https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12073

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MILIMANI LAW COURTS CONSTITUTIONAL AND HUMAN RIGHTS DIVISION CONSTITUTIONAL PETITION NO. E356 OF 2026 IN THE MATTER OF ALLEGED CONTRAVENTION OF: ARTICLES 1 (1), 2(1), 2 (2), 3 (1), 10, 19, 20 (1), 20 (2), 22 (1), 23, 27, 34, 73, 75, 201, 232, 258 & 259 OF THE CONSTITUTION OF KENYA 2010 -AND- IN THE MATTER OF ALLEGED CONTRAVENTION OF: SECTIONS 13, 14, 16, AND 17 OF THE GOVERNMENT OWNED ENTERPRISES ACT NO. 25 OF 2025 -AND- IN THE MATTER OF THE ALLEGED VIOLATION OF THE CONSTITUTIONAL PRINCIPLES OF GOOD GOVERNANCE, TRANSPARENCY, ACCOUNTABILITY, AND FAIR ADMINISTRATIVE ACTION -AND- IN THE MATTER OF THE PURPORTED APPOINTMENT OF MEMBERS TO THE BOARD OF DIRECTORS OF KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED (KETRACO) THROUGH GAZETTE NOTICE NO. 8032 AND GAZETTE NOTICE NO. 8033 DATED 29TH MAY 2026. BETWEEN:** **ISSA ELANYI CHAMAO.............................................................1ST PETITIONER** **PATRICK KARANI EKIRAPA………………….………….….…..2ND PETITIONER PAUL NGWEYWO KIRUI…………………………………….………3rd PETITIONER -AND-** **CABINET SECRETARY,** **MINISTRY OF ENERGY AND PETROLEUM……………………….1ST RESPONDENT CABINET SECRETARY, NATIONAL TREASURY…………………2ND RESPONDENT KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED…..3RD RESPONDENT THE ATTORNEY GENERAL………………………………………...4TH RESPONDENT AND** **THE GOVERNMENT-OWNED ENTERPRISES,** **BOARDS SEARCH AND SELECTION PANEL………………..1ST INTERESTED PARTY MERCYLINNETE ROTICH………………..……………......2ND INTERESTED PARTY JANEROSE GATWIRI………………………………………..3RD INTERESTED PARTY NICK OCHOLA………………………………………...……..4TH INTERESTED PARTY** **R U L I N G** **Introduction** 1. Before the Court for determination is the Notice of Motion Application dated 8th June, 2026 brought under rules 2, 3 (2-5), 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,2013, Article 165(1) of the Constitution of Kenya 2010, Sections 10(1)(2)(a) of the High Court (Organization and Administration )Act, High Court (Practice and Procedure)Rules. The Application is supported by the Affidavit of, **ISSA ELANYI CHAMAO** the 1st Petitioner, who avers that he has the authority of the 2nd and 3rd Petitioners to swear on their behalf. The affidavit was sworn on 8th June, 2026. 2. The Petitioner’s Notice of Motion application seeks *interim* conservatory orders pending the hearing and determination of the Application and Petition, as follows: 3. ***Pending the hearing and determination of this Petition, a conservatory order be and is hereby issued staying the implementation of Kenya Gazette Notice No. 8032 and 29th May 2026 and specifically restraining MERCYLINNETE ROTICH, JANEROSE GATWIRI and NICK OCHOLA from performing the functions of member of the Board of Directors of Kenya Electricity Transmission Company Limited based on Kenya Gazette Notice No. 8032 and Kenya Gazette Notice No. 8033-29th May 2026.*** 4. ***Pending the hearing and determination of this Petition, a conservatory order be and is hereby issued suspending all Board resolutions made by MERCYLINNETE ROTICH, in the name of Kenya Electricity JANEROSE GATWIRI and NICK OCHOLA Transmission Company Limited or its Board of Directors from the period dated 29th May 2026 to date.*** 5. ***Costs of this application be provided for*.** 6. Through the Supporting Affidavit of ISSA ELANYI CHAMAO the petitioner asserts the following grounds; That: the Government enacted the Government-Owned Enterprises Act, 2025 (hereinafter "the Act") as a transformative legislative framework intended to cure longstanding governance, accountability, ownership, and performance challenges affecting Government-Owned Enterprises and was deliberately designed to introduce a modern corporate governance regime that would ensure that Government-Owned Enterprises are operated efficiently, transparently, competitively, and in a manner that creates value for the public. The Act established a clear and structured framework governing the ownership, oversight, performance management, and appointment of directors of Government-Owned Enterprises. 7. The Petitioner states that, consequently, KETRACO is subject to the new statutory framework, including the governance and board appointment provisions introduced by the Act. Therefore, the Board of Directors of KETRACO is required to be constituted strictly in accordance with the provisions of the Act and the Constitution of Kenya. 8. The Petitioner contends that, on 18th May 2026, the Cabinet Secretary for the National Treasury, acting pursuant to the provisions of the Act, published an advertisement declaring vacancies for Independent Directors of various Government-Owned Enterprises, including KETRACO. The said advertisement invited qualified members of the public to submit applications for appointment as Independent Directors to the Boards of the listed Government- Owned Enterprises. The process was to be undertaken through the Government-Owned Enterprises Boards Search and Selection Panel; an independent selection panel established under the Act, applications were to be submitted not later than 29th May 2026. 