[ 1] Before the Court for determination is the Notice of Motion dated 8 th July 2025. It was filed by the respondents herein under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, for orders that:
[a] The Court be pleased to strike out the Amended Petition dated 7 th May 2025 for want of jurisdiction and lack of specificity.
[b] The Court be pleased to give such further reliefs as it may deem fit and just to.
[2] The application was supported by the affidavit of Mathews Odero , sworn on 8 th July 2025 on behalf of the respondents. The application is premised on the grounds that the petitioner’s Amended Petition is devoid of merit, is frivolous and vexatious and constitutes an abuse of the court process. The respondents further contended that the Amended Petition is fatally defective and incompetent as it does not present any constitutional question for application and/or interpretation. In addition, the respondents averred that the Amended Petition, as drawn and framed, offends the provisions of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules that stipulate that a constitutional petition must be pleaded with specificity and precision.
[3] Further to the foregoing, the respondents averred the petitioner had not exhausted the procedure provided for under the Access to Information Act before approaching the Court; and therefore it is in the interest of justice that the Amended Petition be struck out with costs to the respondents.
[4] The petitioner, on the other hand, opposed the application contending that it is frivolous and merely intended to delay and defeat the just, fair and expeditious determination of the Petition. He averred that the Court has the jurisdiction to handle the issues raised in his Petition, particularly the questions of discrimination and inequality under Article 27 ; whether there was violation of the right to fair administrative action under Article 47 and the right to fair hearing under Article 50 of the Constitution. He further averred that the Petition has been pleaded with clarity, precision and specificity and therefore meets the threshold outlined in the case of Anarita Karimi Njeru v Republic [1979] eKLR.
[5] The application was canvassed by way of written submissions. In the respondents’ written submissions dated 10 th March 2026 they proposed one issue for determination, namely, whether the jurisdiction of the Court has been invoked properly by the petitioner. Under that broad issue, they made submissions as to whether the Petition was pleaded in compliance with the requirement as to specificity as set out in the case of Anarita Karimi Njeru (supra); whether the petitioner exhausted the alternative remedies available before approaching the Court; and whether the Petition raises any valid constitutional issue at all worth consideration under Article 165(3)(b) of the Constitution.
[6] The respondents relied on Macharia & another v KCB Ltd & 2 others [2012] KESC 8 (KLR) and pointed out that from the pleadings filed herein, particularly the Amended Petition, the predominant issue is the question whether the Amended Memorandum and Articles of Association that introduced minimum share in order to contest for elections was prematurely implemented before the amended documents were lodged with the Registrar of Companies. Therefore, the respondents posited that since the predominant issue is of a commercial nature, the options available to the petitioner were either to explore alternative dispute resolution mechanisms within the company structure or file a derivative suit invoking the commercial jurisdiction of the Court.
[7] The respondents relied on Foss v Harbottle [1843] 2 Hare 461, Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd & another [2018] KEELC (KLR), Smith & another v Kenya Deposit Insurance Corporation (As Receiver of Chase Bank Ltd) & another [2025] KECA 294 (KLR) and Jacob Juma v Evans Kidero, the Governor Nairobi County Government [2016] KEHC 7942 (KLR), among others, to support their arguments. In the same vein, they urged the Court to find that the issues raised in the Amended Petition do not amount to constitutional issues and therefore the Petition as amended falls short of the requisite threshold set in Anarita.
[8] Lastly, the respondents submitted that, for purposes of the right of access to information under Article 47 of the Constitution, it was imperative for the petitioner to first employ the procedure provided for in Sections 14 and 23 of the Access to Information Act. In this regard, they relied on Speaker of the National Assembly v Karume [1992] KLR 21 and Osman v Registrar of Political Parties & another [2024] KEHC 614 (KLR) for their submission that the petitioner ought to have exhausted the procedure provided for under the Access to Information Act and only approach the High Court at the appellate level. Hence, they prayed that the Petition be struck out with costs.
[9] On his part, the petitioner proposed the following issues for determination in his written submissions dated 4 th March 2026:
[a] Whether or not the Court has jurisdiction to entertain the Petition and if so, does the Petition meet the threshold of a constitutional petition?
[b] Who shall bear the costs of the application?
