https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8450

HHJ Spices & Cereals Suppliers Ltd & 3 others v County Government Of Marsabit & 3 others (Petition E002 of 2026) [2026] KEHC 8450 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 8450 (KLR) Republic of Kenya In the High Court at Marsabit Petition E002 of 2026 FR Olel, J June 3, 2026 IN THE MATTER OF A CONSTITUTIONAL PETITION UNDER ARTICLES 2,10,19,20,21,22, 23,40,47,.165.186 AND 209 OF THE CONSTITUTION OF KENYA, 2010 Between HHJ Spices & Cereals Suppliers Limited 1st Petitioner Bindawid Cereals Limited 2nd Petitioner Binbilow Investments Limited 3rd Petitioner Jabal Ali Investment Limited 4th Petitioner and County Government Of Marsabit 1st Respondent The County Executive Member Finance, Marsabit 2nd Respondent The County Revenue Officer, Marsabit 3rd Respondent The Attorney General 4th Respondent Ruling A. Introduction. 1.Before the court for determination are two Notice of motion Application’s dated 4th May 2026 filed by the petitioners and one dated 13th May 20206 filed by the 1st to 3rd respondent respectively. 2.In the former application, the petitioners are seeking conservatory orders that no county cess or analogous levy shall be demanded, collected or enforced upon goods in transit under customs control pending determination of the petition filed, while the second notice of motion Application filed by the 1st to 3rd respondents seeking to set aside the conservatory orders issued by this court on 5th May 2026 suspending collection of cess on the petitioners goods, transport vehicles, consignment of cereals and dry grains or business operations pending determination of the petitioners aforestated application. B. Pleadings i. The Notice of Motion dated 4th May 2026 3.The petitioners in the said application did aver that they are business entities engaged in lawful cross border transportation of cereals and dry grains from Ethiopia into Kenya under the supervision and clearance by Kenya revenue Authority. The 1st to 3rd respondents had unlawfully imposed and charged county cess on goods already subjected to national customs control, contrary to provisions of Article 209 of the Constitution, which reserves customs and importation duties exclusively for the national government. 4.Despite compliance with all national and regional taxation laws the 1st to 3rd respondents agents had been intercepting their transit vehicles and demanding payment of cess as a condition for passage within Marsabit county, which was a transit county situated along the Northern corridor and this had resulted to them suffering significant financial loss, breach of supply contractors, reputational damage and disruption of their international trade operations to their loss and detriment. 5.Further, the 1st to 3rd respondent’s action and conduct, in effect amounted to unconstitutional taxation/double taxation creating an unlawful trade barrier contrary to provisions of the East Africa community customs Management Act (EMCCA) and the Protocol establishing East Africa common market Protocol. The respondents action also violated provisions of Article 40 and 47 of the Constitution of Kenya and unless restrained would cause them to suffer irreparable economic loss, disruption of supply chains and business paralysis. The petitioners thus prayed that the orders sought for be granted pending hearing and determination of the main petition. (ii) The 1st to 3rd respondents Replying Affidavit 6.The 1st to 3rd respondent opposed this Application, through their replying affidavit dated 18th May 2026 sworn by one Arero Halkano, the County Secretary, who deponed that the county was established under Article 176 of the constitution and is mandated under Article 209(4) of the said constitution to impose charges and levies for services provided, which they had effected through the Marsabit County Finance Act, 2023. Thus, even though the petitioners paid their national taxes through KRA, they were also obligated to pay county cess that was imposed for movement of goods within county jurisdiction and was uniformly applicable to all traders and transporters operating within the jurisdiction of county government of Marsabit. 7.They reiterated that through the Marsabit County Finance Act, 2023, which was subjected to public participation and subsequently approved by the County Assembly, they had lawfully imposed various taxes, fees, charges, rents and rates, the basis upon which cess was charged and since enactment, the said Act enjoyed presumption of constitutionality, which should not be suspended at an interlocutory stage where no illegality or manifest constitutional violation has been demonstrated. Therefore, granting the said order at this stage would be against public interest and ought not to be granted. 8.He further averred that if the orders sought are granted, the 1st respondent’s major source of revenue collection would be severely diminished leading to the county failing to meet its set targets for revenue collection as set by the National treasury and office of the controller of budget and as a result the said offices would restrict the release of equitable share of funds, which in effect would automatically paralyze county operations and service delivery. They were also reasonably apprehensive that other major revenue streams stakeholders would also be encouraged to move to court seeking similar orders and that would automatically paralyze their operations leading to further loss of revenue. 