Respondent therefore made a formal application for the Motion to be heard during recess. The procedural omission was its failure to serve that application upon the Petitioners.
54. The Chamber Summons ought to have been served once the Court directed that the substantive Motion be heard inter partes. Service would have enabled the Petitioners to respond formally to both the asserted urgency and the request for admission during recess. The failure to serve it was therefore an irregularity.
55. The question is whether that irregularity deprived the Court of jurisdiction or rendered the proceedings invalid. Rule 17(2) of the High Court (Organization and Administration) (General) Rules, 2016 gives the Court discretion to admit an urgent application for hearing during recess. The determination whether a matter warrants such admission rests with the Court and not with the party presenting it.
56. In the present case, the Court admitted the substantive Motion for hearing during recess. The Petitioners became aware of the basis upon which the 2nd Respondent sought urgent intervention and addressed the alleged procedural defect comprehensively in the replying affidavit sworn on 1st September 2026. At the hearing on 2nd September 2026, their counsel was afforded an opportunity to argue both the procedural objection and the merits of the Motion.
57. Rule 3(2) of the High Court (Organization and Administration) (General) Rules expressly provides that a proceeding shall not be rendered invalid merely because a party has failed to comply with an aspect of the Rules. The Court retains discretion to invalidate the proceeding, but reasons must be recorded for taking that course.
58. The non-service of the Chamber Summons did not, in my view, occasion prejudice which could not be cured at the hearing. The Petitioners were not denied notice of the substantive relief sought, nor were they deprived of an opportunity to oppose it. To invalidate the proceedings in those circumstances would elevate a curable procedural omission above the substantive determination of the dispute.
59. I therefore find that the failure to serve the Chamber Summons was a procedural irregularity, but it neither deprived the Court of jurisdiction nor rendered the hearing of the substantive Motion invalid. The Motion having been admitted and heard during recess, the Chamber Summons has served its purpose and is spent.
B. Whether the application meets the threshold for discharging, varying or setting aside the conservatory order
60. The 2nd Respondent seeks the discharge or variation of the conservatory order principally on the ground that its wording has the effect of freezing the ordinary statutory and operational functions which it performs throughout the Bura Irrigation Scheme. It contends that the order is unlimited and that its officers cannot perform their ordinary duties without risking citation for contempt.
61. The proper starting point is the precise language of the order. On 10th August 2026, the Court granted prayer 2 of the Petitioners’ Notice of Motion dated 4th August 2026 in the following terms:
“A CONSERVATORY ORDER be, and is hereby, issued restraining the Respondents, whether by themselves, their agents, servants, contractors, or persons howsoever acting on their behalf, from continuing, implementing, or executing any works, activities, or measures under the Bura Irrigation Development Project within or affecting the settlements of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres in Bura Constituency, Tana River County, pending the hearing and determination of this APPLICATION.”
62. The words “within or affecting” are central to the scope of the order. They confine its operation to project activities undertaken within, or having an effect upon, the nine expressly identified centres. The order does not restrain every activity carried out by the 2nd Respondent throughout the entire Bura Irrigation Scheme merely because the activity is connected to irrigation.
63. The 2nd Respondent’s description of the wider scheme, its approximately 176,000 acres, developed and cropped areas, canals, pumping stations, reservoirs and drainage infrastructure, does not demonstrate that the ordinary operation and maintenance of that infrastructure take place within or affect the nine centres. Activities elsewhere within the wider scheme which neither occur within nor affect those centres are not prohibited by the order.
64. The Petitioners’ case, as presented to the Court, is not directed against the long-established irrigation and farming operations within the wider Bura Irrigation Scheme. Their grievance concerns the alleged extension of a new phase of the project, including the proposed sugar factory and its associated works, into or in a manner affecting the nine centres occupied by their communities.
65. I therefore do not accept the 2nd Respondent’s contention that the conservatory order is open-ended or that it has halted the entire Bura Irrigation Scheme. I would have found merit in that contention had the order restrained the 2nd Respondent’s lawful activities outside the nine identified centres. It does not.
