REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E241 OF 2026
IN THE MATTER OF: ARTICLES 1, 2(1) & (2), 3(1), 10(1) & (2), 19, 20, 21, 22, 23, 27, 28, 35, 42, 43(1)(A), 46, 47, 69, 73, 129, 153, 159(2)(D), 201(A), (D) & (E), 227, 232 AND 258 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 10, 35, 42, 43(1)(A), 46, 47, 201, 227 AND 232 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ENERGY ACT, NO. 1 OF 2019 LAWS OF KENYA
AND
IN THE MATTER OF: THE PETROLEUM ACT, 2019 AND APPLICABLE PETROLEUM QUALITY, SAFETY AND REGULATORY STANDARDS
AND
IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015 LAWS OF KENYA
AND
IN THE MATTER OF: THE ACCESS TO INFORMATION ACT, NO. 31 OF 2016 LAWS OF KENYA
AND
IN THE MATTER OF: THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (EMCA), CAP 387 LAWS OF KENYA
AND
IN THE MATTER OF: THE CONSUMER PROTECTION ACT, NO. 46 OF 2012 LAWS OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF: ALLEGED UNLAWFUL REGULATORY FAILURE, STRUCTURAL CONFLICT OF INTEREST IN PETROLEUM QUALITY ASSURANCE, AND THE EXPOSURE OF KENYAN CONSUMERS AND THE GENERAL PUBLIC TO CHEMICALLY CONTAMINATED FUEL IN VIOLATION OF THE CONSTITUTION
-BETWEEN-
CONSUMERS FEDERATION OF KENYA (COFEK) ......... PETITIONER
-VERSUS-
THE CABINET SECRETARY MINISTRY OF ENERGY AND PETROLEUM ................................................................... 1 ST RESPONDENT
THE ENERGY AND PETROLEUM REGULATORY AUTHORITY (EPRA) ............................................................................... 2 ND RESPONDENT
SOCIÉTÉ INDUSTRIELLE ET COMMERCIALE DE PRODUITS ALIMENTAIRES S.A SICPA SA ..................................... 3 RD RESPONDENT
SGS (KENYA) LIMITED ................................................ 4 TH RESPONDENT
THE HON. ATTORNEY GENERAL ............................. 5 TH RESPONDENT
RULING ON PRELIMINARY OBJECTIONS
1. Before this Court for determination are two Notices of Preliminary Objections filed by the 2 nd and 4 th Respondents herein both dated 13 th May 2026. The 2 nd Respondent The Energy And Petroleum Regulatory Authority (EPRA) opposes the Petition and the Notice of Motion filed by the Petitioner dated evenly on 15 th April 2026 seeking for conservatory orders on the following grounds:
(1 This Honourable Court lacks the requisite jurisdiction to entertain this matter as the suit is premature in light of the Doctrine on Exhaustion of internal disputes resolution mechanisms and Section 23 of the Energy Act Cap 314 Laws of Kenya.
(2 The Petitioner/Applicant has failed to invoke or exhaust the mandatory dispute resolution mechanisms as provided for by dint of Sections 10 (dd), 11(i), 25 and 36 of the Energy Act, Cap 314 Laws of Kenya.
(3 The suit as presented transgresses the Doctrine of Exhaustion of remedies as the Applicant/Petitioner has invoked the wrong forum for the grievances set out therein while disdaining the provisions under Article 159(2) (c) of the Constitution of Kenya, 2010, Section 9 (2) of the Fair Administrative Action Act, Cap 7L and the provisions of the Energy Act, Cap. 314.
(4 The Application and Petition are otherwise and abuse of the court process.
2. The 4 th Respondent SGS (Kenya) Limited’s Notice of Motion also opposes the Petitioner’s Petition and the Notice of Motion filed under Certificate of Urgency on the following grounds:
(1 The Jurisdiction of this Honourable Court has been wrongly and prematurely invoked in relation to the issues for which specific and exclusive avenues/mechanisms have been established and in particular that:
(a) The substratum of the Petition is premised on upstream petroleum operations as defined under Section 2 of the Petroleum Act whose disputes fall within the ambit of the Energy and Petroleum Regulatory Authority for determination in the first instance pursuant to Section 117(2) of the Petroleum Act.
