https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10242

Onunga v Cabinet Secretary, National Treasury and Economic Planning & 5 others (Constitutional Petition E004 of 2026) [2026] KEHC 10242 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10242 (KLR) Republic of Kenya In the High Court at Kerugoya Constitutional Petition E004 of 2026 NM Orina, J July 13, 2026 Between Victor Okoth Onunga Petitioner and The Cabinet Secretary, National Treasury and Economic Planning 1st Respondent The Cabinet Secretary, Ministry of Agriculture and Livestock Development 2nd Respondent Cabinet Secretary, Ministry of Public Service, Human Capital Development and Special Programmers 3rd Respondent The Honourable Attorney General 4th Respondent Kenya Revenue Authority 5th Respondent and Hon Kamau Murango Interested Party Ruling A. Background 1.On 20 January 2026, this Court sitting at Nairobi (Mwamuye, J) granted interim orders that are now the subject of these proceedings. The orders, in verbatim, are reproduced below:1.Pending the inter partes hearing and determination of the Petitioner/Applicant’s Notice of Motion Application dated 19/01/2026, a conservatory order be and is hereby issued in the nature of an interim mandatory order compelling the 5th Respondent, by itself and also its officers, servants, agents, and associated entities to immediately secure the clearing, release, and customs entry into Kenya of all pending and incoming shipments of Grade 1 milled white rice that have been imported or are to be imported into Kenya under the duty-free exemption and importation window granted pursuant to Kenya Gazette Notice No. 10353 of 2025 and/or Kenya Gazette Notice No. 262 of 2026; provided that the shipments have met Kenya’s inspection and certification requirements with respect to origin, quality, and being fit for human consumption and all other applicable laws or standards;2.Pending the inter partes hearing and determination of the Petitioner/Applicant’s Notice of Motion Application dated 19/01/2026, a conservatory order be and is hereby issued in the nature of an interim mandatory order compelling the Respondents, jointly and severally and by themselves and also their officers, servants, agents, and associated entities to apply Kenya Gazette Notice No. 10353 of 2025 and/or Kenya Gazette Notice No. 262 of 2026 with respect to all taxes and levies with regard to qualifying shipments of Grade 1 milled white rice imported into Kenya or to be imported into Kenya under the provisions of the said Gazette Notices and which consignments and importers meet the requirements and conditions set out in the said Gazette Notices 2.A day later, on 21 January 2026, the Interested Party filed an application through a Notice of Motion dated 21 January 2026 seeking to be joined in these proceedings and orders to be issued for the transfer of this matter to the High Court in Kerugoya for determination alongside High Court Constitutional Petition No. E009 of 2025 (Kerugoya). The Interested Party also sought the suspension or setting aside of the interim orders issued on 20 January 2026 by Mwamuye, J. Upon consideration of that application, the High Court in Nairobi transferred this petition to Kerugoya for hearing and determination and left the question of consolidation and the fate of the interim orders issued on 20 January 2026 to the receiving court. 3.What is before the Court for determination is the prayer for setting aside in the application dated 21 January 2026. 4.The Applicant contends that he is the substituted petitioner in High Court Constitutional Petition No. E009 of 2025 (Kerugoya), a public interest constitutional petition challenging the legality and constitutionality of the Government's rice importation regime under Gazette Notice No. 10353 of 2025 and the subsequent Gazette Notice No. 262 of 2026. According to the Applicant, long before the present Petition was instituted, the High Court in Kerugoya had assumed supervisory jurisdiction over the impugned Gazette Notices through conservatory, enforcement and contempt proceedings. 5.The Applicant avers that on 19 August 2025, following an inter partes hearing, the Kerugoya Court issued conservatory orders limiting duty-free rice importation to 250,000 metric tonnes pending the hearing and determination of the petition. He further avers that on 22 December 2025, the Court ruled that Gazette Notice No. 10353 of 2025 had become a “ward of the Court”, with the consequence that any amendment or implementation thereof required the Court's supervision. 6.The Applicant further contends that notwithstanding those orders, Gazette Notice No. 262 of 2026 was issued extending the importation period without leave of the Kerugoya Court, prompting the filing of contempt proceedings. He contends that on 16th January 2026, the Kerugoya Court issued further conservatory orders staying the operation of Gazette Notice No. 262 of 2026 and directing the detention of rice imported thereunder pending inter partes hearing. 