https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13039

**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 7th August 2026, I delivered a ruling where I varied a stay order made on 20th July 2026, 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. 2. After that the respondents filed an application, dated 11th August 2026, seeking variation of the order made on 7th August 2026, to enable implementation of the Gambling Control (Licensing) Regulations 2026, with respect to processing of applications, which, according to them, would have been hampered by the stay order of 7th August 2026, as it had stayed implementation and enforcement of the increment of fees, as set out in the Second Schedule and the gambling capital, as set out in the Third Schedule to the Regulations, yet the applications for licences could not be processed without the requisite fees being paid. 3. The case by the applicants is that the Gaming Control Act, 2025, provides for an application for a licence which ought to be accompanied by an application fee, prescribed by the Cabinet Secretary in regulations. The Gambling Control (Licensing) Regulations 2026, provide the framework for the processing of such licences, for which the fees are a critical component, which cannot be severed. It is further averred that it was the new licensing framework, in the schedules, that was stayed by the order of 7th August 2026, hence rendering completion of the processing of licencing applications impossible. It is averred that there are some 246 applications for licences pending before the 2nd respondent, which cannot be completed without the licensing fee component. 4. The application, dated 11th August 2026, was placed before me on 13th August 2026, under certificate of urgency. I certified the same urgent, and fit for hearing during the current High Court recess. I gave directions for it to be served, and responded to within 7 days, in time for a ruling to be delivered on 21st August 2026, via CTS. I also varied the order of 7th August 2026, to obviate rendering it meaningless and inoperative, and to avoid the spectre of the gambling and gaming sector being left without effective governance and oversight, pending the disposal of the main motion. 5. The said application was served, and the applicants filed an affidavit and written submissions, both dated 18th August 2026. 6. The replying affidavit is sworn by the 1st applicant. It is averred that the principal contest is on the new fees imposed by the impugned regulations, for bookmaker, lotteries, casino, pool betting, totaliser and bingo. It is argued that the authority of the Cabinet Secretary, who made the impugned regulations, is under challenge. It is further averred that the variation of the orders would fundamentally alter the character of the stay order issued earlier, and it is asserted that the intent of a stay order is to hold the impugned decision in abeyance, pending determination of its legality and preservation of the subject-matter, of the proceedings, lest the court acts in vain, should it find in favour of the applicants. It is averred that the respondents seek permission to levy and receive the very fees whose implementation and enforcement the court had expressly stayed. It is submitted that the variation of the stay order would defeat the protective purpose for which the stay was granted. 7. It is further averred that the impugned fees would have adverse consequences on players in the sector, for many may be unable to raise the same and be barred from applying, abandon applications because they cannot afford the fees, unable to enter or remain in the market and relocate operations, incur borrowing and financial costs in order to meet the fee, incur expenditure in an effort to comply, downsize and retrench workforce, suffer loss of business opportunities, amongst others. It is argued that none of these consequences would be remedied by a subsequent refund of the fee actually paid. It is further argued that a refund mechanism would not preserve the *status quo*. 8. The argument, by the respondents, that the 2nd respondent would be incapable of processing pending applications and the stay has created an operational impediment to the discharge of its mandate, is said to be misleading, based on material the 1st applicant attaches to his affidavit, from Wager Wise Gaming Group Limited, which points to the 2nd respondent being able to receive applications and levy charges. It is further argued that the Gaming Control Act came into operation on 26th August 2025, and the impugned regulations on 29th June 2026, which would mean that the 2nd respondent has been receiving applications and charging fees illegally, for the 308 days, between when the Gaming Control Act came into operation and when the impugned regulations became effective. It is averred that, whereas the Gaming Control Act carries transitional regulations, which keep alive some provisions of the repealed law, that is the Betting Lotteries and Gaming Act, Cap. 131, Laws of Kenya, the same related only to levying of taxes, and not fees for applications, licensing and investigation, and capitation requirements. 9. Attached to the affidavit of the 1st applicant are a number of documents. There are letters from the 2nd respondent, to Wager Wise Gaming Group Limited and Sharkscode Limited, dated 28th October 2024 and 3rd November 2025, communicating about bookmakers’ license fees for the year 2025/2026. There is an acknowledgement of payment of moneys via MPesa. There is a certificate of incorporation of Sharkscode Limited dated 10th June 2024, and a certificate of a bookmakers off-the-course licence issued to Sharkscode Limited dated 5th November 2024. There is also a letter dated 9th April 2026, from the 2nd respondent, to Sharkscode Limited, on its pending bookmakers licence application for 2025/2026. 