(b) The supposed dissatisfaction of the clearance, certification and/ or authorization of petroleum products undertaken under the alleged Fuel Integrity Solution Framework falls squarely within complaints or disputes arising from petroleum operations to be referred to the Energy and Petroleum Regulatory Authority for determination pursuant to Section 10 (dd) of the Energy Act;
(c) The Energy and Petroleum Tribunal enjoys the requisite and mandated jurisdiction to determine disputes concerning the energy and petroleum sector arising under the Energy Act and the Petroleum Act pursuant to Section 35 of the Energy Act;
(d) The jurisdiction of the Honourable Court pursuant to Section 37 of the Energy Act is appellate in nature and not invoked in the first instance.
(2 The Petition and Application offend the doctrine of exhaustion of alternative remedies and Constitutional avoidance.
(3 For the reasons stated, the Petition and Application amount to a manifest abuse of the process of this Honourable Court.
3. Neither the Petitioner nor the other parties filed any responses to the Notices of Preliminary Objections. When the parties appeared before this Court on 14 th May 2026, they took directions to canvass the Preliminary Objections through written submissions and to later make oral highlights.
4. The written submissions as well as the oral submissions of the parties made on 9 th June 2026 are summarized as hereunder.
The oral Submissions
5. Mr. Awele, Learned Counsel for the 2 nd Respondent filed written submissions dated 25 th May 2026 and submitted that the Petition concerns constitutional violations of the 2 nd Respondent and that the Petitioner raises concerns of the mandates of the 2 nd Respondent, which have to first be filed before the Energy Tribunal.
6. On allegations of abdication of duty by the Regulatory Authority, Counsel submitted that such issues revolve around the mandate of the Authority and are within the regulatory mandate of the 2 nd Respondent. That it is trite law that where a statute creates a platform for resolution of disputes, those mechanisms must be exhausted before the dispute can be ripe for the court.
7. Counsel submitted that the doctrine of exhaustion is expressly provided for in Section 9 of Fair Administrative Action Act and as read with the Energy Act. That even when exceptions exist, the mechanisms can only be bypassed by an application and the court must be satisfied that the exceptions are proven and makes an order. It is submitted that no exceptions or compelling reasons have been advanced before this Court.
8. Counsel submits that they have also raised the doctrine of ripeness and justiciability of the issues raised by the Petitioners. That the issues raised are technical and call on this Court to call on expert opinion on the issues raised, yet the Tribunal was established as a specialised entity to resolve issues such as those raised.
9. Counsel asserts that the Petition came prematurely to usurp the regulatory mandate of the Tribunal and to substitute its opinion. It is his submission that the Petitioners had time to file a dispute before the Authority and that they came to Court before the statutory timeline had elapsed.
10. Mr. Marete counsel for the 3 rd Respondent submitted relying on the written submissions dated 28 th May 2026 in support of the preliminary objection. It is submitted that the points of law raised go to the heart and validity of the Petition. It is stated that the Court has not been asked to consider any contested facts. That the Petitioner alleges that markers deployed to market petroleum products in Kenya have issues, which is an issue that should be submitted to the technical persons under the Energy Act under Sections 10 & 36 and under the Petroleum Act .
11. He submits that the Tribunal established under the Act has jurisdiction to address the issues raised hence a party aggrieved must exhaust those remedies before coming to court. Counsel submits that since there are no exceptional circumstances to warrant exception, the Court should down its tools. It is submitted that there is also nothing remotely close to a constitutional matter for consideration by this Court because the issues of markers are purely technical and scientific matters.
12. Counsel submits that the Petition is an abuse of court process hence the Court should decline to determine such a matter that does not raise constitutional issues. He urged the Court to uphold the preliminary objection and dismiss the Petition with costs to the 3 rd Respondent.
13. Mr. Mayiga Counsel for the 4 th Respondent submitted on their Preliminary Objection dated 13 th May 2026 and written submissions dated 25 th May 2026 . He stated that the issues in the Petition relate to treatment and storage of petroleum products and that the Authority has the mandate under Section 117 (2) of the Petroleum Act to deal with matters raised herein and appeals are to be lodged before the Tribunal. It is stated that Section 10 designates the Authority as the forum for resolution of disputes of this nature.
