IN THE COURT OF APPEAL

AT NAIROBI
(CORAM: KIAGE, NYAMWEYA & NGENYE, JJ.A)
CIVIL APPLICATION NO. E583 OF 2023
BETWEEN

THE CABINET SECRETARY

MINISTRY OF HEALTH………………………………..…………….PETITIONER
AND
JOSEPH ENOCK AURA………………………………....…….1ST RESPONDENT
THE CABINET SECRETARY
MINISTRY OF INFORMATION, COMMUNICATION
AND THE DIGITAL ECONOMY IN KENYA……….….…..2ND RESPONDENT
SOCIAL HEALTH AUTHORITY…………………….…....…3RD RESPONDENT
COMMISSION ON REVENUE ALLOCATION……..…..….4TH RESPONDENT
THE NATIONAL ASSEMBLY OF KENYA………….………5TH RESPONDENT
THE SENATE OF KENYA……………………………..……...6TH RESPONDENT
COUCIL OF GOVERNORS…………………………….………7TH RESPONDENT
THE PRESIDENT SUED THROUGH THE
ATTORNEY GENERAL OF KENYA……………………..….8TH RESPONDENT
OFFICE OF THE DATA PROTECTION
COMMISSION…………………………………………..………..9TH RESPONDENT
HEALTH RECORDS AND INFORMATION
MANAGERS BOARD…………………………………..……..10TH RESPONDENT
CLINICAL OFFICERS COUNCIL OF KENYA…….….…11TH RESPONDENT
THE HON. ATTORNEY GENERAL……………….…….…12TH RESPONDENT
KENYA MEDICAL PRACTITIONER &
DENTIST COUNCIL………………………………….……....13TH RESPONDENT
KENYA MEDICAL ASSOCIATION………………..……….14TH RESPONDENT
(An application under Rule 5(2)(b) of the Court of Appeal Rules for stay of
execution and/or implementation of the Orders of the High Court of Kenya at
Nairobi (Chacha Mwita, J.) dated 27th November, 2023

in

Constitutional Petition No. E473 of 2023)

*********************************************
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 RULING OF THE COURT

On 24th November, 2023, one Joseph Enock Aura, (hereinafter

‘Mr. Aura’), by all indications a public spirited citizen of this Republic,

filed a petition before the High Court at Nairobi. He did so in exercise of

his right to approach that court pursuant to Article 258(1) of the

Constitution, and stated that he was doing so “on his own behalf, on

behalf of the people of Kenya and in protection of their constitutional and

statutorily rights,” and was thus acting in the public interest as

recognized by Article 258(2) of the Constitution.

He alleged in the Petition that some three statutes, to wit; The

Social Health Insurance Act, 2023, the Primary Health Care Act,

2023 and the Digital Health Care Act 2023, all signed into law on

19th October, 2023, by the President of the Republic, who was sued

through the Attorney-General as the 8th Respondent, breached or

threatened to breach the Constitution in various respects, all stated and

particularized.

In the Petition, citing as respondents the Cabinet Secretary in

charge of the Ministry of Health (hereinafter ‘the C.S’) as well as other

cabinet secretaries, and various officers, authorities and entities of

Government. Mr. Aura sought various declarations, orders of

prohibition and injunctions including, specifically;

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 “1. A declaration do issue that Sections 26(5), 27(1)(a),
27(4), 38, and 47(3) of the Social Health Insurance Fund
Act, 2023, are inconsistent with the Constitution of
Kenya and therefore null and void to the said extent.
6. A declaration do issue that the entire Social Health
Insurance Fund Act, 2023; the entire Digital Health Act,
2023 and the entire Primary Health Act, 2023 are all
invalid having been enacted without complying with the
mandatory requirements of the Statutory Instruments
Act.
7. A declaration do issue that the entire Social Health
Insurance Fund Act, 2023; the Digital Health Act, 2023
and the entire Primary Health Act, 2023 are all invalid
for lack of effective, tangible and mandatory public
participations as prescribed and required under Articles
10(2)(b) and 118(b) of the Constitution of Kenya and are
all therefore null and void.”

He also prayed that;

“8. An order of prohibition do issue, restraining the

respondents either jointly and/or severally by
themselves, their officers acting at the behest, agents,
assigns, representatives, employees, servants or
otherwise howsoever from giving effect to, enforcing, or
taking any steps to enforce, or in any way implementing
and/or continuing the implementation of any aspect of
the impugned of the Social Health Insurance Fund Act,
2023, Digital Health Act, 2023 and the Primary Health
Act, 2023.”

