https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10070

Omogo v Energy and Petroleum Regulatory Authority & 3 others (Petition E789 of 2025) [2026] KEHC 10070 (KLR) (Constitutional and Human Rights) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10070 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E789 of 2025 RE Aburili, J July 10, 2026 Between George Bush Omogo Petitioner and Energy and Petroleum Regulatory Authority 1st Respondent The Cabinet Secretary, Ministry of Energy 2nd Respondent The Attorney General 3rd Respondent and Sicpa Kenya Limited Interested Party Ruling 1.On 1st July 2026, this Court delivered Judgment in this matter in favour of the Petitioner where it found that the Petroleum (Products Quality Management) (No. 2) Regulations, 2025 published via Legal Notice No. 185 of November 2025 were unconstitutional, null and void for lack of adequate, meaningful public participation as stipulated in Articles 10 and 118 of the Constitution. This Court also found that a previous iteration of the regulations vide Legal Notice No. 104 of 2025 had already been annulled by Parliament’s Committee on Delegated Legislation on the same ground and that instead of subjecting the draft Regulations to public participation as directed by Parliament, the 2ND Respondent simply republished the Regulations with an added, highly impactful provision under Regulation 7, which mandated the compulsory marking of locally consumed fuel. This Court then issued a permanent injunction restraining the Respondents from implementing the impugned Regulations and ordered the respondents to conduct proper public participation before enacting similar petroleum quality management Regulations. 2.Aggrieved by theJudgment, the 1st respondent, EPRA filed a Notice of Appeal on 2nd July 2026 and the present Notice of Motion under Certificate of Urgency dated 3rd July, 2026, seeking a stay of execution of this Court’s judgment pending the appeal process. 3.The Notice of Motion Application is premised on Articles 10, 23, 50 (1), 159 (2) and 165 of the Constitution, Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practise and Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. 4.The Applicant who is the 1st Respondent in this Petition (EPRA), seeks the following Orders: -1.Spent2.That pending the hearing and determination of this Application, this Honourable Court be please to issue a stay of execution and/or stay of the judgment, Decree and all consequential Orders of this Honourable Court delivered on 1st July 2026.3.That pending the hearing and determination of an Application for stay under Rule 5 (2) (b) of the Court of Appeal Rules, 2022 to be lodged before the Court of Appeal and/or the intended appeal, this Honourable Court be pleased to issue a stay of execution and/or stay of the Judgment, Decree and all consequential Orders of this Honourable Court delivered on 1st July 2026.4.That costs of this Application abide the outcome of the intended appeal. 5.The Application is predicated on the grounds on the face of it and is further supported by the annexed affidavit sworn by Hamid Mohamed. It is deposed that the immediate suspension of the national fuel marking programme creates a dangerous regulatory loophole since, without the operational framework of these regulations, EPRA claims that its ability to curb fuel adulteration, smuggling, tax evasion and the distribution of substandard petroleum products will be severely weakened, threatening consumers, legitimate businesses and government revenue. 6.It is deposed that the Applicant has an undoubted constitutional and statutory right of appeal and seeks to exercise that right and if stay is not granted, their statutory mandate will be crippled, rendering their constitutional right of appeal nugatory even if they eventually win in the Court of Appeal. They assert the balance of convenience favours preserving the status quo. 7.The Applicant deposes that the Application has been made promptly and without unreasonable delay, which was immediately upon delivery of the judgment now being challenged. 8.It is their case that the intended appeal also raises substantial and arguable constitutional and public law questions concerning the constitutional threshold for public participation in the enactment of subsidiary legislation, the exercise of delegated authority and the scope of the Applicant’s statutory mandate under the Energy Act, Cap 314. 9.It is asserted that the Applicant is likely to suffer prejudice and the public cannot be adequately compensated by an award of damages since the impugned Judgement affects the Regulation of the Petroleum sector, public safety, consumer protection, national revenue collection and the integrity of the petroleum supply chain, all which transcend purely pecuniary considerations. 10.It is further deposed that the execution of the Judgement has already commenced since the Petitioner’s legal counsel, Mohamed & Odhiambo Company Advocates, issued a formal demand letter on 2nd July 2026 demanding that EPRA and SICPA Kenya Limited immediately halt all fuel marking processes and any related fee collections. That in addition, they requested full procurement and tender tracking documents regarding the contract awarded to SICPA Kenya Limited within seven days, threatening contempt of court proceedings for non-compliance. 