14. Counsel submitted that in light of the Alternative Dispute Resolution Mechanism provided for under the Act, the Court should exercise deference. Counsel relied on Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and/or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR) which). Similarly, the Court of Appeal in Muthinya & others v. Henry Muguna & 1756 others Nyeri Court of Appeal CA 10/2015 , where the Supreme Court affirmed this point.
15. Counsel refuted that this Court is the only forum for resolution of the dispute, citing Section 36 of Energy Act which confers jurisdiction on the Tribunal and the case of Republic v Attorney General &another; Ex-parte Applicants: Jude Njomo & another [2020] KEHC 2311 (KLR).
16. He submitted that having seen the submissions by the Petitioners on the threshold in the Mukisa Biscuit case, this Court is not being asked to investigate any facts but to simply glean on the pleadings and examine whether it is the right forum.
17. Counsel asserts that the Petition is premature in view of clear adequate dispute resolution mechanisms under the law. It is urged that their Preliminary objection be allowed with costs
18. Mr. Mulongo counsel representing the Petitioner submitted relying on their submissions dated 8 th June 2026 and contended that the Preliminary Objections do not meet the threshold in the Mukisa Biscuits case. He asserts that the petitioners are challenging the integrity of the fuel framework and that the Petition is on consumer protection because the halogens used in the markers are harmful to the environment and health.
19. It was submitted that the doctrine of exhaustion is not harmful, that under Article 2 of the Constitution , all laws are subservient to the Constitution. He argues that the mechanism provided in law has no remedy for such breach. He stated that they were in agreement that there are mechanisms for resolving disputes but that the issues raised are not within the jurisdiction of the Tribunal. It is their position that this Court has inherent jurisdiction to grant the orders sought and that they had raised issues with the Authority but received no response.
20. In a rejoinder, Mr. Awele Counsel for the 2 nd Respondent submitted that the fact that a constitutional petition raises allegations of violation of the Constitution does not arrogate this Court jurisdiction where the law confers jurisdiction to a lower tribunal. That the jurisdiction of this Court is not challenged but deferments to the alternative avenues for resolution of disputes is primary.
21. Counsel further argued in rebuttal that the efficacy of the fuel marking system is what is being challenged by the petitioners. That the period for filing the challenge to the Tribunal or authority had not lapsed and that the Court is being called upon to legitimize an abuse of court process. Counsel firmly submitted that there is no reason why the Petitioners did not approach the Regulators and the Tribunal first.
22. Further submission was that no Application was made before the Court to seek exemption from resorting to the Tribunal which has powers to determine the issues raised herein. He urged that the preliminary objections be upheld and the petition be struck out.
23. Mr. Mayiga for the 4 th Respondent also submitted in a rejoinder that the Petitioner has not established insufficiency in the alternative dispute resolution mechanism being the tribunal. He stated that the Petition is premature because where there is dissatisfaction with the decision of the Tribunal, this court has appellate jurisdiction. He urged that the preliminary objection be allowed with costs.
Analysis and Determination
24. I have considered the preliminary objections and the rival submissions. The issues for my determination is whether the Notices of Preliminary Objections are merited meet the threshold of preliminary objections and secondly, if they are merited.
25. The law on preliminary objections is now well-settled. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors (1969) EA 696 it was held thus:
“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
26. The Supreme Court in the cases of Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] eKLR; and in Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR , stated at paragraph 15:
“15. Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
(See also Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31]).
27. Finally, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) pronounced itself on what a preliminary objection constitutes as follows: -
“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. (see Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 14 of 2014, [2014] eKLR).”
28. With the above in mind, the points of law being raised by the 2 nd and 4 th Respondents in their Notices of Preliminary Objections are on the jurisdiction of the Court. Subsumed in this point of law is the twin doctrine of exhaustion, constitutional avoidance, ripeness and justiciability which I will shortly discuss.
29. The doctrine of exhaustion is an important principle of administrative and constitutional law that calls for parties to first pursue and conclude those mechanisms and remedies established under statute for dispute resolution before approaching the courts. This doctrine is rooted in Article 159(2)(c) of the Constitution and Section 9(2) and (3) of the Fair Administrative Action Act .
