REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E004 OF 2026
BETWEEN
SHADRACH SHARU MUYESU............................................1 ST APPLICANT/PETITIONER
NIMROD MATUNDA ODONGO......................................2 ND APPLICANT/PETITIONER
VERSUS
THE SPEAKER OF THE NATIONAL ASSEMBLY....................................1 ST RESPONDENT
THE NATIONAL ASSEMBLY...............................................................2 ND RESPONDENT
THE HONOURABLE ATTORNEY-GENERAL........................................3 RD RESPONDENT
KENYA REVENUE AUTHORITY…………………………………………..4 TH RESPONDENT
RULING
Background of the Application
1. Give it to them. To the two petitioners, please give the credit for not only the courage to question the legitimacy of a parliamentary process with enormous implications on the running of the government, but also for swiftness, clarity and the ability to synthesise the cause and presenting a succinct and admirably brief but elaborate pleading in a constitutional litigation.
2. The sovereign power of the people of Kenya, delegated to state organs under the Constitution of Kenya, 2010, must be exercised in strict compliance with the core values of representative democracy, public participation, and national accountability. On the 20 th June 2026, the Petitioners, Shadrach Sharu Muyesu and Nimrod Matunda Odongo, both of whom are practicing Advocates of the High Court of Kenya, moved this Court by way of a Constitutional Petition.
3. The gravamen of the of the Petition is the constitutionality of the legislative process that culminated in the passage and subsequent enactment of the Finance Bill, 2026 and the Appropriation Bill, 2026. The central controversy must be resolved from the uncontroverted factual occurrence during the legislative proceedings in the National Assembly on Thursday, 18 th June 2026. On that day, the National Assembly undertook sittings for the Second Reading, Committee of the Whole House, and the Third Reading of the two critical legislative instruments, which form the structural and fiscal foundation of the national budget for the 2026/2027 Financial Year.
4. While the official records indicate that the technical numerical quorum required under Article 121 of the Constitution was maintained during the entire proceedings at the sitting, a physical head-count and the official live broadcast of the division reveal that a total of 187 out of the 349 Members of the National Assembly were absent during the Third Reading and final vote. The only contention by the Petitioners is that the absence of a substantial majority, more than 53%% of the elected representatives, during the final vote on a critical national tax and expenditure package fundamentally frustrated and defeated the essence of representation and deliberative character of the National Assembly as guaranteed under Articles 1(2) and 95(1) of the Constitution.
5. It is argued that such large-scale absenteeism unconstitutionally diluted and rendered meaningless the public participation exercise previously conducted under Article 118 of the Constitution, because the views and comments collected from the public could not be meaningfully debated, considered or voted upon by a representative body that had largely abdicated its physical presence in the chamber.
The Petitioners’ Case in the Application dated 21 st June 2026
6. The Petitioners’ case, as captured in the petition and the Notice of Motion dated 21 st June 2026 and the accompanying Certificate of Urgency, seeks urgent interlocutory protection from this Court. The Application, brought under Articles 22, 23(3), and 165(3) of the Constitution of Kenya, 2010, and the relevant practice rules, asks this Court to issue several interim orders pending the final hearing and determination of the substantive Petition.
7. First, the Petitioners seek a conservatory order halting, suspending, and staying the enactment into law, coming into force, operation, implementation, and enforcement of the Finance Bill, 2026, and the Appropriations Bill (National Assembly Bill No. 36 of 2026). Second, they seek a conservatory order in similar terms staying the implementation of the resultant Finance Act, 2026 and the Appropriations Act, 2026, in the event that the President should assent to the Bills before the determination of the Application.
8. Third, they pray for an order directing the 1st Respondent to file and serve upon them, and file in court, a verified record of attendance of all Members of the National Assembly during the Second Reading, Committee of the Whole House, and Third Reading of the Finance Bill, 2026 and the Appropriations Bill. Finally, they pray for leave to serve the pleadings upon the Respondents via electronic mail, courier, and their public social media handles due to the extreme urgency of the matter.
9. The Application is supported by the affidavit of Shadrack Sharu Muyesu, the 1 st Petitioner, sworn on 21 st June 2026, which also incorporates and speaks on behalf of the 2 nd Petitioner, Nimrod Matunda Odongo. The deponent states that on 18 th June 2026, the National Assembly considered the Finance Bill, 2026, and the Appropriation Bill, 2026, during sittings that were broadcast live and recorded in the official Hansard.
10. To support these claims, the deponent annexed Exhibit “SSM-1”, which contains the official parliamentary live-stream recording links and the digital records of the division. He deposes that 187 out of 349 Members of Parliament were physically absent when the critical final votes were taken, a fact that can be verified through the electronic and video records. The Petitioners argue that although the National Assembly complied with the minimum quorum requirement of fifty members under Article 121, representative democracy requires more than a bare, technical quorum when deciding on complex fiscal measures that directly impact the cost of living and tax burdens of fifty million Kenyans.
11. The petitioners assert that the absenteeism constitutes a serious breach of the public trust and the leadership standards set under Article 73 of the Constitution, as it represents a collective failure of representation. The deponent further states that the Finance Bill, 2026, and the Appropriations Bill, 2026, are imminently to be transmitted, or have been transmitted, to the President for assent under Article 115, and are scheduled to take effect on 1 st July 2026, at the start of the 2026/2027 Financial Year. They maintain that unless this Court grants conservatory orders, the unconstitutional legislative process will take full legal effect, imposing daily tax liabilities on the public that are incapable of adequate remedy in damages.
12. The two also make a disclosure of Nairobi High Court Constitutional Petition No. E374 of 2026, entitled Consumer Federation of Kenya vs. Cabinet Secretary, National Treasury & Economic Planning & Others , which was certified urgent on 16 th June 2026. They confirm that their Petition is brought on distinct, narrower procedural grounds focused on the scale of member absenteeism and the procedural integrity of the legislative process, and does not duplicate the substantive tax challenges raised in the Nairobi matter.