9.Finally, the 1st to 3rd respondent also denied the petitioners allegations that their agents had harassed, intimidated and unlawfully interfered with the petitioners’ operations and emphasized that at all material times, their employees had acted in accordance with the law in collection of revenue as mandated under the law. The petitioner’s allegation of harassment also had to be taken with a pinch of salt, since they had been paying the said cess for the past two (2) years without any complaint whatsoever. The balance of convivence therefore tilted in favour of allowing the county to continue discharging its constitutional mandate by ensuring uninterrupted collection of revenue, which in turn will be used in provision of public service pending hearing and determination of the suit. 10.The petitioners had also not demonstrated what irreparable loss they would suffer, which was incapable of compensation by way of damages, if the county continues to collect cess, so as to warrant the sustenance of the said orders earlier issued. They thus prayed that the said Application be dismissed. (iii) The 1st to 3rd Respondents Application dated 13th May 2026. 11.In this Application, the 1st to 3rd respondent’s sought to set aside, discharge and/or vacate the conservatory order issued by this court on 5th May 2026 on grounds that the said order had negatively impacted on revenue collection and the county risked losing revenue of about Kshs 5,000,000/= per month yet they were so mandated to collect revenue/charge fee under Article 209(4) as read with Part 2 of the Fourth schedule of the constitution of Kenya, 2010 and the Marsabit county Finance Act, 2023. 12.The petitioners had also been paying cess for about two (2) years in a row, without any difficulty and it was therefore baffling that they had taken a new stand, without any valid justification, yet the law allowed them to charge cess for services rendered. It was also to be noted that cess revenue was the single largest own revenue stream for the county, critical to bridge the financial deficit given that funds received from the national allocation was not adequate and to restrain collection of the same would lead to the county suffering irreparable financial loss and more critically not be in a position to offer critical public service to the residence of Marsabit county. 13.The 1st to 3rd respondent also placed emphasizes in the recent decision of Royal Herbs Exporters (Sez) limited Vrs County Government of Nyandarua (2025), KEHE 16848 (KLR), where it was held that pursuant to Article 209(4) of the Constitution of Kenya, county governments could impose charges for services provided, and the said court had gone on to distinguish cess and tax and held that the two are separate payments with different purposes. 14.The orders issued by the court were prejudicial to the 1st respondent and had been issued without giving them an opportunity to be heard and accordingly, it was in the interest of justice, fairness and public good that the orders sought should be discharged. (iv). The petitioners Reply to Notice of Motion Application dated 13th May 2026. 15.The petitioners opposed this Application through the replying affidavit dated 18th May 2026, sworn by one Harun Sala Mustafa, the director of the 1st petitioner and the authorized representative of the petitioners. He faulted the respondents/applicants for mischaracterizing the present dispute as a mere revenue collection disagreement where as they had raised substantial constitutional and statutory questions concerning;a.Unconstitutional extension of county cess powers;b.Unlawful taxation of international trade;c.Duplicative taxationd.Interference with Interstate and International commerce;e.Abuse of county enforcement powersf.Unconstitutional enforcement into Sovereign customs; andg.Violation of Articles 10,27,40,47,48, 201, 2019 and 210 of the Constitution of Kenya, 2010. 16.The respondents were relying on County Government of Marsabit Finance Act No 2 of 2023, but had deliberately failed to disclose that “cess” was defined as “ a form of levy charged on domestic agricultural trade imposed under this Act or any other written law and payable to the county government of Marsabit.” It was obvious that they were not domestic agricultural traders as envisaged under the said Act, since they sourced their grains from Ethiopia and thus were regulated under the national and international trade frameworks and not the County Finance Act as asserted by the respondents. 17.Further Taxation statutes were to be strictly interpreted as enacted and “no tax maybe imposed through implication, administrative extension or arbitrary enforcement.” The respondents therefore could not enlarge the statutory meaning of “domestic agriculture trade” to include international imported grains originating from Ethiopia nor was there any services rendered to them to justify imposition of the impugned cess. 18.Further, in defiance of the conservatory orders issued, the respondents’ officers had continued to stop the petitioners’ trucks, coercing cess payments, intimidating drivers, interfering with their business operations and they ought not to be allowed to get away with their unlawful action. The 1st to 3rd respondents had also not met the legal threshold for discharging and/or setting aside of the conservatory orders earlier issued and thus urged the court to dismiss the said Application. (v) The 1st to 3rd Respondent Further Affidavit. 