Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025) (Environment and Land) [2026] KEELC 1260 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court can grant any conservatory orders in form of injunction or prohibition pending appeal upon striking out of a petition or suit
Key legal issues
#Whether the court retains jurisdiction to grant conservatory orders pending appeal after striking out the Petition
No. The striking out conclusively determined the matter; conservatory orders require a subsisting cause and granting them would indirectly reinstate a struck-out petition.
The court relied on the Supreme Court's clarification in the Peter Munya case that conservatory orders preserve the subject matter of a dispute and are ancillary to a subsisting cause. Having struck out the Petition on 5th November 2025, the court conclusively determined the matter, became functus officio, and had no pending cause to preserve. It applied Western College v Oranga on negative orders and followed Josephine Wairimu Kinyanjui, Dofu v Ngome and Karage v CS Interior, holding that interim relief collapses with the struck-out petition.
Whether the 13th Respondent's Preliminary Objection on jurisdiction was merited
Implicitly yes, as the application was dismissed for want of jurisdiction to preserve a cause no longer before the court.
The court framed the single issue as whether it could grant conservatory orders pending appeal after striking out a petition. Answering it negatively, the court found the application could not stand, and dismissed the Notice of Motion, effectively upholding the Preliminary Objection without separately pronouncing on the other grounds such as abuse of process.
Legal principles established
#- Conservatory orders are ancillary reliefs anchored on a subsisting cause; once a petition is struck out there is nothing to preserve and the court becomes functus officio
- An order striking out a petition is a negative order, incapable of being stayed
Court orders
#- 1.The Notice of Motion dated 22nd November 2025 is dismissed
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 165(3)(b) of the Constitution of Kenya, 2010; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Conservatory orders of injunction restraining eviction/demolition and prohibition of arrests pending appeal
Conservatory orders are ancillary reliefs requiring a subsisting cause; the Petition had been struck out, leaving nothing to preserve and no positive order capable of being stayed
Costs of the application
Each party to bear own costs
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Conservatory orders are ancillary reliefs and must be anchored upon a subsisting constitutional cause and that once a Petition is struck out, there is no pending matter before the Court capable of preservation, and any application for conservatory relief becomes academic.
an Order striking out a Petition is a negative order to the efiect that it does not commend any positive act as it merely terminates the proceedings.
Consequently, the Notice of Motion dated 22nd November 2025 is hereby dismissed. Each party to bear own costs.
Issues in the judgment
#Judgment does not state the case number of the application or the underlying petition it relates to; it only references the ruling of 5th November 2025 striking out 'the Petition' and a separate petition, ELC Petition No. 6 of 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025) (Environment and Land) [2026] KEELC 1260 (KLR)", Case Analysis (2026). Not stated in judgment (related to ELC Petition struck out on 5th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1260/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.