11.That based on the foregoing, unless the Court intervenes, the Applicant will be compelled to suspend the implementation of the said Regulations of 2025 and the national fuel marking programme before the Court of Appeal can consider their appeal. Accordingly, they argue that public interest favours granting the stay of execution of the judgment so that their right of appeal is not rendered illusory, or the Court of Appeal is denied a meaningful opportunity to determine the issues raised in the appeal. 12.The Application was due for mention for interpartes directions this morning of 10th July 2026, upon which, the 2nd respondent/ applicant’s counsel urged the Court to grant an interim order of stay pending interpartes hearing. Mr. Bake, Counsel representing the Applicant/1st Respondent, EPRA, submitted that they do not intend to prosecute the Application substantively but urged that there is a compelling need to stay the judgment of 1st July 2026 pending inter partes hearing. He further submitted seeking grant of Prayer number 2 in the Application at present because there is a vacuum in the National fuel Marking Programme which leaves millions of Kenyans unprotected from adulterated fuel. That this will cause many traffic road accidents which will cause loss of lives especially during the public holidays. 13.Counsel for the applicant submitted that there are also multi-million shillings factories running on fuel and that the Petitioner/Respondent herein will not suffer any prejudice if the orders sought are granted. Counsel submitted that on stay of a declaration of unconstitutionality, the BBI and Finance Acts cases from the Supreme Court of Kenya show that where a judgment threatens public interest and to preserve the integrity of the appeal, the court retains inherent jurisdiction to grant stay. He asserts that they have an arguable appeal on issues of public participation in subsidiary legislation. 14.Ms. Kirimana, Counsel for the 2nd and 3rd Respondents, the CS Ministry of Energy and The Attorney General respectively, submitted in support of the Application and added that the striking down of the 2025 Regulations affects the fuel marking which was there before as the previous Regulations had been revoked. 15.Mr. Marete Kithinji, Counsel for the Interested Party (SICPA Kenya Limited) submitted in support of the Application and concurs with the submissions of Counsel for the Applicant and the 2nd and 3rd Respondents stating that the Regulations are still enjoying some constitutionality and so the Court should grant some stay. It was submitted that marking of Kerosene is critical as it is used widely by the public and at present the 1st Respondent/Applicant EPRA cannot publish notices of those selling adulterated fuel. He urges that the Court grants stay to protect the arguable appeal. 16.In vehement opposition of the Application for interim stay, Mr. Odhiambo Counsel for the Petitioner/Respondent urged this Court to decline granting the interim orders on the basis that this Application is an abuse of court process because the Applicant also filed a similar application in the Court of Appeal in CA E350/2026 dated 3rd July 2026 and served upon the petitioner. 17.Counsel for the petitioner/respondent submitted that the Court of Appeal already gave directions for compliance within 3 days and that in this case, the Applicant is forum shopping which is both unethical and unprofessional. 18.On merit and alleged vacuum in fuel marking programme, Counsel for the petitioner submits that Kenya Bureau of Standards (KEBS conducts standardization and have been doing it before the Regulations came into force in November 2025. 19.On alleged spread of adulterated fuel in the market, Counsel submits that the same constitutes evidence from the Bar. It is contended that there is no evidence of such damage before the Regulations came into effect in November 2025. On the issue of prejudice, Counsel submits that oil marketers are being charged for marking which is prejudicial. It is asserted that staying the decision is like asking this Court to doubt whether it made the right decision. 20.Counsel urges further that in the orders given, the Court never stopped anything that had been done before the enabling Regulations. It is stated, regarding the arguability of the appeal, that no one has pointed out any specific paragraph in the judgment faulting the issue of public participation and that nothing has changed. Counsel urged this Court to strike off the Application and decline stay its own judgment. 21.In a rejoinder, Mr. Bake submitted that this Court has jurisdiction to suspend the declaration of unconstitutionality under Article 23, whose intent is to prevent a legal vacuum which can lead to administrative chaos and economic destruction. He asserts that the Application is not an abuse of court process and they are not seeking for Court to sit on appeal. It is submitted that KEBS is only concerned with quality control not marking of fuel products and that accordingly, the Court should grant an interim order. Analysis and Determination 22.I have considered the application for interim stay pending interpartes substantive hearing and the issue for my determination is whether the prayer for interim stay of enforcement of the judgment rendered on 1st July 2026 pending interpartes hearing, in view of the appeal filed to the Court of Appeal, is merited. 