19.The 1st to 3rd respondents through their further affidavit dated 20th May 2026 sworn by the county secretary did reiterate that clause 3(a) of part 1 of the sixth schedule of the Marsabit County Finance Act 2023 did provide for cess charges on all cereals packaged above 50kilograms from or to Ethiopia, and therefore could not be faulted for enforcing the same. Further it was their contention that;a.The Petitioners goods were not “transit goods” within the definition provided for under Section 2(1) of the East African Community Customs Management Act (EMCCA), 2024, as the same referred to movement of goods imported from a foreign place through the territory of one or more of the partner states, to a foreign destination. The petitioner’s cargo, were designated for Marsabit county as its final destination code, thus failed to meet this definition and could not seek protection under the said law.b.The single administrative documents (SAD) produced by the petitioners as Annexture “HSM-2E to HSM 21” clearly stated that the Goods were from Ethiopia and designated to Marsabit County in Kenya, under Code C400 (See Item 37 of SAD), which is a Code for imports for local use as opposed to Code T8 for transit goods.c.The 1st to 3rd petitioner’s role was limited to the imports made to the county and the movement of the said goods within the county and the 1st respondent action did not in any manner usurp the role of customs administration or other clearance entities, who perform their duties to certify the produce since it is intended for consumption within Kenya.d.Once the cereals enter Kenya at Moyale border, they are redirected to holding and/or loading zones within Moyale Municipality including Kona Hajjo Holding Area, Barazza Park holding yard, Biashara street truck bay amongst others, all of which are accessible through county roads. The same were often loaded and off loaded at stores and/or warehouses within Moyale town for local distribution.e.Over and above the use of County roads and facilities such as baraza park, the petitioners, their employees and their operations benefit from county services such as clean and well-maintained county roads, solid waste management and public sanitation, markets and county health facilities amongst other charges. 20.The 1st to 3rd respondent therefore urged the court to ignore the petitioner’s accertion that all imported goods within Kenyan Market would consequently be exempt from any County government charges and levies so long as they have been cleared by customs and other statutory bodies, as such an argument was impractical and unsustainable in a county that imported even basic items such as toothpicks. It was therefore in public interest that the 1st respondent be allowed to continue to discharge its constitutional and statutory mandate of revenue collection pending hearing and determination of the petition. (v) Petitioners Response to the Respondents Further Affidavit. 21.The petitioners reiterated the issues raised in the earlier response filed and pointed out that the further affidavit was fundamentally evasive and deliberately avoided to address the central issue before the court, which was, “Whether the respondent could lawfully extend cess regime expressly applicable to domestic agriculture trade into the sphere of international trade.” 22.They further pointed out that Article 209(3) and (4) of the constitution granted the county limited taxation power subject to constitutional limitation provided in Article 209(5) of the said constitution. The petitioners were unlawfully taxing transit goods using a law applicable to domestic agriculture, which statute are subject to strict interpretation and could not be expanded by implication. The respondents had therefore not met the threshold for discharging the orders earlier issued and they urged the court to maintain them pending determination of the suit. (vi) The 4th Respondent 23.The 4th Respondent despite being served did not file any pleadings in this matter and it is noted that the dispute primary does not concern them. C. Parties Submissions i. The Petitioners Submission 24.The relied on their submissions dated 21st May 2026, where they reiterated that they had demonstrated that they were international traders, engaged in cross border business of importing cereals and dry grains originating from Ethiopia and had raises substantial constitutional and statutory questions concerning; abuse of county taxation powers, unconstitutional extension of cess legislation, duplicative taxation and interference with international commerce in violation of Articles 10,27,40,47,48,201, 209 and 210 of the constitution. Reliance was placed in the case of Mrao Ltd Vs First American Bank of Kenya & 2 Others, where the court defined what amounted to prima facie case. 25.It was not in doubt that the Marsabit Finance Act No 2 of 2023 had defined “cess” as “ a levy charged on domestic agricultural trade”. They were not domestic agricultural traders and therefore the 1st to 3rd respondent had unlawfully expanded the scope of their own legislation beyond what the statute itself contemplated. Reliance was placed in the case of Cape Brandy Syndicate Vs Inland Revenue Commission (1921) 1 KB 64 and Keroche Industries Limited Vs Kenya Revenue Authority & 5 others, where the court emphasized that taxation powers must strictly comply with constitutional and statutory limitations and taxation could not be imposed through implication, administrative practice or enforcement conduct. 