30. Courts are replete with authorities on this doctrine. This doctrine of exhaustion was first considered in the case of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) by the Court of Appeal and has since been adopted and developed further. In the said case, the Court of Appeal was dealing with a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the then Constitution. In granting the order, the Court made the often-quoted statement that:
“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
31. The Court of Appeal adopted the submission by Mr. Satish Gautama advocate on behalf of the Speaker of the National Assembly that Parliament in its own wisdom having prescribed the procedure to be followed by anyone seeking to challenge a declaration made by the Speaker under section 18 of the Elections Act, it was not open to the respondent to bypass this procedure by invoking the prerogative orders under order 53 of the Civil Procedure Rules. In his view, where there is an elective remedy available it is not open to a party to invoke order 53 of the Civil Procedure Rules. The other point which Mr Gautama stressed was that the respondent failed to disclose in his statement of facts the fact that he had already filed an election petition which was still pending before the Court. In his submission this amounted to a concealment of a material fact which could have elected the judge’s exercise of his discretion and he may well have declined to grant the leave and/or the order of stay.
32. In Mutanga Tea & Coffee Company Limited v Shikara Limited & another (Civil Appeal 54 of 2014) [2015] KECA 469 (KLR) (31 July 2015) (Judgment), the Court of Appeal stated as follows, quite elaborately on this doctrine of exhaustion of remedies:
“19. It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.
24.The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.
25.Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner. In RICH PRODUCTIONS LTD. V. KENYA PIPELINE COMPANY & ANOTHER, PETITION NO. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:
“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”
26.On the same reasoning, this Court, in Republic v. The National Environmental Management Authority, CA NO 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in Vania Investment Pool Ltd. v. Capital Markets Authority & 8 Others, CA NO 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its dispute to the Capital Markets Appeals Tribunal established by the Capital Markets Act.
28.We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts.
29. What we have stated above also sufficiently disposes of the appellant’s contention that the High Court failed to invoke its inherent jurisdiction or abdicated its jurisdiction. It also answers the applicant’s contention that the failure to follow the prescribed dispute resolution mechanism was a mere technicality curable under Article 159 (2) (d) of the Constitution. Granted the express constitutional principle under which the dispute resolution mechanisms provided by the PPA and the EMCA are underpinned, it cannot be claimed that lack of compliance with those mechanisms is a mere technicality. In Raila Odinga & 5 Others v. IEBC & 3 Others, Petition No. 5 of 2013, the Supreme Court stated that in interpreting the Constitution, it must be read as one whole and that Article 159(2)(d) cannot be read or applied in a manner that ousts the provisions of other clear Articles of the Constitution. And in Lemanken Aramat v. Harun Maitamei Lempaka, Petition No. 5 of 2014, the same Court, while considering the provisions of Article 159(2) (d) of the Constitution noted that where the issue at hand is one of mere procedural lapse which has no bearing on jurisdiction, the court can cure the same under Article 159(d). However, where the Constitution links certain vital conditions to the power of the court to adjudicate a matter, Article 159(2)(d) has no application.”
33. The High Court in Mombasa High Court in Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR , aptly explained this doctrine which was reaffirmed on appeal before the Court of Appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR . The 5-High Court judge bench stated 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 and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:-
“42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated 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.”
34. In Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Court of Appeal relied on the case of Speaker of National Assembly vs Njenga Karume (supra) in arriving at its decision on the same principle of exhaustion of remedies thus: -
“23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”
35. The essence of this doctrine of exhaustion is that it safeguards judicial time, promotes orderly dispute resolution and respects the hierarchy of institutions by ensuring that courts are not prematurely invoked where specialized forums exist.
36. Akin to the doctrine of exhaustion are the doctrines of constitutional avoidance, ripeness and justiciability. The doctrine of constitutional avoidance has been defined as a principle of judicial restraint which dictates that courts must resolve disputes on non-constitutional grounds whenever possible, strictly avoiding ruling on constitutional matters unless absolutely necessary to the case's disposition.
37. The doctrine avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus not be disguised and tried as Constitutional litigations.
