Explainer: What happens when a High Court judge issues conservatory orders

Conservatory orders have taken centre stage in Kenya's courts following a series of rulings suspending major government programmes and agreements, reinforcing the judiciary's role in protecting constitutional order.

Most recently, the High Court temporarily suspended the implementation of the Sh208 billion Kenya–United States health cooperation framework after the Consumers Federation of Kenya (COFEK) challenged the deal.

Justice Bahati Mwamuye issued conservatory orders halting the agreement pending an inter partes hearing, citing concerns over legality, public participation and data protection.

In issuing the orders, the court stressed that it was duty-bound to intervene where constitutional questions arise, noting that "the Constitution obliges courts to act as guardians of legality whenever credible concerns are raised."

A conservatory order is a temporary directive issued in constitutional litigation to preserve the status quo until a case is fully heard. Unlike injunctions, which are common in private civil disputes, conservatory orders are grounded in public law and focus on safeguarding constitutional values rather than private interests.

Arguable constitutional issues

Courts grant these orders where a petitioner demonstrates that a case raises arguable constitutional issues and that failure to intervene could cause irreversible harm.

In the health deal case, the judge observed that "allowing the impugned agreement to proceed before the court interrogates its legality may render the petition an academic exercise."

Once issued, conservatory orders immediately suspend the challenged action. State agencies and officials are legally bound to comply, and a violation may amount to contempt of court — a serious offence punishable by fines or imprisonment.

Courts have repeatedly warned that "no person or authority is above a court order, regardless of the office they hold."

Not a determination of guilt

Importantly, judges consistently caution that conservatory orders are not a determination of guilt or legality.

"These orders do not pronounce themselves on the merits of the dispute," courts often state, but are interim safeguards meant to allow judicial scrutiny without external pressure or irreversible consequences.

The duration of conservatory orders varies. Some last until an interlocutory application is determined, while others remain in force until final judgment.

Courts retain discretion to review, vary or lift them if circumstances change, especially where public interest considerations evolve.

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While critics argue that such orders stall development and government operations, courts maintain that public interest includes fidelity to the Constitution.

As judges have repeatedly held, "development cannot be pursued at the expense of constitutional compliance." As recent rulings show, conservatory orders remain a powerful judicial tool for enforcing constitutional discipline in governance.