By Joseph Njogu
An interim court order can protect the Constitution, preserve the subject matter of litigation and prevent irreversible injustice. But when temporary orders paralyse businesses, sporting competitions and major investments for months, without prompt inter partes hearings, the question is whether Kenya has struck the right balance between access to justice and commercial certainty.
Imagine 18 football clubs preparing to begin a new season. Players have trained, sponsors have committed money, broadcasters have scheduled matches and supporters have bought tickets. Then, hours before kick-off, a court order brings the competition to a halt.
This is not simply a hypothetical scenario. In September 2026, the Football Kenya Federation (FKF) postponed the start of the 2026/27 Premier League season following court orders arising from disputes involving Kariobangi Sharks, Mombasa United and the composition of the competition.
Safaricom CEO Peter Ndegwa. Photo: @PeterNdegwa_/X
One order required a promotion-relegation play-off before the competition proceeded. Another directed the provisional inclusion of Mombasa United as the 18th club. FKF said the orders created difficulties in proceeding with the scheduled matches.
The disputes may be genuine. The parties may have legitimate grievances. The judges may have acted out of a sincere desire to prevent injustice. Yet the consequences extend far beyond the litigants. Clubs lose revenue, players lose playing time, sponsors question their commitments and supporters are left disappointed.
The FKF Premier League postponement demonstrates how judicial intervention can affect an entire sporting competition before the underlying disputes are conclusively determined.
This is not merely a sporting problem. It raises a fundamental question about the administration of justice: how should the courts balance the right to seek judicial protection against the public and economic costs of prolonged interim relief?
The same question arises in major corporate transactions, infrastructure projects and investments involving billions of shillings.
Judiciary
The extraordinary power of a temporary order
An interim order is not a final determination of the rights of the parties. Its purpose is to preserve the position, prevent irreparable harm or ensure that the eventual judgment is not rendered meaningless.
That power is indispensable in a constitutional democracy. Without it, public bodies could implement unlawful decisions before affected citizens had an opportunity to challenge them. Property could be transferred, evidence destroyed, public resources dissipated and constitutional rights violated before a court could intervene.
But interim relief has another characteristic: its practical effects can be enormous even when its legal status is temporary.
Consider the dispute surrounding the Government of Kenya’s sale of a 15 per cent stake in Safaricom to Vodacom.
On May 18, 2026, a three-judge High Court bench issued a conservatory order restraining the transaction pending determination of a constitutional petition.
The transaction subsequently proceeded, but on September 15, 2026, the High Court nullified the sale, finding constitutional and legal violations, including deficiencies in public participation.
The Safaricom share sale judgment ordered restoration of the shares to government ownership. On October 13, the Court of Appeal declined to suspend that judgment pending appeal.
The Safaricom case illustrates both sides of the argument. Judicial intervention can interrupt a major transaction, but it can also expose substantive constitutional defects that require correction.
A transaction may be suspended. Financing arrangements may collapse. Contractual deadlines may expire. Investors may incur substantial losses. A business may suffer reputational damage that no subsequent judgment can fully repair.
An order described as temporary can therefore produce consequences that are difficult, if not impossible, to reverse.
The problem is not that courts issue interim orders. The problem arises when the duration and practical consequences of those orders become disproportionate to the urgency that justified them.
The constitutional petition: inexpensive to file, expensive to defend
The cost of filing a constitutional petition is not necessarily comparable to the financial exposure that the proceedings can create.
A petition that begins with relatively modest expenditure can require extensive legal research, affidavits, documentary evidence, several court appearances and years of litigation.
For a company defending a transaction worth billions of shillings, the legal and commercial costs may be substantial.
The proposed acquisition of Diageo’s controlling stake in East African Breweries PLC (EABL) by Japan’s Asahi Group Holdings provides another example.
In January 2026, the High Court issued temporary preservation directions affecting the final completion steps of the transaction while allowing regulatory processes to continue.
In February, the court declined to extend an interim restraint sought by Bia Tosha Distributors Limited. Further proceedings followed, including applications that different courts declined to grant.
In June, EABL sought the Chief Justice’s intervention over what it described as conflicting court orders and parallel proceedings concerning the transaction.
The EABL–Asahi court dispute highlights the commercial uncertainty that can arise when multiple proceedings affect the same acquisition. <Cite refs={[“turn196459search1″,”turn196459search0″,”turn196459search8″,”turn196459search11”]}/>
This creates an imbalance that deserves careful attention. A petitioner may obtain an urgent order at relatively little initial expense, while the respondent bears the immediate burden of complying with it, seeking its discharge and defending the substantive proceedings.
However, the ability to approach a court must not depend on a litigant’s financial strength. The right to challenge an unlawful transaction is especially important where the disputed decision involves public resources, constitutional obligations or powerful commercial interests.
The challenge is to distinguish legitimate public-interest litigation from procedural abuse without discouraging citizens from seeking judicial protection.
The delicate balance between public interest and commercial certainty
Consider a major corporate acquisition. The transaction may have received approvals from the relevant regulators, undergone due diligence and proceeded on the basis of legal advice. Yet a subsequent petition may seek to suspend or reverse it.