38. Expounding on this doctrine, the Court in Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] eKLR observed thus:
“17. One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a ma
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E241 OF 2026
IN THE MATTER OF: ARTICLES 1, 2(1) & (2), 3(1), 10(1) & (2), 19, 20, 21, 22, 23, 27, 28, 35, 42, 43(1)(A), 46, 47, 69, 73, 129, 153, 159(2)(D), 201(A), (D) & (E), 227, 232 AND 258 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 10, 35, 42, 43(1)(A), 46, 47, 201, 227 AND 232 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ENERGY ACT, NO. 1 OF 2019 LAWS OF KENYA
AND
IN THE MATTER OF: THE PETROLEUM ACT, 2019 AND APPLICABLE PETROLEUM QUALITY, SAFETY AND REGULATORY STANDARDS
AND
IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015 LAWS OF KENYA
AND
IN THE MATTER OF: THE ACCESS TO INFORMATION ACT, NO. 31 OF 2016 LAWS OF KENYA
AND
IN THE MATTER OF: THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (EMCA), CAP 387 LAWS OF KENYA
AND
IN THE MATTER OF: THE CONSUMER PROTECTION ACT, NO. 46 OF 2012 LAWS OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF: ALLEGED UNLAWFUL REGULATORY FAILURE, STRUCTURAL CONFLICT OF INTEREST IN PETROLEUM QUALITY ASSURANCE, AND THE EXPOSURE OF KENYAN CONSUMERS AND THE GENERAL PUBLIC TO CHEMICALLY CONTAMINATED FUEL IN VIOLATION OF THE CONSTITUTION
-BETWEEN-
CONSUMERS FEDERATION OF KENYA (COFEK) ......... PETITIONER
-VERSUS-
THE CABINET SECRETARY MINISTRY OF ENERGY AND PETROLEUM ................................................................... 1 ST RESPONDENT
THE ENERGY AND PETROLEUM REGULATORY AUTHORITY (EPRA) ............................................................................... 2 ND RESPONDENT
SOCIÉTÉ INDUSTRIELLE ET COMMERCIALE DE PRODUITS ALIMENTAIRES S.A SICPA SA ..................................... 3 RD RESPONDENT
SGS (KENYA) LIMITED ................................................ 4 TH RESPONDENT
THE HON. ATTORNEY GENERAL ............................. 5 TH RESPONDENT
RULING ON PRELIMINARY OBJECTIONS
1. Before this Court for determination are two Notices of Preliminary Objections filed by the 2 nd and 4 th Respondents herein both dated 13 th May 2026. The 2 nd Respondent The Energy And Petroleum Regulatory Authority (EPRA) opposes the Petition and the Notice of Motion filed by the Petitioner dated evenly on 15 th April 2026 seeking for conservatory orders on the following grounds:
(1 This Honourable Court lacks the requisite jurisdiction to entertain this matter as the suit is premature in light of the Doctrine on Exhaustion of internal disputes resolution mechanisms and Section 23 of the Energy Act Cap 314 Laws of Kenya.
(2 The Petitioner/Applicant has failed to invoke or exhaust the mandatory dispute resolution mechanisms as provided for by dint of Sections 10 (dd), 11(i), 25 and 36 of the Energy Act, Cap 314 Laws of Kenya.
(3 The suit as presented transgresses the Doctrine of Exhaustion of remedies as the Applicant/Petitioner has invoked the wrong forum for the grievances set out therein while disdaining the provisions under Article 159(2) (c) of the Constitution of Kenya, 2010, Section 9 (2) of the Fair Administrative Action Act, Cap 7L and the provisions of the Energy Act, Cap. 314.
(4 The Application and Petition are otherwise and abuse of the court process.
2. The 4 th Respondent SGS (Kenya) Limited’s Notice of Motion also opposes the Petitioner’s Petition and the Notice of Motion filed under Certificate of Urgency on the following grounds:
(1 The Jurisdiction of this Honourable Court has been wrongly and prematurely invoked in relation to the issues for which specific and exclusive avenues/mechanisms have been established and in particular that:
(a) The substratum of the Petition is premised on upstream petroleum operations as defined under Section 2 of the Petroleum Act whose disputes fall within the ambit of the Energy and Petroleum Regulatory Authority for determination in the first instance pursuant to Section 117(2) of the Petroleum Act.