9. The Petitioners expectation was that the recruitment process would be undertaken in an open, transparent, competitive, and accountable manner. Qualified members of the public who met the prescribed requirements were entitled to have their applications considered and evaluated through a fair process, culminating in the appointment of suitable persons to fill the vacancies in accordance with the law. 10. According to the Petitioner, in a shocking and deliberate departure from the law, and in a blatant attempt to defeat the statutory recruitment framework, the Cabinet Secretary for Energy and Petroleum proceeded to make appointments to the Board of KETRACO through Gazette Notice No. 8032 and Gazette Notice No. 8033,the two notices appointed MERCYLINNETE ROTICH, JANEROSE GATWIRI, and NICK OCHOLA, the Interested Parties herein as members of the Board of Directors of KETRACO for a period of three (3) years with effect from 29th May 2026. 11. The Petitioner questions the timing of these appointments as not only irregular but deeply concerning. Noting the date of the appointments was the very deadline of submitting applications for the roles and therefore, while members of the public were still exercising their lawful right to participate in a recruitment process created by statute, the Cabinet Secretary for Energy and Petroleum had already purported to fill the very positions that were the subject of the ongoing statutory recruitment process. 12. The petitioner avers that chronology of events leaves no doubt that the appointments were calculated to defeat, circumvent, and render nugatory the recruitment process established under the Government-Owned Enterprises Act, 2025. The actions complained of were not a mere procedural irregularity; they were a direct affront to the rule of law and an attempt to undermine a legislative framework enacted to promote transparency, accountability, and integrity in public appointments displacing the independent recruitment process established under the Act and unlawfully usurped the mandate assigned to the Government-Owned Enterprises Boards Search and Selection Panel. 13. The Petitioners contend that the impugned appointments violate Sections 13, 14, 16, and 17 of the Act, which collectively establish the framework for governance, appointment, accountability, and composition of boards of Government-Owned Enterprises. The impugned appointments further offend the constitutional principles of good governance, transparency, accountability, public participation, and fair administrative action as enshrined under Articles 10, 47, 73, and 232 of the Constitution of Kenya and that decision to bypass the recruitment process that had already commenced and to appoint persons to positions that were actively being competitively filled constitutes an abuse of public power and a manifest attempt to convert a lawful statutory process into a hollow administrative formality. 14. Aggrieved by these actions of the 1st Respondent, the Petitioner avers that unless this Honourable Court intervenes, the Respondents' actions will entrench an unlawful Board constituted in violation of statute and the Constitution, thereby undermining public confidence in the governance of Government-Owned Enterprises and exposing KETRACO to decisions made by a Board whose legitimacy is fundamentally contested. 15. The application is opposed vide a replying affidavit of the 3rd Respondent sworn on, 15th July 2026. **3rd Respondent’s Replying affidavit** 1. The affidavit was sworn by**,** Eng. Kipkemoi Kibias, Acting Managing Director and CEO of KETRACO,the 3rd Respondent. 2. The Respondent avers and explains that KETRACO was incorporated in 2008 pursuant to Sessional Paper No. 4 of 2004, as a State Corporation mandated to plan, construct, own, operate and maintain Kenya's national electricity transmission network. It asserts that KETRACO continues to derive its legal status and governance from the State Corporations Act and its Articles of Association, with its Board appointments governed under that framework. 3. The 3rd Respondent contends that the Government-Owned Enterprises Act applies only to entities specifically listed in its First and Second Schedules or those established after the Act in accordance with its provisions. Since KETRACO is not listed in either Schedule and was established before the Act, it is argued that Parliament deliberately excluded it from the Act. Consequently, they posited that KETRACO remains governed by the State Corporations Act unless Parliament expressly amends the law or designates it under Section 5(2) of the Government-Owned Enterprises Act. 4. The 3rd Respondent maintains that KETRACO remains governed by the State Corporations Act and its Articles of Association. The impugned Gazette Notices Nos. 8032 and 8033 were issued pursuant to paragraph 3(e) of KETRACO's Articles of Association and not under the Government-Owned Enterprises Act. Accordingly, the re-appointments of the 2nd and 3rd Interested Parties and the appointment of the 4th Interested Party were lawfully made under the applicable governance framework. 