REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E466 OF 2003
IN THE MATTER OF THE ENFORCEMENT OF BILL OF RIGHTS AND OTHER RELEVANT PROVISIONS OF THE CONSTITUTION AND MORE SPECIFICALLY ARTICLES 1 (1), 2 (1), 3 (1), 10 (1), 20 (4), 22, 23 (3), 47, 48, 50 (1) and 259 (1).
-AND-
IN THE MATTER OF THE UNCLAIMED FINANCIAL ASSETS ACT NO. 40 OF 2011 SPECIFICALLY SECTIONS 2, 3, 5 (1), 20 (1), 22, 31, 33, 41 AND 52 (5).
-AND-
IN THE MATTER OF THE UNIVERSITIES ACT NO. 42 OF 2012 SECTION 5 AND SECTION 52.
-AND-
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT, NO. 4 OF 2015.
-AND-
IN THE MATTER OF THE LAW OF CONTRACTS ACT CAP. 23 LAWS OF KENYA.
-BETWEEN-
DAYSTAR UNIVERSITY …..................................................... PETITIONER
-VERSUS-
UNCLAIMED FINANCIAL ASSETS AUTHORITY ……...RESPONDENT
-AND-
THE ATTORNEY GENERAL ……………………. INTERESTED PARTY
JUDGMENT
1. Before this Court for determination is the petition dated 3 rd November 2023, supported by the grounds on the face thereof and the affidavit of MUNEI NYOKABI KAHUMBURA , the Petitioner’s Legal Manager sworn on even date. The Petitioner seeks the following reliefs:
(a) An order of Certiorari to remove into the High Court and quash the demand letter by the Respondent to the Petitioner dated 17 th April 2023, demanding payment of Kshs. 16,499,568/= being unclaimed financial assets and Kshs. 2,850,000/= being audit fees.
(b) An order of Certiorari to remove into the High Court and quash the findings of the audit report prepared and published by Messrs. Beemkay and Company published in January 2023 in so far as it returned a finding that the Petitioner was holding identified unclaimed financial assets under section 5 of the Unclaimed Financial Assets Act whose value totalled Kshs. 16,499,568/=.
(c) An order of Prohibition directed at the Respondent prohibiting and restraining the Respondent whether acting directly or through any of their agents, employees and/or officers from issuing, executing, enforcing, and/or implementing any or any further decisions, demands, notices as against the Petitioner based on Messrs. Beemkay and Company audit report published in January 2023.
(d) A Declaration that sections 50, 51 (1) and 52 (5) of the Unclaimed Financial Assets Act are unconstitutional and hence null and void.
(e) A declaration that the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.
(f) A Declaration that the decision by the Board of Directors of the Unclaimed Financial Assets Authority to audit the Petitioner and to issue the demand letter dated 19 th April 2033 is null and void since the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.
(g) A Declaration that the provisions of Section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Unrecognized Deposits".
(h) A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as “Unclaimed Students Deposits”.
(i) A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs Beemkay and Company as “Unclaimed Trade Payable”.
(j) A Declaration that the provisions of section 3 and section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Caution Fees".
(k) A Declaration that there is no obligation under the provisions of section 20(1) of the Unclaimed Financial Assets Act for an entity/person which is not holding assets presumed abandoned and subject to the custody of the Authority to file a report with the Authority.
(l) A Declaration that the Respondent's decision contained in the demand letter dated 17 th April 2023 demanding Kshs. 16,499,568/= from the Petitioner, an amount which doesn't form part of unclaimed assets under sections 5 of the Unclaimed Financial Assets Act, is illegal, ultra vires, unjust and unreasonable.
2. The petitioner’s case is that the Respondent, the Unclaimed Financial Assets Authority (UFAA) has demanded an unlawful seizure of Kshs. 16,499,568/= on the petitioner university’s funds and demanding Kshs. 2,850,000/= in audit fees. The Petitioner argues that the funds are contractually its own and do not legally qualify as unclaimed financial assets under the Act.
3. The deponent swears that Daystar University is a private university chartered in 1994 by former President Daniel Arap Moi and regulated by the Commission for University Education under the Universities Act No. 42 of 2012. She states that the University operates on private funds drawn from non-refundable student fees, catering charges, endowments, gifts, trusts, income from the university auxiliary enterprises and investments. That as per its Charter, student fees are strictly non-refundable and that all generated funds belong solely to the university to pay staff salaries and fund scholarships.
