https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12766

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E251 OF 2026** **THOMAS BUCKLEY OPAR OWUOR…...………..………………..…1ST APPLICANT** **KEN BRANCE…………………………………..…………………….………2ND APPLICANT** **VERSUS** **THE PRIME CABINET SECRETARY AND CABINET SECRETARY** **FOR FOREIGN AND DIASPORA AFFAIRS………………….…1ST RESPONDENT** **THE GAMBLING REGULATORY** **AUTHORITY OF KENYA……………………………………………..2ND RESPONDENT** **THE HON. ATTORNEY GENERAL…..……………………...……3RD RESPONDENT** **AND** **ASSOCIATION OF GAMING OPERATORS** **KENYA (AGOK)………………………………………………..1ST INTERESTED PARTY** **SAFARICOM PLC………………………………….…...……..2ND INTERESTED PARTY** **RULING** 1. On 20th July 2026, I granted leave to the applicants to file a substantive motion for judicial review orders. I also directed that the leave granted was to operate a stay. The orders sought were geared towards quashing the Gambling Control (Licensing) Regulations 2026, and to prohibit their implementation or enforcement by the respondents. 2. The respondents have come to court, vide an application, dated 29th July 2026. They seek 2 principal orders. The first is that pending the hearing of the substantive motion, that the stay order, made on 20th July 2026, be varied to permit the 2nd respondent to undertake administrative, preparatory, protective and compliance functions under the Gambling Control Act, 2025, including receipt and processing of applications, consumer-protection measures, anti-money laundering supervision, monitoring of unlicensed or foreign-based gambling, preservation of player funds and data, and maintenance of regulatory systems, without cancelling an existing license. The second prayer seeks that the order that the leave granted, on 20th July 2026, to operate as stay of the implementation, enforcement, operation and application of the entirety of the Gambling Control (Licensing) Regulations, 2026, be discharged or set aside. 3. There are grounds on the face of the application. It is pointed out that the court does have discretionary power, under order 53 of the Civil Procedure Rules, to discharge, vary or set aside a direction that the leave granted do operate as a stay, because such stay only endures during the duration of the application, or other of further orders. It is averred that the stay order was made before the court had benefit of the respondents’ complete statutory and administrative record, evidence on the regulation making process or the countrywide public interest consequences of suspending the entire regulatory framework. 4. It is argued that the stay is wider than the pleaded grievance, for the applicants only challenge a section of the regulations, not the whole of it. It is further averred that the ex parte applicants had not demonstrated that they were players in the industry, by displaying a gambling licence, or an application or demand for payment, or a refusal decision, or a closure notice, or a direction suspending a payment channel addressed to them, and no licensed operator had sworn an affidavit demonstrating an imminent inability to comply or other hardship arising from the operationalisation of the regulations. It is further averred that there was public participation, prior to the regulations being made operational. 5. The affidavit in support is sworn by Mr. Peter M. Karimi, the Director General of the 2nd respondent, on 29th July 2026. He avers that the respondents are invoking the power of the court to re-consider the scope of and the continuation of the ex parte stay order, after hearing all the parties, and considering the complete record. He explains that the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12), No. 14 of 2025, came into operation on 26th August 2025, to establish a national framework for regulation, licensing, supervision and enforcement of gambling activities, and it required subsidiary legislation to fully operationalise it, by way of setting out licensing categories, application procedures, financial capacity requirements, technical standards, renewals, supervisions, among others. He avers that public-participation, with respect to the impugned regulations, was rolled out, through a gazette notice published in April 2026, and further notice called for a national validation of the regulations. The public participation forums were held, and members of the public exercised their views. The relevant committees of Parliament were involved in the process. On the fees, it is averred that the applicants had not demonstrated that the fees charged in the regulations were contradictory or commercially destructive. It is further averred that the assertions that businesses would close are not supported by any evidence. 6. It is averred that the stay granted goes beyond preservation of the *status quo*, and effectively grants the prohibition sought before the substantive proceedings are heard. It creates a regulatory vacuum, which benefits unlicensed undercapitalised operators to function without any form of oversight, and weakens consumer safeguards. The suspension impairs the ability of the regulatory authority to receive applications, vet directors and shareholders, verify anti-money-laundering systems, inspect premises and systems, maintain current registers and regulate digital market entry. It is averred that all that would be to the prejudice of consumers and the public at large. It is suggested that the stay be discharged or confined to specifically contested provisions, so that it can permit the regulatory authority to function. It is averred that the applicant would suffer no prejudice by a tailored order, for they would remain free to prosecute their substantive cause, and any directly affected operator may seek specific interim protection on evidence. 