https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13099

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CONSTITUTIONAL PETITION NO. E024 OF 2026** **DK RONO, J** **09 JULY 2026** **IN THE MATTER OF THE FOURTH SCHEDULE OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF CO-OPERATIVE SOCIETIES ACT (CAP 490)** **AND** **IN THE MATTER OF THE MERU COUNTY CO-OPERATIVE SOCIETIES ACT, 2014** **AND** **IN THE MATTER OF THE MERU COUNTY MIRAA PROMOTION ACT, 2026** **BETWEEN** **JOHN MUTUA…………………………………………..1st APPLICANT/PETITIONER** **CHRISTOPHER WACIUMA KAMAU……………....2ND APPLICANT/PETITIONER** **PETER M’MAUTAA KATHIA……………………….3RD APPLICANT/PETITIONER** **AND** **THE COUNTY GOVERNMENT OF MERU……………………………RESPONDENT** **MERU MIRAA FARMERS CO-OPERATIVE SOCIETY LTD…… INTENDED INTERESTED PARTY** **RULING** 1. The instant application brought under certificate of urgency dated 6th July 2026, the court issued directions on 6th July 2026 that the Respondent be served forthwith with the application not later than close of business on the 6th July 2026, the Respondent was to file and serve their responses to the Application by close of business on the 7th of July 2026 and that the parties would appear for inter parte hearing and /or directions on the 8th of July 2026. 2. When the Application came for hearing and further directions on 8th July 2026, the applicant had filed an affidavit of service which demonstrated that it had effected service upon the Respondent and that the Respondent, despite being served, had not filed any documents in court in opposition to the application dated 6th July 2026. The Court was satisfied that indeed the Respondent had been served and therefore directed the applicant to file submissions by 12 noon on the 8th July 2026 and a ruling being reserved to be delivered on 9th July 2026. 3. The Applicants’ application in the main seeks for a Conservatory Order suspending the implementation and enforcement of the provisions of the Meru County Miraa Promotion Act, 2026 as against the Applicants and their members and that Pending the hearing and determination of this Application, this Honourable Court be pleased to issue a Conservatory Order restraining the Respondent, whether by themselves, their servants, agents or any person acting under their authority, from implementing or enforcing the provisions of the Meru County Miraa Promotion Act, 2026 in any manner that interferes with or prejudices the Applicants' aggregation centres, collection centres, storage facilities, miraa trading operations, or exposes the Applicants, their officials, members or employees to arrest, prosecution, licensing requirements or any other criminal, administrative or regulatory action. 4. From the pleadings and submissions filed by the Applicant, the sole issue for determination at this interlocutory stage is whether the Petitioners have satisfied the constitutional threshold for the grant of conservatory orders restraining the implementation and enforcement of the impugned provisions of the Meru County Miraa Promotion Act, 2026 pending the hearing and determination of the Petition. 5. The principles governing conservatory relief are now settled. Unlike interlocutory injunctions in private law, conservatory orders are constitutional remedies whose object is to facilitate ordered functioning within public agencies, preserve the authority of the Court, safeguard the substratum of constitutional litigation and ensure that constitutional disputes are not rendered academic before judicial determination. 6. The Supreme Court observed in *Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others*, conservatory orders bear a distinctly public law character and are granted on the inherent merits of a case, bearing in mind constitutional values, the proportionate magnitudes of the competing causes, and the priority levels attributable to the relevant public interests. 7. The Court reaffirmed this approach in *Judicial Service Commission v Speaker of the National Assembly & Another*, emphasising that conservatory relief serves to preserve constitutional order rather than vindicate private rights alone. The Court of Appeal in *Katiba Institute v President of the Republic of Kenya & Others* similarly underscored that conservatory orders are directed at preventing threatened constitutional violations while preserving the effectiveness of the Court's eventual judgment. 8. This Court must therefore consider whether the Petition raises arguable constitutional questions; whether the Petitioners have demonstrated a real danger of prejudice or constitutional injury if relief is withheld; whether the orders sought are necessary to preserve the substratum of the Petition; and whether the grant or refusal of relief better advances constitutional values and the public interest. 9. The Petition challenges the constitutional validity of numerous provisions of the Meru County Miraa Promotion Act, 2026. The gravamen of the Petition is that the County Assembly enacted legislation which exceeds the legislative competence conferred upon county governments under the Constitution by establishing an extensive licensing, inspection, regulatory and enforcement regime governing the cultivation, transportation, marketing and export of miraa. 10. The Petitioners further contend that the Act creates offences and penalties inconsistent with the constitutional distribution of legislative authority and infringes various constitutional rights guaranteed under Articles 10, 27, 40, 47, 185, 186 and 209 of the Constitution. 