https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9043

Yator v Institute of Certified Public Accountants of Kenya (ICPAK) & another (Petition E138 of 2020 & E145 of 2021 (Consolidated)) [2026] KEHC 9043 (KLR) (Constitutional and Human Rights) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9043 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E138 of 2020 & E145 of 2021 (Consolidated) PM Nyaundi, J June 25, 2026 IN THE MATTER OF: ARTICLE 22(1) AND 165(3) (b) AND (d) (ii) OF THE CONSTITUTION AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS SECURED AND GUARANTEED UNDER ARTICLES 2,3,10,22,23,24,27,38(2), 47, 48, 50 (1), 81 (a), (d) & (e ), 82 (1) (d) & (2), 86, 88 (4) (h) OF THE CONSTITUTION AND SECTION 7 (1) OF THE SIXTH SCHEDULE AND IN THE MATTER: THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT AND IN THE MATTER OF: THE ELECTIONS ACT AND IN THE MATTER OF: THE ACCOUNTANTS ACT AND THE BY LAWS, ADMINISTRATIVE DECISIONS AND POLICY GUIDELINES THEREUNDER IN THE MATTER OF: THE INSTITUTE OF CERTIFED PUBLIC ACCOUNTANTS OF KENYA (ICPAK) ELECTIONS Between Michael Kipyegon Yator Petitioner and The Institute of Certified Public Accountants of Kenya (ICPAK) Respondent and The Independent Electoral and Boundaries Commission Interested Party Ruling Introduction 1.This ruling concerns the Notice of Motion dated 3rd July 2025 brought pursuant to Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Applicant urges the Court to dismiss the consolidated Petitions on the ground that the reliefs sought have been overtaken by events. The Motion is supported by the affidavit of CPA Dr. Grace Kamau, the Chief Executive Officer of the Respondent. 2.The Applicant’s position is straightforward: the Petitions rest upon a regulatory framework that no longer exists. With the promulgation of the Accountants Regulations, 2022 on 30th September 2022, the impugned policies and procedures were repealed. The Applicant asserts that the 2022 Regulations now govern the Respondent’s operations comprehensively, and the Petitioners have not mounted any constitutional challenge against these new Regulations. In the Applicant’s view, the foundation of the Petitions has therefore collapsed. 3.It is further submitted that the enactment of the 2022 Regulations rendered the entirety of the prayers in the consolidated Petitions moot. The Respondent subsequently conducted Council elections in 2025 under the new regulatory regime, and those elections have not been challenged. The Applicant thus contends that no live controversy remains for adjudication and that the Court should not expend judicial time on matters whose substratum has dissipated. 4.The 2nd Petitioner opposes the Motion through a replying affidavit sworn on 8th October 2022. He asserts that the issues raised in the Petitions transcend the mere enactment of the 2022 Regulations. According to him, the integrity of the impugned elections, the role of the IEBC (the Interested Party) in those elections, the legality of the Cabinet Secretary’s involvement in the regulatory process, and the question of damages allegedly due to the 2nd Respondent remain unresolved. He maintains that the Court must address what he terms “historical injustices” visited upon the members of the 2nd Respondent. He further notes that parties have already filed submissions, and the matters should therefore proceed to conclusion on their merits. 5.The 1st Petitioner did not participate in the application. The Motion was canvassed through written submissions. The Applicant filed submissions dated 10th September 2025 and 16th March 2026, reiterating the grounds in support of the Motion and relying on the decisions in Dande & Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR); Commission for Human Rights and Justice v Assets Recovery & Another; Mate (Interested Party) [2024] KEHC 16470 (KLR); and Institute for Social Accountability & Another v National Assembly & 5 Others [2022] KESC 39 (KLR). 6.The 2nd Petitioner’s submissions dated 8th October 2025 frame a single issue for determination, namely:a.Whether the enactment of the Accountants Regulations, 2022 renders the consolidated Petitions non‑justiciable, overtaken by events, and an exercise in futility. 