Mike Mbuvi Sonko v Inspector General National Police Service, Director of Public Prosecutions & Attorney General [2021] KEHC 12779 (KLR) | Conservatory Orders | Esheria

Mike Mbuvi Sonko v Inspector General National Police Service, Director of Public Prosecutions & Attorney General [2021] KEHC 12779 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. E048 OF 2021

HON. MIKE MBUVI SONKO............................................PETITIONER/APPLICANT

VERSUS

THE INSPECTOR GENERAL NATIONAL POLICE SERVICE.......1st RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS.........................2nd RESPONDENT

THE ATTORNEY GENERAL...........................................................3rd RESPONDENT

RULING

1. The Petitioner, Hon. Mike Mbuvi Sonko, through a petition dated 28th January, 2021 prays for various reliefs as follows:

a) A declaration that the rights and fundamental freedoms of the Petitioner have been violated, infringed, threatened and/or denied;

b) The Honourable Court do issue an Order of Judicial Review calling to this Honourable Court for the purposes of quashing M.C.C.R E078 of 2021(KIAMBU) REP VS MIKE MBUVI SONKO;

c) The Honourable Court do issue an Order of Judicial Review calling to this Honourable Court for the purposes of quashing A.C.C. CASE NO. 1 OF 2020, REP VS MIKE MBUVI SONKO AND OTHERS and A.C.C. CASE NO. 32 OF 2019 REP VS MIKE MBUVI SONKO, Misc. Case No.1 of 2021 and Crim. Case No. 078 of 2021 at Kiambu Law Courts;

d) A declaration do issue stating that the Respondents cannot resurrect cases that they had abandoned for several years;

e) Any other relief that [the] court may deem just and expedient in the circumstances.

f) That the costs of this petition be borne by the Respondents.

2. The Petitioner simultaneously filed a notice of motion application seeking the following orders:

a) That this application herein be certified as extremely urgent and service hereof be dispensed with in the first instance as the subject of this application will be defeated unless this application is heard expeditiously as soon as practicable because the Applicant is incarcerated and his rights have been threatened, denied, violated and infringed upon;

b) That the Honourable Court be pleased to issue conservatory order directing the immediate release of the Applicant from the illegal detention pending the hearing of the application herein inter partes.

c) That the Honourable Court be pleased to issue conservatory order directing the immediate release of the Applicant from illegal detention pending the hearing and determination of the Petition herein;

d) That the Honourable Court be pleased to issue conservatory order directing staying of any further prosecution against the Applicant in A.C.C. CASE NO 1 OF 2020, REP VS MIKE MBUVI SONKO AND OTHERS M.C.C.R. E078 OF 2021 (KIAMBU) REP VS MIKE MBUVI SONKO & A.C.C. CASE NO 32 OF 2019 REP VS MIKE MBUVI SONKO pending the hearing of the application herein inter partes;

e) That the Honourable Court be pleased to issue conservatory order directing staying of any further prosecution against the Applicant in A.C.C. NO 1 OF 2020, REP VS MIKE MBUVI SONKO AND OTHERS, M.C.C.R E078 OF 2021 (KIAMBU) REP VS MIKE MBUVI SONKO & A.C.C. CASE NO. 32 OF 2019 REP VS MIKE MBUVI SONKO, MISC. CRIM. CASE NO.1 OF 2021 and Cr. Case No. 78 of 2021 at Kiambu Law Courts pending the hearing of the herein Petition;

f) That the Honourable Court be pleased to issue any such or further orders or directions as it may deem fit and convenient with a view to enforce the fundamental rights and freedoms of the applicant taking exceptional circumstances of this case into account; and

g) That costs of the application be in the cause.

3. The application is premised on the grounds set out on its face and an affidavit sworn by the Applicant on 8th February, 2021.

4. The core of the Applicant’s case is that the Inspector General of the National Police Service, the Director of Public Prosecutions and the Attorney General being the respective 1st to 3rd respondents are in the process of prosecuting him in A.C.C. Case No. 1 of 2020, Rep v Mike Mbuvi Sonko & others; A.C.C. Case No. 32 of 2019, Rep v Mike Mbuvi Sonko & others; M.C.C.R E078 of 2021 (Kiambu) Rep v Mike Mbuvi Sonko;andMisc. Criminal Case No. 1 of 2021 with the intention of overwhelming him and inducing his submission politically which is a violation of his fundamental rights and freedoms as enshrined in the Constitution.