13. On such basis the petitioners beseech the court to grant to them interim conservatory orders pending the determination of the petition.
The 1 st and 2 nd Respondents’ Notice of Preliminary Objection dated 24/06/2026
14. The Speaker of the National Assembly and the National Assembly, entering their appearance through Sandra Nganyi, Advocate, and filed a Notice of Preliminary Objection dated 24 th June 2026. The 1 st and 2 nd Respondents pray for the immediate dismissal of the Petition and the Motion in limine on six primary grounds. First, they contend that the Petition and Motion essentially challenge the constitutionality of the Finance Bill, 2026 and the Appropriation Bill, 2026, which were passed by the National Assembly on Thursday, 18 th June 2026, and subsequently assented to by H.E. the President of the Republic of Kenya on Tuesday, 23 rd June 2026, under Article 115 of the Constitution hence the matter is moot because there are no longer bills to be challenged.
15. It is thus argued that because the Petition and Motion were filed on 21 st June 2026 when the Bills were still undergoing the legislative process, they have been completely overtaken by events, are moot, academic, and non-justiciable. The petitioners therefore submit that the High Court lacks the jurisdiction to convert a challenge against a Bill into a challenge against an Act, because a Bill and an Act are distinct legal instruments that exist at different stages of the legislative process and require different causes of action.
16. Secondly, the two respondents argue that the Petition and the Application are meant to subvert the public interest and constitute a gross abuse of the process of the Court.
17. Finally, they contend that the Petition is premature and an abuse of the court process because the Petitioners have failed to exhaust the available statutory remedies and dispute resolution mechanisms under the Access to Information Act, Cap 7M, before approaching this Court for orders of production of parliamentary records.
The 1 st and 2 nd Respondents’ Grounds of Opposition dated 24/06/2026
18. In their Grounds of Opposition filed on 24 th June 2026, the 1 st and 2 nd Respondents outline several substantive grounds in opposition to the Petitioners' Notice of Motion and Petition. They assert that the conservatory orders sought against the Finance Bill, 2026 and the Appropriation Bill, 2026 are entirely moot and incapable of implementation because the Bills have already been assented to and are now fully enacted laws.
19. They submit that the Petitioners have failed to meet the strict legal test for the grant of conservatory orders established by the Supreme Court of Kenya in Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR . They argue that statutes enacted by the National Assembly enjoy a robust, rebuttable presumption of constitutionality, which can only be rebutted upon a substantive and complete hearing of the Petition on its merits.
20. They contend that the Petitioners are approbating and reprobating because they seek conservatory orders on speculative, unverified facts regarding the absenteeism of 187 members, while simultaneously asking the Court to compel the 1 st Respondent to produce the official attendance register to establish their case. The Respondents maintain that the Petitioners have failed to establish a prima facie case with a likelihood of success, and are instead using this suit to conduct a fishing expedition for evidence.
21. They further submit that the legislative process was conducted in complete compliance with Articles 94, 95, 109, 114, 118, 121, and 122 of the Constitution. They argue that the public interest in sustaining the budget framework and fiscal operations of the national government far outweighs any alleged private or speculative prejudice, and that the suspension of the tax laws would cause severe disruption to the functioning of state organs and the delivery of essential public services.
The 3 rd Respondent’s Case
22. The Attorney-General, as the 3 rd Respondent, filed a Certificate of Urgency and a Notice of Motion application dated 25 th June 2026, through Kaumba Samwel Odiwuor, Deputy Chief State Counsel. The 3 rd Respondent seeks three primary orders; an order staying further proceedings in Lodwar High Court Constitutional Petition No. E004 of 2026 pending the hearing and determination of his application; the certification that the Petition raises substantial questions of law under Article 165(4) of the Constitution and should be forthwith referred to the Chief Justice for the empanelment of an uneven bench of not less than three judges, and lastly, that the upon transfer the Petition be consolidated for hearing alongside Milimani High Court Constitutional Petition No. 374 of 2026, Consumer Federation of Kenya vs Cabinet Secretary, National Treasury & Economic Planning & Others .
23. The Application is supported by the affidavit of Kaumba Samwel Odiwuor, who deposes that while the High Court has unlimited original jurisdiction, the parties to this dispute are domiciled in Nairobi. He states that the Petition is identical to the pending Nairobi Petition No. E374 of 2026, which challenges the validity of the same Finance Bill, 2026, and that transfer and consolidation are essential in the interest of the timely and efficient administration of justice and to prevent the risk of conflicting orders from courts of concurrent jurisdiction.
24. He deposes that the Petition raises novel, complex, and substantial questions of law under the Constitution that have never been adjudicated before by any court of law in Kenya. These questions include whether the absence of members, despite the presence of a constitutional quorum under Article 121, renders legislative proceedings unconstitutional for non-compliance with the public participation demands of Article 118; and whether absenteeism defeats the deliberative and representative character of the House. He maintains that these critical issues transcend the individual interests of the parties and have a significant bearing on the public interest and the development of constitutional law in Kenya.
25. The 3 rd Respondent also filed Grounds of Opposition dated 25 th June 2026 opposing the Petitioners’ Notice of Motion for conservatory orders. He submits that the numerical thresholds under Articles 121 and 122 were fully met during the voting on 18 th June 2026, and that parliamentary processes enjoy a strong presumption of regularity. He argues that the Bills have already been assented to, and that the public interest and balance of convenience strongly tilt in favour of sustaining the implementation of the Finance and Appropriations Acts to ensure the smooth operation of all arms of government and the generation of national revenue for the 2026/2027 Financial Year.
Roadmap on Preliminary objection and Notice of Motion
26. When the parties attended court on the appointed date, Mr Ochieng Advocate told the court that he had filed an application for his client, the Kenya Revenue Authority, to be joined, on the basis that it is the constitutional duty bearer for collection of revenue and hence any outcome of this matter would directly affect it. That request was allowed by the court pursuant to Rule 5, of the Constitution of Kenya (protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.