7.It is the Applicant's case that while the foregoing proceedings remained active before the High Court in Kerugoya, the High Court in Nairobi, on 20 January 2026, issued interim conservatory orders pursuant to the Petitioner's Notice of Motion dated 19 January 2026. The Applicant contends that whereas the High Court in Kerugoya had restricted duty-free importation to 250,000 metric tonnes, stayed the implementation of Gazette Notice No. 262 of 2026 and directed the detention of imported consignments, the High Court in Nairobi's interim orders authorised the implementation of the same Gazette Notices and facilitated the clearance and release of rice imported thereunder. According to the Applicant, the two sets of orders imposed mutually inconsistent obligations upon the Kenya Revenue Authority (the 5th Respondent) and other State agencies, thereby creating a conflict between courts of concurrent jurisdiction and threatening to render the pending proceedings before the High Court in Kerugoya nugatory. B. The Petitioner’s Response 8.In response to the application, the Petitioner filed a replying affidavit sworn on 23 June 2026 where he denies the averment that he failed to disclose to this Court facts which were material to the grant of the ex parte orders issued on 20 January 2026 in any respect that would justify the discharge of those orders. It is his contention that the existence of Petition No. E009 of 2025 and the proceedings therein was a matter of public record and public notoriety as alluded to by the Applicant. It is the Petitioner’s case, therefore, that the doctrine of material non-disclosure should not be used to punish every litigant who fails to plead every proceeding pending in any court touching on a related subject matter, particularly, where such proceedings are widely reported in the national press. 9.In any case, the Petitioner avers, the claim before this Court is distinct from, and does not derive from or depend upon, the claims advanced in Petition No. E009 of 2025. He contends that he has not challenged the constitutional validity of Gazette Notice Nos. 10353 of 2025 and 262 of 2026 and does not seek to vary or set aside any order made in that case. He underscores that his interest is in rice that was lawfully imported into the country in compliance with the relevant Gazette Notices which had been unlawfully detained by the 5th Respondent in a manner that violated his rights. 10.The Petitioner further contends that he was not a party to Petition No. E009 of 2025 and did not participate in the proceedings that gave rise to the conservatory orders issued in that case or any subsequent orders and directions made therein. Consequently, the Petitioner avers that he is not bound by orders made in proceedings to which he is a stranger and had no opportunity to be heard. 11.The Petitioner further avers that the disclosure of the proceedings in petition No. E009 of 2025 would not have stopped this Court from issuing the interim orders that were issued on 20 January 2026 on the basis that the unlawful detention of lawfully imported rice and the resultant violation of rights are independent and unaffected by the existence of those proceedings. Furthermore, the Petitioner avers that the proceedings in Petition No. E009 of 2025 were the subject of appellate proceedings by the time the present proceedings were filed. This was in regard to the contempt proceedings. 12.The Petitioner, therefore, opposes the application and urges the Court to find that there is no proper basis for the discharge of the impugned orders. C. Submissions 13.In his submissions, the Applicant submits that there exists a duty of full and frank disclosure when a party seeks ex parte orders. This duty, the Applicant argues, extends to disclosure of facts that may be adverse to the party’s case. Reliance is placed on Republic v Transport Licencing Appeals Board; Kangemi Classic Shuttle Limited & another (ex parte Applicants); Digital Luxury Travellers Limited & 4 others (Interested Parties) (Judicial Review Application E304 of 2025) [2025] KEHC 16504 (KLR). 14.The Applicant further argues that the non-disclosure in the present case was material and vitiating. In his view, the proceedings in petition No. E009 of 2025 concerned an identical subject matter, the same Gazette Notices, the same rice importation regime and the same State agencies. Consequently, the Applicant submits, the non-disclosure deprived this Court of information that was indispensable to the proper exercise of jurisdiction. 15.The Applicant also argues that the interim orders issued by this Court on 20 January 2026 directly conflicted with the subsisting conservatory and enforcement orders issued by the Kerugoya Court, thereby exposing State agencies to inconsistent judicial commands and risking the destruction of the substratum of the pending public interest litigation. It is therefore urged that the Court ought to suspend its interim orders. 16.On his part, the Petitioner reiterates his averments in response to the application and submits that a court faced with a prayer for ex parte orders must act on a proper basis, and that the existence of undisclosed proceedings does not, without more, vitiate orders that were otherwise properly granted. The Petitioner relies on the case of Republic v Commissioner of Lands & Another ex parte Lake Investments Ltd [2002] eKLR in support of the argument that not every non-disclosure automatically results in the discharge of the orders granted. The Petitioner refutes the allegation that the non-disclosure was material and submits that the proceedings were a matter of public notoriety; his claim arises from a distinct legal right that does not derive from or depend upon the Kerugoya proceedings and; that the court would