10. In the written submissions, the applicants largely reiterate the arguments made in their affidavit. It is argued that the purpose of a stay, under order 53 of the Civil Procedure Rules, is to keep the substratum alive, to avoid it being rendered nugatory. *Taib A. Taib vs. Minister for Local Government & 3 others* [2006] eKLR is cited. It is further submitted that the variation of the orders of 7th August 2026 would be burdensome, on the grounds elaborated in the affidavit. It is also argued that the Gaming Control Act enabled the 2nd respondent to collect fees from other sources, so that the 2nd respondent is not entirely reliant on the application fees for its operations. There are arguments that the implementation of the undertaking given by the 2nd respondent would be impracticable. 11. This issue of stay threatens to have the substantive matter litigated at the preliminary stage, given the detailed particulars and arguments that the parties hereto have gone into. Yet, the making of the order for the leave granted to operate as a stay is made at the discretion of the court, based on *prima facie* evidence tendered. It could be made *ex parte* or *inter partes*, as the court may decide. Dealing with it *ex parte* exposes the sort of difficulty that has now arisen in this case, where the other party feels that the order ought not have been made without it being heard, on the issues that could help the court, in its exercise of discretion on whether to grant it or not. Secondly, the stay at this stage is conservatory or preservatory in nature. However, in making the order, the court is bound to balance the interests of both sides, so that, at the end of it, none of the parties is placed at a handicap. 12. The principal argument, by the respondents, as I understand it, is that there is a new legal regime, which has seen the repeal of the Betting Lotteries and Gaming Act, and the enactment of another legislation, the Gaming Control Act, to take its place. That new law has come with its own regulatory framework, which is in the Gambling Control (Licensing) Regulations, 2026. The respondents have no problem with the said regulations being challenged, by way of judicial review, but that a stoppage of the said regulations remaining in force, for they had already been made operational, on 29th June 2026, before these proceedings were initiated on 16th July 2026, would hamper its mandate to regulate and govern the gaming sector. Their particular concern is with the order of 7th August 2026, which stays the implementation or operation on the schedules on the fees to be charged for licensing. They argue that the processing of applications cannot be separated from the fees chargeable, hence the licenses cannot be issued without the requisite fees being paid. 13. The rejoinder, by the applicants, is that the stay on charging the new fees should remain in force, and the order of 7th August 2026, ought not be varied. They argue that the increment, on the licence fees charged, would be onerous. However, they concede that, whereas the Gaming Control Act has transitional provisions on the taxes to be levied on gaming activities, no such transitional provisions are in place with respect to licensing. That would mean that, in the absence of the impugned regulations, there would be no framework for licensing under both the Gaming Control Act and the repealed Betting Lotteries and Gaming Act. That would create a vacuum, for the 2nd respondent cannot process applications for and issue licenses for gaming activities in the absence of a regulatory framework, for the Gaming Control Act does not carry such a framework, for it envisages the making of regulations. The applicants acknowledge that vacuum, and have asserted that the 2nd respondent operated illegally, for 308 days, without it. 14. Based on that, it would be imprudent to stay the operation of the regulations, pending the hearing and determination of the substantive motion. The component on fees, from the material placed on record by the respondents, cannot be separated from the processing of the licensing applications, for the issuance of the licences is subject to payment of the requisite fees. The levying of such fees is set out in the schedule to the regulations, and not in the Act, and the previous framework of charging licensing fees cannot be applied, for the Gaming Control Act does not have transitional provisions on that. Faced with that scenario, public interest would frown upon leaving the gaming industry unregulated, while the main dispute herein rages. 15. I note that the 2nd respondent has given an undertaking, to address the concern by the applicants, with respect to what would happen to the money paid by the licence-holders, in the event the court, in these proceedings, found and held that the regulations or the impugned fees were unlawful, and proceeds to strike them down. The undertaking is to have any amount of money, received by it, found by the court to be unlawful, excessive or improperly collected, refunded to the payer. 16. I have seen material from Wager Wise Gaming Group Limited and Sharkscode Limited, and the arguments made with respect to them. However, the connection between the applicants and these 2 entities has not been brought out, yet the 2, Wager Wise Gaming Group Limited and Sharkscode Limited, are not parties to the cause herein, hence the circumstances under which the material relating to them has been used in these proceedings could be legally cloudy. 17. In view of what I have discussed above, I am of the persuasion that there is merit in the application dated 11th August 2026. I hereby, therefore, confirm and allow the orders that I made *ex parte* on 13th August 2026, and grant, in addition, prayers 4, 5 and 7 of the said application. The costs of this application shall abide the outcome of the main cause. The matter shall be mentioned on 21st September 2026, as directed on 20th July 2026 and 7th August 2026. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 21ST 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.**