A conservatory order is a temporary court instruction that freezes a situation or stops a particular action from proceeding, while a case is still being argued and decided.
Think of it as a pause button that a court presses when it believes that allowing something to continue unchecked could cause harm that is difficult or impossible to undo, even if the full case eventually goes the other way.
In Kenya, conservatory orders in constitutional matters are anchored in Article 23 of the Constitution. It empowers the High Court to grant appropriate relief for the enforcement of the Bill of Rights.
How is it different from an injunction?
An injunction is a broader judicial order; it can be temporary or permanent, and it directs a party to do or not do something. A conservatory order is a constitutional law tool, used in cases involving rights or constitutional questions where the stakes of getting it wrong are particularly high.
In practice, when Kenyans hear about courts “stopping” the government from doing something such as building a facility, enforcing a law, or implementing a decision, that stopping mechanism is usually either a conservatory order or an injunction, or both applied together.
What does a court look for before granting one?
Courts in Kenya apply a three-part test before granting a conservatory order.
First, is there a serious issue to be tried, meaning the case is not frivolous and raises genuine legal questions?
Second, would the applicant suffer harm that money cannot adequately compensate, if the order is not granted?
Third, where does the balance of convenience lie; in other words, which outcome causes less damage: granting the order or refusing it?
This is why conservatory orders are not automatic. A petitioner must demonstrate to the court’s satisfaction that the case is real, the risk is real, and the cost of not pausing the situation outweighs the cost of pausing it.
The one thing to remember
A conservatory order is not a verdict. It is a pause. It says the question is important enough to deserve a proper answer, and that while we wait for that answer, nobody should be allowed to act in ways that cannot be undone.
In a constitutional democracy, that pause is itself a form of protection. It is the court telling power: not yet, not without scrutiny, not without the law.