5. The respondents are opposed to the application and, in doing so, the 2nd Respondent filed grounds of opposition dated 26th February, 2021 setting out nine grounds of opposition.

6. In support of his case the Applicant asserts that he has been illegally detained based on the respondents’ impunity, malice and bad faith as they have brought frivolous and unfounded suits against him with the intent to keep him in custody. He avers that the 2nd Respondent has framed an evil scheme of lies, falsehoods and distortions to intentionally set him up on false charges and allegations. These actions, he states, have subjected him to psychological, mental and physical torture. It is the Applicant’s case that the respondents have abused their offices which is an infringement of his fundamental rights and freedoms as provided in the Constitution.

7. The Applicant avers that the respondents’ intent to maliciously persecute him on resurrected criminal cases for the period 1998 to 2001 is specifically aimed to achieve a political outcome that will extinguish his political career. He further asserts that some of the cases were nullified in Criminal Appeal No. 80 of 2001. It is his contention therefore that the respondents’ failed to perform their obligation of prosecuting him within reasonable time as provided in Article 50(2)(e) and are thus prohibited by the law from prosecuting those cases. He contends that the respondents’ actions are legally frivolous, an abuse of the criminal justice system and against public interest.

8. The Applicant admits to having made comments publicly at a political rally on 24th January, 2021 touching on certain individuals holding public and State offices with the intention of enlightening the Kenyan public on the characteristics of those individuals. He avers that soon thereafter he was served by the 1st Respondent with a requisition dated 26th January, 2021 to compel attendance to give evidence with regard to the offence of incitement to violence and undermining the authority of a public officer.

9. The Applicant avers that the offence upon which the requisition was premised was declared unconstitutional in the case of Robert Alai v Attorney General & another [2017] eKLR.He deposes that he has since proceeded to challenge the constitutionality of the requisition in Constitutional Petition No. E032 of 2021 Governor Mike Mbuvi Sonko v Karanja Kibicho & others.

10. The Applicant further states that when he appeared before the 1st Respondent on 1st February, 2021 he was interrogated until late in the night. He was presented the following day at Milimani Law Courts and taken to Muthaiga Police Station but he was not informed that he was being formally charged and detained. The next day he was taken to the Chief Magistrate’s Court at Kiambu and charged.

11. The Applicant avers that he only learned of the charges while in court as this information had not been revealed to him during his interrogation at the Directorate of Criminal Investigations headquarters.  He contends that these actions are in breach of his constitutional rights stipulated in Articles 29(a) and 49(1) of the Constitution.

12. The Applicant avers that the respondents have preferred anti-corruption cases against him being ACC No. 1 of 2020, ACC No. 31 of 2019 and ACC No. 32 of 2019. Moreover, he alleges that he will be charged with terrorism offences as there is an application seeking to keep him incarcerated pending the terrorism investigation.

13. It is further the Applicant’s case that the respondents’ actions are aimed at overwhelming and inducing him to submission in a clear act of political persecution. This, he claims, has made him suffer great prejudice with his political rights under Articles 38, 28, 29, 33 and 36 being overlooked. He deposes that he is entitled to equal protection of the law, benefit of the rule of law and enjoyment of all the human rights under Articles 10, 27(1) and 50. He additionally states that he is not in good condition and needs constant medical attention as evidenced by the medical report which he shared with the Court.

14. Mr. Marwa for the Attorney General informed the Court he had not been able to file any pleadings or submissions as he was still awaiting instructions from the 1st Respondent. He, however, indicated that the 1st and 3rd respondents would be relying on the 2nd Respondent’s pleadings and submissions in regard to the application for conservatory orders.

15. The 2nd Respondent opposed the application through grounds of opposition dated 26th February, 2021 as follows:

1. That the Petitioner has not made any basis to warrant the issuance of any of the prayers sought.

2. That the Petitioner/Applicant has not made out the conditions for the grant of conservatory orders generally and more specifically the conservatory orders sought vide the Application dated 9th February 2021.

3. That the Petitioner/Applicant has neither established nor proved the existence of a prima facie case for the grant of the specific conservatory orders sought vide the Application dated 9th February 2021.

4. That the nature of the conservatory orders sought by the Petitioner/Applicant vide the Application dated 9th February 2021 cannot be granted at this nascent stage of the proceedings as that would amount to this Honorable Court dealing with the substantive Petition.

5. That the Petitioner/Applicant has neither established nor demonstrated that the Petition or its substratum will be rendered nugatory should the conservatory orders sought be declined.