Simultaneously, Mr. Aura filed a Notice of Motion riding on the

Petition, in which he sought conservative orders prohibiting the

respondents therein from enforcing any aspect of or the whole of the

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impugned statutes first, “2. Pending the hearing and determination of

this motion” and, second “3. Pending the hearing and determination of

the petition.”

In the alternative to those two prayers, he prayed thus;

“4. In saving judicial time and costs, an order do issue

on the terms of an expedited and fast tracked hearing of
the petition itself as may be appropriate.”

Both the petition and the accompanying notice of motion came up

for directions ex-parte before Mwita, J. on 27th November 2023

whereupon the learned Judge, after stating that he was satisfied that

the petition raised important constitutional and legal questions that

deserved urgent and serious consideration, proceeded to make orders

all touching on the Petition, as follows;

“1. That the pleadings be served immediately.

2. That the respondents do file responses to the petition
within 7 days after service.
3. That once served, the petitioner will have 7 days to file
and serve a supplementary affidavit if need be together
with written submissions to the petition, not exceeding
10 pages.
4. That the respondents will then have 2 days after
service to file and serve written submissions to the
petition, not exceeding 10 pages each.
5. That highlighting of submissions on 7th February,
2023.”

The learned Judge then made an order in apparent grant of the

notice of motion;
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 “6. That in the meantime, a conservatory order is hereby
issued restraining the respondents, their agents and or
anyone acting on their directives from implementing and
or enforcing The Social Health Insurance Act, 2023, The
Primary Health Care Act, 2023 and The Digital Health
Act, 2023 until 7th February, 2024.”

Upon being served with the pleadings and the aforesaid order, the

C.S. filed a notice of motion dated 8th December 2023. Citing, in the

founding grounds and supporting affidavit, a looming monumental

crisis in the health sector and a regulatory vacuum negatively impacting

some 17 million members of the National Health Insurance Act on

account of the repeal of the eponymous statute, she prayed, in the main

that;

“2. Due to urgency and the looming crisis in the health

sector, the conservatory orders issued by this Honourable
Court (ex parte) to stay the Universal Health Care
Legislations namely Social Health Insurance Act, 2023;
Primary Health Care Act, 2023 and Digital Health Act,
2023 be lifted and/or suspended pending the hearing and
determination of this motion and/or directions on the
disposal of the Petition.”

She also prayed, in terms uncannily echoing Aura’s alternative

prayer we earlier quoted, as follows;

“3. That the motion herein be subsumed in the Petition so

that the Petition proceeds for hearing and determination
on merits since the issues herein transcend the partisan
interest of the litigants and raise matters of general
public importance.”

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 That Motion came before the learned Judge on 11th December

2023, and the learned Judge rendered himself thereon as follows;

“I note that the court has already issued directions on

the hearing of the petition taking into account the
urgency of the matter, public interest and the issues
raised in the petition.
IT IS HEREBY ORDERED;
1.That parties comply with the discretions issued in this
matter and the hearing date remains as assigned.”

This aggrieved the C.S. and on the same day she filed a notice of

appeal expressing intent to appeal against the orders of the Honourable

Judge. She has since instituted the substantive appeal, being Civil

Appeal Number E984 of 2023.

Before the said record of appeal was lodged, however, the C.S. filed

the Motion before us. Dated 13th December 2023 and brought under

Rule 5(2)(b) of the Court of Appeal Rules, it seeks essentially an order

that;

“ …..
b. Enforcement and/or implementation of the orders
issued by the High Court on 27th November 2023 be lifted
and/or stayed pending the hearing and determination of
the intended appeal.”

The Motion is supported by the affidavit of Nakhumincha S.

Wafula, (the C.S.) sworn on 13th December 2023. That affidavit gives the

history of the dispute and the litigation between the parties as we have

captured herein. She swore that on being moved to vacate his ex parte
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orders the learned Judge merely reiterated the said orders hence her

appeal against them which is the fulcrum of her complaint on appeal;

that the learned Judge violated “a cardinal rule enshrined in the

Constitution that a party be heard before an adverse order is

made against that party,”; and that the said orders continue to be

implemented against her without her being accorded an opportunity to

be heard. She also swears that it was “not reasonable or viable to

suspend treatment of patients until 7 th February 2023 (sic)” when the

matter is to be heard before the High Court. She urges the Court to

“consider the plight of patients and denying them treatment is against the

constitutional expectations.”