4. It is deposed that the Respondent (UFAA) is a body corporate established to manage unclaimed assets and that its current Board of Directors consists of 6 men and 2 women, comprising only 25% female representation hence, the Respondent’s Board fails to meet the constitutionally mandated 1/3 or 33% female composition as required by the two-thirds gender rule.
5. It is stated that in January 2023, an audit firm Messrs. Beemkay & Company commissioned by the Respondent claimed the Petitioner held Kshs. 16,499,568/= in unclaimed assets upon conducting an audit, broken down as: -
(a) Unclaimed unrecognized deposits: Kshs. 8,157,175/=
(b) Unclaimed student deposits: Kshs. 6,020,080/=
(c) Unclaimed trade payables: Kshs. 1,674,313/=
(d) Unclaimed caution fees: Kshs. 648,000/=
6. The Petitioner argues that the auditor ignored the university’s non-refundable fee policies and Charter, by wrongly categorizing internal revenue as unclaimed assets. Further, that under Sections 3 and 5 of the Unclaimed Financial Assets Act, assets arising from private dealings subject to the privity of contract are exempt.
7. It is also asserted that Section 3 of the Act provides that an asset is only ‘unclaimed’ if the owner’s identity and address are unknown. That the auditor’s own report explicitly identifies the depositors and their addresses, thereby disqualifying the funds from being classified as unclaimed.
8. The Petitioner avers that on 17 th April 2023, the Respondent demanded the Kshs. 16,499,568 plus Kshs. 2,850,000 in audit fees within 14 days. That on 28 th April 2023, the Petitioner responded in a letter denying that they owed any monies due to the UFAA. It is stated that between April and July 2023, the Petitioner through its lawyers formally responded multiple times and exchanged correspondences with the Respondent clarifying that they held no unclaimed assets under the law. Finally, that on 20 th July 2023, vide letter annexed/marked “MNK-7”, the Respondent rejected Daystar’s explanations and issued a final 14-day notice threatening legal or administrative action.
9. It is the Petitioner’s case that the Respondent is acting ultra vires and in violation of the petitioner’s rights. The Petitioner seeks redress from this Court under Article 22 of the Constitution of Kenya to protect its rights and assets from unlawful enforcement by the respondent.
Responses
10. In response to the Petition, the Respondent filed a Replying Affidavit sworn by GIDEON NZIOKI a Senior Auditor dated 12 th March 2024, deposing that the Respondent herein is established as a State Corporation under the National Treasury pursuant to Section 39 of the Unclaimed Financial Assets Act 2011 and the board composition is set out under Section 40 of the Act.
11. It is averred that the Board consists of seven members, including a Chairperson, Principal Secretary and Directors where two out of seven members are women, meeting the minimum gender representation requirement. It is asserted that the gender ratio aligns with the two-thirds gender rule and complies with Article 27 (8) of the Constitution .
12. It is stated that the Respondent’s functions include enforcement and administration of the UFA Act. It is deposed that the Respondent commissioned a compliance audit on the Petitioner from 2011 to 2021 which identified unclaimed financial assets in the sum of Kshs. 16,499,568/= comprising unrecognized deposits, student deposits, trade payables and caution fees and that the Petitioner had not been filing returns as required under Section 20 of the Act .
13. The deponent states that the audit confirmed that these assets are presumed abandoned under the UFA Act and that despite being formally requested to settle the said sum by issuing notices and demanding payment of unclaimed assets, the Petitioner protested the claims, citing legal guidance and requesting extensions.
14. It is deposed that the Respondent was within its statutory mandate in conducting the Petitioner’s compliance audit as per the provisions of Section 31 of the UFA Act. That further, the assertion that the Act does not apply to it is misleading since Section 2 of the UFA Act defines a holder to mean any entity who holds any assets to which the Act applies, a description that fits the Petitioner herein.
15. The Respondent asserts that it responded to the Petitioner’s protests and affirmed its lawful authority to claim the assets. It is deposed that the Petitioner admitted that it holds the financial assets for the benefits of the students and employees and it is argued that the UFA Act at Section 45 provides for the payment of the unclaimed financial assets to the owner of the assets once it is satisfied that the person is the owner, meaning that the rightful owners will still benefit from them.