6. That the Petitioner/Applicant has neither established nor demonstrated that the Petitioner/Applicant would suffer irreparable loss which may not be cured by way of damages should the conservatory orders sought be declined.

7. That the Petitioner/Applicant has neither established nor demonstrated that the interim conservatory orders are sought to fulfill the public interest dogma.

8. That the Petition is vexatious, frivolous and therefore an abuse of the legal process.

9. That it is in the interest of justice and public interest that the orders sought in the instant Petition be declined.

16. The Applicant filed written submissions dated 1st March, 2021. Through the submissions Mr. Khaminwa for the Applicant stated that the Applicant while at a public rally on 24th January, 2021 made certain public comments with regard to the impropriety of certain members of the Government of the Republic of Kenya. Soon thereafter, the 1st Respondent proceeded to summon the Applicant on 26th January, 2021 under the guise of seeking information with regard to the aforementioned comments. Counsel stated that the Applicant duly appeared before the 1st Respondent's officers on 1st February, 2021 only to be illegally detained overnight without reason as he was not formally charged at that moment.

17. It is further submitted that the Petitioner was presented at Kiambu Law Courts in M.C.C.R. E078 of 2021 (Kiambu) Rep v Mike Mbuvi Sonko and charged with offences he had no knowledge of. Counsel submitted that this application has been made owing to a breach of the Applicant’s constitutional rights and fundamental freedoms as explicitly deposed in the supporting affidavit.

18. In objecting to the 2nd Respondent’s grounds of opposition, counsel for the Applicant contends that the application is a request for conservatory orders to protect rights and fundamental freedoms as enshrined in the Constitution, and issuance of such orders is at the discretion of this Court.

19. It is further submitted that the grounds of opposition are akin to a preliminary objection and raise issues of law. Counsel contends that the 2nd Respondent in the grounds of opposition seek to counter the Applicant's evidence in the supporting affidavit by attempting to frame the arguments as issues of law. It is thus submitted that the 2nd Respondent's reliance on the grounds of opposition is not the proper manner to oppose the application. The cases of Kartar Singh Dhupar and Co. Ltd v Lianard Holdings Limited [2017] eKLRand Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696 are cited in support of this argument.

20. Citing Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which requires petitions to be heard based on affidavits, written statements or oral evidence, counsel submits that the failure of the 1st Respondent to place any affidavits or statements before the Court only goes to further strengthen the Applicant’s case. It is counsel’s argument that the 2nd Respondent’s grounds of opposition and written submissions have no value as they merely seek to challenge the discretionary powers of the Court with vague statements. Reliance is placed on the case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (l985) E.A. 898in support of this submission.

21. In urging for grant of conservatory orders, counsel relied on the decision in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General Nairobi [2011] eKLR and urged the Court to take note of the likelihood of success of the Applicant’s case. On the same point, he additionally relied on the case of Amir Suleiman v Amboseli Resort Limited [2014] eKLR.Counsel stresses that the Applicant has established a prima facie case contrary to the 2nd Respondent’s assertions.

22. It is counsel’s case that the petition before this Court is valid and raises serious issues such as the violation of Article 47 of the Constitution and breach of legitimate expectation. This, he states, has been demonstrated in the Applicant’s supporting affidavit. Counsel also relied on the decisions in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLRand Dry Associates Limited v Capital Markets Authority & another; Interested Party Crown Berger (K) Ltd [2012] eKLR.

23. Counsel concluded by submitting that 1st and 2nd respondents had abused the powers granted to them and urged that the Court should not allow the constitutional rights of individuals to be abused regardless of the mandate, power and authority the respondents. The assertion is supported by reference to the decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLRandJoseph Njuguna Gachoka & 3 others v Kenya Power & Lighting Co. [2004] eKLR.

24. The 2nd Respondent’s counsel filed written submissions dated 26th February, 2021. Through the submissions Mr. Owiti appearing for the 2nd Respondent stated that the only issue in the application before this Court is whether or not the Applicant has made a case for the grant of conservatory orders. It is the argument of counsel that the Applicant has fallen short of the test required for the grant of conservatory orders.

