[1] This suit was commenced by way of the Originating Motion dated 26 th November 2025, upon leave being sought and obtained in Homa Bay High Court Judicial Review Miscellaneous Application No. E017 of 2025 . Concomitantly, the applicants filed the Notice of Motion dated 26 th November 2025 pursuant to Order 51 Rule 1 of the Civil Procedure Rules, 2010 for the following orders:
[a] That the application be certified urgent and heard ex parte in the first instance. (spent)
[b] That pending the hearing and determination of the application, the court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025 to manage the affairs of Nyachebe Beach Management Unit (BMU) and from preparing a new voters’ register, convening meetings, issuing directives and/or conducting any elections or election-related processes. (spent)
[c] That pending the hearing and determination of the substantive Judicial Review proceedings herein, the Court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants, or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025, including preparing a new voters’ register, convening meetings, issuing directives, or conducting any elections or election-related processes, and that the leave previously granted to institute these Judicial Review proceedings operate as a stay of the impugned decision.
[d] That the Court be pleased to grant any other orders and or directions as it may deem fit and just to issue under the circumstances.
[e] That costs of this application be provided for.
[2] The application was supported by the affidavit of the 1 st applicant, Elly Ogutu Abwao , sworn on 26 th November 2025 in which he averred that, on or about the 5 th November 2025, the respondents purportedly appointed a caretaker committee of eight (8) members during a special meeting, without any formal documentation and installed them as the governing body of Nyachebe BMU. They then orally tasked the caretaker committee to prepare a new voters’ register and conduct fresh elections within 90 days. They contended that the respondents thereby usurped the functions of the duly elected BMU committee.
[3] They further averred that the caretaker committee proceeded to commence the preparation of a new voters’ register and accessing the BMU bank account, which in their view posed imminent risk of irreparable harm to the duly elected representatives and about 600 BMU members. It was their assertion that, unless restrained these proceedings would be rendered nugatory. The plaintiffs averred that the impugned actions of the respondents are ultra vires, unlawful, and procedurally unfair, and amount to a violation of Articles 10, 27, 38 and 47 of the Constitution; and therefore that the balance of convenience favors maintaining the status quo, pending the conclusion of these proceedings.
[4] The respondents opposed the application vide the Replying Affidavit sworn on their behalf by Michael Omondi , the County Director for Fisheries in the County Government of Homa Bay (the 1 st respondent). He explained that elections for Nyachebe BMU was conducted on 14 th April 2025 in accordance with the Fisheries Management and Development (BMU) Regulations, 2024, but the elections were disrupted by those who were unhappy with the outcome; and since the disgruntled had valid complaints about the register a series of meetings were held thereafter to find an amicable solution.
[5] The respondents further averred that the last of the meetings was convened on 22 nd October 2025 at which a resolution was passed to have the register of voters prepared afresh under the guidance of an interim committee of 8 representatives. They deposed that the representatives were drawn from the major stakeholders of Nyachebe BMU, including boat owners, crew and fish traders. Hence, according to the respondents they followed due process in the appointment of the interim committee as provided for in Fisheries Management & Development (BMU) Regulations as well as the Fair Administrative Action Act and the rules made thereunder.
[6] The application was canvassed by way of written submissions and it is notable that in the case of the respondent, the submissions also target the substantive Originating Motion.
[7] As pointed out hereinabove, this suit was filed after leave was granted to the applicants on 24 th November 2025 by Hon. Odera, J. in Homa Bay Judicial Review Miscellaneous Application No. E017 of 2025 . The purpose of leave was aptly explained in in Mombasa HCMCA No. 384 of 1996 : Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others as hereunder:
“The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.
[8] For purposes of leave, Order 53 Rule 1 of the Civil Procedure Rules provides that:
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave.
Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.
[9] In the premises, the applicants ought to have urged their application for stay in the Miscellaneous file, without the need to file a separate application. Indeed, in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 it was held that:
“… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken.”
[10] Hence, although copious submissions were made herein, I find the same unhelpful for the limited purposes of determining whether the leave granted in Homa Bay High Court Judicial Review Miscellaneous Application No. E017 of 2025 ought to operate as stay of the impugned decision. Having granted interim stay herein on 27 th January 2026, it is only fair and just that the same be extended pending the hearing and final disposal of the substantive Motion.
[11] In the result, the Notice of Motion dated 26 th November 2025 is hereby allowed and orders granted as follows:
[a] That pending the hearing and determination of the substantive Originating Motion for judicial review dated 26 th November 2025, the Court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants, or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025, including preparing a new voters’ register, convening meetings, issuing directives, or conducting any elections or election-related processes, and that the leave previously granted to institute these Judicial Review proceedings operate as a stay of the respondents’ decision appointing the caretaker committee.