16. The Respondent reiterates its legal mandate and denies violating Articles 40, 43 or 157 of the Constitution . It is also denied that Section 51 (1)) of the Act contravenes Article 32 of the Constitution and neither does Section 52 (5) of the Act contravene Article 50 .
17. It contends that the Petitioner has not met the threshold requirements for declaring a law unconstitutional and that it has not set out with certainty the way its rights have been infringed.
18. It is pleaded that the University Charter, University Regulations and the Universities Act have provisions that cannot be applied because they conflict with the UFA Act under Section 37 which gives the UFA Act superiority over other laws that conflict with it on matters concerning unclaimed assets.
19. It is contended that the Petitioner has not shown how the Respondent’s actions are illegal, unjust and unreasonable and that the Petition should be dismissed for lacking merit.
20. The Interested Party also filed Grounds of Opposition dated 19 th March 2024 stating that:
(1 the instant Petition is unwarranted, devoid of merit and therefore an abuse of the process of this Honourable Court as it was filed by the Petitioner prior to exhaustion of all remedies available to them.
(2 the Petition herein is intended to impede and derail the Respondent’s primary statutory mandate of receiving unclaimed financial assets from holders of such assets, safeguard these unclaimed assets, and re-unite the assets with their rightful owners.
(3 the issue of two-thirds gender rule raised by the Petitioner is not a fact in issue as to warrant the Honorable Court’s attention of its determination.
(4 the financial audits and inspections carried out by the Respondent against the Petitioner were lawful, justifiable and tenable in the circumstances and were further done in the discharge of their statutory mandate.
(5 the intent of the Petitioner through their assertions in the Petition is to evade incurring legal liability as well as compliance with the provisions of Unclaimed Financial Assets Act hence rendering the Petition devoid of merit.
(6 the Petitioner failed to invoke the dispute resolution mechanisms available to them as is provided under the Unclaimed Financial Assets Act hence failing to exhaust all available remedies present to them prior to the filing of this instant Petition hence rendering the Petition premature before the Honorable Court.
(7 the orders sought in the instant Petition are untenable in the circumstances of the case as the Petitioner is in grave breach of the provisions of the statute as a holder of unclaimed financial assets.
(8 the instant Petition is baseless, implausible and totally devoid of merit, thus subsequently, it ought to be dismissed with costs to the Respondent .
21. The petition was canvassed by way of written submissions.
The petitioner’s Submissions
22. The Petitioner’s Submissions are dated 3 rd February 2025. It is submitted on behalf of the Petitioner that the Petition was competent because it meets the strict threshold of precision required for constitutional matters as prescribed by the case of Anarita Karimi Njeru v. Republic (1976) KLR as it explicitly details the infringement of rights and discrimination by the Respondent. It is argued that the Respondent demanded to attach Kshs. 16,499,568/= in the Petitioner’s possession as unclaimed assets yet they are private institutional funds hence, denying the petitioner the right to own property as guaranteed by Article 40 of the Constitution .
23. It is submitted that the decision to seize their property was made by an unconstitutionally constituted board which does not meet the two-thirds gender rule and amounts to discrimination under Article 27 of the Constitution . Counsel submits that the board at the time consisted of 6 men and 2 women which is 25% female. That even the Respondent’s counter-argument of a 7-member board still leaves it composition at 28.57% falling short of the constitutionally mandated minimum. Counsel cites the High Court’s decision in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR in support and G’Oganyo v Independent Electoral Commission Selection Panel & 2 others; Independent Electoral and Boundaries Commission & 6 others (Interested Parties) (Constitutional Petition E345 of 2022) [2022] KEHC 10184 (KLR) for the proposition that while elective bodies may achieve gender parity progressively, appointive bodies must comply immediately. That as a consequence, all decisions emanating from the Board including the demand letter are null and void.
24. On whether the disputed funds are exempt from the Act, Counsel for the Petitioner argues that the Unclaimed Financial Assets Act explicitly exempts private institutional funds governed by privity of contract. Further, that the auditor’s own report identified the depositors, thereby directly disqualifying the funds under Section 3 of the Act which states that assets are only ‘unclaimed’ if the owner’s identity is completely unknown which was not so in the present case.