66. The alternative request for variation encounters a separate but related difficulty. The 2nd Respondent seeks permission to undertake geotechnical research, surveying, mapping, testing, verification and related technical investigations “at the site.” Neither the Motion nor the supporting affidavit identifies that site in relation to the nine centres protected by the order.
67. The 2nd Respondent has not stated whether the proposed factory site, the approximately 350 acres of sugarcane or the area in which the intended investigations are to be conducted lies within or outside the nine centres. It has produced no map, survey plan, parcel or land reference number, coordinates or other geographical material capable of establishing the location of the proposed activities.
68. That omission is material. Nothing would have been easier than for the 2nd Respondent to state clearly whether the proposed activities are to be undertaken within or outside the nine cen
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1. Interim conservatory orders stand as sentinels over the subject matter of constitutional litigation. Their purpose is to hold the ring until the parties have been heard, not to determine the contest in advance. For that reason, a court may revisit such an order where justice requires, but it must do so cautiously lest, in adjusting the protection, it expose the subject matter to the very harm the order was intended to prevent.
2. Before the Court is the 2nd Respondent’s Notice of Motion dated 26th August 2026. The Motion principally seeks the discharge, vacation or setting aside of the interim conservatory order issued by this Court on 10th August 2026 pursuant to prayer 2 of the Petitioners’ Notice of Motion dated 4th August 2026.
3. In the alternative, the 2nd Respondent seeks variation of the order to permit it, together with its agents, contractors, consultants and technical personnel, to undertake and complete geotechnical research, surveys, mapping, testing, verification and related technical investigations at the project site. It proposes that such activities be permitted on condition that they do not involve the eviction, displacement or relocation of any person, or the demolition of any structure.
4. The Motion is supported by the affidavit of Edwin Manyonge sworn on 26th August 2026. The Petitioners oppose it through the replying affidavit of Mohamed Malim Salat sworn on 1st September 2026. The parties canvassed the Motion by oral submissions on 2nd September 2026. The 1st, 3rd, 4th, 5th, 6th and 7th Respondents, though served, did not participate in the hearing.
5. Alongside the Motion, the 2nd Respondent filed a Chamber Summons dated 26th August 2026 seeking, among other orders, admission of the Motion for hearing during the High Court recess. The Petitioners challenged the propriety of invoking the Court’s jurisdiction during recess without service of that Chamber Summons. Since that objection arises anterior to the merits of the Motion, an issue to be determined in this ruling therefore addresses both the procedural and the substantive application.
PART II: BACKGROUND
6. The Petitioners commenced these proceedings through a Petition and a Notice of Motion, both dated 4th August 2026. They instituted the proceedings on their own behalf, in the public interest, and on behalf of the residents of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres in Bura Constituency, Tana River County.
7. The Petitioners’ grievance concerns what they describe as the threatened eviction, displacement and relocation of the residents of the nine centers in the course of implementing the Bura Irrigation Development Project. They contend that the impugned project activities are being undertaken without public participation, environmental and social safeguards, a resettlement action plan, identification of alternative settlement land, or assessment and payment of compensation.
8. Upon considering the Petitioners’ Notice of Motion ex parte on 10th August 2026, the Court certified it urgent and granted prayer 2 on an interim basis. The order restrained the Respondents, whether by themselves, their agents, servants, contractors or persons acting on their behalf, from continuing, implementing or executing any works, activities or measures under the Bura Irrigation Development Project within or affecting the settlements of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres, pending the hearing and determination of the application.
9. The Court further directed the Petitioners to serve the Petition, the application and the orders upon the Respondents. The Respondents were granted fourteen days from the date of service within which to file and serve their responses. The matter was fixed for mention on 29th September 2026 for further directions.
10. The 2nd Respondent states that the interim order was issued before it had an opportunity to place its position before the Court. Rather than file a response to the Petitioners’ application within the period directed by the Court, it filed the present Notice of Motion and the accompanying Chamber Summons on 26th August 2026.