still have granted the orders even with the knowledge of the existence of proceedings in petition No. E009 of 2025. D. Analysis and Determination 17.Although this matter was transferred to the High Court in Kerugoya for hearing and determination before Muriithi, J who was handling the related matter being Petition No. E009 of 2025, the honourable judge recused himself prompting the Principal Judge to allocate the matter to this Court for hearing and determination. It is, therefore, necessary for this Court to revisit the orders issued by the High Court in Nairobi considering that the prayer remains pending and the same having been brought to the attention of the Court. This ruling, therefore, addresses that single issue being, “whether the interim conservatory orders issued by this Court on 20 January 2026 ought to be suspended, stayed or otherwise vacated in light of the subsisting conservatory and enforcement orders previously issued in Kerugoya High Court Constitutional Petition No. E009 of 2025.” 18.The Applicant seeks the suspension, discharge and setting aside of the interim conservatory orders issued by this Court on 20 January 2026. The gravamen of the application is that those orders were obtained without disclosure of material facts, namely, the existence of High Court Constitutional Petition No. E009 of 2025 (Kerugoya) together with subsisting conservatory and enforcement orders touching on substantially the same Gazette Notices and subject matter. According to the Applicant, the result was that two courts of concurrent jurisdiction issued conflicting conservatory orders incapable of simultaneous compliance, thereby exposing public agencies to contradictory judicial commands. 19.The jurisdiction of this Court to revisit, vary or discharge its own interlocutory orders is well settled. Order 40 Rule 7 of the Civil Procedure Rules provides that, “Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order." 20.The Court's jurisdiction is further anchored in Sections 1A and 1B of the Civil Procedure Act, which embody the overriding objective of civil litigation by requiring courts to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Section 3A of the Act further preserves the Court's inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Equally, these proceedings being constitutional in nature, Rule 3(2) and Rule 3(5) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) enjoin this Court to facilitate access to justice, administer justice without undue regard to procedural technicalities, and interpret and apply the Rules in a manner that advances and realizes the rights and fundamental freedoms guaranteed under the Constitution. Taken together, these provisions vest this Court with ample jurisdiction to revisit its own interlocutory orders in various circumstances. Those circumstances, include, as the Applicant urges, where they were obtained through material non-disclosure, where their continued existence would occasion injustice, or where intervention is necessary to safeguard the integrity of the judicial process. 21.The principles governing the exercise of that discretion are equally settled. In Shuma v Ochume [2025] KEHC 4397 (KLR) the Court observed as follows:The discretionary power to set aside an ex parte order has been held to be intended to avoid injustice and hardship resulting from an accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought to obstruct or delay the course of justice whether by evasion or otherwise. 22.The same position was also stated in the locus classicus case of Shah v Mbogo & Another [1967] EA 116, where Harris J. held that the discretion to set aside is intended:...to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. 23.I am further guided by the Court of Appeal decision in CMC Holdings Limited v Nzioki [2004] 1 KLR 173, where it was emphasized that:That discretion must be exercised upon reasons and must be exercised judiciously… In law the discretion that a court has in deciding whether or not to set aside an ex parte order was meant to ensure that a litigant does not suffer injustice or hardship. 24.The running thread in the jurisprudence of the superior courts on the question of setting aside interlocutory orders is that the discretion is not exercised capriciously. Rather, it exists to ensure that justice is achieved where the circumstances surrounding the grant of interim orders disclose material non-disclosure, procedural unfairness or circumstances that would render the continued existence of those orders unjust. A court exercising this discretion over its own decision is called upon to evaluate the circumstances of the case as a whole in order to ensure that the ends of justice are met. In a case, like the present, where the court has been moved to set aside the orders of another judge, it cannot be gainsaid that there is a higher duty to exercise circumspection in order not to appear to be exercising superintendence over a court of concurrent jurisdiction but equally to ensure that the court promotes the course of justice. 25.The Applicant has invited this Court to set aside orders previously issued by this Court on the grounds that there exist prior orders issued by another court of concurrent jurisdiction. As stated above, that invitation should not be misconstrued as requiring this Court to sit on appeal over another Court of concurrent jurisdiction or to review the merits of its decisions. Rather, this Court is called upon to examine whether, upon a fuller appreciation of all the material facts now placed before it, justice demands that its own interlocutory orders remain in force. 