26.The impugned cess revenue, without doubt violated Article 209(5) of the Constitution as it was imposed in a manner that prejudice’s national economic policy, economic activities across county boundaries and hindered mobility of goods, services, capita and/or labour. The said impugned cess charge also resulted in duplicative taxation as the petitioners had to also comply with a multitude of other national taxes to pass the grains through the border. Reliance was placed in the case of Base Titanium Limited Vs County Government of Mombasa and Another SC Petition 22 of 2018 & Bidco Oil Refineries Limited Vs Attorney General, where it was held that county taxation powers must remain within constitutional confines and cannot impede lawful commerce and also that taxation measures must conform to constitutional principles of fairness and legality. 27.The 1st to 3rd Respondents had therefore failed to meet the threshold necessary to discharge and/or vary the conservatory orders earlier issued as they had demonstrated that they had a prima facie case, there was continuing constitutional prejudice, imminent constitutional harm and substantial constitutional and statutory question requiring preservation. The balance of convivence therefore overwhelmingly favored preservation of the said conservatory orders. They placed reliance on the case of Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others and Center for Rights Education and Awareness (CREAW) & 7 others Vs Attorney General, where it was held that conservatory orders are necessary to preserve constitutional integrity pending determination of issues in contention. 28.The petitioners thus urged the court to uphold the conservatory orders issued pending determination of the main petition and also urged the court to dismiss the 1st to 3rd respondents notice of motion application dated 13th May 2026 seeking to set aside the said orders. (ii) The 1st to 3rd Respondents submissions. 29.The 1st to 3rd Respondent relied on their submissions dated 16th December 2025, where they submitted that they had a lawful basis for levying cess based on their mandate derived from the Marsabit County Finance Act No 2 of 2023 clause 3(a) of part 1 of the sixth schedule which provided for cess charges on all cereals per package above 50 kilograms from or to Ethiopia and Article 209(4) as read with part 2 of the fourth schedule of the Constitution of Kenya, 2010. Reliance was placed in the Supreme court case of Base Titanium limited versus the county government of Mombasa & Another, Petition No 22 of 2018, where it was held that where a county levy charges, it must do so in exchange for an amenity. 30.They had pleaded in affidavits filed that the petitioners often offload and load the cereals bought at stores and/or Wherehouse’s with Moyale town for local distribution or onward transmission to other areas beyond Moyale town, which implied that their trucks use county roads and infrastructure and derived direct and indirect benefit from devolved county functions falling under part 2 of the fourth schedule of the constitution including county transport infrastructure, trade development and regulations, market facilities, public sanitation, solid waste management and ancillary regulatory services facilitating loading, offloading, warehouse and commercial movement of goods within Moyale and the wider county. Reliance was placed in the case of Milly Glass works limited vrs County Government of Mombasa (constitutional petition No E0150 of 2022),(2024) KEHC 1597 (KLR) and Royal Herbs Eporters (Sez) limited Vrs County Government of Nyandarua, (2025), KEHC 16848 (KLR) which upheld the aforestated position. 31.The 1st to 3rd respondent reiterated that the petitioners’ goods were in fact intended for use in Kenya and more specifically for use within Marsabit county as evidence by the single administrative document (SAD) annexed by the petitioners. They had therefore failed to establish that their consignment was exclusively for international trade thus insulated from county levies and mere invocation of regional trade instruments did not discharge this evidentiary burden. Reliance was placed in the case of Coast Calcium limited Vrs The county government of Mombasa (2017) KEHC 2932 (klr) to buttress this position. 