11. In the Certificate of Urgency accompanying the applications, the 2nd Respondent asserted that specialized contractors and technical personnel had already been mobilized to undertake time-sensitive geotechnical research and survey work. It contended that their engagement was limited to a specified period and that, unless the interim order was discharged or varied before 29th September 2026, their engagement might expire before the exercise was completed, thereby exposing the project to substantial financial and logistical prejudice.
12. The application was placed before me during the August recess, and I fixed it for an inter partes hearing on 2nd September 2026. The 2nd Respondent served the substantive Notice of Motion upon the Petitioners but did not serve the accompanying Chamber Summons seeking admission of the Motion for hearing during recess.
13. At the hearing on 2nd September 2026, the Petitioners raised the alleged procedural irregularity. The Court directed that the parties address both the substantive Notice of Motion and the issues raised in the Petitioners’ replying affidavit, including the propriety of hearing the application during recess. The Court thereafter reserved this ruling.
PART III: THE PARTIES’ RESPECTIVE CASES
A. The 2nd Respondent/Applicant’s Case
14. The 2nd Respondent’s application is supported by the affidavit of Edwin Manyonge, its Assistant Director of the National Irrigation Authority. The deponent states that the subsisting order interferes with ongoing technical works at the project site, including geotechnical research, surveying, mapping, testing and verification.
15. The 2nd Respondent contends that it has engaged investors who have commenced operations on the ground and who, in turn, have retained specialized contractors and technical personnel to undertake geotechnical investigations within strict timelines. It asserts that the continued availability of those personnel cannot be guaranteed and that the investors continue to incur daily costs while the interim order remains in force.
16. According to the 2nd Respondent, the geotechnical investigations are preliminary and fact-finding in nature. They are intended to establish the physical and technical characteristics of the proposed project site. The investigations do not, in themselves, entail the eviction, displacement or relocation of any person, the surrender of possession of land, or the demolition of any structure.
17. The 2nd Respondent further avers that the investigations are connected to the proposed installation of a sugar factory whose Engineering, Procurement and Construction Contract was awarded on 15th July 2026. It exhibited a portion of the contract between Tana River Sugar Company Limited and M/s Saisidha Engineering Industries Pvt. Limited in its supporting affidavit as “EM-1” .
18. The 2nd Respondent also states that sugarcane seedlings have been established on approximately 350 acres and require timely transplantation. It estimates that failure to transplant the seedlings may occasion a loss of up to Kshs. 1 billion. It further states that more than 350 local employees engaged in the project risk losing their sources of livelihood if the project activities remain suspended.
19. During the hearing, learned counsel for the 2nd Respondent submitted that the wording of the conservatory order is unduly broad. Counsel argued that the order does not distinguish between the activities complained of by the Petitioners, namely, eviction, displacement and relocation, and the 2nd Respondent’s ordinary statutory and operational functions.
20. Counsel submitted that the Bura Irrigation and Settlement Scheme covers approximately 176,000 acres, of which about 12,000 acres have been developed, and approximately 6,300 acres are under crop. The scheme also comprises branch canals, block-feeder canals, pumping stations, night-storage reservoirs and drainage infrastructure. It was submitted that, on a literal reading of the order, routine operation and maintenance of that infrastructure could expose the 2nd Respondent’s officers to proceedings for contempt.
21. The 2nd Respondent maintained that the Petitioners would suffer no irreversible prejudice if the limited technical investigations were permitted to proceed. It offered an undertaking that no person would be evicted, displaced or relocated and that no structure would be demolished during the investigations. It argued that the Petitioners’ substantive complaints concerning public participation, environmental assessment, resettlement and compensation would remain available for determination in the Petition.
22. The 2nd Respondent therefore urged the Court to discharge the interim order. In the alternative, it asked the Court to vary or clarify the order so as to permit the proposed geotechnical and geospatial investigations to proceed. It submitted that the balance of convenience and the public interest favored the continuation of those limited activities.
