https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9909

Kithinji v Tourism Regulatory Authority of Kenya & 3 others (Petition E770 of 2025) [2026] KEHC 9909 (KLR) (Constitutional and Human Rights) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 9909 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E770 of 2025 RE Aburili, J July 8, 2026 IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 20, 21, 22, 23, 25, 29, 41, 49, 50, 159, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE TOURISM ACT, NO. 28 OF 2012 Between Kevin Kithinji Petitioner and The Tourism Regulatory Authority of Kenya 1st Respondent The Honourable Attorney General 2nd Respondent The Director Of Public Prosecutions 3rd Respondent The Chief Magistrate Milimani 4th Respondent Ruling 1.This Ruling determines the amended Notice of Motion dated 8th December 2025 in which the Petitioner/Applicant seeks the following prayers:1.That a Conservatory Order do issue against the Respondents severally and singularly, their agents, assigns or other persons claiming authority under them from preferring any charge and/or conducting the trial in CR. CASE NO. 623 OF 2025 Republic vs. Kevin Mugendi Kithinji, against the Petitioner herein before any court of law until the final determination of this Petition.2.Any other orders this Honourable Court would deem to be just and expedient to issue. 2.The Application is supported by the Petition and the Petitioner’s sworn affidavit supporting the Petition both dated 8th December 2025. In the said petition and the supporting affidavit, the Applicant avers and deposes that he is employed as a waiter at a small eatery known as “SU” that serves snacks and tea to shoppers within the Well Mall situated along Lang’ata/Karen Road. 3.He states that on 24th October 2025, the 1st Respondent, the Tourism Regulatory Authority demanded that the eatery obtains a Tourism License within an inadequate three-day window without providing a clear fee breakdown or assessment. He deposes that the business, which opened in June 2025, does not fall under the scope of the Tourism Act and that it has never been assessed or graded as a tourist hotel. 4.The Petitioner/Applicant pleads that on 6th November 2025, officers of the 1st Respondent and police officers arrested him yet he is a regular employee, not an owner/shareholder, for the offence of Operating a Class B Facility without a Tourism License and allegedly defaulting on a Kshs. 47,000 levy. 5.It is averred that the police confiscated the Petitioner’s phone severely restricting his communication with family and legal counsel, demanded a Kshs. 20,000 cash bail and also refused to let the Petitioner access his mobile phone or local M-Pesa agents to withdraw the funds which led to his unnecessarily prolonged detention by three hours. 6.The Petitioner contends that he was released from custody and asked to attend court on 12th November 2025 but the 1st Respondent continually postponed his court appearance dates, eventually pushing it to 25th November 2025 which he argues is an unconstitutional delay past the 24-hour rule and an illegal assumption of judicial powers. He also avers that the 1st Respondent is still non-committal as to the actual date of court appearance even though it has been slated for 25th November 2025. 7.The Petitioner argues further in his Petition and Affidavit that the Tourism Act is unconstitutional due to a lack of public participation from small-business stakeholders. He further contends that criminal liability cannot be vicariously applied to an ordinary employee and asserts that the impugned letter of 20th October 2025 demanding that the eatery obtains a tourism license was never addressed to him. 8.In response to the Application, the 2nd Respondent the Attorney General filed Grounds of Opposition dated 3rd June 2026 against the Petition and the Application on grounds that:1.The Attorney General is a nominal Party in this Petition; the Petition does not demonstrate how 2nd Respondent’s conduct constitutes a violation and/or contravention of the Petitioner’s rights and freedoms, and there are no prayers against the 2nd Respondent.2.The Tourism Regulatory Authority of Kenya is a body corporate established under section 4 of the Tourism Act, with full legal capacity to sue and be sued and is capable of defending this Petition; the office of Attorney General has not been directed to appear on their behalf in this matter.3.The 2nd Respondent therefore seeks that it be excused from the proceedings herein. 