5. The 3rd Respondent argues that even if the Government-Owned Enterprises Act were applicable, the transition to the new governance regime has not commenced because the audit required under the Fourth Schedule has not been completed or published. It therefore contends that the allegations of violations of the Act and the Constitution lack legal foundation, as the Petition identifies no breach of any mandatory procedure, no unqualified appointees, and no evidence of bad faith or abuse of power. Instead, the appointments are said to promote continuity, good governance and efficient administration of KETRACO. 6. The 3rd Respondent states that conservatory orders can only issue upon proof of a prima facie case, irreparable prejudice and public interest. It argues that the Petitioners have failed to satisfy these requirements because their case rests on the incorrect assumption that KETRACO is governed by the Government-Owned Enterprises Act. It further emphasizes that the re-appointments preserved institutional continuity, a principle also recognized in the Fourth Schedule to the Act. 7. The 3rd Respondents finally contends that the suspension of resolutions involving appointment of the Interested Parties has impaired KETRACO's Board by limiting its ability to approve budgets, oversee strategic transmission projects, authorize payments and perform its fiduciary duties. It is argued that public interest requires restoration of the Board's full capacity so that KETRACO can continue discharging its statutory mandate. 8. The 3rd respondent prays for dismissal of both the petition and application and that the institution be allowed to carry on its duties. **Applicant’s Submissions** 1. The Applicant’s filed submissions dated 16th July,2026 and condensed the issues for determination as follows: 2. *Is there an arguable petition?* 3. *Would the petition be rendered nugatory if conservatory orders are not granted?* 4. *Is it in the public interest that conservatory orders are granted?* 5. On the 1st issue, the Applicants submitted that the petition impugns the process in which the 1st Respondent appointed the 3 interested parties against the provisions of the Act and therefore the petition raises triable issues deserving of the courts adjudication because it has a likelihood of success. 6. On issue 2, the Applicants aver that without the conservatory orders the 2-4th respondents would continue passing resolutions notwithstanding the legality of their appointment and would render the entire petition academic. 7. On the 3rd issue, the Applicants aver that public interest weighs heavily on the orders sought and the court which has the duty to safeguard integrity of public appointments should allow the same and the appointment of the 3 interested parties should not6 be left unchecked. 8. They further submit that the harm that shall be occasioned on the petitioners and the public outweighs any harm the respondents would suffer in the interim until the petition is determined and that status quo- being the status before the two gazette notices were published should be upheld pending hearing and determination of the petition. 9. The applicants relied on **Gatirau Peter Munya v CREAW, Board of Management Uhuru Secondary School v City County Director of Education and 2 others [2015]Eklr and Suleiman v Amboseli Resort [2004] 2 KLR 589**, to support their submissions. 10. In conclusion the Applicants ask that the application be allowed with costs to the Applicants. **Respondents’ Submissions** 1. The 3rd respondent filed its submissions dated 15th July, 2026. 2. The 3rd Respondent opposes the Petitioners' application for conservatory orders, arguing that the application is founded on an incorrect interpretation of the Government-Owned Enterprises Act (GOE Act). It submits that KETRACO is not an entity governed by the GOE Act because it is not listed in the First Schedule of the Act, and therefore the appointments challenged by the Petitioners were lawfully made under the Companies Act, the State Corporations Act and KETRACO's Articles of Association. The Respondent further contends that the conservatory orders sought are overly broad, unsupported by evidence, and contrary to the public interest as they paralyze the governance of a critical national utility. 3. The respondent narrowed down the issues to only one: ***whether the Petitioners have satisfied the legal threshold for the grant of conservatory orders?*** 4. On the applicable principles for grant of conservatory orders, The 3rd Respondent relies on **Munya v Kithinji & 2 Others** and **Samasource EPZ Ltd t/a Sama v Meta Platforms & Others**, submitting that conservatory orders are discretionary public law remedies intended to preserve the subject matter of litigation without determining the dispute at an interlocutory stage. The Court must consider the merits of the case, public interest, constitutional values and proportionality, while avoiding making final findings before hearing the Petition. 