B. The Petitioners/Respondents’ Case
23. The Petitioners oppose the application through the replying affidavit of Mohamed Malim Salat sworn on 1st September 2026. Their first objection concerns the admission and hearing of the application during the Court recess. They contend that the 2nd Respondent did not comply with the prescribed procedure because the Chamber Summons seeking admission of the Motion for hearing during recess was not served upon them.
24. The Petitioners rely on Article 165(1) of the Constitution, section 10 of the High Court (Organization and Administration) Act, rule 17 of the High Court (Organization and Administration) (General) Rules, 2016 and the High Court (Practice and Procedure) Rules. They argue that whether a matter should be heard during recess is a question for judicial determination and cannot be settled merely by a party filing a Certificate of Urgency.
25. On the merits, the Petitioners contend that the 2nd Respondent was served with the Petitioners’ application and the interim order on 11th August 2026 but did not file the response directed by the Court. They argue that the present application attempts to convert the 2nd Respondent’s failure to comply with those directions into an accelerated reconsideration of the conservatory order.
26. The Petitioners reject the contention that the order has halted the entire Bura Irrigation Scheme. They submit that the order is geographically confined to works, activities or measures undertaken within or affecting the nine expressly named centres. It does not restrain the long-established irrigation and farming activities carried out elsewhere within the wider scheme.
27. The Petitioners state that their complaint concerns a new phase of the project involving the proposed sugar factory and the extension of project activities into the centres occupied by their communities. They contend that the established irrigation operations elsewhere within the scheme are neither challenged in the Petition nor restrained by the interim order.
28. A central plank of the Petitioners’ opposition is that the 2nd Respondent has not disclosed where the approximately 350 acres of sugarcane, the proposed factory site or the intended geotechnical investigations are located. They point out that the supporting affidavit contains no map, survey plan, parcel or land reference number, coordinates or georeferenced photographs identifying the site in relation to the nine centres.
29. The Petitioners submit that if the activities relied upon by the 2nd Respondent are situated outside the nine centres and do not affect them, the conservatory order does not impede those activities. Conversely, if they are being undertaken within or affect the nine centres, the activities fall within the geographical scope of the order and reinforce the need to preserve the subject matter pending the inter partes hearing.
30. The Petitioners also challenge the evidence tendered in support of the alleged urgency. They observe that the Engineering, Procurement and Construction Contract exhibited by the 2nd Respondent is between Tana River Sugar Company Limited and M/s Saisidha Engineering Industries Pvt. Limited. The 2nd Respondent is not a party to that contract.
31. They further contend that the portion of the contract exhibited relates to the design, engineering, procurement, construction, commissioning and testing of a sugar factory rather than to the limited geotechnical investigations described in the application. In their view, the 2nd Respondent has not produced evidence identifying the geotechnical contractors, their period of engagement, the asserted daily costs or the date upon which their engagement will expire.
32. The Petitioners argue that allowing surveying, mapping and geotechnical investigations to continue within the protected centers would advance implementation of the impugned project before questions concerning public participation, environmental assessment, resettlement and compensation have been determined. They maintain that an undertaking against immediate eviction or demolition would not adequately preserve their rights.
33. The Petitioners consequently urged the Court to dismiss the application and preserve the interim conservatory order pending the inter partes hearing of their Notice of Motion dated 4th August 2026.
PART IV: ISSUES FOR DETERMINATION
34. I have anxiously considered the Notice of Motion and Chamber Summons dated 26th August 2026, the affidavits filed in support of and opposition to the application, the parties’ oral submissions, and the record of the proceedings.
35. Although the 2nd Respondent’s Motion contains several substantive and consequential prayers, they all turn on whether a proper basis has been established for disturbing the conservatory order issued on 10th August 2026. The Petitioners’ objection to the hearing of the Motion during recess raises a distinct procedural question which must be determined first.
