Omtatah & 2 others v National Executive & 14 others (Petition E001 of 2026) [2026] KEHC 10694 (KLR) (Constitutional and Human Rights) (16 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 001 OF 2026** **OKIYA OMTATAH…………………………..................……1ST PETITIONER** **CFE BERNARD MUCHIRI MUCHERE…………….……2ND PETITIONER** **NAOMI NYAKERARIO MISATI……………………..…….3RD PETITIONER** VERSUS **THE NATIONAL EXECUTIVE………….....................…1ST RESPONDENT** **THE HON. ATTORNEY GENERAL……………………2ND RESPONDENT** **THE PRIVATISATION COMMISSION……………....…3RD RESPONDENT** **THE PRIVATISATION AUTHORITY………………......4TH RESPONDENT** **THE BOARD, KENYA PIPELINE** **COMPANY LIMITED……………………………….....….5TH RESPONDENT** **THE INTERNATIONAL MONETARY** **FUND (IMF)……………………………………………..…6TH RESPONDENT** **THE NATIONAL ASSEMBLY………………………..….7TH RESPONDENT** **FEISAL ABASS…………………………………………...…8TH RESPONDENT** **EDWARD N. KOBUTHI (D.R)………………………...…9TH RESPONDENT** **IRENE NJERI WANYOIKE……………………..…..…..10TH RESPONDENT** **CELINE ANYANGO ORATA………………………..…..11TH RESPONDENT** **DAVID J.O. NYAKANG’O………………………………..12TH RESPONDENT** **WELLINGTON PAKIA GODO (AMB.)………………...13TH RESPONDENT** AND **KATIBA INSTITUTE………………………………1ST INTERESTED PARTY** **LAW SOCIETY OF KENYA……………………....2ND INTERESTED PARTY** **RULING** 1. This ruling is in relation to Notice of Motion dated 30th December 2025 presented under Articles 20, 22, 48, 50(1), 159 (2)(b) &(d), 165 and 258 of the Constitution of Kenya and Sections (sic) 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The application is supported by the affidavits of the 1st applicant Okiya Omtatah Okoiti sworn on 30th December 2025, 12th January 2026 and 22nd January 2026. In addition is an affidavit of Bernard Muchiri Muchere the 2nd Petitioner sworn on 19th February 2026. The 1st and 3rd Petitioners have also sworn an affidavit on 5th January 2026 in which they distinguish this Petition from Petition No. E714 of 2026, PET E517 of 2025 and PET E546 of 2025. 2. The Application seeks the following orders- 1. Spent 2. THAT pending the inter partes hearing and determination of this application, and/or pending the hearing and determination of the petition herein, the Honourable Court be pleased to issue a conservatory order restraining the respondents, their agents, servants, employees, or any person acting under their authority, from: (a) Taking any further process, steps decision, agreement, contract, policy, transaction, and approval, to implement, operationalise, or execute the privatisation of the Kenya Pipeline Company (KPC) Limited, including but not limited to: (i) the appointment or engagement of transaction advisers, legal advisers, investment banks, brokers, or public relations firms; (ii) the valuation of KPC, the valuation of shares, the structuring of an Initial Public Offering, or the marketing and sale of any shares; (iii) preparation, approval, or issuance of any prospectus or information memorandum; (iv) listing or intended listing of KPC shares through an Initial Public Offering (IPO); (v) sale, transfer, dilution, or disposal of any shares or interests in KPC; and (vi) any preparatory, ancillary, or consequential acts connected thereto. (b) Using any public funds, or committing the National Treasury, to finance, promote, or otherwise enable the privatisation process for KPC. (c) Undertaking, continuing, financing, facilitating, or implementing the privatisation of KPC in any manner whatsoever. (d) Issuing any public notices, calls for bids, or communications that would advance the privatisation of KPC. (e) Taking any steps that may alter the ownership, control, legal status, governance structure, or strategic character of the Kenya Pipeline Company Limited. 3) THAT pending the hearing and determination of this application on an inter partes basis, this Honourable Court be pleased to issue a mandatory interim order compelling the 1st, 2nd, 3rd and 4th Respondents, within seven (7) days, to file in Court and serve upon the petitioners certified copies of the following documents and information relating to the ongoing privatisation of KPC: (a) All valuation reports, feasibility studies, transaction structures, and financial models; (b) All Cabinet memoranda, approvals, policy papers, and briefing notes; (c) The complete International Monetary Fund Country Report No. 24/316 and all Letters of Intent, Memoranda of Understanding, side agreements. correspondence, Letters of Intent, Memoranda of Understanding, or undertakings between the Government of Kenya and the International Monetary Fund (IMF) relating to privatisation of State Corporations; (d) All reports or reviews of State Corporations conducted pursuant to the IMF Extended Fund Facility (EFF) and Extended Credit Facility (ECF); (e) All procurement documents relating to advisers or consultants engaged for the privatisation process; (f) Any Cabinet Memoranda, Sessional Papers, or policy documents that form the basis for privatising KPC. (g) All parliamentary reports, approvals, or resolutions relied upon. (h) Any valuation reports, transaction advisories, or financial modelling concerning KPC. (i) Any reports on the national security or public interest impact of privatising KPC. 4) THAT in default of compliance, this Honourable Court be pleased to draw adverse inferences pursuant to Article 35 of the Constitution and Sections 4, 6, and 14 of the Access to Information Act, 2016. 5) THAT an order suspending/staying the Privatisation Act, 2025 pending the hearing and determination of the application and of the petition. 6) THAT this constitutional petition dated 30th December 2025, be and is hereby certified as raising substantial questions of law pursuant to Article 165(4) of the Constitution of Kenya. 7) THAT the said petition be and is hereby referred to the Honourable the Chief Justice for the empanelment of an uneven number of judges, being not less than three, to hear and determine the same. 8) THAT the inter-partes hearing of this application, if necessary, be expedited to facilitate the timely resolution of the petition on its merits. 9) THAT this Honourable Court issue such further, consequential, or ancillary orders as may be necessary to give effect to and safeguard the efficacy of the conservatory orders issued. 