1. The petitioners came to this court via Certificate of Urgency and Notice of Motion dated 17th July, 2025 and a petition of even date seeking among others: -
a) That pending the hearing and determination of this application, this honourable court be pleased to issue an interim order prohibiting the 1st and 2nd respondents, either by themselves, anyone else acting at their behest, instructions or directions or any other person whosoever, for conducting inspections, arbitrary arrests, endless raids, illegal closure and confiscation of assortment of Gas Cylinders from the Petitioners/Applicants.
2. I gave directions on 22nd July, 2025 in which direction No. 4 reads:
“Parties to appear virtually for a brief highlighting on 29th July, 2025”
3. I have briefly heard the parties orally so as to have a reasonable view of what is in contention.
4. It emerges that EPRA which is the regulator in the Petroleum Sector has affirmed its position as the only body that is empowered by law to carry enforcement actions under the Petroleum Act and has conveyed this position to the 1st and 2nd respondent who are the Association of Petroleum Companies insisting that they should desist from the undertaking actions complained of by the petitioners.
5. This position was conveyed via a letter exhibited in petitioners affidavit dated 7th March, 2020 Ref. EPRA/ECP/SE/14/CM/dn which M/s Cheptoo for 1st interested party has orally confirmed in court is the positon of EPRA.
6. Further, the ODPP in a letter which appears at page 70 “AMN5” seems not to have settled his mind on whether the 1st and 2nd respondent can take the actions being complained of against the petitioners.
7. The 1st and 2nd respondents counter the petition on jurisdictional grounds raising the issue of doctrine exhaustion of remedies and constitutional avoidance.
8. In my view, when the court in considering an application for conservatory order, it only makes a preliminary assessment in order to preserve the status quo, that stops a violation. Other substantive issues come later.
9. In issuing the conservatory order, as was stated in Wilson Kaberia Nkunja Vs Magistrate & Judges Vetting Board and Others (2016) eKLR the court summarized the pre-conditions to consider as follows: -
i) Applicant must demonstrate he has a prima facie case with a likelihood of success that that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of violation or threatened violation.
ii) If the conservatory order is not granted, the petition alleging violation of, or threat of violation rights will be rendered nugatory.
iii) Public interest must be considered before granting the conservatory order.
10. In Gatirau Peter Munya Vs Dickson Mwenda Kithinji (2014) eKLR the Supreme Court held that conservatory orders are meant to facilitate orderly functioning of public agencies as well as uphold adjudicatory authority of the court.
11. It has been held that a prima facie case does not have to succeed at the trial, but rather it is one that is not frivolous, in that it raises arguable constitutional questions.
12. The question of alleged unauthorized persons arresting and causing the prosecution of petitioners in criminal justice system raises a constitutional question.
13. Although the 1st and 2nd respondent raise jurisdictional issues; preliminarily, their alleged actions are opposed by the regulator and the ODPP who appears to be at cross-road. This prima facie compels this court to issue a conservatory order to prevent any possible continuation of those actions by 1st and 2nd respondent pending the hearing of the petition.
14. Afterwards, the court can give direction on how it should proceed to dispose the matter i.e. whether the main petition or first deal with preliminary objection but before this, the alleged actions by the 1st and 2nd respondent against petitioners must be stopped.
15. I thus, grant prayers 2 and 3 of the Notice of Motion dated 17th July, 2025.
16. This will ensure no further/future alleged violation takes place before the court settles the question of alleged arrests and prosecutions that are subject of this petition, which the regulator has questioned as usurping its roles. If these actions are allowed to go on, it will be difficult to grant redress should the petition succeed.
17. These are orders of the court.
FURTHER ORDERS
18. Having listened to the parties’ advocates the court finds it appropriate to merge the jurisdictional question to form part of the response to the main petition so that the court will address these issues at the time during judgment.
19. In the meantime, the respondent i.e. 1st and 2nd respondent and any party that may not have responded to the petition is granted 14 days to file a response to the petition.
20. Upon filing of the responses, the petitioner has 14 days to file a rejoinder and submissions to the main petition.
21. Upon service petitioner’s closing submissions, the respondent and interested parties shall file their closing submissions within 14 days from the date of service.
22. Rebuttal submissions may be filed by the petition within 14 days of receiving the respondents and interested parties’ submissions.
23. Further directions on 27th October, 2025.
Dated, signed and delivered virtually at Nairobi this 29th day of July, 2025.