[10] The petitioner relied on the cases of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (supra) on the paramountcy of jurisdiction. He nevertheless urged the Court to dismiss the respondents’ argument on the basis that it was premised on pre-2010 jurisprudence. According to the petitioner, the Court has jurisdiction under Article 165(3)(a) and (b) of the Constitution to determine questions concerning interpretation of the Constitution. He submitted that the Court’s constitutional jurisdiction is not a last resort one but a primary forum for the enforcement of the Bill of Rights.
[11] In terms of the supervisory jurisdiction of the Court under Article 165(6) and (7) of the Constitution, the petitioner submitted that the decision of the Dispute Resolution Committee of the 1 st respondent is a classic example of breach of the Wednesbury’s principles and therefore falls under the Court’s supervisory jurisdiction for purposes of correction. In response to the respondents’ argument that the issues complained of fall within the Foss v Harbottle Rule , the petitioner posed the question as to the place of public law in the management of the companies and urged the Court to afford him a hearing to articulate his grievance to its logical conclusion by disallowing the application.
[12] Having given due consideration to the application, the parties’ respective affidavits and the written submissions filed on their behalf by learned counsel, the issues emerging for consideration are as follows:
[a] Whether it was pleaded with the requisite specificity;
[b] Whether the Petition is premature on account of failure by the petitioners to exhaust the alternative dispute resolution mechanisms available.
A. On the Requirement for Specificity:
[13] The requirement for specificity was enunciated in the case of Anarita Karimi Njeru, it was held that:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[14] The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle . What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[15] Similarly, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court restated the position as follows: -
“[34]…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[16] Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. How, then, is this precision achieved and what are the guiding posts? The answer to that question is to be found in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). It states:
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner.
[17] I have looked at the Petition dated 31 st October 2024 as amended on 7 th May 2025 and noted that, at pages 2 to 10 thereof, the petitioner provided a description of the parties and the facts relied on in support of the Petition. The petitioner also set out the provisions of the Constitution alleged to have been violated, as well as the nature and particulars of injuries caused by the alleged violations and the reliefs sought.
[18] It is instructive that Sub Rule (3) of Rule 10 of the Mutunga Rules recognizes that:
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
[19] In this regard, I am persuaded by the position taken by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] KEHC 7697 (KLR) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[20] The Court of Appeal was of a similar view in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. It held:
“…precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[21] It is therefore not necessarily fatal that, the reliefs asked for in the Amended Petition may sound more in commercial law than constitutional, the powers of the Court under Article 23 are wide enough to give appropriate reliefs should it find that indeed the rights of the petitioner were violated. I entirely agree with the position taken in Ayuma & 11 others (Suing on their own Behalf and on Behalf of Muthurwa Residents) v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others; Kothari (Interested Party) (Petition 65 of 2010) [2013] KEHC 6003 (KLR) (Constitutional and Human Rights) (30 August 2013) (Judgment) that:
“…from a wide definition of the term “person” as contained in article 260, the intention of the framers of the Constitution was to have both a vertical and a horizontal application of the Bill of Rights. I therefore find that the petitioners are entitled to file a claim under article 22 before this court alleging a violation of the petitioners rights by any of the respondents, and the court can properly grant an appropriate relief as envisaged by article 23 of the Constitution …”
[22] It is therefore my finding that the Petition as amended was pleaded with the requisite specificity and that it raises proper issues for determination by the Court.
B. On the Doctrine of Exhaustion:
[23] The exhaustion doctrine was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[24] The same argument was presented in support of this limb of the respondents’ application; the contention of the respondents being that the petitioner did not exhaust the alternative dispute resolution mechanisms available to him before rushing to court. Indeed, i n Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[25] The petitioner averred that he in fact pursued his grievances with the respondents before filing the instant Petition. This is particularly manifest at paragraph 16 of the petitioner’s Replying Affidavit. Annexure “AKM-2” confirms that indeed a decision taken by the Dispute Resolution Committee upholding the 1 st respondent’s appeal. In the premises, the respondents’ assertion that the Petition is barred by the doctrine of exhaustion has no basis.