26.Turning to the facts of the present application, the chronology emerging from the record is both clear and significant. It is not disputed that prior to the filing of Constitutional Petition No. E039 of 2026 before the High Court in Nairobi, Constitutional Petition No. E009 of 2025 had already been instituted at the High Court in Kerugoya. Petition no. E009 of 2025 challenged substantially the same government policy relating to duty-free rice importation under Gazette Notice No. 10353 of 2025. Following an inter partes hearing, the High Court in Kerugoya issued conservatory orders on 19 August 2025 restricting duty-free rice importation to 250,000 metric tonnes pending determination of the Petition. The record further demonstrates that by its ruling delivered on 22 December 2025, the High Court in Kerugoya held that Gazette Notice No. 10353 of 2025 had become a “ward of the Court”, thereby bringing any extension, amendment or implementation thereof under its continuing supervisory jurisdiction. 27.Subsequently, following publication of Gazette Notice No. 262 of 2026 extending the importation period, contempt proceedings were commenced before the High Court in Kerugoya culminating in the conservatory and enforcement orders issued on 16 January 2026, whereby implementation of Gazette Notice No. 262 of 2026 was stayed and the 5th Respondent was directed to detain consignments imported pursuant thereto pending further directions. Those orders remained valid and subsisting at the time of filing the instant petition. 28.These background facts are crucial in determining the application before me in order to consider whether the Petitioner was aware of the same and failed to disclose to the court at the time of seeking interim orders or whether the same would in any case be material in exercise of the court’s discretion as urged by the Interested Party. 29.The duty imposed upon an applicant seeking conservatory or ex -parte relief is one of utmost good faith and full disclosure. The Court exercises equitable jurisdiction on the assumption that every material circumstance affecting the exercise of its discretion has been candidly placed before it. For instance, had the High Court in Nairobi been apprised of the existence of the Kerugoya proceedings, the conservatory orders issued on 19 August 2025, the ruling delivered on 22 December 2025, the enforcement orders of 16 January 2026, and the pending contempt proceedings, it would undoubtedly have considered whether it was appropriate to issue conservatory orders affecting Gazette Notices already under the active supervision of another court of concurrent jurisdiction or whether the interests of justice demanded that appropriate directions be issued before granting any interim relief. 30.When the proceedings in Kerugoya are considered alongside the instant Petition, it is clear that the interests and rights being asserted are distinct. However, it is evident that there are areas of convergence in the two parallel proceedings being particularly the operationalisation of Gazette Notices 10353 of 2025 and the subsequent Gazette Notice No. 262 of 2026. Whereas the Petitioner in Petition no. E009 of 2025 had challenged the said Gazette Notices, the Petitioner in this suit approached court to have the same enforced. Therefore, when assessed side by side, the orders from the High Court in Nairobi and the orders from the High Court in Kerugoya are diametrically opposed in respect of the two Gazette Notices in contention. It is my finding, therefore, that these were material circumstances which would have affected the exercise of discretion by the High Court in Nairobi. 31.It was therefore incumbent upon the Petitioner herein, who moved the High Court in Nairobi to place before the Court all material facts, within his knowledge, that were relevant to the exercise of its discretion. An omission to disclose the existence of related proceedings and the subsisting orders which relate to the same subject matter is not a mere procedural lapse but goes to the very root of the Court's exercise of discretion in granting interim conservatory orders. 32.The Applicant contends that the Petitioner failed to disclose the existence of petition no. E009 of 2025, the proceedings therein and all the orders and directions issued by the Court in Kerugoya. It is the Applicant’s case that the Petitioner was aware of these proceedings due to their notoriety but they deliberately failed to disclose the same to the Court in Nairobi at the point of seeking conservatory orders. This, according to the Applicant, is material non-disclosure which warrants the setting aside of those orders. The Petitioner, on the other hand, does not dispute knowledge of the orders or proceedings in Kerugoya. The Petitioner avers that the existence of these proceedings was a matter of public notoriety as admitted by the Applicant. The Petitioner further contends that he should not be penalised for not reciting in his pleadings all the proceedings pending before other courts touching on a related subject matter. 