25. Counsel for the petitioner outlines the composition of the demanded amount and legally defends it as follows: -
(a) Unclaimed Student Deposits in the sums of Kshs. 6,020,080/= is governed by the University policy which explicitly states fees are non-refundable. Counsel argues that excess balances are only returnable after graduation and clearance and that accordingly, these funds belong to inactive, deferred or withdrawn students, or graduates who owe the university money.
(b) Unclaimed Caution Fees in the sum of Kshs. 648,000/= which Counsel explained is only refundable upon official clearance. It cannot be refunded if the student is active, has a debit balance, is on a scholarship where it reverts to the general fund, or has failed to clear.
(c) Unclaimed Unrecognized Deposits in the sum of Kshs. 8,157,175/= which Counsel explains are internal revenues fully accounted for in university operations such as scholarship funds, orientation fees, application fees and library compensation.
(d) Unclaimed Trade Payables in the sum of Kshs. 1,674,313/= which are private commercial transactions between the university and its suppliers. It is submitted that the Respondent is a stranger to these private payment plans and cannot interfere due to privity of contract.
26. On the unconstitutionality of Sections 50, 51(1), and 52(5) of the Unclaimed Financial Assets Act, Counsel submits that the High Court is vested with inherent powers under Article 165 of the Constitution to declare as unconstitutional and void, the above sections. They invoke the Supreme Court’s statutory testing guidelines in the case of The Cabinet Secretary of the Ministry of Treasury and Planning & Others v Okiya Omtata & Others (2024) eKLR .
27. Counsel submits that Section 50 of the Unclaimed Financial Assets Act gives the Respondent the power to prosecute criminal matters, which directly usurps the exclusive constitutional powers of the Director of Public Prosecutions under Article 157 (6) of the Constitution .
28. That Section 51(1) grants UFAA unlimited authority to enter and search any premises at any time, directly violating the constitutional right to privacy and protection against arbitrary searches under Article 31 .
29. Finally, that Section 52(5) criminalizes the refusal to hand over assets upon a mere written demand by the Respondent which Counsel argues bypasses a fair trial and deprives institutions of lawful, procedurally fair administrative action under Articles 47 & 50 of the Constitution . Counsel urges the Court to allow the petition, invalidate the unconstitutional sections of the Act, and grant the structural reliefs sought to protect its private property.
The Respondent’s Submissions
30. The respondent’s submissions are dated 6 th January 2026. Learned Counsel for the respondent submits that the Respondent’s actions are strictly grounded in its statutory mandate under the Unclaimed Financial Assets Act and are backed by the Beemkay & Company Final Audit Report of January 2023. They argue that the Petitioner’s own financial schedules and correspondence prove that their grievance is a standard statutory and administrative compliance issue, not a constitutional violation by the Authority/Respondent. The Authority submits that the Petition is non-justiciable, premature and a misuse of the Court’s constitutional jurisdiction.
31. Counsel isolates six issues for determination being:
i. whether the Petition presents a justiciable constitutional dispute;
ii. whether the Petition is premature for failure to exhaust statutory remedies;
iii. whether the Respondent lawfully exercised its statutory mandate,
iv. whether the Petition meets the constitutional precision threshold;
v. whether the funds in question constitute unclaimed financial assets under the law; and
vi. whether any constitutional rights of the Petitioner were violated.
32. It is argued that the dispute involves ordinary statutory reporting and regulatory audits, which the Petitioner has improperly elevated into a constitutional crisis. Citing the Supreme Court and High Court ecisions in Communications Commission of Kenya v. Royal Media Services Ltd & 5 Others [2014] eKLR and John Harun Mwau v. Peter Gastrow & 3 Others [2014] eKLR respectively, the Respondent submits that the Constitution should not be invoked if a remedy exists under regular legislative provisions.
33. Counsel submits that the Petitioner bypassed a mandatory, multi-step internal administrative process laid out in the Unclaimed Financial Assets Act before rushing to court. That Sections 33 to 36 of the Act requires holders to submit records, allow audits and provide explanations to the Authority which creates an ongoing regulatory dialogue meant for self-correction.