36. Accordingly, the following two issues arise for determination:
i) Whether the 2nd Respondent’s application offends the prescribed procedure for invoking the Court’s jurisdiction during recess; and
ii) Whether the 2nd Respondent has met the threshold for discharging, varying or setting aside the conservatory order issued on 10th August 2026.
PART V: APPLICABLE LEGAL PRINCIPLES
A. Admission of urgent applications during recess
37. The Petitioners’ first objection concerns the procedure by which the 2nd Respondent invoked the Court’s jurisdiction during recess. Rule 17(2) of the High Court (Organization and Administration) (General) Rules, 2016 permits the Court to hear an urgent application during recess where the Court is satisfied that the circumstances warrant immediate judicial intervention. Whether the asserted urgency meets that standard is a matter for judicial determination, not one a party may conclusively determine by filing a Certificate of Urgency.
38. In Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others [2017] KEHC 9419 (KLR) , the Court considered an objection founded on the applicant’s failure to obtain leave for a matter to be heard during vacation. Chacha Mwita J., as he then was, held that the requirement to seek such leave was procedural and that non-compliance did not, without more, deprive the Court of jurisdiction to hear an urgent matter.
39. Rule 3(1) of the High Court (Organization and Administration) (General) Rules requires the Rules to be applied in a manner that facilitates the just, expeditious, proportionate and accessible resolution of disputes. Rule 3(2) then provides that:
“A proceeding before the Court shall not be rendered invalid merely because a party has failed to comply with any aspect of these Rules, but the Court has the discretion to invalidate any proceedings for reasons to be recorded.”
40. That provision must be read together with Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities. Article 159(2)(d) does not abolish procedural rules or permit parties to disregard them at will. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR , Kiage JA emphasized that procedural rules are the handmaidens of justice and serve to make adjudication fair, certain and even-handed. The Court must therefore avoid both extremes: sacrificing substantive justice at the altar of a curable procedural omission and treating binding procedural requirements as dispensable.
41. The decisive consideration is the nature and effect of the non-compliance. The Court should consider whether the affected party received notice of the substantive relief sought, whether that party was afforded a fair opportunity to respond, whether the omission caused actual prejudice and whether any resulting prejudice could be cured without compromising the fairness of the proceedings. A procedural irregularity which causes no irremediable prejudice does not ordinarily invalidate an otherwise competent proceeding.
B. Jurisdiction to discharge, vary or set aside a conservatory order
42. The Court’s jurisdiction to reconsider an interim conservatory order is expressly conferred by Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Rule provides:
“An order issued under rule 23 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.”
43. The jurisdiction exists to ensure that an interim order continues to serve the interests of justice as the proceedings develop. It enables the Court to correct an error or oversight, respond to a material change of circumstances, consider material evidence which was not previously available, or adjust an order whose terms have proved wider, narrower or less workable than the circumstances require.
44. In Bloggers Association of Kenya (BAKE) v Attorney General & 5 others [2018] KEHC 9469 (KLR) , the High Court held that, although Rule 25 confers jurisdiction to discharge, vary or set aside a conservatory order, the power must be exercised with great caution. The Court observed that the power is ordinarily exercised to correct an error or oversight or to adjust the order so that it deals more appropriately with the issues being litigated.
45. The caution prescribed in Bloggers Association of Kenya is important for two reasons. First, an application under Rule 25 is not an appeal by the Court from its own interim order. Secondly, it should not be converted into a rehearing of the original application on substantially the same material. A dissatisfied party must demonstrate a proper juridical and evidential basis for disturbing the existing order. The mere fact that the order was issued before that party was heard entitles the party to approach the Court, but does not make discharge or variation automatic.
C. Nature and purpose of conservatory orders
46. The nature of conservatory relief informs the manner in which the Rule 25 jurisdiction should be exercised. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] KESC 30 (KLR) , the Supreme Court explained that conservatory orders bear a public-law character. They preserve the ordered functioning contemplated by law, uphold the Court’s adjudicatory authority and must be considered in light of the public interest, constitutional values and the proportionate magnitude and priority of the competing causes.