27. Even though the counsel had not filed any Affidavits nor Grounds of Opposition, but express concurrence with the position of other respondents, he was allowed to participate in the proceedings and to address the court on points of law only.
28. That decision was reached after the court appreciated the urgency involved and that Notices of preliminary objections had been raised and needed to be argued before hand and at the threshold level.
29. By the same directions, the court directed that the Notices of Preliminary Objection be argued as oppositions to the Notice of Motion seeking interim conservatory orders among other reliefs. The other interlocutory application by the 3 rd Respondent seeking certification for purposes empanelment of a bench of an even number of judges was kept in abeyance to await a determination of the preliminary objections.
30. With that roadmap, the court shall proceed and capture positions of the parties to help it undertake its mandate.
Position of the respective parties
Summary of the 1 st and 2 nd Respondents’ Submissions in Opposition to the Petitioners’ Application dated 21/06/2026 and in support of their Notice of Preliminary Objection dated 24/06/2026
31. The 1 st and 2 nd Respondents, in their written submissions dated 24 th June 2026, contend that this Court lacks jurisdiction to determine the Petition and the Motion. They submit that the High Court should take judicial notice under Section 60 of the Evidence Act that the Finance Bill, 2026 was passed on 18 th June 2026 and assented to by the President on 23 rd June 2026, under Article 115 of the Constitution. They rely on Wanjiru Gikonyo and 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) on the doctrine of mootness, arguing that courts must not determine issues that no longer present a live controversy and are only of academic interest. They submit that since the Bills have been assented to, there are no Bills in existence for the court to stay.
32. They rely heavily on the Supreme Court’s decision in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) to support their argument that a Bill and an Act are distinct legal instruments that require different causes of action. They argue that challenges to a Bill focus on procedural irregularities, whereas challenges to an Act focus on substantive constitutionality, and that the High Court lacks jurisdiction to convert a challenge against a Bill into a challenge against an Act.
33. Furthermore, they submit that this Court is divested of jurisdiction to grant the order of production of attendance records due to the Petitioners’ failure to exhaust the alternative remedies available under the Access to Information Act, Cap 7M, citing Commission for Human Rights & Justice (CHRJ) vs Area & 3 Others [2022] KEHC 12994 (KLR) . They maintain that when a statute provides a clear procedure for the redress of any grievance, that procedure must be strictly followed, and the High Court cannot be used to bypass statutory dispute resolution mechanisms.
34. They argue that the conservatory motion must be dismissed because the Petitioners’ claims of absenteeism are based on speculative, unverified facts and fail to meet the legal standards for conservatory orders. They emphasize that the public interest in sustaining the budget and fiscal operations of the national government far outweighs any alleged procedural injury.
Summary of the 3 rd Respondent’s Submissions in Support of the Preliminary Objection and in Opposition to the Petitioners’ Application dated 21/06/2026
35. Even though the 3 rd Respondent only filed Grounds of Opposition and no Preliminary Objection to the Petition, during arguments, it supported the position of the 1 st and 2 nd respondents and contended that the matter did not lie for being unripe and for seeking to disrupt and stall the operations of the government. He underscored the fact that if the appropriation Act was stayed after assent, there would be no way to withdraw any money from the consolidated fund and the entire government system would be paralysed.
36. In opposition to the Petitioner’ conservatory motion, the Respondent submits that the Petitioners admit that the National Assembly met the numerical thresholds for quorum and voting under Articles 121 and 122 during the division on 18 th June 2026. It argues that parliamentary processes enjoy a presumption of regularity, which can only be disturbed upon a merit determination of the Petition.
37. It is submitted that the Bills have already been assented to, and that the public interest and balance of convenience tilt heavily in favour of sustaining the Finance Act and the Appropriation Act, which define the government's comprehensive strategy for generating revenue and allocating funds for the 2026/2027 Financial Year. He relies on Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR to argue that the conservatory application fails to satisfy the established legal threshold and must be dismissed.
Summary of the Petitioners’ Submissions in Opposition to the Preliminary Objection and in support of the Application foe conservatory Orders
38. In opposition to the 1 st and 2 nd Respondents’ Preliminary Objection, the Petitioners submit that their Petition is not moot because they explicitly anticipated the presidential assent by seeking alternative declarations in their pleadings, targeting both the Bills and the resulting Acts. They argue that the distinction between a Bill and an Act in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) was in the context of procedural concurrence and does not bar the court from exercising its jurisdiction over a petition that actively pleaded the alternative and challenged the very process of enactment. They contend that rushing a Bill to assent cannot cure a fundamentally flawed legislative process, and the court must not allow the executive to defeat constitutional challenges through rapid assents.
39. Regarding the Access to Information Act, Cap 7M, the Petitioners submit that their request for the production of attendance records is not a primary claim under Article 35 of the Constitution. Rather, it is an interlocutory request for the production of documents within an active constitutional suit. Therefore, the statutory exhaustion of remedies doctrine does not apply to this request, and the court retains its inherent power to order the disclosure of relevant evidence.
40. In their Grounds of Opposition to the 3 rd Respondent’s Application dated 26 th June 2026 for Empanelment and Transfer, the Petitioners argue that the issues raised do not meet the high threshold of substantial questions of law requiring a three-judge bench under Article 165(4) of the Constitution. They assert that the application is a delay tactic and an instance of forum-shopping to transfer the matter to Nairobi. It is contended that the High Court at Lodwar has full jurisdiction to hear and determine both the applications and the Petition.
41. They argue that consolidation with Petition No. E374 of 2026 is unnecessary because their petition is narrowly focused on the legislative process and absenteeism, whereas the Nairobi petition challenges substantive tax provisions. They claim that staying the proceedings pending empanelment would cause grave prejudice given the imminent commencement of the financial year on 1 st July 2026. They further submit that the Respondents have failed to demonstrate any real prejudice that would justify delaying the hearing of the main Petition.