34. The respondent’s counsel points out that the claims mechanism under Sections 37 and 41 of the Act which stipulates that if a holder disputes whether funds are truly unclaimed, the Act provides a structured administrative forum to handle disputes over asset ownership and classification. That under Section 9 of the Fair Administrative Action Act and Article 159 (2) (c) of the Constitution which promotes alternative dispute resolution, parties must exhaust internal mechanisms first. Citing Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, a submission was made that courts must be fora of last resort and that in this case, the Petitioner provided no evidence of attempting these internal remedies.
35. The respondent submits that it acted entirely within the bounds of the law. That once the independent Beemkay & Company audit and the Petitioner’s own dormant financial schedules established that the statutory thresholds for abandoned assets were met, the Respondent’s mandate to claim those funds became obligatory, not discretionary. Citing Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Ltd [2004] eKLR , it is contended by Counsel that courts cannot interfere with a public body’s lawful statutory actions simply because the affected party views them as harsh.
36. On the fourth issue, Counsel reaffirms the strict pleading standard established in Anarita Karimi Njeru v. Republic (1976) eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance [2013] eKLR and notes that a Petitioner must outline their complaints and the specific manner of infringement with total precision. Counsel states that the principle in the Anarita case is not a mere technicality but a substantive requirement aimed at fair notice to the respondent.
37. That further, a reading of the Petition and the documents annexed thereto shows that the annexures speak to audits, compliance and statutory engagement, not unconstitutional conduct as stated in the Petitioner’s Supporting Affidavit and Annexures. That therefore, the Petitioner’s submissions cannot cure defective pleadings whose legal documents only talk about financial audits and statutory engagement and consequently, the Petition fails to establish clear, unconstitutional conduct or the requisite constitutional petition threshold.
38. On the fifth issue, it is submitted that the Petitioner’s funds legally constitute unclaimed assets since the disputed Kshs. 16,499,568/= fully fits the statutory definition of unclaimed assets. The respondent Authority emphasizes that this classification is strictly supported by the Beemkay audit report, the Respondent’s documentary evidence and corroborated by Petitioner’s own internal financial records, which show prolonged dormancy and an absence of active student or vendor claims over the required statutory period. It is further submitted that the Petitioner failed to present any expert evidence to challenge these audit findings.
39. On the last issue, the respondent submits that none of the Petitioner’s evidence demonstrates unlawful confiscation, discrimination or arbitrary deprivation of property. It cites the case of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR and reiterates that mere allegations are not enough. That since the Respondent acted fairly and lawfully under an Act of Parliament, it did not violate Articles 27 on discrimination, Article 40 on the right to property or Article 47 on fair administrative action. Finally, that the Petition is entirely without merit and legally deficient and should be dismissed in its entirety with costs to the Respondent.
The Interested Party’s Submissions
40. The Attorney General’s submissions are dated 20 th June 2025. She identifies two issues for determination namely:
i. Whether the Petition presents a justiciable issue and
ii. Whether the Interested Party is a necessary party to the petition.
41. On the first issue, it is submitted that the Petition and Notice of Motion seek orders which are speculative in nature and do not present a justiciable issue before this Court for its determination. Counsel references The Black’s Law Dictionary, 9 th Edition, Thomson Reuters Publishers at page 943-944 for the definition of justiciability which is, “proper to be examined in courts of justice or a question as may properly come before a tribunal for decision.”
42. Counsel further cites the case of Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR , where the Court cited several foundational authorities for the proposition that it is not enough to make general, omnibus allegations of constitutional violations being, Matiba v Attorney General HC Misc Appl 666 of 1990, American Constitutional Law 2 nd Edition by Lawrence Tribe at pg 67, Anarita Karimi Njeru V R (No 1) 1979 KLR 154 and Cyprian Kubai V Stanley Kanyonga Mwenda – Nairobi HC Misc 612 (2002) . That consequently, a Petitioner must explicitly state the exact provision infringed, the specific details of the infringement and the tangible, individualized harm suffered.