5. The respondent submits thatThe Petitioners ask the Court to preserve what they describe as a statutory process by suspending the governance of the very public institution whose legal status they place in issue. Before such far-reaching orders can issue, the statutory foundation of the claim, the nexus between the alleged wrong and the relief sought, and the institutional consequences of the orders must each withstand careful scrutiny. They relied on the Court of Appeal decision in **Samasource EPZ Limited t/a Sama v Meta Platforms, Incorporated & 186 others; Kenya Human Rights Commission & 8 others [2024] KECA 1152.** 6. The Respondent states that the Petitioners have not demonstrated any injury that cannot await the determination of the Petition. None asserts that they applied for the advertised positions, was excluded from consideration, received any legitimate expectation of appointment, or has been prejudiced by any identified Board resolution. Their complaint is simply that the appointments continue to subsist while the Petition remains pending, which, is the very controversy the Petition asks the Court to resolve, establishing that the Court's eventual Judgment would be rendered ineffective. 7. On Whether the Government Owned Enterprises Act applies to KETRACO, the Respondent reproduced Section 4 of the GEO Act, which under the heading "Application," provides, in material part: 8. ***This Act shall apply to—*** 9. ***A Government Owned Enterprise established under the Companies Act;*** 10. ***The Government Owned Enterprises established under the Companies Act (Cap. 486) before the commencement of this Act as set out in the First Schedule; and*** 11. ***the Government Owned Enterprises established by other written laws before the commencement of this Act as set out in the Second Schedule.*** 12. ***Upon commencement of this Act, any new Government Owned Enterprises shall only be established as companies under the Companies Act (Cap. 486).*** ***(3) This Act shall not apply to state corporations that are established for noncommercial purposes.*** 1. The respondent therefore submits that; Section 4 of the Government Owned Enterprises Act limits its application to entities specifically listed in the First and Second Schedules, KETRACO, incorporated under the Companies Act, is absent from the First Schedule, Parliament deliberately omitted KETRACO from the Government Owned Enterprises Act, and the Court cannot enlarge the Schedule through judicial interpretation, KETRACO therefore continues to be governed by the State Corporations Act and its Articles of Association and that the newspaper advertisement issued by the National Treasury cannot amend the statute or expand the First Schedule. 2. On Presumption of Regularity, the Respondent relies on **Export Processing Zone Authority v NEMA and Matemu v Trusted Society of Human Rights Alliance**, submitting that official Acts enjoy a presumption of legality unless rebutted by cogent evidence, it argues that the Petitioners have produced no evidence demonstrating that: paragraph 3(e) of KETRACO's Articles ceased to operate; the appointing authority lacked statutory power; or Any legal procedure was violated. 3. On legitimate expectations, the Respondent submits that none of the Petitioners have alleged that any of them applied for appointment, was shortlisted, was rejected, or received any specific representation from a public authority to show that their legitimate expectations were crashed but that More fundamentally, the doctrine of legitimate expectation cannot transform an entity omitted from a statutory Schedule into one governed by that Schedule. At its highest, the advertisement may require explanation at trial. It cannot supply the statutory gateway upon which the entire Motion rests. 4. The Respondent relied on these case law to buttress their submissions; ***Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR), Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR), and Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR).*** 5. The Respondent submits that evidence provided falls short of demonstrating, the clarity required at an interlocutory stage, the Petitioners' interpretation of the Act is further undermined by material inaccuracies in their own pleadings. At paragraphs 23 to 26 of the Petition, Section 14 of the GOE Act is described as prescribing the process and criteria for appointing independent directors, when in fact it sets out the qualifications of members of the Search and Selection Panel. Section 16 is pleaded as governing validation, shortlisting, and final appointment, whereas it merely empowers the Panel to develop its procedures and maintain appropriate records. These are not differences of emphasis but differences of substance, the Respondent mentions the importance of precision in drafting and relied on **Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR).** 6. Further the Respondent submits, Paragraph11 of the Fourth Schedule of the GOE Act requires an audit by the Auditor-General or an approved independent auditor, together with publication, before the transfer of assets, liabilities, contracts, or the transition of Board members and staff. No such audit relating to KETRACO has been pleaded or exhibited. Accordingly, even on the Petitioners' own alternative theory of statutory transition, an indispensable legislative step remains conspicuously absent. A transition cannot be presumed where Parliament has prescribed the path by which it must occur. 7. In the circumstances, the Respondent states, the Petitioners have failed to establish either a prima facie case or a case possessing the inherent merit required to warrant conservatory relief under the principles enunciated by the **Supreme Court in Munya v Kithinji & 2 others.** i.e the Petitioners have failed to establish ,that KETRACO falls within the GOE Act; any unlawful appointment; any irreparable prejudice; any Board resolution causing constitutional injury; or any evidence capable of displacing the presumption of regularity. 8. On whether the petition would be rendered nugatory where public interest lies, he Respondent contends that the Petition will not be rendered nugatory because, if successful, the Court retains full authority under Article 23 of the Constitution to ,quash the appointments, declare the applicable legal framework and to grant any consequential or transitional orders, accordingly, no irreversible prejudice will be suffered if the conservatory orders are declined. 9. The Respondent submits that the existing interim orders have significantly impaired KETRACO's operations by preventing the Board from: approving budgets, authorizing payments, supervising strategic electricity transmission projects, exercising fiduciary oversight and meeting obligations owed to contractors, financiers and the public. It argues that public interest favors restoration of the Board's full operational capacity pending determination of the Petition 10. In opposition to prayer number 5 of the application, the respondent submits that, the same is not confined to future conduct. It seeks to suspend every Board resolution said to have been made by, or in the presence of, the 2nd, 3rd and 4th Interested Parties from 29th May 2026 onwards, without identifying a single resolution, pleading its alleged unlawfulness, stating whether it has been implemented, or disclosing the rights of third parties that may already have crystallised. It submits that granting such relief would effectively determine the Petition before trial by invalidating Board decisions without hearing evidence, contrary to the principles laid down by the Court of Appeal in **Samasource EPZ Limited t/a Sama v Meta Platforms, Incorporated & 186 others; Kenya Human Rights Commission & 8 others**. 11. The 3rd Respondent concludes that the Petition is founded upon a mistaken interpretation of the GOE Act and asks the Court to give effect to the statutory text enacted by Parliament rather than a newspaper advertisement. It submits that the Petitioners have failed to establish a prima facie case or satisfy the threshold for conservatory orders and that the continued suspension of KETRACO's Board is contrary to the public interest, they ask for dismissal of the application. **Analysis and Determination** 1. The issue for determination before court therefore is whether the court should grant the interim and conservatory orders sought by the Petitioner pending the determination of this Petition. 2. **Article 23 (3) of the Constitution** affords a party to proceedings brought pursuant to Article 22, asserting violation or threat of violation of any Constitutional right or fundamental freedom, to prompt the court for any relief, including temporary reliefs. The said **Article 23** provides as follows: *“23 (1) …* *23 (2) …* *23 (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including-* 1. *a declaration of rights;* 2. *an injunction;* 3. ***a conservatory order;*** 4. *a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;* 5. *an order for compensation; and* 6. *an order of judicial review.” (emphasis supplied)* 7. The general principles guiding courts on determining applications for conservatory orders were set out in the case of **Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education Science and Technology & 5 others [2015] eKLR** as follows: *“(30) The principles which govern a court considering an application for interim or conservatory relief [are considered] to be the following:* 1. *The applicant ought to demonstrate a prima facie case with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted.* 2. *The grant or denial of the conservatory relief ought to enhance Constitutional values and objects specific to the rights or freedoms in the Bill of Rights.* 3. *If the conservatory order is not granted, the Petition or its substratum will be rendered nugatory.