7. There is a reply to the application, vide an affidavit by the 1st *ex parte* applicant, sworn on 2nd August 2026. It is argued that material non-disclosure, fraud or misrepresentation, abuse of process or other form of recognised legal ground have not been demonstrated. It is averred that the court is being invited to consider contested issues, around legality and validity of the impugned regulations, before the substantive motion is even filed and served. The lifting of the stay, it is averred, would have the effect of the impugned regulations becoming operational, substantially undermining the challenge by the applicants, rendering the proceedings nugatory. It is averred that the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12) came into force in 2025, while the Gambling Control (Licensing) Regulations, 2026, came into force in June 2026, demonstrating that the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12) is the principal legal framework governing gambling in Kenya, while the regulation provides the framework for implementation. It is averred that there are transitional provisions, in sections 121 and 122 of the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12), which provides an operational framework, pending enactment of replacement regulations, inclusive of provisions on licensing. 8. The 1st *ex parte* applicant avers that he is a gambling consultant and expert and an Advocate of the High Court of Kenya, there was no requirement for licensing of gambling experts, and there was provision for him, in the Constitution, to bring applications on violations of the Constitution. It is further averred that the regulations were gazetted by a Cabinet Secretary who was not legally mandated to gazette them, hence there would be constitutional and legality questions around that. 9. The respondents have filed a supplementary affidavit, to respond to some of the issues raised by the ex parte applicants. That affidavit was sworn by Mr. Kirimi, on 5th August 2026. It is explained that the respondents are not seeking the setting aside of the leave granted, but are concerned only with the scope and direction that the leave do operate as a stay of the entirety of the Gambling Control (Licensing) Regulations, 2026. The transitional provisions, in section 122 of the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12), are acknowledged, so far as recognition of the license issued under that regime is concerned, and that the variation of the stay order sought herein would not have the effect of cancellation of subsisting licences or closure of licensed operators or deactivation of their payment channels. 10. It is averred that sections 121 and 122 of the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12) do not provide detailed procedures for new applications made upon expiry of the existing licences, and any of the other processes provided for under the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12). The concern raised is largely with respect to licensing. It is averred that the 2nd respondent seeks permission to continue only such administrative preparatory and protective functions, such as receiving and processing applications, conducting due diligence, inspecting premises and systems, maintaining migratory record and processing applications by suppliers and service providers, without prejudicing the ex parte applicants’ substantive challenge. It is argued that the proportionate variation would preserve the subject matter of the proceedings, while avoiding the continued suspension of the provisions and the regulatory functions whose legality has not been specifically challenged. 11. There were directions for filing of written submissions, and the parties have complied. 12. The respondents’ submissions are dated 5th August 2026. They turn on jurisdiction to discharge, vary or set aside leave to operate as a stay; whether the stay order should be considered in view of the material that the respondents have placed on the record; whether the stay of the Gambling Control (Licensing) Regulations, 2026, in its entirety is overboard and materially wider than the pleaded grievance; public interest; and severance of the specific matters complained of. It is argued that order 53 rule 1(4) of the Civil Procedure Rules leaves room for the court to re-visit a stay order granted under that provision. *Republic vs. Vice Chancellor, Moi University & 3 others ex parte Benjamin J. Gikenyi Magare* [2018] KEHC 5531 (KLR): *Republic vs. Cabinet Secretary, Ministry for Education & another ex parte George Bala; Attorney General & others (interested parties)* [2022] KEHC 2331 (KLR); and *Orwoba vs. Attorney General & 4 Others* [2024] KEHC 111 (KLR). 13. It is further submitted that the stay order was not meant to preserve *status quo*, given that the regulations became effective on 30th June 2026, prior to the order of 20th July 2026 being made, hence transition to the new legal regime and regulatory framework had commenced. It is argued that that order stopped the implementation, even of unchallenged functions. It is argued that the stay order is meant to be provisional, and its scope limited, to prevent the challenged decision or process from rendering the judicial review proceedings nugatory. *Taib A. Taib vs. Minister for Local Government & 3 others* [2006] KEHC 3166 (KLR) is cited. It is submitted that the ex parte stay order was made without a chance being given to the implementing authorities to place material particulars on record. It is submitted that the stay order is wider than the pleaded challenge, there was public participation, the designation issue requires *inter partes* hearing, the fees, the capital, the appeal-period and the refund issues are discrete and severable, proportionality and severability require a narrower order, public interest favouring discharge or a tailored variation, are some of the issues raised in the submissions. 