32.As regards the “conservatory order earlier issued”, the 1st to 3rd respondents urged the court to find that the applicants had not meet the threshold set in Giella Vs Cassman Brown and that the same was not issue in public interest as the applicants were private companies seeking remedies for alleged constitutional violations and if successful, their loss could be adequately compensated by way of damages. Reliance was also placed in the case of Gatirau Peter Munya Vs Dickson Mwenda & 2 Others (2014) KESC 30 (KLR) & Florence Wairimu Muturi vrs Neslon Andayi Havi & 21 others (Civil App E435 of 2021), (2022) KECA 938 (KLR) for emphasizes. 33.The impugned orders impaired the counties constitutional obligation to finance devolved functions and had resulted in suspension of a key revenue source thereby greatly prejudicing service delivery to all the residence of Marsabit county. There was also a rebuttable presumption that the county legislation enjoyed constitutionality unless invalidated and that determination had to await the final determination of the petition filed. 34.Finally, the conservatory orders granted substantially achieved the substantive relief sought in the petition before the court had the opportunity to determine the main dispute (constitutional question) contrary to consistently held position that courts should not grant interlocutory relief that effectively determines a disputed constitutional question. 35.The respondent thus urged the court to allow their notice of motion application dated 13th May 2026 and to dismiss the petitioner’s notice of motion application dated 4th May 2026. D. Determination 36.I have considered the pleadings filed, the responses thereto and the submissions filed by the respective parties. The issues which arise are co twined and is basically whether to sustained the conservatory orders earlier issued on 5th May 2026 pending hearing and determination of the petition and/or if the same should be discharged. 37.This Court is granted powers to issue conservatory orders in constitutional petitions under Article 23 (3)(c) of the Constitution, and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.The applicable principles for the grant of a conservatory were detailed by Onguto J. in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR .In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.7.Additionally, the learned judge in Board of Management of Uhuru Secondary School (Supra), cited above reaffirmed that conservatory orders are not granted as a matter of right, but rather on a clear demonstration that constitutional rights are under imminent threat. Conservatory orders are, therefore, aimed at preserving the substratum of the matter pending the determination of the main issues in dispute8.In Nubian Rights Forum & 2 others -versus- Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR it was held that the principles required to be satisfied before granting Conservatory Orders or interim Conservatory Orders compromise of the following: -a)) First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice;b)The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights;c)Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory; andd)The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order. (Also see Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR )9.Public interest also demands that the Constitution and the law be respected and upheld. Nothing can be of greater public interest than court playing its constitutional mandate of ensuring all laws and actions of other public bodies conform to the law. 38.On the first issue whether the petitioners have shown that they have a prima face case with likelihood of success. In Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary - Ministry of Environment and Natural Resources & 3 Others [2017] eKLR it was held that;“(20) The guiding principles upon which Kenyan courts make findings on interlocutory applications for conservatory orders within the framework of Article 23 of the Constitution are settled. 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.”10.The applicants have established that they trade in cross border dry grains/cereals business and pay all relevant taxes as deemed necessary by the National government. It is their contention that the 1st to 3rd respondents have illegally imposed cess charges on their goods, which in their view is unlawful as the statute upon which the said cess charge is established, the Marsabit County Finance Act No 2 of 2023, defines cess as “ a levy charged on domestic agriculture trade”. They were not domestic agricultural traders and therefore the 1st respondent had unlawfully expanded the scope of their own legislation beyond what the statue itself imposed. 39.The 1st to 3rd respondent on the other hand argued that Article 209(4) as read together with Part 2 of the fourth schedule of the Constitution of Kenya did allow the 1st respondent to raise revenue and specifically clause 3(a) of the sixth schedule of the Marsabit County Finance Act, did provide that they could charge cess on all cereals per package above 50 kilograms from or to Ethiopia. This was the express provision that specifically provided for cess charges and thus they could not be faulted for charging the same. The petitioners’ goods were also not transit goods as they were destined for Kenya and therefore could not seek protection from East African Community Customs Management Act (EACCMA), 2004. 