42. On the application, the Petitioners submit that they have satisfied the three-limb test for the grant of conservatory orders established by the Supreme Court of Kenya in Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR . They argue that they have established a strong prima facie case with a likelihood of success on the merits. They contend that the absenteeism of 187 out of 349 Members of the National Assembly during the final read-through and vote on the country’s budget bills is an undisputed fact that constitutes a fundamental breach of Articles 1(2), 10, 73, 94, 95, and 118 of the Constitution.
43. They cite the Supreme Court’s decision in Cabinet Secretary for the CS for National Treasury and Planning & 4 Other vs Okiya Omtatah Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) for the proposition that public participation must be real, meaningful, and not illusory. They submit that public participation is a two-way street: it is not just about the public submitting views, but about their elected representatives being physically present to actively deliberate upon and integrate those views into the final legislation. A legislative process where more than half of the representatives are absent during the final vote cannot be said to be executing its deliberative and representative mandate.
44. Second, they argue that in the absence of conservatory orders, they and the general public will suffer irreparable harm. The Finance Act, 2026 and the Appropriations Act, 2026 are scheduled to take effect on 1 st July 2026, imposing daily binding tax and public spending obligations. If these Acts are later declared unconstitutional, it will cause immense chaos, public fund wastage, and a profound constitutional crisis.
45. Third, they submit that the balance of convenience and the public interest favour the grant of conservatory orders. They argue that the public interest is heavily served by ensuring that the laws governing national taxation and spending are passed through a constitutionally pure process, and that a short suspension to verify this process causes no comparable prejudice to the Respondents.
Issues Analysis and Determination
46. Having carefully perused all the pleadings, affidavits, and written submissions filed by the parties, this Court has identified only two core issues to isolate themselves for the determination of the court. The issues are: -
i) Whether the Court lacks jurisdiction or if the jurisdiction is postponed to determine the Petition and the Motion on account of the 1 st and 2 nd Respondents’ Preliminary Objection.
ii) Only if the foregoing issue be answered in the negative, whether the Petitioners have established the legal threshold for the grant of conservatory orders to stay the implementation of the Finance Act, 2026, and the Appropriations Act, 2026.
Whether this Court lacks jurisdiction or the jurisdiction is postponed to determine the Petition and the Motion on account of the 1 st and 2 nd Respondents’ Preliminary Objection ?
47. The 1 st and 2 nd Respondents raise a Preliminary Objection, asserting that this Court lacks jurisdiction on three main fronts; mootness, the Bill-Act distinction, and the failure of the Petitioners to exhaust statutory remedies under the Access to Information Act, Cap 7M.
48. On the question of mootness and the Bill-Act distinction, the Respondents argue that the Petitioners filed their petition on 21 st June 2026, challenging the Finance Bill, 2026 and the Appropriation Bill, 2026 while they were still undergoing the legislative process. Since the President subsequently assented to these Bills on 23 rd June 2026, the Respondents argue, the Bills have ceased to exist, rendering the challenge moot, academic, and non-justiciable because the court ought not mutate the petitioners ‘pleadings and prayer from bill to Act
49. They rely on Wanjiru Gikonyo and 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) , where the High Court held that courts should not engage in abstract or academic arguments where no live controversy exists. They also cite the Supreme Court decision in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) , which held that a Bill and an Act are distinct legal instruments that require different causes of action because they exist at different stages of the legislative process and have different legal effects.
50. The Court is fully aware of the distinct nature of Bills away from the Acts of Parliament once assented to. It is the constitutional act by the president in assenting to the bill that transforms it from a proposed law into an enforceable legal instrument only subject to the date of coming into effect. The two must thus not be confused or deemed as having the same character even if the provisions remain the same word for word.
51. A subject of litigation is said to be moot when clearly discern no efficacious outcome and thus more of academic that serving any meaningful cause of justice. The doctrine of mootness appreciates the judicial resource in time as valuable and ought to be utilised efficiently. Courts are thus hesitant to devote time to moot questions unless in exceptional circumstances where even if the matter has been overtaken by events, there remains as raised a cardinal issue of great public importance thus exhibiting a need to formulate or illuminate a constitutional principle to guide state organs, or if the passage of time or the actions of a party were designed to render the court’s intervention nugatory.
52. It is thus trite that the doctrine of mootness is not an absolute bar to judicial intervention in appropriate cases. Consequently, therefore, when applied to the law-making process, that a bill has been assented to or an impugned act perform in a calculated manner to render court action nugatory, the court has the inherent and intrinsic duty to still interrogate if indeed the actions complained about passes the test of constitutionalism. The court so proceeds even if the decision does not remedy the issue raised in the matter, provided a principle or norm of the constitution is alive and calls for illumination, reinstatement or protection. See the decision of the Court of Appeal in Redhill Heights Investments Limited vs Suzanne Achieng Butler & 4 Others [2018] eKLR .
53. When that position of the law is applied to the facts and circumstances of this petition, the question to be asked is whether there exists a constitutional issue that pends resolution by the court and yielding an outcome that illuminates a constitutional norm, value or principle beyond the date the law was assented to by the president.
54. Even though the respondents contend very strongly that the petition does not plead a constitutional violation, the court reads a succinct and precisely pleaded breach to be that when more than 50% of the Members of the national Assembly failed to attend the debate and voting of the two bills, such absent Members failed in their duty to the electorate and therefore the law, as important as the Finance Bill and Appropriation Bill, lack legitimacy for not reflecting legislative participation by the people’s representatives. That appreciation leads the court to fine that the petition is not bad for being moot.
