Court lifts arrest orders on Governors following change in petition

The High Court sitting in Kiambu has set aside earlier court protections that had blocked arrests or detention of governors and several other public officers, after it emerged that the case they relied on had been substantially changed through proposed amendments.

Justice Bahati Mwamuye, while issuing the ruling on Tuesday, said the changes introduced by the petitioners shifted the original focus of the case in a way that made the existing orders no longer applicable.

“The proposed amendments fundamentally alter the substratum of the petition,” the judge ruled. “In the circumstances, it would be untenable to sustain conservatory orders that were granted on the basis of a different cause of action.”

The now-withdrawn orders had earlier stopped police and other investigative bodies from taking action against a number of county officials while the court considered the constitutional questions raised in the matter. This had the effect of temporarily freezing any enforcement steps pending the hearing of the case.

According to the court, such interim protections can only remain valid where the foundation of the case stays the same. When that foundation changes, the court must revisit whether the orders are still justified.

“Once the character of the petition changes, the court must reconsider whether interim protections remain justified,” he said.

The dispute arose from a constitutional petition filed in Kiambu, where the petitioners challenged the legality of possible arrest and prosecution of certain public officials. They argued that such actions would interfere with their rights and disrupt operations in county governments.

At the initial stage, the court granted conservatory orders to preserve the situation and prevent any enforcement action while the matter was being heard.

However, a later application by the petitioners to amend their case introduced new legal issues. While the court allowed the changes, it also noted that the shift affected the basis on which the earlier orders had been issued.

With the ruling now in place, investigative and enforcement agencies are free to proceed with arrests or any other lawful steps where necessary.

Legal commentators have noted that the decision highlights how interim court orders depend on the consistency of a case, and cannot stand when the main arguments before the court are altered.

The case will now continue under the revised petition, which is yet to be formally filed and served. Once completed, the court is expected to give further directions on how the matter will proceed.