25. It was submitted that in order for an application for conservatory orders to succeed, it must be established that there is a prima facie case and the petition will be rendered nugatory should the conservatory orders sought be declined. Further, that the applicant should demonstrate that he would suffer irreparable loss which may not be cured by way of damages unless the orders are granted. Further, that it should be established that granting the conservatory orders will fulfill the public interest. The submission was supported by reference to the decisions in Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR; Gatirau Peter Munya v Dickson Mwenda Githinji & 2 others [2014] eKLR; The Centre for Human Rights and Democracy & others v The Judges and Magistrates Vetting Board & others, Eldoret Petition No. 11 of 2012;and Speedex Logistics Limited & 2 others v Director of Criminal Investigations & 3 others [2018] eKLR.The Court was told that the Applicant has not met the conditions for grant of conservatory orders and urged to dismiss the petition.

26. As indicated by counsel for the 2nd Respondent, the only issue to be determined in this ruling is whether the Petitioner has met the conditions for grant of conservatory orders pending the hearing and determination of the petition.

27. The principles guiding the grant of conservatory orders under Article 23 of the Constitution have been pronounced in several decisions within our jurisdiction. Some of the decisions have been highlighted and relied upon by the parties in this case.

28. The Court in Wilson Kaberia Nkunja v The Magistrates and Judges Vetting Board & others [2016] eKLR summarized those principles thus:

“(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution;

(b)  Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and

(c) The public interest must be considered before grant of a conservatory order.”

29. In the Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR the principles were likewise summarized as follows:

“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….

26.  It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….

28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….

29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….

30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.

31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.”

30. In the case of Seema Arshad Zaheer & Ors. v Municipal Corporation of Greater Mumbai & Ors. – (2006) 5 CC 282. 14,the Supreme Court of India indicated the salient features for granting temporary relief as hereunder:

"The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

31. Similarly, the Court in the Centre for Rights Education and Awareness (CREAW)case noted that:

“At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”

32. The first issue to consider is whether a prima facie case has been established. As noted in Kevin K. Mwiti & Others v Kenya School of Law & 2 others [2015] eKLR,this Court in determining whether a prima faciecase has been demonstrated must look at the case as a whole by considering the pleadings, the factual basis and the respective parties’ arguments, while being careful not to make any definitive finding either of fact or law as that is the reserve of the Court that will ultimately hear the petition.

33. It is important to take appreciate from the outset that conservatory orders may be issued in matters claiming enforcement of the Bill of Rights. The Applicant’s petition is premised on alleged violation of constitutional rights and fundamental freedoms.

34. In Mrao Limited (supra),the Court of Appeal while considering what constitutes a prima facie case in civil matters observed that:

“So what is prima facie case? I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

35. The Applicant has through his pleadings demonstrated imminent threat to his constitutional rights as set out in the Bill of Rights. The evidence submitted by the Applicant raises fundamental issues of law for determination at the substantive hearing of the petition. The Applicant’s pleadings further disclose serious and arguable constitutional issues arising from the alleged breach of his rights and fundamental freedoms under Articles 10, 27, 29, 33, 47, 50 of the Constitution.

36. While I must restrain myself from analyzing the evidence placed before the Court by the parties, I take note that averments of the Applicant were not rebutted by the respondents. It is possible that the same may be rebutted through the evidence to be placed before the Court in opposition to the petition but as of now there is nothing in rebuttal to the Applicant’s averments. Through the grounds of opposition and submissions filed by the 2nd Respondent, the respondents only argued their case on points of law. They did not submit any factual evidence such as a sworn replying affidavit. As observed in the Mrao Limited (supra), “a right which has apparently been infringed by the opposite party calls for an explanation or rebuttal from the latter.”

37. The Court of Appeal while discussing what constitutes a prima facie case in Mirugi Kariuki v Attorney General [1992] KLR 8 pointed out as follows:

“In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney-General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegation, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

[Emphasis added].

38. From the cited authorities and the averments of the Applicant, it is reasonable to conclude that this petition highlights a ‘threat’ to the rights and fundamental freedoms accorded to the Applicant by the Constitution. Moreover, by the Respondent’s failure to refute the Applicant’s allegations, this Court is persuaded that there is indeed a threat to the Applicant’s rights and fundamental freedoms as protected in the Bill of Rights. It is therefore my finding that the Applicant’s pleadings disclose a prima facie case with a high likelihood of success hence the Applicant has satisfied the requirement that an arguable case with a likelihood of success ought to be established before conservatory orders can be granted.

39. The next question that needs determination is whether there is real danger that the Applicant will suffer prejudice if the conservatory orders are not issued. In other words, will the petition be rendered nugatory should the orders be denied?