55. In the instant matter, the Petitioners filed their petition on 21 st June 20
[...truncated]
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL PETITION NO. E004 OF 2026
BETWEEN
SHADRACH SHARU MUYESU............................................1 ST APPLICANT/PETITIONER
NIMROD MATUNDA ODONGO......................................2 ND APPLICANT/PETITIONER
VERSUS
THE SPEAKER OF THE NATIONAL ASSEMBLY....................................1 ST RESPONDENT
THE NATIONAL ASSEMBLY...............................................................2 ND RESPONDENT
THE HONOURABLE ATTORNEY-GENERAL........................................3 RD RESPONDENT
KENYA REVENUE AUTHORITY…………………………………………..4 TH RESPONDENT
RULING
Background of the Application
1. Give it to them. To the two petitioners, please give the credit for not only the courage to question the legitimacy of a parliamentary process with enormous implications on the running of the government, but also for swiftness, clarity and the ability to synthesise the cause and presenting a succinct and admirably brief but elaborate pleading in a constitutional litigation.
2. The sovereign power of the people of Kenya, delegated to state organs under the Constitution of Kenya, 2010, must be exercised in strict compliance with the core values of representative democracy, public participation, and national accountability. On the 20 th June 2026, the Petitioners, Shadrach Sharu Muyesu and Nimrod Matunda Odongo, both of whom are practicing Advocates of the High Court of Kenya, moved this Court by way of a Constitutional Petition.
3. The gravamen of the of the Petition is the constitutionality of the legislative process that culminated in the passage and subsequent enactment of the Finance Bill, 2026 and the Appropriation Bill, 2026. The central controversy must be resolved from the uncontroverted factual occurrence during the legislative proceedings in the National Assembly on Thursday, 18 th June 2026. On that day, the National Assembly undertook sittings for the Second Reading, Committee of the Whole House, and the Third Reading of the two critical legislative instruments, which form the structural and fiscal foundation of the national budget for the 2026/2027 Financial Year.
4. While the official records indicate that the technical numerical quorum required under Article 121 of the Constitution was maintained during the entire proceedings at the sitting, a physical head-count and the official live broadcast of the division reveal that a total of 187 out of the 349 Members of the National Assembly were absent during the Third Reading and final vote. The only contention by the Petitioners is that the absence of a substantial majority, more than 53%% of the elected representatives, during the final vote on a critical national tax and expenditure package fundamentally frustrated and defeated the essence of representation and deliberative character of the National Assembly as guaranteed under Articles 1(2) and 95(1) of the Constitution.
5. It is argued that such large-scale absenteeism unconstitutionally diluted and rendered meaningless the public participation exercise previously conducted under Article 118 of the Constitution, because the views and comments collected from the public could not be meaningfully debated, considered or voted upon by a representative body that had largely abdicated its physical presence in the chamber.
The Petitioners’ Case in the Application dated 21 st June 2026
6. The Petitioners’ case, as captured in the petition and the Notice of Motion dated 21 st June 2026 and the accompanying Certificate of Urgency, seeks urgent interlocutory protection from this Court. The Application, brought under Articles 22, 23(3), and 165(3) of the Constitution of Kenya, 2010, and the relevant practice rules, asks this Court to issue several interim orders pending the final hearing and determination of the substantive Petition.
7. First, the Petitioners seek a conservatory order halting, suspending, and staying the enactment into law, coming into force, operation, implementation, and enforcement of the Finance Bill, 2026, and the Appropriations Bill (National Assembly Bill No. 36 of 2026). Second, they seek a conservatory order in similar terms staying the implementation of the resultant Finance Act, 2026 and the Appropriations Act, 2026, in the event that the President should assent to the Bills before the determination of the Application.
8. Third, they pray for an order directing the 1st Respondent to file and serve upon them, and file in court, a verified record of attendance of all Members of the National Assembly during the Second Reading, Committee of the Whole House, and Third Reading of the Finance Bill, 2026 and the Appropriations Bill. Finally, they pray for leave to serve the pleadings upon the Respondents via electronic mail, courier, and their public social media handles due to the extreme urgency of the matter.
9. The Application is supported by the affidavit of Shadrack Sharu Muyesu, the 1 st Petitioner, sworn on 21 st June 2026, which also incorporates and speaks on behalf of the 2 nd Petitioner, Nimrod Matunda Odongo. The deponent states that on 18 th June 2026, the National Assembly considered the Finance Bill, 2026, and the Appropriation Bill, 2026, during sittings that were broadcast live and recorded in the official Hansard.
10. To support these claims, the deponent annexed Exhibit “SSM-1”, which contains the official parliamentary live-stream recording links and the digital records of the division. He deposes that 187 out of 349 Members of Parliament were physically absent when the critical final votes were taken, a fact that can be verified through the electronic and video records. The Petitioners argue that although the National Assembly complied with the minimum quorum requirement of fifty members under Article 121, representative democracy requires more than a bare, technical quorum when deciding on complex fiscal measures that directly impact the cost of living and tax burdens of fifty million Kenyans.
11. The petitioners assert that the absenteeism constitutes a serious breach of the public trust and the leadership standards set under Article 73 of the Constitution, as it represents a collective failure of representation. The deponent further states that the Finance Bill, 2026, and the Appropriations Bill, 2026, are imminently to be transmitted, or have been transmitted, to the President for assent under Article 115, and are scheduled to take effect on 1 st July 2026, at the start of the 2026/2027 Financial Year. They maintain that unless this Court grants conservatory orders, the unconstitutional legislative process will take full legal effect, imposing daily tax liabilities on the public that are incapable of adequate remedy in damages.
12. The two also make a disclosure of Nairobi High Court Constitutional Petition No. E374 of 2026, entitled Consumer Federation of Kenya vs. Cabinet Secretary, National Treasury & Economic Planning & Others , which was certified urgent on 16 th June 2026. They confirm that their Petition is brought on distinct, narrower procedural grounds focused on the scale of member absenteeism and the procedural integrity of the legislative process, and does not duplicate the substantive tax challenges raised in the Nairobi matter.