10) THAT costs be in the cause. 1. The 2nd Respondent has filed grounds of opposition dated 13th January 2026. It is urged that the threshold for certification under Article 165 (3) (b) and (d) and (4) of the Constitution was not met as the issues raised in the Petition form part of the ordinary litigation before superior courts and the Court had occasion to rule on them in **Orange Democratic Movement Party & 4otheres versus The Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR)**. Subsequently on 23rd February 2026 the 2nd Respondent filed Notice of Preliminary Objection dated 23rd February 2026 in which the Petition and proceedings herein were challenged as being *res judicata* as all the subject issues have been determined in **Orange Democratic Movement Part & 4 Others versus The Speaker of the National Assembly and 5 Others [2024] KEHC 11494 (KLR); Nairobi HCPT E517 of 2025 as consolidated with HCHRPET. Nos. E546 of 2025 & E661 of 2025; Nairobi HCPT E714 of 2025; and Nairobi HCPT E747 of 2025.** 2. The 5th Respondent, through its Managing Director, Joe Kimutai Sang, has sworn an affidavit on 15th January 2026 and 12th March 2026, opposing both the application for empanelment and issuance of conservatory orders, urging that the applicants have not satisfied the constitutional threshold for both empanelment and issuance of the orders as sought. 3. Similarly, the 7th Respondent filed grounds of opposition opposing the request for empanelment and issuance of conservatory orders, urging that the Petitioners have not surmounted the legal threshold and further that the issues have been determined in previous litigation. and that in any event the Constitutional. It is further argued that the impugned statute enjoys a presumption of constitutionality that has not been rebutted by the Petitioners. 4. The Application and the preliminary objection were heard contemporaneously and canvassed via written submissions. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The Petitioners’ submissions are dated 12 January 2026, 18 March 2026, 31 March 2026, and 7 April 2026. They submit that the Attorney General’s plea of *res judicata* is unsustainable considering the binding authority of the Supreme Court in **John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)**. They emphasise that the Supreme Court held that *res judicata* must be invoked sparingly in constitutional litigation and only in the clearest of cases, because constitutional rights “evolve, mutate, and assume multifaceted dimensions.” They submit that none of the earlier decisions, including **Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR), Petition No. E517 of 2025 (consolidated), Petition No. E714 of 2025, or Petition No. E747 of 2025** determined the core issues now before this Court: the *per se* constitutionality of privatisation, the constitutionality of the Privatisation Act, 2005 and Privatisation Act, 2025, the validity of Gazette Notice No. 8739 of 14 August 2009, the IMFdriven conditionalities, the PFMAbased prohibition on asset liquidation, the irregular 2025 reappointments, or the Kshs. 97 billion financial anomaly. 2. It is submitted that under **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696,** the Attorney General’s objection is not a pure point of law and cannot be sustained. 3. On empanelment, the Petitioners rely on a number of decisions including the decision of the Indian Supreme Court **in Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179**, and the Kenyan decisions in **Gachagua v Speaker of the National Assembly & 3 others (Petition E522 of 2024) [2024] KEHC 12075 (KLR**), **Philomena Mbete Mwilu v DPP & Others [2018] KEHC 3432 (KLR**), **Kinyanjui v Attorney General & another; Omollo & 18 others (Interested Parties) [2012] KEHC 5411 (KLR),** and **Okiya Omtatah Okoiti & 4 Others v Attorney General & Others [2019] eKLR**. 4. They further rely on the Court of Appeal’s “ultimate test” in **Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] KECA 679 (KLR),** drawing from **Hermanus Phillipus Steyn v Giovanni Gnechi‑Ruscone [2013] eKLR**. The Petitioners argue that the issues raised, sovereignty under Article 1, external economic coercion under Article 2(6), national values under Article 10, public trust under Articles 73 and 129, public finance under Articles 201, 214, 220, and national security under Article 238, are novel, complex, unsettled, and of profound public importance, thereby meeting and surpassing the threshold for certification under Article 165(4). 5. Finally, the Petitioners submit that empanelment is necessary to ensure jurisprudential stability and public confidence. They submit that decisions of multi‑judge benches carry greater jurisprudential weight in matters of national consequence. **SUMMARY OF THE 2ND RESPONDENT’S SUBMISSIONS** 1. The Attorney‑General anchors the preliminary objection on the doctrine of *res judicata*, asserting that every issue raised in this Petition has already been heard and finally determined in a series of prior decisions of courts of competent and concurrent jurisdiction. The 2nd respondents lists these as **Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR)**, **Nairobi HCPT E517 of 2025 (consolidated with E546/2025 & E661/2025)**, **Nairobi HCPT E714 of 2025**, and **Nairobi HCPT E747 of 2025,** all culminating in judgments delivered on 19th February 2026. These decisions, it is argued, conclusively addressed the constitutionality of the Privatisation Act, 2025, the legality of the KPC privatisation process, the adequacy of public participation, national‑security concerns, fiscal‑prudence objections, and the validity of Gazette Notice No. 8739 of 14th August 2009. 2. The 2nd respondent further relies on **Wamunyinyi v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others; Manyonge & 3 others (Interested Parties) (Petition E146 of 2025) [2025] KEHC 8542 (KLR**), **Mumira v Attorney General [2022] KEHC 271 (KLR), Okiya Omtatah v Communication Authority of Kenya (2015) eKLR**, and the Supreme Court’s holding in **Kenya Hotel Properties Limited v Attorney General & 5 others [2022] KESC 62 (KLR)**, the AG contends that the petitioners cannot present previously determined issues under new phrasing or new petitioners. The 2nd respondent therefore characterises the present petition as an abuse of court process, falling squarely within the category of matters that courts must decline to entertain to preserve judicial integrity as provided for under Rule 3(8) of the Mutunga rules. 