* 4. *The Public interest should favour a grant of the conservatory order* 5. *The circumstances dictate that the discretion of the court be exercised in favour of applicant after a consideration of all material facts and avoidance of immaterial matters.”* 6. In the exercise of its supervisory jurisdiction under Article 165 of *the Constitution* of Kenya, 2010, the Court must ensure that it does not interfere with the powers of other independent offices. In this regard, the court must exercise its powers only in exceptional circumstances, since the constitutional functions performed by the state organs are geared towards serving the wider public interest as opposed to the perceived private right of one individual. 7. In **Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR)** the Court defined Conservatory orders as follows: *“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion or the suit is heard. It is an order of status quo for the preservation of the subject matter.”* 1. In **Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011,** the court stated that: *“an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success.”* 1. In the case of **Kenya Association of Manufacturers & 2 others vs Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others (2017) eKLR** the court stated that : *“In an application for a conservatory order, the court is not invited to make any definite or conclusive findings of fact or law on the dispute before it because that duty falls within the jurisdiction of the court which will ultimately hear the substantive dispute. The jurisdiction of the court at this point is limited to examining and evaluating the materials placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of a conservatory order. The court is also required to evaluate the materials and determine whether, if the conservatory order is not granted, the applicant will suffer prejudice. Thirdly, it is to be borne in mind that conservatory orders in public law litigation are meant to facilitate ordered functioning within the public sector and to uphold the adjudicatory authority of the court in the public interest.”* 1. From the above decisions, it is clear that it is not enough to merely establish a prima facie case and show that it is potentially arguable. To justify a conservatory order, there must also be evident a likelihood of success and the case ought to be beyond a speculative basis. 2. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success, the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights. 3. The third consideration is whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. 4. In the present case, the Applicants seek conservatory orders against the Respondents and they allege that KETRACO is subject to the new statutory framework, including the governance and board appointment provisions introduced by the GOE Act. Therefore, the Board of Directors of KETRACO is required to be constituted strictly in accordance with the provisions of the Act and the Constitution of Kenya and that the appointment of the interested parties was therefore illegal and unlawful. 5. The 3rd Respondent on the other hand insist KETRACO is not subject to the GOE Act which has listed in its 1st and 2nd schedules, the state departments and parastatals that fall under it, and that the Applicants misinterpreted the statute. 6. Upon a cursory reading of the GOE Act and the state corporations and organizations listed under the said Act, the 3rd Respondent is not among them. This negates the main ground advanced by the petitioners about non-compliance with statute and at a glance; the Respondents appear to have acted within their mandate. 7. The court’s duty in interpreting statute is simply to examine the words of the enactment and ascertain the intention of the sovereign parliament and thereafter enforce it however absurd the consequences may be. 8. In South Africa Justice Galgut had, in the case of **Segale Versus the Government of the Republic of Bophuthatswana (1990) (1) S.A. at 434** occasion to warn the courts not to invent their own fancy ambiguities in order to defeat the intention of the legislature. He emphasized that: “***The task of the courts is to ascertain from the words of the statute in the context thereof what the intention of the legislature is. If the wording of the statute is clear and unambiguous they state what the intention is. It is not for the court to invent fancy ambiguities and usurp the function of the legislature.”*** 1. The position has been upheld in **Law Society of Kenya v Attorney General & another (Petition 4 of 2019) [2019] KESC 16 (KLR),** where the Court held; ***“Therefore intention is construed by scrutinising the language used in the provision which inevitably discloses its purpose and effect. It is the task of a court to give a literal meaning to the words used and the language of the provision must be taken as conclusive unless there is an expressed legislative intention to the contrary………….. they are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”*** 1. The court is satisfied that indeed, KETRACO is not among the entities listed as falling under the regime upon which the petitioners have sought to rely; the Government-Owned Enterprises Act. The said Act, therefore, does not apply to the impugned appointments. the intention of the legislature was very clear in leaving out the 3rd respondent from being listed under the GOE Act and the actions were therefore were authorized by the relevant Act. 2. Parties are bound by their pleadings. To this extent, I find and hold that the petitioners have not made out a prima facie case with a likelihood of success. **Would the Petition be Rendered Nugatory?