47. Further, in Gatirau Peter Munya , the Supreme Court explained that conservatory orders are not ordinary private-law injunctions. They are granted to preserve the subject matter and maintain the constitutional equilibrium pending the determination of the dispute. The Court must therefore consider not only the inconvenience asserted by the immediate parties but also the public interest and the need to ensure that the constitutional proceedings are not rendered nugatory.
48. It follows that, when invited to discharge or vary a conservatory order, the Court must ask whether the protective purpose which justified the order continues to exist; whether the order remains proportionate to that purpose; and whether the proposed discharge or variation would expose the subject matter to irreversible change before the dispute is heard. The Court must balance the prejudice allegedly caused by maintaining the order against the risk that lifting or diluting it will defeat the proceedings or impair the effectiveness of any eventual relief.
49. Conservatory relief should nevertheless extend no further than is reasonably necessary to preserve the subject matter. An order shown to restrain lawful activity unrelated to the constitutional dispute, or to impose a burden disproportionate to the threatened harm, may properly be tailored. The party seeking that intervention must, however, identify with precision the alleged overbreadth and place before the Court sufficient material from which a clear, proportionate and enforceable variation may be formulated.
D. Evidential burden and limits of interlocutory determination
50. The burden of establishing the factual basis for discharge or variation rests upon the party seeking that relief. Assertions of financial loss, operational paralysis, expiring contracts or prejudice to third parties must be supported by evidence sufficiently specific to demonstrate the connection between the conservatory order and the alleged harm. Where the complaint concerns the geographical reach of an order, the applicant must identify the location of the affected activities with sufficient precision to enable the Court to determine whether those activities fall within the order.
51. Finally, the Court must avoid determining the substantive constitutional dispute at the interlocutory stage. In Muslims for Human Rights (MUHURI) & 2 Others v Attorney General & 2 Others [2011] eKLR , the High Court cautioned that, when considering interlocutory relief, the court must be careful not to reach final conclusions and to make final findings. On an application under Rule 25, the Court should determine whether a proper basis for disturbing the interim protection has been established without prejudging contested questions of land rights, environmental compliance, public participation, displacement, resettlement or compensation reserved for the substantive hearing.
PART VI: ANALYSIS AND DETERMINATION
A. Whether the application offends the procedure for invoking the Court’s jurisdiction during recess
52. The Petitioners challenge the propriety of hearing the 2nd Respondent’s application during the Court recess. They contend that the Chamber Summons seeking admission of the substantive Motion for hearing during recess was not served upon them, it was an afterthought and that, in the absence of a properly prosecuted application for leave, the Court would be acting without jurisdiction.
53. The record shows that the 2nd Respondent filed the Notice of Motion dated 26th August 2026 together with a Chamber Summons of even date. The principal relief sought in the Chamber Summons was the admission of the substantive Motion for hearing during the High Court recess. The 2nd Respondent therefore made a formal application for the Motion to be heard during recess. The procedural omission was its failure to serve that application upon the Petitioners.
54. The Chamber Summons ought to have been served once the Court directed that the substantive Motion be heard inter partes. Service would have enabled the Petitioners to respond formally to both the asserted urgency and the request for admission during recess. The failure to serve it was therefore an irregularity.
55. The question is whether that irregularity deprived the Court of jurisdiction or rendered the proceedings invalid. Rule 17(2) of the High Court (Organization and Administration) (General) Rules, 2016 gives the Court discretion to admit an urgent application for hearing during recess. The determination whether a matter warrants such admission rests with the Court and not with the party presenting it.
56. In the present case, the Court admitted the substantive Motion for hearing during recess. The Petitioners became aware of the basis upon which the 2nd Respondent sought urgent intervention and addressed the alleged procedural defect comprehensively in the replying affidavit sworn on 1st September 2026. At the hearing on 2nd September 2026, their counsel was afforded an opportunity to argue both the procedural objection and the merits of the Motion.