40. The Applicant in this regard only requires to demonstrate that, unless the court grants the conservatory orders, there is real danger that he will suffer prejudice as a result of the threat to or violation of his constitutional rights. In Martin Nyaga Wambora v Speaker of the County of Assembly of Embu & 3 others [2014] eKLR, this requirement was expressed as follows:

“To those erudite words I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention.”

41. The supporting affidavit sworn by the Applicant does not make reference to presence of imminent danger. It, however, refers to political harassment. The averment that the criminal justice system is being used to attain motives that are contrary to the mandates of the police and prosecutors speaks to what is called abuse of power. This is where a power donated to a particular office by the Constitution is not used for the purpose envisaged by the makers of the Constitution but to achieve ends that do not align with the national values and principles of governance established in Article 10 of the Constitution. In such a situation the rights of a Kenyan are violated by the deployment of constitutional authority for illegitimate purposes. Where such a threat or violation is disclosed, it must be brought to a halt awaiting the hearing and determination of the petition.

42. Imminent danger has been defined at page 476 of the 10th Edition of Black’s Law Dictionaryas:

“1. An immediate, real threat to one’s safety that justifies the use of force in self-defense.

2. Criminal law. The danger resulting from an immediate threatened injury sufficient to cause a reasonable and prudent person to defend himself or herself.”

43. There is no doubt that the Applicant is facing charges in various courts as underscored in his averments. Whereas the magistrates’ courts handling the various cases have the competence and ability not only to question the allegations submitted before them but also interrogate the entire process, while upholding the principles of a fair hearing under the Constitution, there are several authorities that hold that no man should be subjected to a criminal trial that violates the constitutional edicts. Any prosecution that clearly violates the Bill of Rights should be stopped from the outset.

44. There is no dispute that the 1st and 2nd respondents have respective powers to investigate crimes and prosecute criminal matters. However, those powers can only be exercised within the constitutional parameters. For instance, in Stanley Munga Githunguri v Republic [1986] eKLR, it was held that:

“Even if none of the pre-requisites exists as required by section77(1) it would still be open to this Court to say under its inherent powers, and also by virtue of the provisions of the Judicature Act (Cap 8), that it would not be in the public interest, sometimes also referred to as public policy, to allow the prosecution launched against the applicant to continue, and issue Order of Prohibition to stop it. It is as much in the public interest that breaches of the law should be punished, as it is to ensure that in the process of doing so the people are not bashed about so that they lose respect for the law. If the law falls into disrepute it will have a shattering effect upon the society’s sense of security of their personal freedom and property. The Court is the final arbiter of how the public interest is to be preserved.”

45. The Court went ahead and stated that:

“Mr Chunga argued that Prohibition ought not to be granted where alternative remedies are available to an applicant. He said the applicant would be entitled to defend himself. He referred to appeal after conviction, bail pending appeal, review by the High Court. Mr Chunga must have been speaking lightly for the impracticability of his proposition is brightly apparent. What kind of a mad man who has an opportunity to apply for Prohibition would opt for a trial, the risk of conviction and imprisonment.”

[Emphasis added]

46. In this case there is no rebuttal to the Applicant’s deposition that he was arrested and prosecuted as a result of some statements he made in a public rally. This is a strong averment that needed a response from the respondents. No response was forthcoming and the averment holds true at this point in time. The Applicant’s averment does not only speak to a threat to his enjoyment of various rights and fundamental freedoms but also a looming danger to the enjoyment of those rights by Kenyans at large.

47. From the Applicant’s pleadings I sense a threat to the right to freedom of conscience, religion, belief and opinion under Article 32; the right to freedom of expression under Article 33; the right to freedom of association under Article 36; and political rights under Article 38, among other rights. Such threats and violations point to the commencement of a disease that must be firmly and authoritatively nipped in the bud.

48. It is not evident from the pleadings before this Court that there were active investigations prior to the Applicant’s speech. Immediately thereafter the State machinery was deployed to arrest and prosecute the Applicant with various offences. I am therefore satisfied that there is apparent and imminent threat to the Applicant’s constitutional rights and fundamental freedoms which must be stopped at its inception.

49. Another issue to be considered is whether issuance of orders will be in the public interest. The essence of this principle was aptly expounded and set by the Supreme Court in Gatirau Peter Munya (Supra)when it defined the purpose of conservatory orders thus:

“[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values,andthe proportionate magnitudes, and priority levels attributable to the relevant causes.”