(b) The supposed dissatisfaction of the clearance, certification and/ or authorization of petroleum products undertaken under the alleged Fuel Integrity Solution Framework falls squarely within complaints or disputes arising from petroleum operations to be referred to the Energy and Petroleum Regulatory Authority for determination pursuant to Section 10 (dd) of the Energy Act;
(c) The Energy and Petroleum Tribunal enjoys the requisite and mandated jurisdiction to determine disputes concerning the energy and petroleum sector arising under the Energy Act and the Petroleum Act pursuant to Section 35 of the Energy Act;
(d) The jurisdiction of the Honourable Court pursuant to Section 37 of the Energy Act is appellate in nature and not invoked in the first instance.
(2 The Petition and Application offend the doctrine of exhaustion of alternative remedies and Constitutional avoidance.
(3 For the reasons stated, the Petition and Application amount to a manifest abuse of the process of this Honourable Court.
3. Neither the Petitioner nor the other parties filed any responses to the Notices of Preliminary Objections. When the parties appeared before this Court on 14 th May 2026, they took directions to canvass the Preliminary Objections through written submissions and to later make oral highlights.
4. The written submissions as well as the oral submissions of the parties made on 9 th June 2026 are summarized as hereunder.
The oral Submissions
5. Mr. Awele, Learned Counsel for the 2 nd Respondent filed written submissions dated 25 th May 2026 and submitted that the Petition concerns constitutional violations of the 2 nd Respondent and that the Petitioner raises concerns of the mandates of the 2 nd Respondent, which have to first be filed before the Energy Tribunal.
6. On allegations of abdication of duty by the Regulatory Authority, Counsel submitted that such issues revolve around the mandate of the Authority and are within the regulatory mandate of the 2 nd Respondent. That it is trite law that where a statute creates a platform for resolution of disputes, those mechanisms must be exhausted before the dispute can be ripe for the court.
7. Counsel submitted that the doctrine of exhaustion is expressly provided for in Section 9 of Fair Administrative Action Act and as read with the Energy Act. That even when exceptions exist, the mechanisms can only be bypassed by an application and the court must be satisfied that the exceptions are proven and makes an order. It is submitted that no exceptions or compelling reasons have been advanced before this Court.
8. Counsel submits that they have also raised the doctrine of ripeness and justiciability of the issues raised by the Petitioners. That the issues raised are technical and call on this Court to call on expert opinion on the issues raised, yet the Tribunal was established as a specialised entity to resolve issues such as those raised.
9. Counsel asserts that the Petition came prematurely to usurp the regulatory mandate of the Tribunal and to substitute its opinion. It is his submission that the Petitioners had time to file a dispute before the Authority and that they came to Court before the statutory timeline had elapsed.
10. Mr. Marete counsel for the 3 rd Respondent submitted relying on the written submissions dated 28 th May 2026 in support of the preliminary objection. It is submitted that the points of law raised go to the heart and validity of the Petition. It is stated that the Court has not been asked to consider any contested facts. That the Petitioner alleges that markers deployed to market petroleum products in Kenya have issues, which is an issue that should be submitted to the technical persons under the Energy Act under Sections 10 & 36 and under the Petroleum Act .
11. He submits that the Tribunal established under the Act has jurisdiction to address the issues raised hence a party aggrieved must exhaust those remedies before coming to court. Counsel submits that since there are no exceptional circumstances to warrant exception, the Court should down its tools. It is submitted that there is also nothing remotely close to a constitutional matter for consideration by this Court because the issues of markers are purely technical and scientific matters.
12. Counsel submits that the Petition is an abuse of court process hence the Court should decline to determine such a matter that does not raise constitutional issues. He urged the Court to uphold the preliminary objection and dismiss the Petition with costs to the 3 rd Respondent.
13. Mr. Mayiga Counsel for the 4 th Respondent submitted on their Preliminary Objection dated 13 th May 2026 and written submissions dated 25 th May 2026 . He stated that the issues in the Petition relate to treatment and storage of petroleum products and that the Authority has the mandate under Section 117 (2) of the Petroleum Act to deal with matters raised herein and appeals are to be lodged before the Tribunal. It is stated that Section 10 designates the Authority as the forum for resolution of disputes of this nature.