57. Rule 3(2) of the High Court (Organization and Administration) (General) Rules expressly provides that a proceeding shall not be rendered invalid merely because a party has failed to comply with an aspect of the Rules. The Court retains discretion to invalidate the proceeding, but reasons must be recorded for taking that course.
58. The non-service of the Chamber Summons did not, in my view, occasion prejudice which could not be cured at the hearing. The Petitioners were not denied notice of the substantive relief sought, nor were they deprived of an opportunity to oppose it. To invalidate the proceedings in those circumstances would elevate a curable procedural omission above the substantive determination of the dispute.
59. I therefore find that the failure to serve the Chamber Summons was a procedural irregularity, but it neither deprived the Court of jurisdiction nor rendered the hearing of the substantive Motion invalid. The Motion having been admitted and heard during recess, the Chamber Summons has served its purpose and is spent.
B. Whether the application meets the threshold for discharging, varying or setting aside the conservatory order
60. The 2nd Respondent seeks the discharge or variation of the conservatory order principally on the ground that its wording has the effect of freezing the ordinary statutory and operational functions which it performs throughout the Bura Irrigation Scheme. It contends that the order is unlimited and that its officers cannot perform their ordinary duties without risking citation for contempt.
61. The proper starting point is the precise language of the order. On 10th August 2026, the Court granted prayer 2 of the Petitioners’ Notice of Motion dated 4th August 2026 in the following terms:
“A CONSERVATORY ORDER be, and is hereby, issued restraining the Respondents, whether by themselves, their agents, servants, contractors, or persons howsoever acting on their behalf, from continuing, implementing, or executing any works, activities, or measures under the Bura Irrigation Development Project within or affecting the settlements of Wadesa, Gasura, Bilbil, Matagala, Nanigi, Dukanotu Centre, Jajavo, Darime and Kamuthe Centres in Bura Constituency, Tana River County, pending the hearing and determination of this APPLICATION.”
62. The words “within or affecting” are central to the scope of the order. They confine its operation to project activities undertaken within, or having an effect upon, the nine expressly identified centres. The order does not restrain every activity carried out by the 2nd Respondent throughout the entire Bura Irrigation Scheme merely because the activity is connected to irrigation.
63. The 2nd Respondent’s description of the wider scheme, its approximately 176,000 acres, developed and cropped areas, canals, pumping stations, reservoirs and drainage infrastructure, does not demonstrate that the ordinary operation and maintenance of that infrastructure take place within or affect the nine centres. Activities elsewhere within the wider scheme which neither occur within nor affect those centres are not prohibited by the order.
64. The Petitioners’ case, as presented to the Court, is not directed against the long-established irrigation and farming operations within the wider Bura Irrigation Scheme. Their grievance concerns the alleged extension of a new phase of the project, including the proposed sugar factory and its associated works, into or in a manner affecting the nine centres occupied by their communities.
65. I therefore do not accept the 2nd Respondent’s contention that the conservatory order is open-ended or that it has halted the entire Bura Irrigation Scheme. I would have found merit in that contention had the order restrained the 2nd Respondent’s lawful activities outside the nine identified centres. It does not.
66. The alternative request for variation encounters a separate but related difficulty. The 2nd Respondent seeks permission to undertake geotechnical research, surveying, mapping, testing, verification and related technical investigations “at the site.” Neither the Motion nor the supporting affidavit identifies that site in relation to the nine centres protected by the order.
67. The 2nd Respondent has not stated whether the proposed factory site, the approximately 350 acres of sugarcane or the area in which the intended investigations are to be conducted lies within or outside the nine centres. It has produced no map, survey plan, parcel or land reference number, coordinates or other geographical material capable of establishing the location of the proposed activities.
68. That omission is material. Nothing would have been easier than for the 2nd Respondent to state clearly whether the proposed activities are to be undertaken within or outside the nine cen
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