9.The 3rd Respondent the Director of Public Prosecutions also filed its Grounds of Opposition dated 23rd January 2026 raising six grounds as follows:1.That the Petition discloses no Constitutional violation attributable to the Director of Public Prosecutions, and no specific act, omission, decision or conduct on the part of the 3rd Respondent has been pleaded or demonstrated with the precision required under Constitutional litigation.2.That the Petition improperly seeks to restrain the Constitutional mandate of the Director of Public Prosecutions contrary to Articles 157 (6), (10) and (11) of the Constitution, without demonstrating bad faith, abuse of process, malice, or ulterior motive.3.That investigations, arrests and police bail, if any, fall within the statutory mandate of the National police Service and not the Director of Public Prosecutions, and the 3rd Respondent cannot be held liable for alleged violations arising from police conduct prior to the institution of criminal proceedings.4.That granting the orders being sought would amount to usurping the mandate of the trial court and undermining the constitutional role of the Director of Public Prosecutions.5.That the Petition is misconceived, incompetent, bad in law and devoid against the 3rd Respondent and ought to be dismissed.6.That the Petition fails to meet the threshold set in Anarita Karimi Njeru v Republic (1979) eKLR, as it does not plead with reasonable precision the specific constitutional provisions violated, the manner of violation, and the nexus to the 3rd Respondent. 10.The parties canvassed the Application by way of written submissions. The Petitioner’s submissions are dated 9th June 2026. Counsel submitted on behalf of the Applicant that a stay is necessary to prevent judicial conflict between the High Court hearing the constitutional petition and the lower Magistrate’s Court hearing the criminal case. It is argued that simultaneous litigation could lead to divergent outcomes, causing legal absurdity, uncertainty and damage to public faith in the judicial system. 11.Counsel for the Petitioner argues that the Petitioner’s arrest was arbitrary and lacked a justifiable cause. They also question why the 1st Respondent is sidestepping the relevant specialized Tribunal to directly criminalize the recovery of statutory fees and subscriptions. 12.It is contended that denying the stay would cause the Petitioner irreparable loss, unnecessary litigation costs, stalled professional progression and public ridicule. 13.Counsel submits that the DPP is a necessary party because it holds the sole constitutional mandate over public prosecutions while the Attorney General is bound to appear because the petition alleges violations of fundamental rights and implicates a judicial officer the Chief Magistrate. 14.The Petitioner notes that the responses filed by the Attorney General and the Director of Public Prosecutions failed to address the present interim Application and only responded to the main Petition, meaning they have effectively provided no answer to the stay request. Counsel for the Petitioner asserts that the Court does not need to decide the final merits of the main petition at this stage; it only needs to observe that substantial constitutional questions have been raised, there was no unreasonable delay and the petition would be rendered useless "nugatory" if the lower court trial proceeds. 15.The cases of R v DPP & 4 Others ex parte Senator Johnson Nduya Muthama (2015) eKLR, Isika v Mwaito & 2 Others, Judicial Review Appl No. E002 of 2023 [2023] KEHC 21631 (KLR) and Francis Muthusi Malombe & 7 others v Kaloki Malombe & 9 Others (2022) KEHC 2766 (KLR) are cited in support of the Application. 16.The 3rd Respondent’s submissions are dated 4th June 2026. Counsel for the 3rd Respondent has only addressed himself to the main Petition and not to the Application before the Court. I shall therefore not reproduce the said submissions but will instead rely on their grounds of Opposition. The other parties did not file any submissions. Analysis and Determination 17.Having considered the application, responses and the written submissions, the only issue for my determination is whether the Application herein is merited and if the Court can grant the prayers sought by the Petitioner. 18.At the core of the application is that there are ongoing criminal proceedings against the Applicant/petitioner before the subordinate court which the Petitioner argues would render the present Petition nugatory if allowed to proceed. The Application is not seeking to stop the criminal trial and prosecution altogether, but is instead asking for conservatory orders to allow the conclusion of this Petition so that the criminal trial can proceed after the Petition’s determination. 19.The basis for conservatory orders in constitutional petitions is encapsulated in Article 23 of the Constitution as follows: -23.Authority of courts to uphold and enforce the Bill of Rights1.The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.2.Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.3.In any proceedings brought under Article 22, a court may grant appropriate relief, including—a.a declaration of rights;b.an injunction;c.a conservatory order;d.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;e.an order for compensation; andf.an order of judicial review. 20.The guiding principles on conservatory orders are well-settled. The Supreme Court in Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) (2 April 2014) (Ruling) expressed itself on the principles as follows:“85.These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light.86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.87.The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:(i)the appeal or intended appeal is arguable and not frivolous; and that(ii)unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.88.These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:(iii)that it is in the public interest that the order of stay be granted.89.This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution.....” 21.Applying the principles espoused and settled in the above decision, Onguto J (RIP) expounded on the said principles as follows in the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR):“25.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.26.It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).27.Recently the same pertinent observations were made by Ngugi J and Muriithi J sitting separately in Jimaldin Adan Ahmed & 10 Others –v- Ali Ibrahim Roba and 2 Others [2015] eKLR and Micro Small Enterprises Association of Kenya (Mombasa Branch) –v- Mombasa County Government [2014] eKLR respectively.28.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: see Patrick Musimba –v- The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.29.Thirdly, flowing from the first two principles, 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. In these respects, the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.30.The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.31.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless: see Centre for Human Rights and Democracy & 2 Others –v- Judges and Magistrates Vetting Board & 2 Others CP No. 11 of 2012 as well as Suleiman –v- Amboseli Resort Ltd [2004] 2 KLR 589. 22.With the above principles in mind, on the first parameter of whether the Petitioner has a prima facie case. From the Petitioner’s supporting affidavit and facts in the Petition, I note that he raises substantial, non-speculative constitutional grievances. He averred that he was arrested and not arraigned in court within 24 hours, contrary to Article 49 (1) (f) of the Constitution. He also says he was denied access to his phone when he was finally granted bail and could not post bail as a result. Thirdly, the Petitioner points to the issue of the unconstitutional application of vicarious criminal liability. He states that he had been criminally charged for a licensing default belonging entirely to his employer, SU Eatery, yet he is neither a shareholder nor an owner of the establishment. 23.Section 98 (1) of the Tourism Act provides:98.Requirement for licence(1)A person shall not undertake any of the tourism activities and services specified in the Ninth Schedule, unless that person has a licence issued by the Authority. 24.The nineth Schedule particularizes the activities and services for which a tourism license is mandatory and these are:Provisions relating to regulated tourism activities and services(a)Class "A" Enterprises—(i)Hotels;(ii)Members clubs;(iii)Motels;(iv)Inns;(v)Hostels;(vi)Health and spa resorts;(vii)Retreat lodges;(viii)Ecolodges;(ix)Tree houses;(x)Floatels;(xi)Service flats;(xii)Service apartments;(xiii)Beach cottages;(xiv)Holiday cottages;(xv)Game lodges;(xvi)Tented camps;(xvii)Safari or mobile camps;(xviii)Bandas;(xix)Cultural homes and centres;,(xx)Villas;(xxi)Homestays;(xxii)Guest houses; and(xxiii)Time shares;(b)Class "B" Enterprises—(i)Restaurants; and(ii)Other food and beverage services;(c)Class "C" Enterprises—(i)Tour or safari operators;(ii)Tourist service vehicle hire;(iii)Local air charter;(iv)Travel agency;(v)Water sports;(vi)Balloon operators; and(vii)Boat excursions;(d)Class "D" Enterprises—(i)Game fishing outfitters;(ii)Enterprises offering camps and camping equipment for hire;(iii)Nature parks;(iv)Nature reserves;(v)Nature trails;(vi)Game ranches;(vii)Amusement parks; and(viii)Non-citizen tour leaders or guides;(e)Class "E" Enterprises—(i)Local traditional boat operators;(ii)Professional safari photographers;(iii)Curio vendors;(iv)Private zoos;(v)Citizen tour leaders or guides; and(vi)General vendors; and(vii)Beach operators;(f)Class "F" Enterprises Entertainment facilities;(g)Class "G" Enterprises Conference and event services;(h)Class "H" Enterprises Tourism and hospitality training institutions; 25.As to whether the petitioner was undertaking any of the above activities whether as the owner of the eatery or manager and whether as an employee is liable on behalf of his employer, is an arguable legal question on the legality and constitutionality of the petitioner’s prosecution. 