50. The principle of public interest as established by the Supreme Court is unique to applications for conservatory orders. In bringing on board the public interest element the Court appreciated the impact of conservatory orders in some cases on the affairs of the Kenyan State. Courts are therefore required to be alive to the pervasiveness of conservatory orders on the operations of constitutional agencies hence the observation by the Supreme Court that the purpose of conservatory orders is to facilitate orderly functioning within public agencies, as well as to uphold the adjudicatory authority of the Court in public interest.

51. The Black’s Law Dictionary at page 1425 of the 10th Edition defines public interest as:

“1. The general welfare of a populace considered as warranting recognition and protection, something in which the public as a whole has stakes.

2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.”

52. This Court is alive to the legal principle that requires that the various organs of government should be allowed to execute their mandates without undue interference from the other organs. In Anne Mumbi Waiguru v County Assembly of Kirinyaga [2020] eKLR this principle was expressed as follows:

“38….the deployment of conservatory orders in the exercise of supervisory jurisdiction by the High Court over the other arms of government should be done with utmost restraint and only where overt violation of the Constitution and the law has been shown. Otherwise, constitutional organs that are carrying out their lawful functions should be left alone.

53. In deciding whether it should grant conservatory orders the court is called upon to balance the competing constitutional interests of the parties in the matter. In the Privy Council case of Attorney General v Sumair Bansraj (1985) 38 WIR 286,as cited in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR,Braithwaite J.A. stated that:

“Now to the formula. Both remedies of an interim injunction and an Interim declaration order are excluded by the State Liability and Proceedings Act, as applied by Section 14 (2) and (3) of the Constitution and also by high judicial authority. The only judicial remedy is that of what has become to be known as the “Conservatory Order” in the strictest sense of that term. The order would direct both parties to undertake that no action of any kind to enforce their respective right will be taken until the substantive originating motion has been determined; that the status quo of the subject matter will remain intact. The order would not then be in the nature of an injunction, … but on the other hand it would be well within the competence and jurisdiction of the High Court to “give such directions as it may consider appropriate for the purpose of securing the enforcement of … the provisions” of the Constitution…In the exercise of its discretion given under Section 14(2) of the Constitution the High Court would be required to deal expeditiously with the application, inter partes, and not ex parte and to set down the substantive motion for hearing within a week at most of the interim Conservatory Order. The substantive motion must be heard forthwith and the rights of the parties determined. In the event of an appeal priority must be given to the hearing of the appeal. I have suggested this formula because in my opinion the interpretation of the word in Section 14 (2) “subject to subsection (3) and the enactment of Section 14(3) in the 1976 Constitution must have…the effect without a doubt of taking away from the individual the redress of injunction which was open to him under the 1962 Constitution. On the other hand, however, the state has its rights too…The critical factor in cases of this kind is the exercise of the discretion of the judge who must “hold the scales of justice evenly not only between man and man but also between man and state.”

54. This Court therefore has a duty to consider the importance of proportionality in granting conservatory orders. There is undeniably a noble reason why this Court should not be hasty in interfering with the wheels of justice that have been set in motion. The hearing and determination of criminal matters are within the jurisdiction of competent courts and this Court’s interference risks undermining the capable authority of the trial courts. Stopping criminal trials on flimsy grounds will in the long run frustrate the cause of justice which would be against the interest of the public. Issuance of orders should therefore only occur in exceptional circumstances.

55. In the case before me, the Applicant has established that his arrest and prosecution by the 1st and 2nd respondents subsequent to his comments in a political rally held on 24th January, 2021 did not accord with the constitutional requirements. There is therefore need to stay the trials pending the hearing and determination of this petition.

56. An order is issued that pending the hearing and determination of this petition the 1st and 2nd respondents are stopped from further prosecuting the Applicant in the cases identified as M.C.C.R E078 of 2021 (Kiambu) Rep v Mike Mbuvi Sonko; Misc. Case No.1 of 2021;and Crim. Case No. 078 of 2021 at Kiambu Law Courts.

57. As can be clearly seen from the discussions in this ruling, the Applicant has not made out a case for the stoppage of the cases that were instituted prior to 24th January, 2021. The trial of the Applicant in A.C.C. Case No. 1 of 2020, Rep v Mike Mbuvi Sonko and othersand A.C.C. Case No. 32 of 2019 Rep v Mike Mbuvi Sonko, and any other case that may have been commenced before 24th January, 2021 shall continue unabated as they are not affected by the conservatory order issued above.

58. The petition shall be heard on priority basis.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MARCH, 2021.

W. Korir,

Judge of the High Court