14. The ex parte applicants submit largely on only 1 issue, whether the application satisfies the threshold for discharge or variation of the order. It is submitted that the court does have discretion to set aside or vary a stay order, which has to be exercised judiciously. *Mirugi Kariuki vs. Attorney General* [1990-1994] EA [1992] KLR 8 is cited in support. It is submitted that no evidence has been adduced to provide basis for variation or discharge of the stay order. There is submission on the proportionality test, where the court has to decide on whether to maintain or discharge the order, it must weigh the likely consequences and opt for a lower risk of injustice. *Beatrice Kwamboka vs. Leader of Majority Party of the Nairobi County Assembly* [2016] eKLR, is cited. It is argued that the fees increments of between 200% and 49,900% militated against that order being discharged, and that there was risk of licence loss and attendant consequences should the stay be vacated. 15. The only issue for me to determine is whether the application is merited. 16. I have considered the filings by both sides, inclusive of the authorities cited. The purpose of these *inter partes* proceedings is limited to satisfying the court that the stay granted to the applicants was warranted. At this stage, the court is not required to engage with arguments on the merits of the substantive suit, which has not even been filed, but to balance the interests and rights of both sides. That would be the duty on the part of the respondents to undertake the mandates vested in them by the law, and the right of the applicants to prosecute their application, without the substratum being destroyed. 17. A stay of proceedings, under Order 53 rule 1(4) of the Civil Procedure Rules, is an interim relief meant to preserve the subject-matter of the suit and prevent the court from acting in vain, should the application for judicial review ultimately succeed. The court has power or discretion to grant a stay, with the direction that it operates “until determination of the application, or until the judge orders otherwise,” according to order 53 rule 1(4). The power to order otherwise explicitly provides for the possibility of discharge or variation. 18. It is common ground, between the parties herein, that a stay order, once made, is available for discharge or variation, at the discretion of the court. A stay order, in judicial review proceedings, is not permanent, and can be discharged or varied. To grant, maintain or discharge it is at the discretion of the court, guided by principles of preserving the subject-matter of the litigation, and ensuring that the judicial review process is not rendered nugatory. The court balances this against the public interest, and the potential prejudice to other parties, or statutory bodies. See *Lameck Okeyo & another vs. Inspector General of Police & 3 others* [2016] eKLR [2016] KEHC 7619 (KLR) and *George Wekesa Busolo vs. Principal Magistrate, Bungoma & 2 others Ex-parte Francis Wephukulu Sangura* [2014] eKLR [2014] KEHC 7289 (KLR). 19. The stay order may be discharged on various grounds or circumstances. It could be on account of the basis for the stay having ceased to exist, for it is granted to protect the substratum of the application. It could be challenged by an affected party, who can demonstrate, to the court, that the conditions for the stay are no longer met or its continuation is unjust. It could also be on account of the court finding that the stay order was made in error. If new evidence or arguments show that the initial grant of stay was based on a misunderstanding or a misapprehension of the law or the facts, the court may discharge it. 20. The stay herein was granted ex parte, at leave stage, hence the respondents did not have a chance to be heard on it. Upon the making of the order, they have come to court, saying they should be heard on it, for they feel that it should not have been granted, or that it should have been framed differently. They have placed on record material to support their case. Their principal argument is that the order stayed the implementation of the regulations in their entirety, rather than targeting the areas challenged by the ex parte applicants. They argue that the challenge with that is that the activities of the 2nd respondent have been crippled, for the said regulations are meant to operationalise the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12). It is stated that the regulations cover much more than the core issues raised by the applicants. 21. The other issue is about the standing of the applicants to bring these proceedings, given that they are not licensed to engage in gaming operations of any sort, to warrant their challenging regulations that are meant to govern the gaming industry. 22. Let me start with the standing of the applicants, for that could have a bearing on the competence of these proceedings. It is common ground that the ex parte applicants are not licensed to operate any of the gaming activities targeted by the impugned regulations. They merely describe themselves as gaming experts. That could raise issues of *locus standi,* with respect to initiating judicial review proceedings, under order 53 of the Civil Procedure Rules, over a matter where they do not appear to be personally or directly affected. 