40.Further the petitioners offloaded and loaded their goods at various warehouses with Moyale town and used county roads, social amenities including county health facilities, market solid waste, water and sanitation services and thus were directly and indirectly benefiting from devolved county functions. 41.At this stage and considering the material placed before me, I do find that the primary issue raised by the Petitioners regarding extended cess taxation beyond “domestic agriculture trade” as provided for under the Marsabit County Finance Act No 2 of 2023 and whether the said taxation violates the the provisions of Article 209(5) of the Constitution are not frivolous issues and is clearly arguable. I am therefore satisfied that the issues raised herein disclose substantial questions of constitutional law that need further scrutiny of the court while balancing of the need to secure the county government’s revenue sources on one hand and the protection of the Bill of Rights on the other, both of which the State is enjoined to attain. 42.However, apart from establishing a prima facie case, the applicant must further demonstrate that unless the conservatory order is granted there is real danger which may be prejudicial to him or her. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General, Nairobi HC Pet. No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011 and V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others [2012] eKLR. 43.The petitioners aver that they are prejudiced as they are exposed to double taxation and have been subjected to continuous harassment by county revenue agents, who continuously stop and detained their consignment, barricades transportation routes and used coercive methods to interfere with international commerce in violation of Article 209(5) of the Constitution, to their loss and detriment. 44.In response, the 1st to 3rd respondent averred that the dispute before court was not one involving purely transit goods and that the petitioners had not discharged this evidential burden since the grains bought were, unloaded, stored, distributed and/or commercially utilized within the county. To be further restrained from collecting cess would lead to loss of colossal amounts of revenue with far reaching repercussions on the county revenue collection targets as set by the National treasury and Controller of budget. 45.For the Court to be satisfied of existence of real danger, and/or prejudice it was held in Energy Dealers Association & 1 Other vs. The Honourable Attorney General and 3 others [2021] eKLR that:“Courts must, in dealing with Petitions brought under various provisions of the constitution, must be careful in determining the prejudice at least at the preliminary stages. I say so because, at such stage of the proceedings, the provisions of the Constitution alleged to have been infringed or threatened with infringement are yet to be subjected to legal scrutiny. Therefore, the damage or threat thereof to the rights and fundamental freedoms of to the Constitution must be so real that the Court can unmistakably arrive at such an interim finding. Such a breach or threat should not be illusory or presumptive. It must be eminent.” 46.The respondents did point out that the petitioners have been paying cess on their goods for the past two years since the Marsabit County Finance Act, No 2 of 2023 was passed and this was not denied by the petitioners. I do also find as a fact that, if the petitioners are successful, whatever payment shall have been made pursuant to the said legislation can be recovered however tedious the process might be and/or rebates give for set off as maybe deemed appropriate. 47.On the other hand, it is not in doubt that the county has to meet the set targets for revenue allocation as set by the national Treasury and Office of the Controller of Budget, both of whom can restrict equitable share of funding to prevent accumulation of pending bills. The money collected also helps the county to meets its public service obligation to the larger members of public residing within Marsabit county. Considering the foregoing, I find taking into account the principle of proportionality, that it would be prudent not be prudent not to sustain the conservatory orders earlier issued pending determination of the main petition. 48.Finally, on whether the petition would be rendered nugatory should the conservatory orders not be granted and on public interest, I do find based on the reasons already expounded that this petition will not be rendered nugatory and also that, at this point a rebuttable presumption existed that the county legislation enjoyed constitutionality unless invalidated and that determination has to await the final determination of the petition filed E. Disposition 49.Flowing from the said findings I do find that the Notice of motion Application dated 4th May 2026 lacks merit and the same is dismissed. 50.The Notice of motion Application dated 13th May 2026 is allowed in terms of prayer (2) thereof. 51.The costs of both Applications will be in the course. 52.It is so ordered. READ, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT ON THIS 3RD DAY OF JUNE, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this …3rd……day of JUNE 2026.In the presence of;………………………………….for Petitioner………………………………….for Respondent………………………………….Court Assistant