3. On the question of empanelment under Article 165(4), the Attorney‑General submits that the petition does not raise any “substantial question of law” warranting referral to the Chief Justice. He relies on **Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR**, which adopted the Supreme Court’s principles in **Hermanus Phillipus Steyn v Giovanni Gnechi‑Ruscone [2013] eKLR**, and on the High Court’s guidance in **Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another [2016] eKLR, Amos Kiumo & 2 others v Cabinet Secretary, Ministry of Interior [2014] eKLR**, and **Kibunja v Attorney‑General & 12 Others (No. 2) [2002] 2 KLR 6**. The AG argues that the petitioners have not demonstrated any legal uncertainty, novelty, complexity, or unsettled constitutional terrain. Instead, the issues raised, public participation, oversight, fiscal prudence, national security, and the scope of executive discretion, are routine constitutional questions already settled by precedent, including the Supreme Court’s decision in **British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR)**. The 2nd respondent therefore insists that empanelment would serve no jurisprudential purpose and would only prolong litigation already resolved by courts of equal jurisdiction. 4. Finally, it is submitted that the petitioners’ prayers for conservatory relief have been overtaken by events, noting that Kenya Pipeline Company Limited was officially listed on the Nairobi Securities Exchange on 10th March 2026, rendering the matter moot. He cites the Court of Appeal’s articulation of the doctrine of mootness in **National Assembly v Gikonyo & 9 others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR)**, and the Supreme Court’s guidance in **Dande & 3 Others v Inspector General, National Police Service & 5 Others (Petition 6(E007) 4 (E005) & (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR)**, emphasising that courts should not act in vain or adjudicate academic controversies. **SUMMARY OF THE 5TH RESPONDENTS SUBMISSIONS** 1. The 5th Respondent’s submissions are dated 17th March 2026. It is submitted that the Petitioners seek to reopen constitutional questions already conclusively adjudicated in **Consumers Federation of Kenya & Others v Kenya Pipeline Company & Others (Petition E517 of 2025**) **and Transparency International Kenya & Others v Attorney General & Others (Petition E747 of 2025)**. In those decisions, the High Court upheld both the constitutionality of the Privatisation Act, 2025 and the legality of the KPC privatisation process, issuing judgments *in rem* that bind all subsequent litigants raising identical issues. Relying on **Wamunyinyi v Cabinet Secretary, National Treasury & Economic Planning & 3 Others; Manyonge & 3 Others (Interested Parties) [2025] KEHC 8542 (KLR)** and **John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR)**, the Respondent argues that the present Petition is barred by issue estoppel, constitutes an abuse of process, and offends the constitutional principle of finality in litigation. 2. On certification under Article 165(4), the 5th Respondent submits that the Petition raises no “substantial question of law” within the meaning articulated in **Okiya Omtatah Okoiti & Another v Anne Waiguru – Cabinet Secretary, Devolution & Planning & 3 Others [2017] eKLR**, **Hermanus Phillipus Steyn v Giovanni Gnechi‑Ruscone [2013] eKLR**, and **Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179**. The issues, public participation, fiscal policy, the structure of the Privatisation Authority, and the legality of Gazette Notice No. 8739 of 2009, have already been settled by binding precedent and do not present any legal uncertainty, novelty, or complexity warranting empanelment. The Respondent characterises the application as an attempt to secure a different bench rather than a genuine invocation of constitutional complexity, contrary to the judicial caution expressed in **Kibunja v Attorney General & 12 Others (No. 2) [2002] 2 KLR 6** and **Amos Kiumo & 2 Others v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 3 Others [2014] eKLR**. 3. Finally, the Respondent argues that the Petition is moot, noting that the KPC IPO has closed, shares have been allotted, and trading has commenced on the Nairobi Securities Exchange. Citing **National Assembly v Gikonyo & 9 Others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR)**, **Daniel Kaminja & 3 Others v County Government of Nairobi [2019] eKLR,** and **Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others [2020] eKLR**, the Respondent contends that courts do not issue orders in abstract or attempt to restrain completed acts. Any attempt to unwind the IPO would unlawfully interfere with vested proprietary rights under Article 40 of the Constitution and disrupt regulated capital markets processes overseen by the Capital Markets Authority. The Respondent therefore urges dismissal of both the Application and the Petition, emphasising that the allegations rest on misinterpretations of accounting principles, misunderstandings of legislative procedure, and constitutional questions already answered by the Court. **SUMMARY OF THE 7th RESPONDENT’S SUBMISSIONS** 1. The 7th Respondent’s submissions are dated 23rd March 2026. Similarly, it is urged that there are final judgments in **Petition No. E714 of 2025, Eliud Karanja Matindi v The National Assembly & Others**; **Petition No. E747 of 2025, Transparency International & Others v The Attorney General & Others**; and **Petition No. E517 of 2025 (as consolidated with Petitions E546 & E661 of 2025)**, **Consumer Federation of Kenya (COFEK) & Others v Kenya Pipeline Company & Others**. These decisions, delivered *in rem*, conclusively determined the constitutionality of the Privatisation Act, 2025 and the KPC privatisation process. The Respondent therefore submits that the Petitioners’ attempt to reopen issues already adjudicated violates the doctrine of finality and squarely meets the threshold of a proper preliminary objection as articulated in **Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**. 