Various parties filed affidavits in replying with Mr. Aura’s, which is

sworn on 27th December 2023, being the only one opposed to the

Motion. Running into 60 paragraphs, the affidavit expresses Mr. Aura’s

opposition on grounds that the motion is incompetent; it is an abuse of

court process; the notice of appeal has not been served on him; there is

no evidence of any health crisis tendered, and there is no harm or loss

that will accrue as draft regulations for implementation of the three

statutes have not been enacted; no memorandum of appeal was

attached; and the motion is an afterthought. We need not rehash at

length the ensuing explication of those grounds of objection.

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 Written submissions were filed by the parties as were lists and

bundles of authorities before the plenary hearing of the motion before

us on 10th January 2024. Learned Senior Counsel, Mr. Fred Ngatia,

SC. appeared for the C.S. while learned counsel Mr. Harrision

Kinyanjui appeared for Mr. Aura, who is the 1st Respondent. Other

learned counsel appearing were Mr. Bita for the 2nd, 8th and 12th

Respondents, Ms. Nganyi for the 5th, Ms. Thanji for the 6th, Mr. Lawi

for the 7th and Mr. Wako for the 11th Respondents, respectively.

Before the start of the hearing, we engaged counsel for the

protagonists on the possibility and advisability of finding a middle

ground in keeping with our constitutional command and pragmatic

approach to seek the most efficient and cost-effective use of scarce

judicial resources and with a view to focusing on the main issues in

controversy that await interrogation and decision of the Petition at the

High Court, instead of focusing on the application for interim relief

within an interlocutory appeal. However, as we did, the counsel insisted

on being heard.

Going first, Mr. Ngatia reiterated his written submissions on behalf

of the C.S and referred to various authorities cited therein, which we

have noted, including the Supreme Court decision of BIA TOSHA

DISTRIBUTORS LTD Vs. KENYA BREWERIES & 6 OTHERS [2023]

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eKLR on conservatory orders as remedies under the Constitution in the

supreme law of the land, and GATIRAU PETER MUNYA Vs. DICKSON

MWENDA GITHINJI & 2 OTHERS [2014]eKLR which stated that they

should be granted on inherent merit (meaning both sides must be heard

fairly and weighted, according to counsel) and bearing in mind the

public interest. Also cited was POTTERS HOUSE ACADEMY Vs. LEAH

CHEMELI KEMER [2022] eKLR which expressed the need for parties to

have their day in court and, since ex-parte hearings deprive a party of

such right to be heard, they should only be conducted in exceptional

cases where it is evident the defendant was served but failed or ignored

to come to court.

It was Mr. Ngatia’s contention that an arguable appeal had been

established principally on the learned Judge’s issuance of ex-parte

orders that were final in nature contrary to the constitutional guarantee

of fair trial and the rules of natural justice, and that the said appeal

would be rendered nugatory were the learned Judge’s orders to still

subsist, since the right to Kenyans to health was jeopardized and

patients’ need for treatment cannot be suspended as the parties litigate.

He decried as untenable the absence of a regulatory framework for

health due to the impugned orders that left the health sector in a state

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of animated suspension. He urged us to stay or suspend “those blanket

orders.”

We next invited counsel for the respondents who were in support

of the application. Mr. Bita argued that there was an arguable appeal

made out to the extent that the impugned orders affected numerous

people who were not party to the proceedings and also suspended the

existing framework for the attainment of a fundamental right in the

Constitution. He urged us to issue a stay so as to allow for the

progressive attainment of the right of health. He cautioned that if we did

not issue a stay “the consequences on numerous people will be

irreversible.”

Going next Ms. Nganyi stated that by suspending the

implementation of the Social Health Insurance Act, the learned Judge

improperly created confusion and a regulatory vacuum with the result

that patients cannot obtain much-needed relief. Moreover, she added,

the learned Judge improperly departed from his own decision in

Petition No. E413 of 2023 in which he had denied a request for the

suspension of two of the very statutes he suspended in the present

case.

On her part, Ms. Thanji submitted that the legislative process

leading to the enactment of the statutes was long and rigorous in which
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there was public participation. She urged that the appeal is arguable as

the ex parte blanket suspension of the statutes is a weighty matter and

it cannot be in the public interest for the High Court suspend Acts of

Parliament without hearing the other parties.