43. It is urged that that the Doctrine of Non-Justiciability dictates that courts should decline to hear disputes that are better suited for other branches of government or alternative dispute mechanisms. Specifically, the Attorney General Highlights the case of Kirungia v Ruto, Deputy Leader of Jubilee Party (Constitutional Petition 11 of 2022) [2022] KEHC 9940 (KLR) where the Court discussed the question of justiciability and stated that it comprises three doctrines being the Political Question Doctrine, the Constitutional-Avoidance Doctrine and thirdly, the Ripeness Doctrine. It is argued that under the Political Question Doctrine, courts should respect the separation of powers and avoid interfering with discretionary policy, statutory or executive functions, as established in Baker v Carr 369 U.S. 186 and the Court of Appeal in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others .
44. It is argued that the Unclaimed Financial Assets Act applies universally and does not exempt private institutions. That under Section 51 of the Act , the Authority has a lawful statutory mandate to audit, inspect and receive unclaimed assets from any entity and therefore, the Petitioner cannot use its status as a private university to escape the Authority’s jurisdiction or extricate itself from audit liabilities.
45. On the two-thirds gender rule and board composition argument, it is submitted that the Petitioner’s grievance regarding the gender composition of the Respondent’s Board is a distraction and a bad-faith attempt to evade financial liability and that neither the law nor the Constitution invalidates the statutory acts of a corporate body based on its gender composition.
46. Further submission is that every statute enjoys a rebuttable presumption of constitutionality as held in The Law Society of Kenya v National Assembly& 2 others; Association of Professional Societies In East Africa & another (Interested Parties) (Petition 215 of 2020) 2022/KEHC 10070 (KLR) , and that the burden lies entirely on the Petitioner to prove otherwise by examining the purpose and effect of the Act as held in the case of Eunice Nganga & another v Law Society of Kenya & another (2019) eKLR and Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika (Interested Party) (Petition E016 of 2023) [2024] KEHC 2890 (KLR) , which burden they have failed to discharge.
47. The Interested Party argues that she has been unnecessarily joined to the petition and that the Petitioner has failed to show how the Interested Party violated their rights and that notably, none of the formal court orders sought by the Petitioner at paragraph 65 of the Petition are directed against the Interested Party. She cites the case of High Court Anti-Corruption and Economic Crimes Petition E001 of 2024 James Ambuso v. State Law and Ethics and Anti-Corruption Commission and 1 Other (Unreported) in support of this argument. She urges this Court to find that the petition is meritless, an abuse of the court process designed to evade legal compliance and urges the Court to dismiss it with costs.
Analysis and Determination
48. I have considered the petition, the responses thereto and submissions for and against. The main issue for determination is whether the Petition is merited and whether the reliefs sought ought to issue . This mega issue has many facets and therefore this Court will further address determine questions of:
(i) Whether the Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.
(ii) Whether the Interested Party is properly joined.
(iii) Whether the alleged violation of the two-thirds gender rule in the composition of the Respondent’s Board invalidates its statutory enforcement actions and the impugned demand notice.
(iv) Whether the Petition meets the precision threshold required under Anarita Karimi Njeru case.
(v) Whether the Respondent’s demand to seize Kshs. 16,499,568/= violates of Articles 27, 31, 40, 47 and of the Constitution.
(vi) Whether Sections 50, 51(1) and 52(5) of the Unclaimed Financial Assets Act are unconstitutional.
(i) Whether this Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.
49. In its submissions, the Respondent contends that the dispute involves ordinary statutory reporting and regulatory audit
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E466 OF 2003
IN THE MATTER OF THE ENFORCEMENT OF BILL OF RIGHTS AND OTHER RELEVANT PROVISIONS OF THE CONSTITUTION AND MORE SPECIFICALLY ARTICLES 1 (1), 2 (1), 3 (1), 10 (1), 20 (4), 22, 23 (3), 47, 48, 50 (1) and 259 (1).
-AND-
IN THE MATTER OF THE UNCLAIMED FINANCIAL ASSETS ACT NO. 40 OF 2011 SPECIFICALLY SECTIONS 2, 3, 5 (1), 20 (1), 22, 31, 33, 41 AND 52 (5).
-AND-
IN THE MATTER OF THE UNIVERSITIES ACT NO. 42 OF 2012 SECTION 5 AND SECTION 52.
-AND-
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT, NO. 4 OF 2015.
-AND-
IN THE MATTER OF THE LAW OF CONTRACTS ACT CAP. 23 LAWS OF KENYA.