[26] Further to the foregoing, it is also trite that there are exceptions to the rule. For instance, in National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) (10 June 2022) (Judgment), the Court of Appeal held:
“…On exhaustion of other legal relief or other constitutional remedies, where an alternative remedy would entail delay or uncertainty in providing a remedy, then such an alternative remedy is not available or effective and the doctrine of exhaustion does not apply. In addition, when the constitutionality of a statute is legitimately challenged, the only available remedy is to urge the court to nullify the offending provisions…”
[27] Similarly, in Kenya Ports Authority v Threeways Shipping Services (K) Ltd [2019] eKLR, the Court of Appeal held (at paragraph 30) that:
“…We also bear in mind that access to justice as enshrined in Article 48 of the Constitution is a fundamental right, that cannot be derogated from. Whereas Alternative Dispute Resolution (ADR), such as arbitration, is crucial in expeditious disposal of disputes, by its very nature ADR is inferior to the principle of access to justice...”
[28] The same positon was taken in Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR:
“While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume {1992} KLR 21 ), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective . Thus, in the case of Dawda K. Jawara vs Gambia it was held that:
"A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
[29] Lastly, in Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, thus:
“46. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
47. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake…”
[30] As has been pointed out herein above, the petitioner herein is seeking to have the decision of the Chairman of the Kenya Tea Development Authority Farmers Co. Ltd quashed. That is a relief anchored on Article 47 of the Constitution and therefore brings the matter within the jurisdiction of the Court for purposes of Articles 165(3), (6) and (7) of the Constitution and is, by itself sufficient to sustain the Petition. As was held in Tom Odhiambo Achillah T/A Achilla T.O & Co Advocates vs. Kenneth Wabwire Akide T/A Akide & Company Advocates & 3 Others [2015] eKLR:
“Summary determinations of cases are Draconian and drastic and should only be applied in plain and obvious cases both as regards the facts and the law. In a matter that alleges that the suit is scandalous, frivolous and vexatious, and otherwise an abuse of the court process, I must be satisfied that the suit has no substance, or is fanciful or the Plaintiff is trifling with the court or the suit is not capable of reasoned argument; it has no foundation, no chance of succeeding and is only brought merely for purpose of annoyance or to gain fanciful advantage and will lead to no possible good...”
[31] It is therefore my resultant finding that the application lacks merit. It is hereby dismissed with costs.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026
[a] The Court be pleased to strike out the Amended Petition dated 7 th May 2025 for want of jurisdiction and lack of specificity.
[b] The Court be pleased to give such further reliefs as it may deem fit and just to.
[2] The application was supported by the affidavit of Mathews Odero , sworn on 8 th July 2025 on behalf of the respondents. The application is premised on the grounds that the petitioner’s Amended Petition is devoid of merit, is frivolous and vexatious and constitutes an abuse of the court process. The respondents further contended that the Amended Petition is fatally defective and incompetent as it does not present any constitutional question for application and/or interpretation. In addition, the respondents averred that the Amended Petition, as drawn and framed, offends the provisions of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules that stipulate that a constitutional petition must be pleaded with specificity and precision.
[3] Further to the foregoing, the respondents averred the petitioner had not exhausted the procedure provided for under the Access to Information Act before approaching the Court; and therefore it is in the interest of justice that the Amended Petition be struck out with costs to the respondents.
[4] The petitioner, on the other hand, opposed the application contending that it is frivolous and merely intended to delay and defeat the just, fair and expeditious determination of the Petition. He averred that the Court has the jurisdiction to handle the issues raised in his Petition, particularly the questions of discrimination and inequality under Article 27 ; whether there was violation of the right to fair administrative action under Article 47 and the right to fair hearing under Article 50 of the Constitution. He further averred that the Petition has been pleaded with clarity, precision and specificity and therefore meets the threshold outlined in the case of Anarita Karimi Njeru v Republic [1979] eKLR.
[5] The application was canvassed by way of written submissions. In the respondents’ written submissions dated 10 th March 2026 they proposed one issue for determination, namely, whether the jurisdiction of the Court has been invoked properly by the petitioner. Under that broad issue, they made submissions as to whether the Petition was pleaded in compliance with the requirement as to specificity as set out in the case of Anarita Karimi Njeru (supra); whether the petitioner exhausted the alternative remedies available before approaching the Court; and whether the Petition raises any valid constitutional issue at all worth consideration under Article 165(3)(b) of the Constitution.