13. On such basis the petitioners beseech the court to grant to them interim conservatory orders pending the determination of the petition.
The 1 st and 2 nd Respondents’ Notice of Preliminary Objection dated 24/06/2026
14. The Speaker of the National Assembly and the National Assembly, entering their appearance through Sandra Nganyi, Advocate, and filed a Notice of Preliminary Objection dated 24 th June 2026. The 1 st and 2 nd Respondents pray for the immediate dismissal of the Petition and the Motion in limine on six primary grounds. First, they contend that the Petition and Motion essentially challenge the constitutionality of the Finance Bill, 2026 and the Appropriation Bill, 2026, which were passed by the National Assembly on Thursday, 18 th June 2026, and subsequently assented to by H.E. the President of the Republic of Kenya on Tuesday, 23 rd June 2026, under Article 115 of the Constitution hence the matter is moot because there are no longer bills to be challenged.
15. It is thus argued that because the Petition and Motion were filed on 21 st June 2026 when the Bills were still undergoing the legislative process, they have been completely overtaken by events, are moot, academic, and non-justiciable. The petitioners therefore submit that the High Court lacks the jurisdiction to convert a challenge against a Bill into a challenge against an Act, because a Bill and an Act are distinct legal instruments that exist at different stages of the legislative process and require different causes of action.
16. Secondly, the two respondents argue that the Petition and the Application are meant to subvert the public interest and constitute a gross abuse of the process of the Court.
17. Finally, they contend that the Petition is premature and an abuse of the court process because the Petitioners have failed to exhaust the available statutory remedies and dispute resolution mechanisms under the Access to Information Act, Cap 7M, before approaching this Court for orders of production of parliamentary records.
The 1 st and 2 nd Respondents’ Grounds of Opposition dated 24/06/2026
18. In their Grounds of Opposition filed on 24 th June 2026, the 1 st and 2 nd Respondents outline several substantive grounds in opposition to the Petitioners' Notice of Motion and Petition. They assert that the conservatory orders sought against the Finance Bill, 2026 and the Appropriation Bill, 2026 are entirely moot and incapable of implementation because the Bills have already been assented to and are now fully enacted laws.
19. They submit that the Petitioners have failed to meet the strict legal test for the grant of conservatory orders established by the Supreme Court of Kenya in Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR . They argue that statutes enacted by the National Assembly enjoy a robust, rebuttable presumption of constitutionality, which can only be rebutted upon a substantive and complete hearing of the Petition on its merits.
20. They contend that the Petitioners are approbating and reprobating because they seek conservatory orders on speculative, unverified facts regarding the absenteeism of 187 members, while simultaneously asking the Court to compel the 1 st Respondent to produce the official attendance register to establish their case. The Respondents maintain that the Petitioners have failed to establish a prima facie case with a likelihood of success, and are instead using this suit to conduct a fishing expedition for evidence.
21. They further submit that the legislative process was conducted in complete compliance with Articles 94, 95, 109, 114, 118, 121, and 122 of the Constitution. They argue that the public interest in sustaining the budget framework and fiscal operations of the national government far outweighs any alleged private or speculative prejudice, and that the suspension of the tax laws would cause severe disruption to the functioning of state organs and the delivery of essential public services.
The 3 rd Respondent’s Case
22. The Attorney-General, as the 3 rd Respondent, filed a Certificate of Urgency and a Notice of Motion application dated 25 th June 2026, through Kaumba Samwel Odiwuor, Deputy Chief State Counsel. The 3 rd Respondent seeks three primary orders; an order staying further proceedings in Lodwar High Court Constitutional Petition No. E004 of 2026 pending the hearing and determination of his application; the certification that the Petition raises substantial questions of law under Article 165(4) of the Constitution and should be forthwith referred to the Chief Justice for the empanelment of an uneven bench of not less than three judges, and lastly, that the upon transfer the Petition be consolidated for hearing alongside Milimani High Court Constitutional Petition No. 374 of 2026, Consumer Federation of Kenya vs Cabinet Secretary, National Treasury & Economic Planning & Others .
23. The Application is supported by the affidavit of Kaumba Samwel Odiwuor, who deposes that while the High Court has unlimited original jurisdiction, the parties to this dispute are domiciled in Nairobi. He states that the Petition is identical to the pending Nairobi Petition No. E374 of 2026, which challenges the validity of the same Finance Bill, 2026, and that transfer and consolidation are essential in the interest of the timely and efficient administration of justice and to prevent the risk of conflicting orders from courts of concurrent jurisdiction.
24. He deposes that the Petition raises novel, complex, and substantial questions of law under the Constitution that have never been adjudicated before by any court of law in Kenya. These questions include whether the absence of members, despite the presence of a constitutional quorum under Article 121, renders legislative proceedings unconstitutional for non-compliance with the public participation demands of Article 118; and whether absenteeism defeats the deliberative and representative character of the House. He maintains that these critical issues transcend the individual interests of the parties and have a significant bearing on the public interest and the development of constitutional law in Kenya.
25. The 3 rd Respondent also filed Grounds of Opposition dated 25 th June 2026 opposing the Petitioners’ Notice of Motion for conservatory orders. He submits that the numerical thresholds under Articles 121 and 122 were fully met during the voting on 18 th June 2026, and that parliamentary processes enjoy a strong presumption of regularity. He argues that the Bills have already been assented to, and that the public interest and balance of convenience strongly tilt in favour of sustaining the implementation of the Finance and Appropriations Acts to ensure the smooth operation of all arms of government and the generation of national revenue for the 2026/2027 Financial Year.
Roadmap on Preliminary objection and Notice of Motion
26. When the parties attended court on the appointed date, Mr Ochieng Advocate told the court that he had filed an application for his client, the Kenya Revenue Authority, to be joined, on the basis that it is the constitutional duty bearer for collection of revenue and hence any outcome of this matter would directly affect it. That request was allowed by the court pursuant to Rule 5, of the Constitution of Kenya (protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.