-BETWEEN-
DAYSTAR UNIVERSITY …..................................................... PETITIONER
-VERSUS-
UNCLAIMED FINANCIAL ASSETS AUTHORITY ……...RESPONDENT
-AND-
THE ATTORNEY GENERAL ……………………. INTERESTED PARTY
JUDGMENT
1. Before this Court for determination is the petition dated 3 rd November 2023, supported by the grounds on the face thereof and the affidavit of MUNEI NYOKABI KAHUMBURA , the Petitioner’s Legal Manager sworn on even date. The Petitioner seeks the following reliefs:
(a) An order of Certiorari to remove into the High Court and quash the demand letter by the Respondent to the Petitioner dated 17 th April 2023, demanding payment of Kshs. 16,499,568/= being unclaimed financial assets and Kshs. 2,850,000/= being audit fees.
(b) An order of Certiorari to remove into the High Court and quash the findings of the audit report prepared and published by Messrs. Beemkay and Company published in January 2023 in so far as it returned a finding that the Petitioner was holding identified unclaimed financial assets under section 5 of the Unclaimed Financial Assets Act whose value totalled Kshs. 16,499,568/=.
(c) An order of Prohibition directed at the Respondent prohibiting and restraining the Respondent whether acting directly or through any of their agents, employees and/or officers from issuing, executing, enforcing, and/or implementing any or any further decisions, demands, notices as against the Petitioner based on Messrs. Beemkay and Company audit report published in January 2023.
(d) A Declaration that sections 50, 51 (1) and 52 (5) of the Unclaimed Financial Assets Act are unconstitutional and hence null and void.
(e) A declaration that the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.
(f) A Declaration that the decision by the Board of Directors of the Unclaimed Financial Assets Authority to audit the Petitioner and to issue the demand letter dated 19 th April 2033 is null and void since the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.
(g) A Declaration that the provisions of Section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Unrecognized Deposits".
(h) A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as “Unclaimed Students Deposits”.
(i) A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs Beemkay and Company as “Unclaimed Trade Payable”.
(j) A Declaration that the provisions of section 3 and section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Caution Fees".
(k) A Declaration that there is no obligation under the provisions of section 20(1) of the Unclaimed Financial Assets Act for an entity/person which is not holding assets presumed abandoned and subject to the custody of the Authority to file a report with the Authority.
(l) A Declaration that the Respondent's decision contained in the demand letter dated 17 th April 2023 demanding Kshs. 16,499,568/= from the Petitioner, an amount which doesn't form part of unclaimed assets under sections 5 of the Unclaimed Financial Assets Act, is illegal, ultra vires, unjust and unreasonable.
2. The petitioner’s case is that the Respondent, the Unclaimed Financial Assets Authority (UFAA) has demanded an unlawful seizure of Kshs. 16,499,568/= on the petitioner university’s funds and demanding Kshs. 2,850,000/= in audit fees. The Petitioner argues that the funds are contractually its own and do not legally qualify as unclaimed financial assets under the Act.
3. The deponent swears that Daystar University is a private university chartered in 1994 by former President Daniel Arap Moi and regulated by the Commission for University Education under the Universities Act No. 42 of 2012. She states that the University operates on private funds drawn from non-refundable student fees, catering charges, endowments, gifts, trusts, income from the university auxiliary enterprises and investments. That as per its Charter, student fees are strictly non-refundable and that all generated funds belong solely to the university to pay staff salaries and fund scholarships.
4. It is deposed that the Respondent (UFAA) is a body corporate established to manage unclaimed assets and that its current Board of Directors consists of 6 men and 2 women, comprising only 25% female representation hence, the Respondent’s Board fails to meet the constitutionally mandated 1/3 or 33% female composition as required by the two-thirds gender rule.
5. It is stated that in January 2023, an audit firm Messrs. Beemkay & Company commissioned by the Respondent claimed the Petitioner held Kshs. 16,499,568/= in unclaimed assets upon conducting an audit, broken down as: -
(a) Unclaimed unrecognized deposits: Kshs. 8,157,175/=
(b) Unclaimed student deposits: Kshs. 6,020,080/=
(c) Unclaimed trade payables: Kshs. 1,674,313/=
(d) Unclaimed caution fees: Kshs. 648,000/=
6. The Petitioner argues that the auditor ignored the university’s non-refundable fee policies and Charter, by wrongly categorizing internal revenue as unclaimed assets. Further, that under Sections 3 and 5 of the Unclaimed Financial Assets Act, assets arising from private dealings subject to the privity of contract are exempt.