2. On conservatory relief, the 7th Respondent relies on the Supreme Court’s authoritative test in **Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR)**, emphasising that conservatory orders are grounded in public‑law considerations, constitutional values, proportionality, and public interest, not private hardship. The Respondent argues that the Petitioners have failed to establish a prima facie case, noting that the KPC privatisation has already been completed and the company listed on the Nairobi Securities Exchange, rendering the prayers moot. The Respondent further cites **Kevin K. Mwiti & others v Kenya School of Law & others [2015] eKLR** to underscore that a prima facie case must disclose arguable constitutional issues, which the Petitioners have not demonstrated in light of binding prior determinations. 3. On the nugatory aspect, the Respondent while relying on **Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227** submits that the Petition remains fully capable of adjudication without conservatory orders. The IPO has concluded, proprietary rights have vested in thirdparty investors, and the Court cannot issue orders in vain. The Respondent stresses that the Petitioners’ grievances do not risk frustration of the substantive hearing, and that the Court retains full remedial authority at final determination. The Respondent also invokes the doctrine of issue estoppel, arguing that the Petitioners’ claims mirror those already adjudicated and are therefore barred. 4. On public interest, the Respondent submits that constitutional litigation must respect institutional boundaries and the doctrine of separation of powers. Citing **Hamdard Dawakhana v Union of India AIR (1960) 554** **and Dock Workers Union & another v Portside Freight Terminals Limited & 10 others [2024] KESC** 35 (KLR), the Respondent argues that public interest lies in upholding statutes enacted by Parliament, respecting judicial finality, and avoiding disruption of settled economic processes. The Respondent therefore urges dismissal of the Application dated 30th December 2025, asserting that the Petitioners have not met any of the three mandatory conditions for conservatory relief and that the application constitutes an abuse of the Court’s process. **ANALYSIS AND DETERMINATION** 1. Emerging from the above I frame the following as the issues for determination, 1. Whether the Petition is *res judicata*? 2. Whether the Petition is moot? 3. Arising from (1) and (2) whether the matter should be certified for empanelment? 4. Whether the threshold for grant of conservatory orders has been met? 5. What is the appropriate order on costs? 2. The first two issues are threshold issues, and if the application falters on either, the consequence is the disposal of not only the Notice of Motion but the Petition too. This then demands that they be resolved at the outset. The Respondents contend that the issues raised by the Petitioners in the current Petition are *res judicata* and on this account, the Court ought to down its tools. 3. The substantive law on *res judicata* is found in Section 7 of the Civil Procedure Act, which provides that: **No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.** 1. The Act has further expounded on the principle setting out under explanations 1-6 thus: **Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.** **Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.** **Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.** **Explanation (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.** **Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.** **Explanation (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.** 1. In the case of **John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021]KESC 39 (KLR) (Civ) (6August 2021) (Judgment**), the Supreme Court delved into an in-depth discussion of the concept of *res judicata* thus: **This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of *res judicata*:** ***Res judicata* is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights...The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.** **It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293): The principle of finality or *res judicata* is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage.** **The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”** **…Whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision…** 1. The principle of *res judicata* stands as a constitutional guardrail against perpetual litigation, insisting that parties bring their full strength, their whole case, and every argument that *might and ought* to have been raised in the first instance. Thereby ensuring that justice is not an endless loop. The principle insists that once a competent court has spoken, the matter cannot be resurrected under new labels or dressed in the garb of public interest to secure a second bite at the apple. Explanation Note 4 above states that ‘Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit’. This includes cases presented in public interest. 2. In the case of **Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 (1961) EA 462** as cited in the case of **Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR,** the EACA stated that: **The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...** **The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before…** **The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.** **It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring parties or issues with a view to giving the case a difference of complexion from the one that was given in the former suit.