23.The principles governing the granting of orders for an interim stay of execution of judgment such as the present one were outlined in the case of Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) (2 April 2014) (Ruling) where the Supreme Court in allowing interim stay orders held that:“83.The question as to whether this Court has jurisdiction to grant inter-locutory orders in the nature of a stay of execution was long settled in Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012, wherein the Court stated as follows (paragraph 33):“It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”84.That leaves pending the main interlocutory matters: whether we should stay the hand of the Independent Electoral and Boundaries Commission, and the Speaker of Meru County Assembly, so they do not move to alter the state of affairs at the Meru County gubernatorial office, pending the hearing and determination of the applicant’s appeal.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. This Court has already ruled that election petitions are both disputes in personam and disputes in rem. While an election petition manifestly involves the contestants at the poll, the voters always have a stake in the ultimate determination of the dispute, hence the public interest.…..94.The first and second scenarios would have a devastating impact upon the other contestants who would have participated in the fresh gubernatorial elections. Not only would they have participated in the elections in vain, they would also have expended considerable amounts of money in the campaigns. The electorate, likewise, would suffer grave disturbance, for having voted in an election that, for all intents and purposes, was meaningless. The 2nd respondent would have applied public funds and other resources in organizing an election in vain. In our view, these possibilities are inordinately extravagant, and are best avoided.95.The applicant’s prayer in this case is, in its essence, a conservatory order: to the effect that during the pendency of the appeal, the current occupancy of the Governor’s office be maintained; and the motion towards new elections be held in abeyance.96.Although learned counsel have urged their case partly on the basis that the applicant, by virtue of Article 38 of the Constitution, has the “right to hold office”, we do not perceive this case as a “private-interest matter”; for the public interest in fairly-conducted elections, and in legitimate office-holding, looms larger still.97.Bearing in mind the nature of the competing claims, against the background of the public cause, we have focused our perception on the public interest, and the concept of good governance, that runs in tandem with the conscientious deployment of the scarce resources drawn from the public. Proper husbandry over public monetary and other resources, we take judicial notice, is a major challenge to all active institutions and processes of governance; and the Courts, by their established attribute of line-drawing, must ever have an interest in contributing to the safeguarding of such resources.98.These principles dictate that our conscientious sense of proportions, stands not in favour of allowing the conduct of fresh elections for Meru County’s gubernatorial office, during the pendency of an appeal. By our sense of responsibility, the Court’s contribution to good governance in that context, takes the form of an expedited hearing for the appeal. Just that.” 24.From the rival submissions and the orders issued in this Court’s impugned judgement, I note that the immediate enforcement of the judgment indeed, creates a regulatory vacuum in the National Fuel Marking Programme as introduced via Regulation 7 of the impugned Regulations. According to the applicant, without fuel marking, millions of Kenyan consumers are left completely unprotected from adulterated and substandard fuel which introduces a catastrophic public risk, directly threatening road safety, vehicle machinery and human lives. 25.I also note that it is in the public interests to ensure economic stability and prevent chaos where it is clear that largescale multi-billion-shilling factories rely on a stable and predictable fuel supply chain. Suspending the marking framework without an alternative especially pending the determination of the Court of Appeal threatens to trigger widespread industrial disruption. 26.Moreover, given that the earlier Regulations were already revoked, striking down the 2025 Regulations striped EPRA of the authority to issue enforcement notices against illicit fuel dealers, thereby crippling regulatory oversight across the petroleum sector. 27.I find that, in line with the principles governing conservatory orders, this Court has a duty to consider the proportionate magnitudes and facilitate the ordered functioning of public agencies pending an appeal. This in itself does not translate to this Court doubting itself as to whether it made the right decision in the impugned judgment. The Judgment impugned the Regulations on account of lack of public participation, which aspect was the reason that Parliament rejected the Regulations which were revoked and until the appellate Court says otherwise, I stand with that decision based on the material which was placed before me for determination. 