33.The Petitioner’s failure to disclose the proceedings in Kerugoya at the time of filing the instant Petition while knowing that the orders sought were diametrically opposed to existing court orders was a material non-disclosure which invites this court to set those orders aside. Even though the Petitioner avers that the proceedings before the High Court in Kerugoya were of public notoriety, that does not absolve him from the duty he bore to disclose those circumstances to the High Court in Nairobi knowing that the proceedings before the high Court in Kerugoya were materially similar to the orders he sought. 34.The Applicant also contends that the interim orders issued by this Court created a situation of legal impossibility because they could not be implemented without violating the subsisting orders issued by the High Court at Kerugoya. Upon considering the chronology of events and the tenor of the respective orders, I find merit in that contention. Whereas the High Court in Kerugoya had, by its orders of 16 January 2026, stayed the implementation of Gazette Notice No. 262 of 2026 and directed that rice imported pursuant thereto be detained pending further directions of that Court, the interim orders issued by the High Court in Nairobi on 20 January 2026 had the practical effect of permitting the implementation of the same Gazette Notice and facilitating the release of the imported consignments. The inevitable consequence was that the 5th Respondent and the other State agencies charged with implementing the orders of both courts were placed in an impossible position, being unable to comply with one order without simultaneously breaching the other. The Respondents were, therefore, put at the risk of contempt of court. 35.Courts do not issue orders in vain. The equitable maxim that equity does not act in vain is a long-standing principle of equity which demands that judicial remedies must be capable of practical implementation and should not be granted where their enforcement would be futile or impossible. Conservatory orders, like all equitable remedies, are intended to preserve the substratum of litigation and facilitate the fair administration of justice, not to create uncertainty or expose parties to conflicting legal obligations. Where a court becomes aware that its interlocutory orders are incapable of practical implementation because of existing subsisting orders issued by another court over the same subject matter, the interests of justice demand that the Court re-examines the continued propriety of those orders. In other words, where a court subsequently issues a diametrically opposed order to a priorly issued order by a court of concurrent jurisdiction, the first order issued will stand if the subsequent order was issued in ignorance of the existing order. 36.That principle finds support in the decision of the Supreme Court in Mitubell Welfare Society v Kenya Airports Authority & 2 Others [2021] KESC 34 (KLR), where the Court explained that conservatory ordersare intended to preserve the authority of the Court and safeguard the public interest pending the final determination of constitutional disputes. They are not meant to undermine existing judicial orders or create uncertainty in the administration of justice. In the present case, allowing two conflicting conservatory orders to subsist simultaneously would not preserve the substratum of the dispute; rather, it would erode the authority of the courts and undermine public confidence in the administration of justice. 37.Had the Petitioner disclosed the pendency of Kerugoya High Court Constitutional Petition No. E009 of 2025 together with the conservatory and enforcement orders already in force, the High Court in Nairobi would have been afforded an opportunity to consider the most appropriate directions before exercising its discretion to grant interim relief. In considering whether to set aside orders issued in ignorance of prior orders this court ought to also consider whether the impugned order would still have been issued if a court was fully aware of those prior orders. In this case, it is my finding that the nature and import of the orders issued by the High Court in Kerugoya in Petition no. E009 of 2025 would have persuaded the High Court in Nairobi not to issue the conservatory orders issued on 20 January 2026 in this matter or in the manner they were framed. 38.Having considered the totality of the material placed before the Court, I am satisfied that this is one of those exceptional cases that warrants the exercise of the Court's jurisdiction under Order 40 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and its inherent jurisdiction to prevent abuse of the court process and ensure that the ends of justice are met. I am persuaded that the continued existence of the interim conservatory orders issued on 20 January 2026 would occasion injustice and perpetuate an untenable state of affairs. The circumstances of this case, therefore, necessitate the exercise of this discretion to revisit the orders issued by this Court on 20 January 2026 and to set them aside accordingly. F. Disposition 39.Accordingly, the Court makes the following orders:a.The interim conservatory orders issued by this Court on 20 January 2026, are hereby set aside.SUBPARA b.Costs shall abide the final outcome of the Petition. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JULY, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:Omar Faruk for the PEtitionerLinda - Court Assistant