14. Counsel submitted that in light of the Alternative Dispute Resolution Mechanism provided for under the Act, the Court should exercise deference. Counsel relied on Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and/or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR) which). Similarly, the Court of Appeal in Muthinya & others v. Henry Muguna & 1756 others Nyeri Court of Appeal CA 10/2015 , where the Supreme Court affirmed this point.
15. Counsel refuted that this Court is the only forum for resolution of the dispute, citing Section 36 of Energy Act which confers jurisdiction on the Tribunal and the case of Republic v Attorney General &another; Ex-parte Applicants: Jude Njomo & another [2020] KEHC 2311 (KLR).
16. He submitted that having seen the submissions by the Petitioners on the threshold in the Mukisa Biscuit case, this Court is not being asked to investigate any facts but to simply glean on the pleadings and examine whether it is the right forum.
17. Counsel asserts that the Petition is premature in view of clear adequate dispute resolution mechanisms under the law. It is urged that their Preliminary objection be allowed with costs
18. Mr. Mulongo counsel representing the Petitioner submitted relying on their submissions dated 8 th June 2026 and contended that the Preliminary Objections do not meet the threshold in the Mukisa Biscuits case. He asserts that the petitioners are challenging the integrity of the fuel framework and that the Petition is on consumer protection because the halogens used in the markers are harmful to the environment and health.
19. It was submitted that the doctrine of exhaustion is not harmful, that under Article 2 of the Constitution , all laws are subservient to the Constitution. He argues that the mechanism provided in law has no remedy for such breach. He stated that they were in agreement that there are mechanisms for resolving disputes but that the issues raised are not within the jurisdiction of the Tribunal. It is their position that this Court has inherent jurisdiction to grant the orders sought and that they had raised issues with the Authority but received no response.
20. In a rejoinder, Mr. Awele Counsel for the 2 nd Respondent submitted that the fact that a constitutional petition raises allegations of violation of the Constitution does not arrogate this Court jurisdiction where the law confers jurisdiction to a lower tribunal. That the jurisdiction of this Court is not challenged but deferments to the alternative avenues for resolution of disputes is primary.
21. Counsel further argued in rebuttal that the efficacy of the fuel marking system is what is being challenged by the petitioners. That the period for filing the challenge to the Tribunal or authority had not lapsed and that the Court is being called upon to legitimize an abuse of court process. Counsel firmly submitted that there is no reason why the Petitioners did not approach the Regulators and the Tribunal first.
22. Further submission was that no Application was made before the Court to seek exemption from resorting to the Tribunal which has powers to determine the issues raised herein. He urged that the preliminary objections be upheld and the petition be struck out.
23. Mr. Mayiga for the 4 th Respondent also submitted in a rejoinder that the Petitioner has not established insufficiency in the alternative dispute resolution mechanism being the tribunal. He stated that the Petition is premature because where there is dissatisfaction with the decision of the Tribunal, this court has appellate jurisdiction. He urged that the preliminary objection be allowed with costs.
Analysis and Determination
24. I have considered the preliminary objections and the rival submissions. The issues for my determination is whether the Notices of Preliminary Objections are merited meet the threshold of preliminary objections and secondly, if they are merited.
25. The law on preliminary objections is now well-settled. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors (1969) EA 696 it was held thus:
“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
26. The Supreme Court in the cases of Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014, [2014] eKLR; and in Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR , stated at paragraph 15:
“15. Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”
(See also Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31]).
27. Finally, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) pronounced itself on what a preliminary objection constitutes as follows: -
“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. (see Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 14 of 2014, [2014] eKLR).”
28. With the above in mind, the points of law being raised by the 2 nd and 4 th Respondents in their Notices of Preliminary Objections are on the jurisdiction of the Court. Subsumed in this point of law is the twin doctrine of exhaustion, constitutional avoidance, ripeness and justiciability which I will shortly discuss.
29. The doctrine of exhaustion is an important principle of administrative and constitutional law that calls for parties to first pursue and conclude those mechanisms and remedies established under statute for dispute resolution before approaching the courts. This doctrine is rooted in Article 159(2)(c) of the Constitution and Section 9(2) and (3) of the Fair Administrative Action Act .