7.In resisting the Motion, the 2nd Petitioner relies on Institute for Social Accountability & Another v National Assembly & 3 Others (Petition 1 of 2018) [2022] KESC 39 (KLR); Khalid & 16 Others v Attorney General & 2 Others (Petition 21 of 2017) [2019] KESC 93 (KLR); Judges & Magistrates Vetting Board & 2 Others v Centre for Human Rights & Democracy & 11 Others [2014] eKLR; Republic v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Co-operatives & 3 Others Ex Parte Benson Oduor Ameda & Another (JR Misc. App. No. E008 of 2021); and Gideon Omare v Machakos University [2020] KEHC 3522 (KLR). He contends that these authorities affirm the principle that a matter does not become moot merely because a statutory or regulatory framework has changed, particularly where the issues raised implicate constitutional rights, historical grievances, or continuing legal consequences. On costs,it is submitted that each party should bear their own costs. Analysis And Determination 8.Having considered the Pleadings and the Submissions the issue for determination is whether or not the Petition is overtaken by events and therefore moot and an exercise in futility. 9.In Republic v Kenya Maritime Authority & another; Zam Zam Shipping Limited (Interested Party) [2021] KEHC 309 (KLR), Mativo J ( as he then was) stated that-(22)A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby, the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact. Thus, a court order compelling a public body to issue a license for a past period, will lead to an absurdity. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law and facts as it was at the time when the suit was instituted and by applying the facts to the law and circumstances. Time and again, it has been expressed that a court should not act in vain. 10.In the case before me, it is evident that the consolidated Petitions are anchored on a regulatory framework that ceased to exist upon the promulgation of the Accountants Regulations, 2022. The Court is therefore confronted with a situation in which the factual and legal foundation of the Petitions has shifted entirely. As the Supreme Court observed in Dande & Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR), courts do not issue advisory opinions disguised as constitutional determinations, nor do they pronounce themselves on controversies that have evaporated with the passage of time. The doctrine of mootness is not a technicality; it is a constitutional guardrail that ensures courts decide only live disputes with practical consequences. 11.The doctrine serves to ensure that the judicial effort and time are only expended on matters where there is utility in the Court granting orders. However, it is not an absolute doctrine and the Supreme Court in Petition No. 13 of 2020 Kenya Railways Corporation & 3 Others v Okiya Omtatah Okoiti & 3 Others [2023] eKLR, the Court reiterated that in considering whether or not a matter was moot, the question the court posed was whether the events subsequent to the filing of a suit would have eliminated the controversy between the parties. 12.The Court was emphatic that there must be live issues that remain available for the Court’s consideration. It further stated that even if a matter is moot, the Court could still exercise its discretion to hear it, taking into account the importance of the Constitutional issue. The Court will also, in exercising its discretion, consider whether deciding the matter is in the interests of justice, especially if it may have implications for governance and future regulations, particularly where the law on a particular issue is unsettled. 13.The Petitioner urges that, although the legislative framework may have changed, the controversy remains live and some of the issues raised in the Petition have been carried into the new regulations. These include the use of technology, the role of the IEBC in the elections, and the historical injustices and damages claim by the Petitioners. It is therefore argued that, as was held in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR), the principle of judicial economy is better served by hearing the questions raised in the Petition rather than by postponing the determination to a future date. 14.The respondent herein filed submissions on 11th November 2022. He has set out his position, and the matter is ripe for determination. Halting proceedings now would disregard the effort already expended and undermine the efficient administration of justice. I am persuaded that no prejudice will be caused to either party, given the stage at which the proceedings stand. 15.Accordingly, I dismiss the application, costs of the application to the 2nd Petitioner.It is so ordered SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 25th day of June 2026.P. M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMs. Oburo holding brief for Ogembo for Respondent/ApplicantWanjiku holding brief for Kibungei for 2nd Petitioner