26.On the second parameter of whether the Petition before this Court will be rendered nugatory, I note that the Petition itself is raising legal questions impugning the viability and legality of the ongoing prosecutions before the subordinate court. It is clear that if the Milimani Chief Magistrate’s Court proceeds with Criminal Case No. E623/2025, the Petitioner will be actively subjected to a criminal trial stemming from an enforcement process he claims is entirely unconstitutional because as an employee of the establishment, he is not expected to comply with the statutory obligations which only attach to the owners of the establishment. My view of this is that forcing the Petitioner to brave the storm and undergo trial before this Court determines the validity of his arrest would completely defeat the purpose of his constitutional Petition. The resulting effect is that the Petitioner will be highly prejudiced by the prosecution, should this court find that vicarious criminal liability is unlawful in his case. A wrong person would have been prosecuted on behalf of another one. 27.I find that this second parameter has also been established. 28.Thirdly, on the issue of public interest, I find that criminal proceedings are usually initiated in the public interest. On the other hand, the petitioner raises issues on the lawfulness of his arrest and prosecution as an employee of the establishment and it appears that his claim that he is being vicariously held liable in criminal proceedings for the default of his employer is prima facie arguable. 29.He states that he had been criminally charged for a licensing default belonging entirely to his employer, SU Eatery yet he is neither a shareholder nor an owner of the establishment. 30.It cannot therefore be in the public interest to charge and prosecute a wrong person, assuming his deposition is the correct position in the criminal matter. It would undermine the integrity and coherence of the justice system and erode public confidence in the courts and create uncertainty in the law enforcement of rights and obligations. 31.This Court appreciates that the Tourism Act creates offences and as at now, the petitioner is facing criminal charges already registered in Court. The DPP acts on investigations of the National Police Service, who are not parties to the petition. However, that absence of the National Police Service is not fatal to the petition for reasons that misjoinder or non-joinder cannot be a ground for the petition to fail, especially, taking into account the fact that the criminal charges were filed by the DPP after satisfying itself that an offence was disclosed. The Police do not direct the DPP to initiate criminal proceedings. The DPP on the other hand, advises and directs the police on areas for investigations before mounting a prosecution. 32.Further, the petition is still in its nascent stages and the petitioner may as well amend the petition with leave of court, or the court may on its own motion as stipulated in Rule 5(d) of the Mutunga Rules order for joinder of a necessary party. 33.Having said that, I note that the Attorney General is enjoined to the Petition which challenges the prosecution of the petitioner, yet the Attorney General is not representing any of the parties to the petition. I find no reason to retain the Attorney General as a party although nothing prevents the Attorney General from representing any of the Parties to the Petition. I therefore order that the Attorney General be and is hereby struck out of the petition. 34.In the end, I find and hold that the Petitioner has demonstrated a prima facie case with a likelihood of success and an imminent danger of irreversible prejudice. Accordingly, he is deserving of the conservatory orders sought. 35.I therefore make the following orders:i.The criminal proceedings commenced against the petitioner Kevin Kithinji in Milimani Chief Magistrate's Court Criminal Case No. E623 of 2025 are hereby stayed pending the full hearing and determination of this Constitutional Petition No. E770 of 2025.ii.The Petition before the Court can be expedited to ensure the Respondents are not prejudiced by an indefinite delay.iii.The Attorney General is struck out of the petition.iv.Each party shall bear their own costs of the application for conservatory orders. 36.Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY, 2026R.E. ABURILIJUDGE