[b] That costs of this application be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF MAY 2026
[a] That the application be certified urgent and heard ex parte in the first instance. (spent)
[b] That pending the hearing and determination of the application, the court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025 to manage the affairs of Nyachebe Beach Management Unit (BMU) and from preparing a new voters’ register, convening meetings, issuing directives and/or conducting any elections or election-related processes. (spent)
[c] That pending the hearing and determination of the substantive Judicial Review proceedings herein, the Court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants, or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025, including preparing a new voters’ register, convening meetings, issuing directives, or conducting any elections or election-related processes, and that the leave previously granted to institute these Judicial Review proceedings operate as a stay of the impugned decision.
[d] That the Court be pleased to grant any other orders and or directions as it may deem fit and just to issue under the circumstances.
[e] That costs of this application be provided for.
[2] The application was supported by the affidavit of the 1 st applicant, Elly Ogutu Abwao , sworn on 26 th November 2025 in which he averred that, on or about the 5 th November 2025, the respondents purportedly appointed a caretaker committee of eight (8) members during a special meeting, without any formal documentation and installed them as the governing body of Nyachebe BMU. They then orally tasked the caretaker committee to prepare a new voters’ register and conduct fresh elections within 90 days. They contended that the respondents thereby usurped the functions of the duly elected BMU committee.
[3] They further averred that the caretaker committee proceeded to commence the preparation of a new voters’ register and accessing the BMU bank account, which in their view posed imminent risk of irreparable harm to the duly elected representatives and about 600 BMU members. It was their assertion that, unless restrained these proceedings would be rendered nugatory. The plaintiffs averred that the impugned actions of the respondents are ultra vires, unlawful, and procedurally unfair, and amount to a violation of Articles 10, 27, 38 and 47 of the Constitution; and therefore that the balance of convenience favors maintaining the status quo, pending the conclusion of these proceedings.
[4] The respondents opposed the application vide the Replying Affidavit sworn on their behalf by Michael Omondi , the County Director for Fisheries in the County Government of Homa Bay (the 1 st respondent). He explained that elections for Nyachebe BMU was conducted on 14 th April 2025 in accordance with the Fisheries Management and Development (BMU) Regulations, 2024, but the elections were disrupted by those who were unhappy with the outcome; and since the disgruntled had valid complaints about the register a series of meetings were held thereafter to find an amicable solution.
[5] The respondents further averred that the last of the meetings was convened on 22 nd October 2025 at which a resolution was passed to have the register of voters prepared afresh under the guidance of an interim committee of 8 representatives. They deposed that the representatives were drawn from the major stakeholders of Nyachebe BMU, including boat owners, crew and fish traders. Hence, according to the respondents they followed due process in the appointment of the interim committee as provided for in Fisheries Management & Development (BMU) Regulations as well as the Fair Administrative Action Act and the rules made thereunder.
[6] The application was canvassed by way of written submissions and it is notable that in the case of the respondent, the submissions also target the substantive Originating Motion.
[7] As pointed out hereinabove, this suit was filed after leave was granted to the applicants on 24 th November 2025 by Hon. Odera, J. in Homa Bay Judicial Review Miscellaneous Application No. E017 of 2025 . The purpose of leave was aptly explained in in Mombasa HCMCA No. 384 of 1996 : Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others as hereunder:
“The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.
[8] For purposes of leave, Order 53 Rule 1 of the Civil Procedure Rules provides that:
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave.
Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.
[9] In the premises, the applicants ought to have urged their application for stay in the Miscellaneous file, without the need to file a separate application. Indeed, in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 it was held that:
“… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken.”
[10] Hence, although copious submissions were made herein, I find the same unhelpful for the limited purposes of determining whether the leave granted in Homa Bay High Court Judicial Review Miscellaneous Application No. E017 of 2025 ought to operate as stay of the impugned decision. Having granted interim stay herein on 27 th January 2026, it is only fair and just that the same be extended pending the hearing and final disposal of the substantive Motion.
[11] In the result, the Notice of Motion dated 26 th November 2025 is hereby allowed and orders granted as follows:
[a] That pending the hearing and determination of the substantive Originating Motion for judicial review dated 26 th November 2025, the Court be pleased to issue temporary orders of stay restraining the respondents, their agents, servants, or any persons acting under their authority from implementing, enforcing, recognizing, maintaining, or in any manner giving effect to the caretaker committee purportedly appointed on or about the 5 th November 2025, including preparing a new voters’ register, convening meetings, issuing directives, or conducting any elections or election-related processes, and that the leave previously granted to institute these Judicial Review proceedings operate as a stay of the respondents’ decision appointing the caretaker committee.
[b] That costs of this application be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF MAY 2026