11. At this interlocutory stage, the Court is not called upon to pronounce definitively on the constitutionality of the impugned statute. To do so would amount to determining the Petition in advance of the hearing. The Court's inquiry is confined to whether the Petition discloses serious constitutional questions deserving full judicial interrogation. 12. This court is of the considered view that the impugned legislation raises substantial issues concerning the constitutional allocation of legislative powers between the National and County Governments under Articles 185 and 186 and the Fourth Schedule; the supremacy of the Constitution under Article 2; the doctrine of constitutional competence; the extent of county authority over agricultural regulation, licensing and trade; and the compatibility of county legislation with existing national statutory frameworks governing agriculture and crop regulation. 13. The questions raised by the Applicants are neither frivolous nor speculative; they go to the core of Kenya's devolved constitutional framework and require careful constitutional interpretation. Without expressing any concluded view on the merits, I am satisfied that the Petition discloses a prima facie constitutional case that warrants an in-depth examination and interrogation by the court. 14. The impugned Act has already come into force. Cursory reading of the Act reveals that it establishes mandatory licensing requirements for growers, traders, transporters, processors and exporters; creates inspection powers; authorizes enforcement officers to undertake regulatory action; establishes offences attracting criminal sanctions; and imposes administrative obligations affecting virtually every participant in the miraa value chain. These are not merely administrative arrangements. They constitute coercive exercises of public power backed by criminal sanctions. 15. This court is of the considered view that should implementation continue during the pendency of the Petition, members of the public would be compelled to comply with regulatory obligations whose constitutional validity remains under challenge. Licences may be denied or revoked, enforcement action undertaken, criminal prosecutions commenced and penalties imposed before the Court has determined whether the impugned provisions were constitutionally enacted. 16. Such consequences cannot adequately be reversed through an eventual declaration of invalidity. Constitutional litigation ought not to become an exercise in post facto correction where preventive intervention is available. 17. The substratum of this Petition is the constitutional validity of the impugned statutory provisions. If those provisions continue to regulate public conduct, attract criminal liability and alter legal rights throughout the pendency of the Petition, the Court may ultimately be called upon to invalidate legislation whose practical consequences have already been substantially implemented. 18. It must be noted, however, that the legislation enacted by a County Assembly enjoys a presumption of constitutionality and that courts ought to exercise restraint before suspending the operation of legislation enacted by democratically elected representatives. 19. Equally important is the fact that constitutional supremacy demands that every legislative body exercises only those powers donated by the Constitution. The doctrine of separation of powers does not require judicial abstention where a credible allegation is made that a legislative body has acted beyond its constitutional mandate. Rather, it requires judicial fidelity to the Constitution while according due deference to the legislative process. 20. This Court is persuaded that, in the peculiar circumstances of this Petition, temporary preservation of the status quo ante better advances constitutional governance than permitting full implementation of legislation whose constitutional validity is directly under challenge. 21. This conclusion does not constitute a determination that the impugned Act is unconstitutional; rather, it preserves the integrity of the constitutional process by maintaining the status quo ante pending the hearing and determination of the Petition, while respecting the Court's obligation to determine the constitutional validity of the impugned legislation only after receiving and considering the full arguments and evidence presented by all parties. 22. Having considered the pleadings, affidavits, and submissions, I am satisfied that the Petitioners have satisfied the constitutional threshold for the grant of conservatory orders. 23. Accordingly, and pending the hearing and determination of the Petition, the Court makes the following orders: 24. A conservatory order is hereby issued suspending the implementation and enforcement of the Meru County Miraa Promotion Act, 2026. 25. The Respondent, their agents, officers or any person acting under their authority are restrained from enforcing, implementing, licensing, prosecuting or otherwise taking administrative or penal action pursuant to those impugned provisions pending the hearing and determination of the Petition. 26. In view of the significant constitutional and public importance of the issues raised, the Petition shall be heard on a priority basis. 27. Costs of the application shall abide by the outcome of the Petition. DELIVERED, DATED and SIGNED at MERU on this 9th day of July 2026. **DK RONO** **JUDGE**