** 1. This Court is therefore called upon to examine the issues in the Petition now presented against those previously decided and determine whether this petition survives that scrutiny. In response to the charge that the Petition is *res judicata* the applicant enumerates the novel distinguishing factors to be; that this Petition attacks the constitutionality of privatisation and the constitutionality of the sessional paper and gazette notice on which the privatisation is anchored and that this Petition challenges the involvement of the IMF. The issue is therefore whether the decisions in **Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR), Petition No. E517 of 2025 (as consolidated with E546 & E661 of 2025), Petition No. E714 of 2025, and Petition No. E747 of 2025**, conclusively dealt with those issues. 2. It is argued that the Constitution 2010 by design does not permit privatisation. It is submitted that privatisation is an anathema under the current constitutional dispensation. At Paragraph 9 of the Petition, it is stated that, *‘the Petition seeks the intervention of this Honourable Court to halt an unconstitutional divestiture of a strategic national asset and to reaffirm constitutional supremacy over external economic coercion’*. It continues at Paragraph 10 to state ‘*Consequentially, this Petition is a constitutional defence of sovereignty, security and intergenerational justice….The Court as the guardian of sovereignty, not an arbiter of economic policy, is invited to protect the Constitution from economic subordination.’* 3. As a corollary to this argument, the Petitioner challenges the constitutionality of the following instruments, Gazette Notice No. 8739 dated 14th August 2009, listing 26 entities to be privatized under the Privatisation Act No. 2 of 2025. At paragraph 31 it is postulated that *‘When viewed through that lens of the Constitution, the Gazette Notice No. 8739 dated 14th August 2009 is invalid, null and void to the extent that the list of companies to be privatized, including KPC, did not take into account Kenya’s national interests, including sovereignty and national security’.* 4. The Petitioners posit at paragraph 28 of the Petition that *‘the Privatisation Act,, 2025 and its predecessor, the Privatisation Act, 2005 were constitutional null and void to the extent that they violate the constitutionally anchored principles of equity, public trust, and collective ownership embedded in Articles 1, 10, 201 and 225 of the Constitution enabling the transfer of collectively owned assets to privilieged economic actors, even in transparent process, and the assets were sold above the market rate. Kenya’s constitutional framework emphasizes equitable resource distribution and protection of marginalised groups, viewing privatisation as a mechanism that favours those with financial power over collective public benefit.’* 5. At paragraph 56, the Petitioner boldly states *‘under the 2010 constitution, State corporations cannot be privatized, or change from public to private ownership. Equity and collective ownership are anchored in the constitution..’* 6. In **Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR)**, the Petitioners sought the following reliefs *inter alia*, 1. A declaration that the [Privatisation Act](https://new.kenyalaw.org/akn/ke/act/2023/11/eng%402024-04-26), 2023 violates article 1(1) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya in so far as it elevates subjective economic consideration and perspectives above the principles of sovereignty, democracy and accountability. 2. A declaration that the delegated authority of the state cannot be invoked to sell or privatize public assets of strategic and cultural significance to the people and Republic of Kenya. 3. A declaration that some public assets including but limited to the Kenyatta International Convention Centre (KICC), the Kenya Pipeline Company (KPC), the Kenya Literature Bureau (KLB) and the Kenya Seed Company Limited (KSC) form part of the sovereign wealth of the Republic of Kenya with significant cultural and strategic importance to the people of Kenya and can only be privatized with the consent of the people at a referendum 4. A declaration be and is hereby made that sections 6(a), 6(c) & 6(g) of the [Privatisation Act](https://new.kenyalaw.org/akn/ke/act/2023/11/eng%402024-04-26), 2023 are unconstitutional for allowing the use of national resources in a manner inconsistent with article 201(c) as read together with article 232(1)(b) and article 73(1)(a) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2023/11/eng%402024-04-26) 5. A declaration be and is hereby made that section 29 of the [Privatisation Act](https://new.kenyalaw.org/akn/ke/act/2023/11/eng%402024-04-26), 2023 is therefore in violation of article 27(1) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) that guarantees equal protection and equal benefit of the law; 6. A declaration be and is hereby issued that the entire concept and/or action of the state purporting to offer up ownership of public entities to the public despite the knowledge of the extreme wealth and income inequality in the country is discriminatory against a majority of Kenyans in terms of economic status, contrary to article 27(4) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution); 7. A declaration be and is issued that the proposal to privatise Kenyatta International Convention Centre (KICC), Kenya Pipeline Company Limited (KPC), New Kenya Cooperative Creameries Limited (NKCC), Kenya Seed Company Limited (KSC), Kenya Literature Bureau (KLB), and the National Oil Corporation of Kenya (NOCK) is unconstitutional and invalid. 7. In considering these questions the Court made the following pertinent determinations- **[120] Article 201 is on the principle of public finance generally. Article 201(c) states that the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations. The petitioners have not demonstrated how the purposes in the impugned sections violate the principle in this article. The fact that burdens and use of resources be shared equitably would also mean the losses incurred by those entities be shared equitably. At this stage, there no evidence that any would be resources from privatisation would not be used in accordance with article 201(c). This court is not persuaded by the petitioners’ argument.