30. Courts are replete with authorities on this doctrine. This doctrine of exhaustion was first considered in the case of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) by the Court of Appeal and has since been adopted and developed further. In the said case, the Court of Appeal was dealing with a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the then Constitution. In granting the order, the Court made the often-quoted statement that:
“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
31. The Court of Appeal adopted the submission by Mr. Satish Gautama advocate on behalf of the Speaker of the National Assembly that Parliament in its own wisdom having prescribed the procedure to be followed by anyone seeking to challenge a declaration made by the Speaker under section 18 of the Elections Act, it was not open to the respondent to bypass this procedure by invoking the prerogative orders under order 53 of the Civil Procedure Rules. In his view, where there is an elective remedy available it is not open to a party to invoke order 53 of the Civil Procedure Rules. The other point which Mr Gautama stressed was that the respondent failed to disclose in his statement of facts the fact that he had already filed an election petition which was still pending before the Court. In his submission this amounted to a concealment of a material fact which could have elected the judge’s exercise of his discretion and he may well have declined to grant the leave and/or the order of stay.
32. In Mutanga Tea & Coffee Company Limited v Shikara Limited & another (Civil Appeal 54 of 2014) [2015] KECA 469 (KLR) (31 July 2015) (Judgment), the Court of Appeal stated as follows, quite elaborately on this doctrine of exhaustion of remedies:
“19. It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.
24.The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.
25.Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner. In RICH PRODUCTIONS LTD. V. KENYA PIPELINE COMPANY & ANOTHER, PETITION NO. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:
“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”
26.On the same reasoning, this Court, in Republic v. The National Environmental Management Authority, CA NO 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in Vania Investment Pool Ltd. v. Capital Markets Authority & 8 Others, CA NO 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its dispute to the Capital Markets Appeals Tribunal established by the Capital Markets Act.
28.We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts.
29. What we have stated above also sufficiently disposes of the appellant’s contention that the High Court failed to invoke its inherent jurisdiction or abdicated its jurisdiction. It also answers the applicant’s contention that the failure to follow the prescribed dispute resolution mechanism was a mere technicality curable under Article 159 (2) (d) of the Constitution. Granted the express constitutional principle under which the dispute resolution mechanisms provided by the PPA and the EMCA are underpinned, it cannot be claimed that lack of compliance with those mechanisms is a mere technicality. In Raila Odinga & 5 Others v. IEBC & 3 Others, Petition No. 5 of 2013, the Supreme Court stated that in interpreting the Constitution, it must be read as one whole and that Article 159(2)(d) cannot be read or applied in a manner that ousts the provisions of other clear Articles of the Constitution. And in Lemanken Aramat v. Harun Maitamei Lempaka, Petition No. 5 of 2014, the same Court, while considering the provisions of Article 159(2) (d) of the Constitution noted that where the issue at hand is one of mere procedural lapse which has no bearing on jurisdiction, the court can cure the same under Article 159(d). However, where the Constitution links certain vital conditions to the power of the court to adjudicate a matter, Article 159(2)(d) has no application.”
33. The High Court in Mombasa High Court in Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR , aptly explained this doctrine which was reaffirmed on appeal before the Court of Appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR . The 5-High Court judge bench stated 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 and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:-
“42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated 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.”
34. In Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Court of Appeal relied on the case of Speaker of National Assembly vs Njenga Karume (supra) in arriving at its decision on the same principle of exhaustion of remedies thus: -
“23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”
35. The essence of this doctrine of exhaustion is that it safeguards judicial time, promotes orderly dispute resolution and respects the hierarchy of institutions by ensuring that courts are not prematurely invoked where specialized forums exist.
36. Akin to the doctrine of exhaustion are the doctrines of constitutional avoidance, ripeness and justiciability. The doctrine of constitutional avoidance has been defined as a principle of judicial restraint which dictates that courts must resolve disputes on non-constitutional grounds whenever possible, strictly avoiding ruling on constitutional matters unless absolutely necessary to the case's disposition.
37. The doctrine avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus not be disguised and tried as Constitutional litigations.
38. Expounding on this doctrine, the Court in Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] eKLR observed thus:
“17. One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a ma
[...truncated]