[6] The respondents relied on Macharia & another v KCB Ltd & 2 others [2012] KESC 8 (KLR) and pointed out that from the pleadings filed herein, particularly the Amended Petition, the predominant issue is the question whether the Amended Memorandum and Articles of Association that introduced minimum share in order to contest for elections was prematurely implemented before the amended documents were lodged with the Registrar of Companies. Therefore, the respondents posited that since the predominant issue is of a commercial nature, the options available to the petitioner were either to explore alternative dispute resolution mechanisms within the company structure or file a derivative suit invoking the commercial jurisdiction of the Court.
[7] The respondents relied on Foss v Harbottle [1843] 2 Hare 461, Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd & another [2018] KEELC (KLR), Smith & another v Kenya Deposit Insurance Corporation (As Receiver of Chase Bank Ltd) & another [2025] KECA 294 (KLR) and Jacob Juma v Evans Kidero, the Governor Nairobi County Government [2016] KEHC 7942 (KLR), among others, to support their arguments. In the same vein, they urged the Court to find that the issues raised in the Amended Petition do not amount to constitutional issues and therefore the Petition as amended falls short of the requisite threshold set in Anarita.
[8] Lastly, the respondents submitted that, for purposes of the right of access to information under Article 47 of the Constitution, it was imperative for the petitioner to first employ the procedure provided for in Sections 14 and 23 of the Access to Information Act. In this regard, they relied on Speaker of the National Assembly v Karume [1992] KLR 21 and Osman v Registrar of Political Parties & another [2024] KEHC 614 (KLR) for their submission that the petitioner ought to have exhausted the procedure provided for under the Access to Information Act and only approach the High Court at the appellate level. Hence, they prayed that the Petition be struck out with costs.
[9] On his part, the petitioner proposed the following issues for determination in his written submissions dated 4 th March 2026:
[a] Whether or not the Court has jurisdiction to entertain the Petition and if so, does the Petition meet the threshold of a constitutional petition?
[b] Who shall bear the costs of the application?
[10] The petitioner relied on the cases of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (supra) on the paramountcy of jurisdiction. He nevertheless urged the Court to dismiss the respondents’ argument on the basis that it was premised on pre-2010 jurisprudence. According to the petitioner, the Court has jurisdiction under Article 165(3)(a) and (b) of the Constitution to determine questions concerning interpretation of the Constitution. He submitted that the Court’s constitutional jurisdiction is not a last resort one but a primary forum for the enforcement of the Bill of Rights.
[11] In terms of the supervisory jurisdiction of the Court under Article 165(6) and (7) of the Constitution, the petitioner submitted that the decision of the Dispute Resolution Committee of the 1 st respondent is a classic example of breach of the Wednesbury’s principles and therefore falls under the Court’s supervisory jurisdiction for purposes of correction. In response to the respondents’ argument that the issues complained of fall within the Foss v Harbottle Rule , the petitioner posed the question as to the place of public law in the management of the companies and urged the Court to afford him a hearing to articulate his grievance to its logical conclusion by disallowing the application.
[12] Having given due consideration to the application, the parties’ respective affidavits and the written submissions filed on their behalf by learned counsel, the issues emerging for consideration are as follows:
[a] Whether it was pleaded with the requisite specificity;
[b] Whether the Petition is premature on account of failure by the petitioners to exhaust the alternative dispute resolution mechanisms available.
A. On the Requirement for Specificity:
[13] The requirement for specificity was enunciated in the case of Anarita Karimi Njeru, it was held that:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[14] The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle . What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[15] Similarly, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court restated the position as follows: -
“[34]…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[16] Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. How, then, is this precision achieved and what are the guiding posts? The answer to that question is to be found in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). It states:
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner.
[17] I have looked at the Petition dated 31 st October 2024 as amended on 7 th May 2025 and noted that, at pages 2 to 10 thereof, the petitioner provided a description of the parties and the facts relied on in support of the Petition. The petitioner also set out the provisions of the Constitution alleged to have been violated, as well as the nature and particulars of injuries caused by the alleged violations and the reliefs sought.
[18] It is instructive that Sub Rule (3) of Rule 10 of the Mutunga Rules recognizes that:
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court.