** **[143] The petitioners again argue that section 29 violates the principle of equality and freedom from discrimination in contravention of article 27(1)(4). In their view, poor citizens would not be able to purchase shares or participate in the privatisation programme. Section 29 provides for the methods of privatisation which must include—initial public offer of shares; sale of shares by public tender;sale resulting from the exercise of pre-emptiverights; or such other method determined by the Cabinet. These methods are inconclusive** **[143] The petitioners have not demonstrated how these methods would result into discrimination and, therefore, violate article 27. Initial Public Offers (IPOs) have been used before in the privatisation of public entities without any questions being raise. For my part, I do not see any constitutional infringement.** **[163] The petitioners again take issue with the privatisation of the entities for various reasons. I do not think much of the arguments raised and reasons advanced in support of the objection to the proposed privatisation reveal violation of the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**. I agree though, that some of the entities are of strategic value to the country. However, whether to privatise or not, is an executive decision. The court would only intervene if it was demonstrated that the privatisation programme violates the** [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution) **and or the law. In this respect, I only find one entity whose proposed privatisation merits further consideration; that is KICC. (Emphasis added)** 1. It is evident from the above that the Court was invited to and made a determination on the ‘concept of privatisation’, finding that privatisation as a concept did not offend the Constitution. **In Transparency International Kenya & 3 Others v General 3 Others; General & 3 Others (Interested Parties) [2026] KEHC 2485 (KLR)** the Court had this to say- **[131] The Court is acutely conscious of the profound public interest that attaches to the privatisation of state-owned enterprises. Such assets are not the property of any government, administration, or political party, they constitute the sovereign wealth of the Republic of Kenya, held in trust for the people of Kenya, both current and future generation. Their disposal must be, and must be seen to be conducted with the highest standards of integrity, transparency and accountability.** **[132] The privatisation Act 2025 when measured against the exacting standards of the Constitution fully satisfied the requirements…** **[134] The judgment should not be read as an endorsement of privatisation as an economic policy. That is not the court’s role. The wisdom or folly of privatisation is a question for the political branches, the Executive which proposes the policy and the Legislature which approves it. The Court’s role is limited to, but constitutionally vital, ensuring that whatever policy is chosen is implemented through lawful means and within constitutional limits. The Privatisation Act survives that scrutiny.** 1. The Petitioner also challenges the constitutionality of and the validity of Gazette Notice No. 8739 of 14 August 2009. At paragraph 30 of the Petition the challenge is framed thus *The Petitioners posit that since the gazette notice predated the Constitution Kenya 2010 it can only be enforced ‘with alterations, adaptions, qualifications and exceptions necessary to bring into conformity with this constitution (Section 7 (1) of the Sixth Schedule of the Constitution). [31] When viewed through that lens the Gazette Notice No. 8739 dated 14th August 2009 is invalid, null and void to the extent that the list of companies to be privatized, including KPC, did not take into account Kenya’s national interests, including sovereignty and national security.* 2. In the **Transparency international of Kenya (Supra)** case the Court observed that- **[24] The Petitioners impugn section 71 of the Act, contending that it unlawfully purports to revive Gazette Notice No. 8739 of 14th August 2009 issued under the repealed**[**Privatization Act**](https://kenyalaw.org/akn/ke/act/2005/2)**, 2005, thereby effecting an impermissible retrospective validation of prior administrative action. They invoke Article 2(4) of**[**the Constitution**](https://kenyalaw.org/akn/ke/act/2010/constitution)**and rely on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR for the principle that legislation cannot operate retrospectively so as to validate actions undertaken in contravention of**[**the Constitution**](https://kenyalaw.org/akn/ke/act/2010/constitution)**.** 1. The Court in Petition No. E517 OF 2025 (as Consolidated with E546 OF 2025 and E661 of 2025] Cofek & 5 Others V Kenya Pipeline & Company & 4 Others; Capital Markets Authorities and 5 Others Interested Parties framed it thus at Para 71- **Against this constitutional backdrop, the respondent’s reliance on a Cabinet approval issued under a repealed constitutional regime raises the critical question whether executive decisions taken prior to 27th August 2010 possess perpetual vitality capable of implementation decades later without renewed constitutional compliance. The respondents contend that the privatisation was lawfully formulated under the Privatisation Act, 2005, approved by Cabinet in December 2008 and gazetted on 14th August 2009, and that by virtue of Section 71 as a saving and transitional provision intended to ensure continuity and to operate as a bridge between the old order and the new.** 1. The Court in Pet E517 of 2025 extensively considered this issue and at para 83 of the decision found- **Accordingly, while this Court harbours serious reservations regarding reliance upon a pre- 2010 executive approval as the sole juridical foundation for the impugned process, it is not persuaded that this ground, standing alone, is sufficient to vitiate the entire privatisation framework. Constitutional adjudication demands a measured and proportionate inquiry. The mere historical origin of a decision does not ipso facto invalidate subsequent actions taken under a new constitutional order, provided those actions demonstrably conform to the Constitution as presently in force**. 