Also in support was Mr. Lawi for the Council of Governors who,

like those who went before him, associated himself with and adopted

Mr. Ngatia’s submissions. He stated that the 4th Schedule to the

Constitution assigns county health services to the counties and

contended that the counties and wananchi are the most affected by the

lacuna created by the impugned orders as they affected pre-treatment

approvals for both inpatient and outpatient services. His view was that

the interests of justice required that the application be allowed. He cited

this Court’s decision in HOUSING FINANCE OF KENYA Vs. SHAROK

KHER MOHAMMED ALI HIRJI & ANORTHER -Nairobi Civil Application

No. 74 of 2015.

Mr. Kinyanjui opposed the motion because, first, this Court is

bereft of jurisdiction as the applicant never appealed against the orders

of 26th November 2023. He next stated that no single averment had

been made that a single Kenyan had been denied access to health. Nor

was any hospital or dispensary mentioned. He questioned the absence

of a memorandum of appeal and also took the view that it was not
Page 11 of 22
proper that scarce judicial resources should be expended on the

application before us while the substantive petition pends. He urged

that the learned Judge did consider the application and the public

interest before directing that the petition be heard on 7th February

2024. Lastly, that the applicant does have a chance to ventilate all her

complaints at the High Court.

When we sought to know whether it was not arguable if it was

permissible for the learned Judge to make the impugned orders ex-parte

thereby essentially determining the motion before hearing the

respondents thereto, counsel responded that the learned Judge had

discretion not to hear the application and go straight to the petition. He,

however, conceded, albeit reluctantly, that the matter was arguable, but

only if the C.S. had appealed against the orders of 27th November 2023

but she had not. He also conceded that when the C.S.’s application

came before the learned Judge on 4th December 2023, he did not hear it

but rather reiterated the orders he had made on 27th November 2023.

He defended such move as being within the Judge’s discretion, for

which he cited a High Court decision he opined to be on all fours, being

BLOGGERS’ ASSOCIATION OF KENYA (BAKE) Vs. ATTORNEY

GENERAL & 5 OTHERS [2018] eKLR.

Page 12 of 22
 In his reply Mr. Ngatia pointed out that the nugatory aspect was

well-established by the CS’s averment that some 17 million members of

the now defunct NHIF stood affected by the challenged orders which

created a regulatory vacuum. On arguability, he asserted that the

learned Judge improperly gave a final as opposed to an interim

conservatory order.

Regarding the competence of the application before us, counsel

took the view that the notice of appeal on record is efficacious to donate

jurisdiction to the Court to stay the orders of 27th November 2023

because the orders of 11th December 2023 reiterated those earlier

orders. Finally, on the non-display of a draft memorandum of appeal,

Mr. Ngatia contended that there is no requirement that one be attached

to an application for stay, it being sufficient that an applicant disclose

an arguable point and the C.S did so in her supporting affidavit. He

relied on this Court’s decision in ONTWEKA & 3 OTHERS Vs. ONDERI

Civil Application No. E332 of 2023.

We have given due and anxious consideration to the application,

the affidavits in support of and that in opposition thereto, as well as the

rival submissions filed and made before us and the authorities cited. We

do not for a moment doubt that the Petition now before the High Court

raises serious constitutional and statutory issues as was noted by the

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learned Judge when he made the impugned orders. Reading through it

we see the alarm raised by Mr. Aura that various fundamental rights

stand violated or under threat of violation by the enactment and

enforcement of the impugned pieces of legislation.

The C.S. and the parties supporting her position take the view that

Mr. Aura is just being alarmist and he misled the High Court in

painting an apocalyptic picture of monstrous violation of rights in the

name of providing universal healthcare. They see no substance in the

complaints of virtual enslavement, violation of privacy and children’s

rights, unreasonable denial of all rights and services totally unrelated to

health, and the like, as well as denial of public participation before

enactment. It is not for us at the determination of this application, or

even at the determination of the appeal by whichever bench of this

Court, to make any findings one way or the other on those contested

issues. The proper forum of their ventilation, interrogation and

determination is the High Court upon hearing of the Petition.

It is also not our remit at this stage to determine whether, as urged

and denied, the learned Judge committed a grave error of law in issuing

ex-parte orders that suspended the operation of three statutes passed

by Parliament. That is to be decided by the bench that shall hear the

appeal.
Page 14 of 22
 All we can legitimately do within our mandate is decide whether a

case has been made out for the stay of enforcement of the learned

Judge’s order suspending the operationalization of the challenged

statutes. A preliminary issue was raised by Mr. Aura’s counsel as

regards our jurisdiction to grant the stay, on account of the fact that

there was no Notice of Appeal filed by the Applicant against the orders

of 27th November 2023 that are sought to be stayed. We are in

agreement with the holding in NGURUMAN LIMITED Vs. SHOMPOLE

GROUP RANCH & ANOTHER [2014] eKLR, that this Court cannot stay

execution of an order with respect to which there is no notice of appeal.