27. Even though the counsel had not filed any Affidavits nor Grounds of Opposition, but express concurrence with the position of other respondents, he was allowed to participate in the proceedings and to address the court on points of law only.
28. That decision was reached after the court appreciated the urgency involved and that Notices of preliminary objections had been raised and needed to be argued before hand and at the threshold level.
29. By the same directions, the court directed that the Notices of Preliminary Objection be argued as oppositions to the Notice of Motion seeking interim conservatory orders among other reliefs. The other interlocutory application by the 3 rd Respondent seeking certification for purposes empanelment of a bench of an even number of judges was kept in abeyance to await a determination of the preliminary objections.
30. With that roadmap, the court shall proceed and capture positions of the parties to help it undertake its mandate.
Position of the respective parties
Summary of the 1 st and 2 nd Respondents’ Submissions in Opposition to the Petitioners’ Application dated 21/06/2026 and in support of their Notice of Preliminary Objection dated 24/06/2026
31. The 1 st and 2 nd Respondents, in their written submissions dated 24 th June 2026, contend that this Court lacks jurisdiction to determine the Petition and the Motion. They submit that the High Court should take judicial notice under Section 60 of the Evidence Act that the Finance Bill, 2026 was passed on 18 th June 2026 and assented to by the President on 23 rd June 2026, under Article 115 of the Constitution. They rely on Wanjiru Gikonyo and 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) on the doctrine of mootness, arguing that courts must not determine issues that no longer present a live controversy and are only of academic interest. They submit that since the Bills have been assented to, there are no Bills in existence for the court to stay.
32. They rely heavily on the Supreme Court’s decision in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) to support their argument that a Bill and an Act are distinct legal instruments that require different causes of action. They argue that challenges to a Bill focus on procedural irregularities, whereas challenges to an Act focus on substantive constitutionality, and that the High Court lacks jurisdiction to convert a challenge against a Bill into a challenge against an Act.
33. Furthermore, they submit that this Court is divested of jurisdiction to grant the order of production of attendance records due to the Petitioners’ failure to exhaust the alternative remedies available under the Access to Information Act, Cap 7M, citing Commission for Human Rights & Justice (CHRJ) vs Area & 3 Others [2022] KEHC 12994 (KLR) . They maintain that when a statute provides a clear procedure for the redress of any grievance, that procedure must be strictly followed, and the High Court cannot be used to bypass statutory dispute resolution mechanisms.
34. They argue that the conservatory motion must be dismissed because the Petitioners’ claims of absenteeism are based on speculative, unverified facts and fail to meet the legal standards for conservatory orders. They emphasize that the public interest in sustaining the budget and fiscal operations of the national government far outweighs any alleged procedural injury.
Summary of the 3 rd Respondent’s Submissions in Support of the Preliminary Objection and in Opposition to the Petitioners’ Application dated 21/06/2026
35. Even though the 3 rd Respondent only filed Grounds of Opposition and no Preliminary Objection to the Petition, during arguments, it supported the position of the 1 st and 2 nd respondents and contended that the matter did not lie for being unripe and for seeking to disrupt and stall the operations of the government. He underscored the fact that if the appropriation Act was stayed after assent, there would be no way to withdraw any money from the consolidated fund and the entire government system would be paralysed.
36. In opposition to the Petitioner’ conservatory motion, the Respondent submits that the Petitioners admit that the National Assembly met the numerical thresholds for quorum and voting under Articles 121 and 122 during the division on 18 th June 2026. It argues that parliamentary processes enjoy a presumption of regularity, which can only be disturbed upon a merit determination of the Petition.
37. It is submitted that the Bills have already been assented to, and that the public interest and balance of convenience tilt heavily in favour of sustaining the Finance Act and the Appropriation Act, which define the government's comprehensive strategy for generating revenue and allocating funds for the 2026/2027 Financial Year. He relies on Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR to argue that the conservatory application fails to satisfy the established legal threshold and must be dismissed.
Summary of the Petitioners’ Submissions in Opposition to the Preliminary Objection and in support of the Application foe conservatory Orders
38. In opposition to the 1 st and 2 nd Respondents’ Preliminary Objection, the Petitioners submit that their Petition is not moot because they explicitly anticipated the presidential assent by seeking alternative declarations in their pleadings, targeting both the Bills and the resulting Acts. They argue that the distinction between a Bill and an Act in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) was in the context of procedural concurrence and does not bar the court from exercising its jurisdiction over a petition that actively pleaded the alternative and challenged the very process of enactment. They contend that rushing a Bill to assent cannot cure a fundamentally flawed legislative process, and the court must not allow the executive to defeat constitutional challenges through rapid assents.
39. Regarding the Access to Information Act, Cap 7M, the Petitioners submit that their request for the production of attendance records is not a primary claim under Article 35 of the Constitution. Rather, it is an interlocutory request for the production of documents within an active constitutional suit. Therefore, the statutory exhaustion of remedies doctrine does not apply to this request, and the court retains its inherent power to order the disclosure of relevant evidence.
40. In their Grounds of Opposition to the 3 rd Respondent’s Application dated 26 th June 2026 for Empanelment and Transfer, the Petitioners argue that the issues raised do not meet the high threshold of substantial questions of law requiring a three-judge bench under Article 165(4) of the Constitution. They assert that the application is a delay tactic and an instance of forum-shopping to transfer the matter to Nairobi. It is contended that the High Court at Lodwar has full jurisdiction to hear and determine both the applications and the Petition.
41. They argue that consolidation with Petition No. E374 of 2026 is unnecessary because their petition is narrowly focused on the legislative process and absenteeism, whereas the Nairobi petition challenges substantive tax provisions. They claim that staying the proceedings pending empanelment would cause grave prejudice given the imminent commencement of the financial year on 1 st July 2026. They further submit that the Respondents have failed to demonstrate any real prejudice that would justify delaying the hearing of the main Petition.