Regulatory approval does not place a transaction beyond constitutional scrutiny. Regulators can make mistakes, statutory requirements can be violated and a transaction can raise legitimate questions about competition, taxation, public interest or compliance with the law.
Equally, the mere filing of a petition does not establish that a transaction is unlawful.
The legal disputes surrounding the proposed Dangote East Africa Refinery in Lamu demonstrate how this tension extends beyond corporate acquisitions into major infrastructure investments.
In September 2026, the Environment and Land Court directed parties to maintain the status quo concerning disputed land associated with the planned Ksh2.2 trillion refinery.
The land dispute involved residents asserting interests in property associated with the proposed development.
The order did not amount to a blanket prohibition on the refinery’s launch. Nevertheless, it introduced legal considerations that could affect activities involving the disputed land.
Separately, in October, the High Court certified as urgent a petition seeking disclosure of agreements and public commitments associated with the refinery, including questions concerning public resources and government obligations.
The Dangote refinery litigation illustrates why large investments must be examined through two lenses: the legitimate rights of affected communities and the need for predictable project implementation. <Cite refs={[“turn196459search15″,”turn196459search9″,”turn196459news38”]}/>
Investors need confidence that lawful agreements will be respected. Communities need confidence that development will not override their property rights or constitutional protections.
Neither objective should automatically defeat the other.
The Safaricom, EABL and Dangote disputes demonstrate that judicial scrutiny is not inherently an obstacle to investment. In some circumstances, it is necessary to ensure that investments comply with the law.
However, where temporary orders remain unresolved for extended periods, the uncertainty itself can become a significant commercial burden.
The objective must be neither to shield businesses from constitutional accountability nor to allow commercial transactions to be paralysed indefinitely by unresolved interlocutory disputes.
It must be to protect the rule of law while preserving reasonable certainty in economic affairs.
Eight reforms worth considering
The Chief Justice and the Judiciary can improve the management of interim relief without compromising judicial independence or the constitutional right of access to justice.
1. A transparent register of significant interim orders.
The Judiciary should consider publishing a searchable register of significant interim orders affecting major transactions, public infrastructure and other enterprises of substantial public importance.
Such a register could record the court, case number, date of issuance, duration, next hearing date and subsequent variation or discharge of each order.
This would improve transparency and help affected parties understand the status of proceedings.
2. Prompt return dates and periodic review.
Urgent ex parte orders should ordinarily specify an early return date at which the affected parties can be heard.
Orders should be reviewed in light of the evidence and developments in the case.
Where interim relief substantially affects public services or major economic activities, the courts should prioritise prompt inter partes hearings.
3. Verification and full disclosure.
A person seeking urgent relief should provide sufficient information to establish standing, explain the alleged harm and disclose material facts, including previous applications concerning the same subject matter.
Courts should be particularly attentive to related proceedings that may create a risk of inconsistent directions.
Full disclosure protects both the integrity of the judicial process and the interests of parties who may be affected by urgent orders.
4. Appropriate and proportionate safeguards.
Courts should consider undertakings in damages or security for costs where legally appropriate and proportionate to the circumstances.
Such measures can discourage abusive applications and help address the harm caused by unjustified injunctions.
However, safeguards must not become financial barriers that prevent ordinary citizens or public-interest litigants from challenging unlawful conduct.
5. Proper allocation of commercial disputes.
Proceedings whose substance is a commercial dispute should ordinarily be allocated to the appropriate commercial court or division, where jurisdictional rules permit.
Constitutional questions must remain within the jurisdiction of courts empowered to determine them.
Proper allocation can improve case management, reduce duplication and ensure that disputes receive appropriate judicial attention.
6. Expedited hearings for exceptionally large transactions.
For transactions of substantial economic significance, the Judiciary could consider expedited hearings and appropriate case-management directions.
A threshold of Ksh1 billion, for example, might be explored as a policy criterion for prioritisation.
The purpose would not be to give wealthy litigants preferential treatment, but to recognise that prolonged uncertainty surrounding major transactions can affect employment, public revenue, financing and wider economic activity.
7. Coordination of related proceedings.
Where substantially identical applications concerning the same transaction are filed in different courts, mechanisms for disclosure, transfer, consolidation or coordinated case management should be used.
The EABL litigation demonstrates the importance of preventing parallel proceedings from creating uncertainty over which judicial directions govern a transaction.
Better coordination would help preserve consistency while respecting the independence of individual judges.
8. Accountability without intimidation.
The Judicial Service Commission and the Judiciary should examine systemic patterns involving delayed hearings, repeated applications, inconsistent orders and prolonged interim relief.
Such reviews should focus on administrative efficiency, case management and compliance with established procedures rather than interference with judicial decision-making.
The interim court order is among the most consequential instruments of judicial power. It can protect constitutional rights, but its effects can also shape events long before the underlying dispute has been decided.
The Chief Justice cannot dictate how judges decide cases. The office can, however, promote sound case management, improve administrative transparency and support procedures that bring urgent disputes to a timely hearing.
Kenya’s experience with the FKF Premier League, Safaricom, EABL and the Dangote refinery demonstrates why this balance matters.
The ultimate objective is simple: protect the Constitution without turning interim relief into a substitute for a final judgment.
The writer is a communications expert who comments on topical issues. You can reach him at newstodayke@gmail.com.