In the present application, a Notice of Appeal was filed against the

orders given by the learned Judge on 11th December 2023. The said

orders of 11th December 2023 made specific reference to the orders

granted on 27th November 2023, which the parties were directed to

comply with. Thereby, the learned Judge in effect adopted and repeated

or reiterated the orders of 27th November 2023 on 11th December 2023.

It would thus be an exercise of splitting of hairs to argue that the orders

of 27th November 2023 are different from those of 11th December 2023.

As they were the same orders, we have no difficulty holding that we

have jurisdiction in this matter.

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 The jurisdiction to grant stay lies at the discretion of this Court

and is exercised on the basis of sound and settled principles, not

arbitrarily or capriciously on a whim or in consideration of any

extraneous matters. The main guiding consideration, set out in a long

line of authorities of this Court, is that the application must show, first,

that he or she has an arguable appeal, and, second that the said appeal

is likely to be rendered nugatory unless the orders sought are granted in

the interim. A full enunciation of the applicable principles and leading

authorities therein was done by this Court in STANLEY KANGETHE

KINYANJUI Vs. TONY KETTER & 5 OTHERS [2023] eKLR and we

need not regurgitate them, save to add that it is now accepted that the

public interest is a legitimate consideration as well, as guided by the

Supreme Court in GATIRAU PETER MUNYA Vs. DICKSON MWENDA

KITHINJI & 2 OTHERS (supra) and MARY WAMBUI MUNENE Vs.

PETER GICHUKI KINGARA & 2 OTHERS [2014] eKLR. We need say

no more than quote what was stated by this Court in KENYA HOTEL

PROPERTIES LTD Vs. WILLISDEN INVESTMENT LTD & 6 OTHERS

[2013] eKLR; which we endorse;

“20. Turning to the issue of whether the appeal raises an

arguable point of “public interest”, we wish to pause a
question as to when public interest is put in motion. In the
case of EAST AFRICAN CABLES LIMITED VS. THE PUBLIC
PROCUREMENT COMPLAINTS, REVIEW & APPEALS BOARD
Page 16 of 22
 AND ANOTHER [2007] eKLR the Court of Appeal indicated
situations where public interest should take precedence in
the following words: -
‘We think that in the particular circumstances of this case, if
we allowed the application the consequences of our orders
would harm the greatest number of people. In this instance
we would recall that advocates of Utilitarianism, like the
famous philosopher John Stuart Mill, contend that in
evaluating the rightness or wrongness of an action, we should
be primarily concerned with the consequences of our action
and if we are comparing the ethical quality of two ways of
acting, then we should choose the alternative which tends to
produce the greatest happiness for the greatest number of
people and produces the most goods. Though we are not
dealing with ethical issues, this doctrine in our view is aptly
applicable.’”

An arguable appeal is not one that must succeed and an applicant

need not proffer a multiplicity of arguable points. One is sufficient. For

a point to be arguable it needs merely to raise a bona fide point of law or

fact sufficient to call for an answer from the respondent and is worthy of

the Court’s consideration.

Moreover, whereas such arguable points should ideally and

conveniently be expressed in the form of a draft memorandum of

appeal, there is no rule that it must be so. One can raise such grounds

on the face of the motion and even in the supporting affidavit, as

happened in this case. We reiterate what was said recently in

ONTWEKA & 3 OTHERS Vs. ONDERI (supra)

“While it would have been desirable for the applicant to

annex a draft proposed memorandum of appeal to its
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 application, we are of the view that the omission to do so
is not fatal, and is curable in so far as the applicant has
sufficiently set out its grievances on the face of the
application. That is the case in this application. The
applicant set out what it considers to be arguable points
that it intends to raise during the appeal and addressed
at length on the same. This is sufficient to demonstrate its
grievances against the orders that it seeks to be reversed.”

The essence of the grounds raised by the C.S. is that the

conservatory orders given by the learned Judge were too wide in scope,

suspended three statutes at ex-parte stage and were final in character

and effect, and essentially disposed of the Notice of Motion without

affording her and the other respondents thereto an opportunity to be

heard, contrary to the constitutional right to fair trial and the tenets of

natural justice. While, as we have stated, it is not our place to decide

the points, we have no difficulty holding, and in fact counsel for Mr.