42. On the application, the Petitioners submit that they have satisfied the three-limb test for the grant of conservatory orders established by the Supreme Court of Kenya in Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others [2014] eKLR . They argue that they have established a strong prima facie case with a likelihood of success on the merits. They contend that the absenteeism of 187 out of 349 Members of the National Assembly during the final read-through and vote on the country’s budget bills is an undisputed fact that constitutes a fundamental breach of Articles 1(2), 10, 73, 94, 95, and 118 of the Constitution.
43. They cite the Supreme Court’s decision in Cabinet Secretary for the CS for National Treasury and Planning & 4 Other vs Okiya Omtatah Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) for the proposition that public participation must be real, meaningful, and not illusory. They submit that public participation is a two-way street: it is not just about the public submitting views, but about their elected representatives being physically present to actively deliberate upon and integrate those views into the final legislation. A legislative process where more than half of the representatives are absent during the final vote cannot be said to be executing its deliberative and representative mandate.
44. Second, they argue that in the absence of conservatory orders, they and the general public will suffer irreparable harm. The Finance Act, 2026 and the Appropriations Act, 2026 are scheduled to take effect on 1 st July 2026, imposing daily binding tax and public spending obligations. If these Acts are later declared unconstitutional, it will cause immense chaos, public fund wastage, and a profound constitutional crisis.
45. Third, they submit that the balance of convenience and the public interest favour the grant of conservatory orders. They argue that the public interest is heavily served by ensuring that the laws governing national taxation and spending are passed through a constitutionally pure process, and that a short suspension to verify this process causes no comparable prejudice to the Respondents.
Issues Analysis and Determination
46. Having carefully perused all the pleadings, affidavits, and written submissions filed by the parties, this Court has identified only two core issues to isolate themselves for the determination of the court. The issues are: -
i) Whether the Court lacks jurisdiction or if the jurisdiction is postponed to determine the Petition and the Motion on account of the 1 st and 2 nd Respondents’ Preliminary Objection.
ii) Only if the foregoing issue be answered in the negative, whether the Petitioners have established the legal threshold for the grant of conservatory orders to stay the implementation of the Finance Act, 2026, and the Appropriations Act, 2026.
Whether this Court lacks jurisdiction or the jurisdiction is postponed to determine the Petition and the Motion on account of the 1 st and 2 nd Respondents’ Preliminary Objection ?
47. The 1 st and 2 nd Respondents raise a Preliminary Objection, asserting that this Court lacks jurisdiction on three main fronts; mootness, the Bill-Act distinction, and the failure of the Petitioners to exhaust statutory remedies under the Access to Information Act, Cap 7M.
48. On the question of mootness and the Bill-Act distinction, the Respondents argue that the Petitioners filed their petition on 21 st June 2026, challenging the Finance Bill, 2026 and the Appropriation Bill, 2026 while they were still undergoing the legislative process. Since the President subsequently assented to these Bills on 23 rd June 2026, the Respondents argue, the Bills have ceased to exist, rendering the challenge moot, academic, and non-justiciable because the court ought not mutate the petitioners ‘pleadings and prayer from bill to Act
49. They rely on Wanjiru Gikonyo and 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) , where the High Court held that courts should not engage in abstract or academic arguments where no live controversy exists. They also cite the Supreme Court decision in Senate & 3 Others vs Speaker of the National Assembly & 10 Others [2025] KESC 11 (KLR) , which held that a Bill and an Act are distinct legal instruments that require different causes of action because they exist at different stages of the legislative process and have different legal effects.
50. The Court is fully aware of the distinct nature of Bills away from the Acts of Parliament once assented to. It is the constitutional act by the president in assenting to the bill that transforms it from a proposed law into an enforceable legal instrument only subject to the date of coming into effect. The two must thus not be confused or deemed as having the same character even if the provisions remain the same word for word.
51. A subject of litigation is said to be moot when clearly discern no efficacious outcome and thus more of academic that serving any meaningful cause of justice. The doctrine of mootness appreciates the judicial resource in time as valuable and ought to be utilised efficiently. Courts are thus hesitant to devote time to moot questions unless in exceptional circumstances where even if the matter has been overtaken by events, there remains as raised a cardinal issue of great public importance thus exhibiting a need to formulate or illuminate a constitutional principle to guide state organs, or if the passage of time or the actions of a party were designed to render the court’s intervention nugatory.
52. It is thus trite that the doctrine of mootness is not an absolute bar to judicial intervention in appropriate cases. Consequently, therefore, when applied to the law-making process, that a bill has been assented to or an impugned act perform in a calculated manner to render court action nugatory, the court has the inherent and intrinsic duty to still interrogate if indeed the actions complained about passes the test of constitutionalism. The court so proceeds even if the decision does not remedy the issue raised in the matter, provided a principle or norm of the constitution is alive and calls for illumination, reinstatement or protection. See the decision of the Court of Appeal in Redhill Heights Investments Limited vs Suzanne Achieng Butler & 4 Others [2018] eKLR .
53. When that position of the law is applied to the facts and circumstances of this petition, the question to be asked is whether there exists a constitutional issue that pends resolution by the court and yielding an outcome that illuminates a constitutional norm, value or principle beyond the date the law was assented to by the president.
54. Even though the respondents contend very strongly that the petition does not plead a constitutional violation, the court reads a succinct and precisely pleaded breach to be that when more than 50% of the Members of the national Assembly failed to attend the debate and voting of the two bills, such absent Members failed in their duty to the electorate and therefore the law, as important as the Finance Bill and Appropriation Bill, lack legitimacy for not reflecting legislative participation by the people’s representatives. That appreciation leads the court to fine that the petition is not bad for being moot.
55. In the instant matter, the Petitioners filed their petition on 21 st June 20
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