28.The concerns raised by the Applicant herein cannot be overlooked, applying the precautionary principle, which enforces a "better safe than sorry" approach to uncertainty. 29.Allowing the judgment to take immediate effect breaks the integrity of the enforcement apparatus before the Court of Appeal can weigh in. Granting an interim stay merely holds the motion in abeyance, preventing irreversible alleged economic destruction and ensuring that the ultimate determination by the appellate court, if in favour of the applicant/appellant, is not rendered an academic exercise. 30.On the issue of forum shopping as submitted by Counsel for the Petitioner on the basis that there are parallel Applications in the Court of Appeal, I find that there was no forum shopping in this regard. The urgent nature of the alleged public safety risk and the High Court’s original and inherent jurisdiction under Article 23 empower this Court to grant immediate, temporary relief. 31.On arguability of the appeal as filed, it is not in the realm of this court to hold that the appeal is arguable or not arguable. That is now a matter in the jurisdiction and power of the Court of Appeal. This Court on its part, did its best in the circumstances and cannot hold onto the judgment by refusing a stay simply because what is before the Court of Appeal is not arguable. The right of appeal being a constitutional right. 32.Therefore, in the interest of constitutional balance and safeguarding the alleged economic and public safety, it is my finding that the balance of convenience favours the preservation of status quo until an inter partes hearing can fully resolve the competing claims. 33.On the argument that the court cannot suspend the taking effect of an order declaring a statute or regulations as being unconstitutional, the decision in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024(Consolidated))[2024] KESC 63 (KLR)(29 October, 2024) (Judgment) is clear on what the court must consider of the effect of that declaration and, where necessary, suspend the application of that unconstitutionality for a prescribed time to allow for parliament to change the law by either making it achieve its purpose without being unconstitutional or by removing the unconstitutional provision. 34.The Supreme Court in the above decision at paragraph 56 of the reported holding set the following guidelines to be helpful where the court was minded to issuing a suspension of declaration of invalidity:1.suspension of invalidity was a remedy that ensured the just and equitable relief, while ensuring that there was no disruption to the regulatory aspects of the statutory provision that was invalidated.2.The declaration of invalidity would result in a legal lacuna that would create uncertainty, administrative confusion or potential hardship.3.Whether more injustice would flow from the legal vacuum created by rendering the statute invalid with immediate effect than would be the case if the measure were kept functional pending rectification.4.Whether there were multiple ways in which the Legislature could cure the unconstitutionality of the legislation.5.The right in question will not be undermined by suspending the declaration of invalidity.6.Whether the suspension would be in interests of justice and good government, that was, whether the declaration of invalidity caused more than an inconvenience but did not go so far as to require the threat of a total breakdown of government.7.A court must balance the interests of the successful litigant in obtaining immediate constitutional relief and the potential of disrupting the administration of justice.8.Whether there would be any countervailing considerations of hardship, prejudice or harm that would result from the continued operation of the statutes.9.Period of suspension: the court should consider:1.the government’s conduct;2.whether there was any legislation in the pipeline; and3.the nature and severity of the continuing infringement.Where a declaration of invalidity posed an existential crisis, courts had tailored mechanisms for handling the same. One of them was the remedy of suspension of invalidity. A suspended declaration should only be issued where in the public interest, there existed a set of facts that were very unique and demanded for that suspended declaration, such as to avoid a vacuum in the law, a threat to the rule of law, lawlessness, chaos or anarchy. Certainly, it may apply to the questions posed hereinabove as to resolving a possible crisis in public law policy and practice. 35.It is however important to note that in the proceedings giving rise to the impugned judgment, none of the respondents or interested party had sought for suspension of the judgment and therefore the Court did not make any order suspending the taking effect of the judgment. That said, nothing prevents this court from making any order that it deems just and, in this case, I find that it is just that an interim stay be granted. 36.Accordingly, I allow prayer 2 of the notice of motion dated 3rd July, 2026 and order that pending interpartes hearing of the application dated 3rd July, 2026, there is hereby granted stay of execution of the judgment and all consequential orders of this Court rendered on 1st July, 2026. 37.I make no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 10TH DAY OF JULY, 2026R.E. ABURILIJUDGE