1. The Court then proceeded to interrogate whether the constitutional thresholds governing public participation, public finance management, transparency, accountability, and the protection of strategic national interests were upheld. In its judgment, it answered all these questions in the affirmative. At paragraph 165(b), the Court stated, the **For the avoidance of doubt the proposed privatisation of Kenya Pipeline Company Limited as set out in Sessional Paper No. 2 of 2025 is not unconstitutional and may proceed in accordance with the Privatisation Act, 2005 and subject to the observations and recommendations of the joint committee on Energy and the Select Committee on Public Debt and Privatisation dated 14th August 2025.** 1. Likewise in the **Transparency International (Supra)** case the Court was emphatic that- **[125] Gazette Notice No. 8739 was therefore valid and in force at the time of the enactment of the Privatization Act, 2025 on 15th October 2025. Section 71 does not “revive” a defunct notice; it merely confirms that the execution of a notice already legally extant shall proceed under the procedural framework established by the 2025 Act. This constitutes lawful transitional regulation, not retrospective legislation.** **[128] For these reasons, this Court finds and declares that Section 71 of the Privatization Act, 2025 is a lawful and constitutionally valid transitional provision. This ground of the Petition fails.** 1. The doctrine of *res judicata* exists to prevent parties from litigating instalments. A litigant cannot split a cause of action into fragments, presenting one portion today and reserving another for tomorrow, in the hope of securing a different bench or a more favourable outcome. As the Supreme Court emphasised in **John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Supra**), *res judicata* bars not only matters that were directly determined but also those that ought to have been raised in the earlier proceedings. Constitutional litigation, no less than ordinary civil litigation, must proceed on the principle that disputes are resolved finally, not in piecemeal fashion. To permit instalment based litigation would undermine judicial economy, destabilise settled constitutional interpretation, and erode public confidence in the finality of judicial pronouncements. 2. The Respondents correctly emphasise that the earlier decisions were judgments *in rem*, delivered in public‑interest litigation. Such judgments bind not only the parties before the Court but all persons. As the High Court observed **in Wamunyinyi v Cabinet Secretary, National Treasury & Economic Planning & 3 Others; Manyonge & 3 Others (Interested Parties) [2025] KEHC 8542 (KLR),** constitutional litigation must respect the principle of finality, lest judicial processes become open‑ended and indeterminate. The Petitioners’ attempt to reopen issues already adjudicated violates that principle. 3. Based on the foregoing, I am persuaded that the issue of whether the privatisation as a concept can survive judicial scrutiny has been determined by the previous decisions, as has the related issue of the validity of pre-2010 statutory instruments that provide the scaffolding for the process. Earlier decisions having validated Sessional Paper no. 2 of 2025 and Gazette Notice No. 8739 it cannot be a basis of assault on the process. 4. The Petitioners have challenged the validity of the actions of the members of the Privatisation Commission asserting that as they were irregularly appointed this has tainted their actions and seeks for orders of certiorari to quash Gazette Notice No. 9515 of 18th July 2025 and Gazette Notice No. 5054 of 25th April 2025. In the Transparency International case, the Petitioners sought inter alia- **A declaration that the structure of the Privatization Authority, established as a department within the National Treasury and subject to the Cabinet Secretary’s (CS) appointment powers under sections 7 and 10(d), is unconstitutional.** 1. The Court in its judgment specifically addressed this challenge declaring thus at paragraph 135- **(c) The Privatization Act, 2025 is hereby declared to be constitutional and valid in its entirety. None of the provisions impugned by the Petitioners Specifically Sections 7, 21, 22, 23, 31, 32, 34(d), 35, 36, 37, 38, 39, 43(2), 45, 54, 55, 65, 67, and 71 are inconsistent with the Constitution of Kenya, 2010.** **d. The Privatization Act, 2025 contains adequate systems of checks and balances to protect the sovereign assets of the people of Kenya.** **e. The structure of the Privatization Authority, as established under the Act, is constitutional. The appointment of its members by the Executive does not violate Articles 10, 73, or 232 of the Constitution.** 1. On the foregoing analysis, the only issues in the current Petition that will survive the *res judicata* bar are- 1. Whether the [PROPOSED] Privatisation of KPC, being primarily driven by IMF loan conditionalities and not an independent sovereign determination of public interest, violates the sovereignty of the people (Article 1), national values of patriotism (Article 10) and constitutes an unlawful abduction of state authority to an external entity. ***Whether the Petition is moot?*** 1. The respondents contend that the horse has bolted, that there is nothing to stop, since the IPO has concluded the Court will be engaging in an academic exercise. In **Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR)** the Supreme Court stated**-** **[69] …. Mootness of a matter therefore arises where a live controversy no longer exists between parties to a suit and the decision of the court, in such instance, would have no practical effect. The doctrine of mootness enquires whether events subsequent to the filing of a suit would have eliminated the controversy between the parties…** 1. The Court then proceeded to delineate instances when a Court may exercise its discretion to entertain a matter notwithstanding mootness, citing with approval the rationale of the Courts in **Re Opposition by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793** (Canadian Supreme Court), **AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9** (South African Constitutional Court) **and Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment).** 2. These include where the Petition raises matters of public importance, where it is desirable that the constitutional question be answered in order to dispel any doubt over it, whether deciding the matter is in the public interest and in the interests of justice, where it may have implications on governance and future regulations particularly where the law on a particular issue is not settled. The Court in that case found that although the SGR project was completed, the question of its constitutionality is live. 3. I find that the issue that is live is one of public interest and would be in the interest of justice to resolve, and I will therefore proceed to a hearing on the merits. ***Arising from (1) and (2) whether the matter should be certified for empanelment?*** 1. On the question whether the matter warrants certification for empanelment under Article 165(4) of the Constitution, I reiterate that the jurisdiction to certify a matter as raising a substantial question of law is a carefully guarded judicial power, to be exercised sparingly and only in exceptional circumstances. The constitutional text, read together with the jurisprudence of our superior courts, makes plain that empanelment is reserved for matters whose complexity, novelty, or public importance transcend the ordinary remit of a single‑judge bench. 2. In the present Petition, and upon subjecting the pleadings and the record to the res judicata sieve, I have found that the only live issue is whether external influence of the IMF played a determinative role in the Executive’s decision to adopt and implement a privatisation policy. That question, while weighty in the political and policy arena, does not, in its legal character, rise to the level of a substantial question of law within the meaning of Article 165(4). It neither presents a novel constitutional conundrum, nor does it implicate a jurisprudential uncertainty requiring the collective interpretive authority of an expanded bench. 3. Our courts have consistently held that the mere presence of public interest, controversy, or political sensitivity does not, without more, justify empanelment. The threshold is met only where the matter demands a foundational constitutional interpretation, or where the issues are so complex or far‑reaching that they cannot be adequately resolved by a single judge. The surviving issue in this Petition is a factual inquiry into alleged external influence on Executive policy‑making, an inquiry well within the competence of this Court sitting as presently constituted. 4. Accordingly, I am not persuaded that the Petition meets the constitutional threshold for certification under Article 165(4). The prayer for empanelment therefore fails ***Whether the threshold for conservatory orders has been met?*** 1. The penultimate question is whether the Petition meets the threshold for the grant of conservatory orders. The Petitioner sought these orders to preserve the substratum of the dispute, namely, to forestall the privatisation of the Kenya Pipeline Company. That objective has, however, been overtaken by events. As the Supreme Court underscored in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (Supra)**, conservatory relief is not issued for its own sake; it is a judicial safeguard reserved for circumstances where a real and imminent threat to constitutional rights or the integrity of public processes is demonstrated. It demands a showing of prejudice that is actual, not abstract; substantial, not speculative. 2. In this Petition, the issues touching on the constitutionality of the privatisation framework have already been adjudicated and are *res judicata.* The surviving question, whether IMF influence played a role in Executive policy‑making, does not, on its own, present the kind of imminent constitutional harm contemplated in ***Gatirau Peter Munya (Supra)***. Nor does it sustain a case for interim relief now that the impugned privatisation has already occurred. In these circumstances, and guided by the Supreme Court’s caution that conservatory orders must serve a real constitutional purpose, I am not persuaded that any utility remains in granting the orders sought, or any variant thereof. The prayer is declined 3. Finally, the Petitioners seek a mandatory interim order compelling the 1st, 2nd, and 3rd and 4th Respondents, within seven (7) days, to file in Court and serve upon the petitioners certified copies of the following documents and information relating to the ongoing privatisation of KPC: (a) All valuation reports, feasibility studies, transaction structures, and financial models; (b) All Cabinet memoranda, approvals, policy papers, and briefing notes; (c) The complete International Monetary Fund Country Report No. 24/316 and all Letters of Intent, Memoranda of Understanding, side agreements. correspondence, Letters of Intent, Memoranda of Understanding, or undertakings between the Government of Kenya and the International Monetary Fund (IMF) relating to privatisation of State Corporations; (d) All reports or reviews of State Corporations conducted pursuant to the IMF Extended Fund Facility (EFF) and Extended Credit Facility (ECF); (e) All procurement documents relating to advisers or consultants engaged for the privatisation process; (f) Any Cabinet Memoranda, Sessional Papers, or policy documents that form the basis for privatising KPC. (g) All parliamentary reports, approvals, or resolutions relied upon. (h) Any valuation reports, transaction advisories, or financial modelling concerning KPC. (i) Any reports on the national security or public interest impact of privatising KPC. 1. This Court is bound by the decision in **Attorney General V Khelef Khalifa & 3 Others - Civil Appeal NO. E085 of 2022** and accordingly I direct that the 1st, 2nd, 3rd and 4th Respondent’s file in Court and serve upon the Petitioners the documents enumerated in paragraph 61 within 21 days from the date hereof. 2. On costs, as this is a public interest case, each party will bear their own costs. **SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JULY, 2026.** **P.M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Naomi Musati 3rd for Petitioner in person Bernard Muchere 2nd Petitioner in person Mbaya for 5th Respondent Ondieki Lawson for 6th Respondent Nganyi for 7th Respondent