** 1. It can easily be discerned from the cited authorities that in petitions alleging violations of rights and fundamental freedoms or violation of *the Constitution*, the prospects of the petition being rendered nugatory during the pendency of the case and high probability of success are the key considerations in an application for conservatory orders. 2. I note from the Application and petition that none of the Petitioners have particularized the irreparable harm they stand to suffer. The petition does not outline the particular manner in which the respondents infringed upon the petitioner’s rights; it is drafted in a manner suggesting the Petitioners have brought these proceedings in the public interest, as they have not claimed that they themselves were applicants. The petitioners claim that they have approached this court seeking protection of the Constitution, enforcement of the rule of law and preservation of the integrity of the statutory framework governing Government-Owned Enterprises. They argue that unless the court intervenes immediately, the impugned appointments will take effect, and the unlawfully constituted board will assume and exercise public functions and this will render the petition nugatory and cause irreversible prejudice to the integrity of the statutory recruitment process and the rule of law. However, this court reserves residual jurisdiction to make declarations and grant appropriate reliefs in the event that the petitioners eventually succeed in the petition. I therefore find and hold that the petitioners have not demonstrated that the petition would be rendered nugatory by the non-issuance of conservatory. **Legitimate Expectation and Public Interest** 1. Having noted that neither of the applicants stated that they applied for the job and were not considered, it follows that none of them, therefore, had a legitimate expectation as espoused in **Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR).** Where court stated the governing principles as follows: “*(****a) there must be an express, clear and unambiguous promise given by a public authority;*** ***(b) the expectation itself must be reasonable;*** ***(c) the representation must be one which it was competent and lawful for the decision-maker to make; and*** ***(d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.”*** 1. As regards public interest, the Applicants needed to show there is an issue of general public importance. 2. The Black’s Law Dictionary defines public interest as: “***the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Government regulation”*** 1. The Supreme Court in ***the* Hermanus Phillipus Steyn *case defined “public”*** as follows:- ***“Concerning all member of the community, relating to or concerning people as a whole; or all members of a community; of the state; relating to or involving government and governmental agencies; rather than private corporations or industry; belonging to the community as a whole, and administered through its representatives in government, e.g. public land.”*** 1. In **Hermanus Phillipus Steyn -v- Giovanni Gnecchi – Ruscone** , the Supreme Court provided the following guiding principle where an alleged point of law is raised: ***“(ii) Where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.”*** 1. The Applicants have stated that the general public would suffer if the orders sought are not granted since the board of the 3rd respondent would be illegally constituted. However, in view of my earlier finding that the court reserves residual powers to revoke and/or annul the impugned appointments in the event that they are eventually found to have been unconstitutional, the court is not convinced that the public interest would suffer as a result of the non-issuance of the orders. 2. Flowing from the foregoing, this court is not convinced that the Petitioners/Applicants have discharged their burden of proof with regard to establishing all the requirements for the grant of conservatory orders. The Petitioners/Applicants have not established a prima facie case with a likelihood of success. The petitioners have equally not demonstrated that the petition would be rendered nugatory if the conservatory orders are not issued. 3. Consequently, I do hereby find and hold that the application dated 8th June 2026 lacks merit. The same is hereby is hereby dismissed with no order as to costs. ***Dated, signed and delivered virtually at Nairobi this 31st day of July 2026.*** **DAVID MBURU** **JUDGE**