Aura did essentially concede, as he had to, that the complaints by the

C.S. are not idle. The appeal is therefore eminently arguable.

As to the second limb, which must also be satisfied, the argument

made is that the orders under attack created a lacuna and a vacuum in

the regulatory framework leaving it in a state of animated suspension,

caught in the no-man’s land of the repeal of the NHIF Act and the

scuttled operation of the successor legislation. It is averred under oath

Page 18 of 22
that this has bred confusion leading to inability to grant pre-treatment

authorization for the former members of the NHIF, said to number 17

million, and exposing the sick to the imminent threat of denial of

treatment contrary to their fundamental rights. A plea is therefore made

to the public interest of allowing the health sector to operate in a

properly regulated legal environment and to ensure that no patient is

denied treatment or otherwise prejudiced by the restraint on the

implementation and enforcement of three statutes imposed by the

conservatory order.

We think, with respect to Mr. Aura, that the scenario said to have

been precipitated by the conservatory order cannot be taken lightly. The

injuncting of the regulatory framework intended by the restrained

statutes is said to have led to confusion and to have exposed patients to

serious risk to health as they stand to be denied treatment.

We think that given what has been sworn by the C.S. there is a

real and present danger to the health rights of countless citizens who

are not parties to the litigation pending before our courts. We are

persuaded that the confusion, the lacuna and the risk and harm to

citizens pending the hearing and determination of the appeal is a price

too dear to pay, and it would have the effect of rendering the appeal

nugatory having regard to the duty to give the term its full meaning as
Page 19 of 22
was stated in RELIANCE BANK LTD Vs. NORLAKE INVESTMENTS

LTD [2002] EA 227. There, the court stated, and we would apply the

same consideration herein that;

“To refuse to grant an order of stay to the appellant

would cause it such hardships as would be out of
proposition to any suffering the respondent might
undergo while waiting for the applicant’s appeal to be
heard and determined.”

We find, therefore, that the second limb is also satisfied. A case

has thus been made out for the grant of the motion. We are cognizant,

however, that the discretion we have in these matters include granting

such a plea on terms as are just. Bearing this in mind, we are

concerned at the arguably irreversible effect of some of the provisions of

the Social Health Insurance Act identified in Mr. Aura’s prayers in the

Petition as set out earlier in this Ruling. We have therefore isolated

them and they shall therefore remain suspended, even as the rest of

that statute, and the other two suspended statutes, are unshackled for

operationalization and enforcement pending the hearing and

determination of the appeal.

For the avoidance of doubt we accordingly order as follows:

1. We hereby suspend the orders of the High Court restraining

the implementation and or enforcement of The Social Health

Insurance Act, 2023, The Primary Health Care Act, 2023

Page 20 of 22
 and The Digital Health Act, 2023, save for the following

provisions of the Social Health Insurance Act that shall

remain suspended pending the hearing and determination of

the applicant’s appeal in Civil Appeal No. E984 of 2023;

(a) Section 26(5) which makes registration and contribution a

precondition for dealing with or accessing public services

from the national and county governments or their entities.

(b) Section 27(4) which provides that a person shall only

access healthcare services where their contributions to the

Social Health Insurance Fund are up to date and active.

(c) Section 47(3) which obligates every Kenyan to be uniquely

identified for purposes of provision of health services.

2. In order to ensure that Civil Appeal No. E984 of 2023 is

heard and determined in expedited fashion, we direct that the

parties therein shall file and serve written submissions and

bundles of authorities in accordance with these timelines;

(a) The Applicant/Appellant and all parties in support of the

appeal within 7 days of today.

(b) The 1st Respondent within 7 days of being served with the

Appellant’s submissions.

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 (c) The Appellant shall file Rejoinder submissions if any,

within 5 days of being served by the 1st Respondent.

3. The Registrar of this Court shall thereafter allocate a hearing

date for Civil Appeal No. E984 of 2023 on a priority basis,

and no later than 31st March 2024.

4. The costs of this motion shall abide and follow the outcome in

Civil Appeal No. E984 of 2023.

Orders accordingly.

Dated and delivered at Nairobi this 19th day of January, 2024.

P. O. KIAGE

…………………..…………
JUDGE OF APPEAL

P. NYAMWEYA

……………..…...……………
JUDGE OF APPEAL

G. W. NGENYE-MACHARIA

…………………...……………
JUDGE OF APPEAL

I certify that this is a

true copy of the original.

Signed
DEPUTY REGISTRAR

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