………………………………….
L N MUGAMBI
JUDGE
a) That pending the hearing and determination of this application, this honourable court be pleased to issue an interim order prohibiting the 1st and 2nd respondents, either by themselves, anyone else acting at their behest, instructions or directions or any other person whosoever, for conducting inspections, arbitrary arrests, endless raids, illegal closure and confiscation of assortment of Gas Cylinders from the Petitioners/Applicants.
2. I gave directions on 22nd July, 2025 in which direction No. 4 reads:
“Parties to appear virtually for a brief highlighting on 29th July, 2025”
3. I have briefly heard the parties orally so as to have a reasonable view of what is in contention.
4. It emerges that EPRA which is the regulator in the Petroleum Sector has affirmed its position as the only body that is empowered by law to carry enforcement actions under the Petroleum Act and has conveyed this position to the 1st and 2nd respondent who are the Association of Petroleum Companies insisting that they should desist from the undertaking actions complained of by the petitioners.
5. This position was conveyed via a letter exhibited in petitioners affidavit dated 7th March, 2020 Ref. EPRA/ECP/SE/14/CM/dn which M/s Cheptoo for 1st interested party has orally confirmed in court is the positon of EPRA.
6. Further, the ODPP in a letter which appears at page 70 “AMN5” seems not to have settled his mind on whether the 1st and 2nd respondent can take the actions being complained of against the petitioners.
7. The 1st and 2nd respondents counter the petition on jurisdictional grounds raising the issue of doctrine exhaustion of remedies and constitutional avoidance.
8. In my view, when the court in considering an application for conservatory order, it only makes a preliminary assessment in order to preserve the status quo, that stops a violation. Other substantive issues come later.
9. In issuing the conservatory order, as was stated in Wilson Kaberia Nkunja Vs Magistrate & Judges Vetting Board and Others (2016) eKLR the court summarized the pre-conditions to consider as follows: -
i) Applicant must demonstrate he has a prima facie case with a likelihood of success that that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of violation or threatened violation.
ii) If the conservatory order is not granted, the petition alleging violation of, or threat of violation rights will be rendered nugatory.
iii) Public interest must be considered before granting the conservatory order.
10. In Gatirau Peter Munya Vs Dickson Mwenda Kithinji (2014) eKLR the Supreme Court held that conservatory orders are meant to facilitate orderly functioning of public agencies as well as uphold adjudicatory authority of the court.
11. It has been held that a prima facie case does not have to succeed at the trial, but rather it is one that is not frivolous, in that it raises arguable constitutional questions.
12. The question of alleged unauthorized persons arresting and causing the prosecution of petitioners in criminal justice system raises a constitutional question.
13. Although the 1st and 2nd respondent raise jurisdictional issues; preliminarily, their alleged actions are opposed by the regulator and the ODPP who appears to be at cross-road. This prima facie compels this court to issue a conservatory order to prevent any possible continuation of those actions by 1st and 2nd respondent pending the hearing of the petition.
14. Afterwards, the court can give direction on how it should proceed to dispose the matter i.e. whether the main petition or first deal with preliminary objection but before this, the alleged actions by the 1st and 2nd respondent against petitioners must be stopped.
15. I thus, grant prayers 2 and 3 of the Notice of Motion dated 17th July, 2025.
16. This will ensure no further/future alleged violation takes place before the court settles the question of alleged arrests and prosecutions that are subject of this petition, which the regulator has questioned as usurping its roles. If these actions are allowed to go on, it will be difficult to grant redress should the petition succeed.
17. These are orders of the court.
FURTHER ORDERS
18. Having listened to the parties’ advocates the court finds it appropriate to merge the jurisdictional question to form part of the response to the main petition so that the court will address these issues at the time during judgment.
19. In the meantime, the respondent i.e. 1st and 2nd respondent and any party that may not have responded to the petition is granted 14 days to file a response to the petition.
20. Upon filing of the responses, the petitioner has 14 days to file a rejoinder and submissions to the main petition.
21. Upon service petitioner’s closing submissions, the respondent and interested parties shall file their closing submissions within 14 days from the date of service.
22. Rebuttal submissions may be filed by the petition within 14 days of receiving the respondents and interested parties’ submissions.
23. Further directions on 27th October, 2025.
Dated, signed and delivered virtually at Nairobi this 29th day of July, 2025.
………………………………….
L N MUGAMBI
JUDGE