[19] In this regard, I am persuaded by the position taken by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] KEHC 7697 (KLR) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[20] The Court of Appeal was of a similar view in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. It held:
“…precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[21] It is therefore not necessarily fatal that, the reliefs asked for in the Amended Petition may sound more in commercial law than constitutional, the powers of the Court under Article 23 are wide enough to give appropriate reliefs should it find that indeed the rights of the petitioner were violated. I entirely agree with the position taken in Ayuma & 11 others (Suing on their own Behalf and on Behalf of Muthurwa Residents) v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others; Kothari (Interested Party) (Petition 65 of 2010) [2013] KEHC 6003 (KLR) (Constitutional and Human Rights) (30 August 2013) (Judgment) that:
“…from a wide definition of the term “person” as contained in article 260, the intention of the framers of the Constitution was to have both a vertical and a horizontal application of the Bill of Rights. I therefore find that the petitioners are entitled to file a claim under article 22 before this court alleging a violation of the petitioners rights by any of the respondents, and the court can properly grant an appropriate relief as envisaged by article 23 of the Constitution …”
[22] It is therefore my finding that the Petition as amended was pleaded with the requisite specificity and that it raises proper issues for determination by the Court.
B. On the Doctrine of Exhaustion:
[23] The exhaustion doctrine was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[24] The same argument was presented in support of this limb of the respondents’ application; the contention of the respondents being that the petitioner did not exhaust the alternative dispute resolution mechanisms available to him before rushing to court. Indeed, i n Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[25] The petitioner averred that he in fact pursued his grievances with the respondents before filing the instant Petition. This is particularly manifest at paragraph 16 of the petitioner’s Replying Affidavit. Annexure “AKM-2” confirms that indeed a decision taken by the Dispute Resolution Committee upholding the 1 st respondent’s appeal. In the premises, the respondents’ assertion that the Petition is barred by the doctrine of exhaustion has no basis.
[26] Further to the foregoing, it is also trite that there are exceptions to the rule. For instance, in National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR) (10 June 2022) (Judgment), the Court of Appeal held:
“…On exhaustion of other legal relief or other constitutional remedies, where an alternative remedy would entail delay or uncertainty in providing a remedy, then such an alternative remedy is not available or effective and the doctrine of exhaustion does not apply. In addition, when the constitutionality of a statute is legitimately challenged, the only available remedy is to urge the court to nullify the offending provisions…”
[27] Similarly, in Kenya Ports Authority v Threeways Shipping Services (K) Ltd [2019] eKLR, the Court of Appeal held (at paragraph 30) that:
“…We also bear in mind that access to justice as enshrined in Article 48 of the Constitution is a fundamental right, that cannot be derogated from. Whereas Alternative Dispute Resolution (ADR), such as arbitration, is crucial in expeditious disposal of disputes, by its very nature ADR is inferior to the principle of access to justice...”
[28] The same positon was taken in Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR:
“While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume {1992} KLR 21 ), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective . Thus, in the case of Dawda K. Jawara vs Gambia it was held that:
"A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
[29] Lastly, in Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, thus:
“46. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
47. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake…”
[30] As has been pointed out herein above, the petitioner herein is seeking to have the decision of the Chairman of the Kenya Tea Development Authority Farmers Co. Ltd quashed. That is a relief anchored on Article 47 of the Constitution and therefore brings the matter within the jurisdiction of the Court for purposes of Articles 165(3), (6) and (7) of the Constitution and is, by itself sufficient to sustain the Petition. As was held in Tom Odhiambo Achillah T/A Achilla T.O & Co Advocates vs. Kenneth Wabwire Akide T/A Akide & Company Advocates & 3 Others [2015] eKLR:
“Summary determinations of cases are Draconian and drastic and should only be applied in plain and obvious cases both as regards the facts and the law. In a matter that alleges that the suit is scandalous, frivolous and vexatious, and otherwise an abuse of the court process, I must be satisfied that the suit has no substance, or is fanciful or the Plaintiff is trifling with the court or the suit is not capable of reasoned argument; it has no foundation, no chance of succeeding and is only brought merely for purpose of annoyance or to gain fanciful advantage and will lead to no possible good...”
[31] It is therefore my resultant finding that the application lacks merit. It is hereby dismissed with costs.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026