23. *Locus standi* remains a foundational and indispensable requirement in judicial review proceedings in Kenya, and the first line of defence for most respondents to raise, and a key factor considered by the courts before the delve into the substantive merits of the case. The applicants are not licensed gaming operators, and, looked at from that lens, they would not be directly affected, by any laws or regulations passed with respect to the gaming industry, to warrant them moving the court for judicial review orders under order 53 of the Civil Procedure Rules. The constitutional framework would appear to be more attractive to their sought of quest, in the name of public interest litigation, where they can challenge such laws, through constitutional petitions filed under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules, or by way of originating motions, filed under the Fair Administrative Action Act, Cap. 7L, Laws of Kenya. The order 53 route appears to be narrower, where the person aggrieved would be required to show a personal direct and substantial interest affected by the decision. 24. However, under the current Kenyan jurisprudence, a judicial review application will not be dismissed solely because the applicant is not directly affected, for the test is a flexible one, of sufficient interest. The courts have adopted a very liberal approach to *locus standi* in judicial review matters. The key principle is drawn from *R. vs. Inland Revenue Commissioners Ex parte National Federation of Self-Employed and Small Businesses Limited* [1982] AC 617, to the effect that a court has unfettered discretion to determine what constitutes a sufficient interest in the circumstances of each case. It would appear that the test is broad, going by *James Toroitich Kisa & 3 others vs. City Council of Nairobi* [2010] eKLR [2010] KEHC 3742 (KLR), where it was said parties would have the necessary standing to bring judicial review proceedings, so long as their rights are affected or are likely to be affected, even though they, the parties, are not the direct subject of the decision. See *Republic vs. Minister for Environment and Natural resources & 2 another* [2008] eKLR [2008] KEHC 837 (KLR). 25. The purpose of the standing rule is to protect public bodies from vexatious litigants, with no real interest in the outcome of the case, but just a desire to make things difficult for public authorities, hence the rule is designed to filter out busybodies who interfere in things that do not concern them. However, the Constitution of Kenya, 2010, at Articles 22(2) and 258(2), has broadened or expanded the standing doctrine, and made it easier for individuals and groups to access the courts. The courts are, generally, expected to be broad-minded, when the issue of standing comes up. I would leave the issue at that, given that the respondents have not dwelt much on it, as a basis for the discharge sought. 26. My perusal of the statutory statement, which is the principal filing herein, is that the main or principal complaint by the applicants is with respect to a new licensing fee, which have been increased by between 200% and 49,900%. There is an issue of a new licensing regime being introduced by the regulations, but that ought not be critical. It is common ground that new legislation has been passed, the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12), and it has come into force. It would require regulations to make it fully operational, and the regulations would, of necessity, introduce a new licensing framework. Secondly, it is common ground that the new law, the [Gambling Control Act](https://new.kenyalaw.org/akn/ke/act/2025/14/eng%402025-08-12), has transitional provisions, on how the licenses under the old regime are to be handled. So, the critical issue only centres around the new licencing fees and the new security and gambling capital. 27. Based on the material herein, and on the submissions made by the respondents, which are more inclined to having the order varied, I shall not discharge the order, but I shall vary the same, guided by *Wekesa Busolo vs. Principal Magistrate, Bungoma & 2 others Ex-parte Francis Wephukulu Sangura* [2014] eKLR [2014] KEHC 7289 (KLR), which illustrates that courts can tailor stay orders, by considering specific circumstances, rather than granting open-ended orders. The specific circumstances herein are that the ex parte applicants do not have issue with the entirety of the Gambling Control (Licensing) Regulations, 2026, but with certain provisions in it. The stay order ought to focus on those. 28. Consequently, I shall, as I hereby do, vary the stay order, made on 20th July 2026, so as to limit it to staying implementation and enforcement of the increment on the fees, as set out in the Second Schedule and the gambling capital, as set out in the Third Schedule to the Gambling Control (Licensing) Regulations, 2026, pending hearing and disposal of the substantive motion. For avoidance of doubt, all the other provisions of the Gambling Control (Licensing) Regulations, 2026, are not affected by the stay order made herein, and are available for implementation, enforcement, operation and application. 29. I reiterate the directions given on 20th July 2026, on filing of responses and counter-responses. To expedite disposal of the matter, to obviate hardship being caused to the parties, I do hereby further direct that the substantive application shall be canvassed by way of written submissions, to be filed and exchanged by 21st September 2026. Judgement shall be delivered on 2nd October 2026, via CTS. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 7TH DAY OF AUGUST 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. B. Ochieng, instructed by Alex & Amersi LLP, Advocates for the *ex parte* applicants.** **Mr. M. Wanjohi, instructed by the Attorney General, for the respondents.** **Messrs. FMC Advocates LLP, for the 1st interested party.**