7. It is also asserted that Section 3 of the Act provides that an asset is only ‘unclaimed’ if the owner’s identity and address are unknown. That the auditor’s own report explicitly identifies the depositors and their addresses, thereby disqualifying the funds from being classified as unclaimed.
8. The Petitioner avers that on 17 th April 2023, the Respondent demanded the Kshs. 16,499,568 plus Kshs. 2,850,000 in audit fees within 14 days. That on 28 th April 2023, the Petitioner responded in a letter denying that they owed any monies due to the UFAA. It is stated that between April and July 2023, the Petitioner through its lawyers formally responded multiple times and exchanged correspondences with the Respondent clarifying that they held no unclaimed assets under the law. Finally, that on 20 th July 2023, vide letter annexed/marked “MNK-7”, the Respondent rejected Daystar’s explanations and issued a final 14-day notice threatening legal or administrative action.
9. It is the Petitioner’s case that the Respondent is acting ultra vires and in violation of the petitioner’s rights. The Petitioner seeks redress from this Court under Article 22 of the Constitution of Kenya to protect its rights and assets from unlawful enforcement by the respondent.
Responses
10. In response to the Petition, the Respondent filed a Replying Affidavit sworn by GIDEON NZIOKI a Senior Auditor dated 12 th March 2024, deposing that the Respondent herein is established as a State Corporation under the National Treasury pursuant to Section 39 of the Unclaimed Financial Assets Act 2011 and the board composition is set out under Section 40 of the Act.
11. It is averred that the Board consists of seven members, including a Chairperson, Principal Secretary and Directors where two out of seven members are women, meeting the minimum gender representation requirement. It is asserted that the gender ratio aligns with the two-thirds gender rule and complies with Article 27 (8) of the Constitution .
12. It is stated that the Respondent’s functions include enforcement and administration of the UFA Act. It is deposed that the Respondent commissioned a compliance audit on the Petitioner from 2011 to 2021 which identified unclaimed financial assets in the sum of Kshs. 16,499,568/= comprising unrecognized deposits, student deposits, trade payables and caution fees and that the Petitioner had not been filing returns as required under Section 20 of the Act .
13. The deponent states that the audit confirmed that these assets are presumed abandoned under the UFA Act and that despite being formally requested to settle the said sum by issuing notices and demanding payment of unclaimed assets, the Petitioner protested the claims, citing legal guidance and requesting extensions.
14. It is deposed that the Respondent was within its statutory mandate in conducting the Petitioner’s compliance audit as per the provisions of Section 31 of the UFA Act. That further, the assertion that the Act does not apply to it is misleading since Section 2 of the UFA Act defines a holder to mean any entity who holds any assets to which the Act applies, a description that fits the Petitioner herein.
15. The Respondent asserts that it responded to the Petitioner’s protests and affirmed its lawful authority to claim the assets. It is deposed that the Petitioner admitted that it holds the financial assets for the benefits of the students and employees and it is argued that the UFA Act at Section 45 provides for the payment of the unclaimed financial assets to the owner of the assets once it is satisfied that the person is the owner, meaning that the rightful owners will still benefit from them.
16. The Respondent reiterates its legal mandate and denies violating Articles 40, 43 or 157 of the Constitution . It is also denied that Section 51 (1)) of the Act contravenes Article 32 of the Constitution and neither does Section 52 (5) of the Act contravene Article 50 .
17. It contends that the Petitioner has not met the threshold requirements for declaring a law unconstitutional and that it has not set out with certainty the way its rights have been infringed.
18. It is pleaded that the University Charter, University Regulations and the Universities Act have provisions that cannot be applied because they conflict with the UFA Act under Section 37 which gives the UFA Act superiority over other laws that conflict with it on matters concerning unclaimed assets.
19. It is contended that the Petitioner has not shown how the Respondent’s actions are illegal, unjust and unreasonable and that the Petition should be dismissed for lacking merit.
20. The Interested Party also filed Grounds of Opposition dated 19 th March 2024 stating that:
(1 the instant Petition is unwarranted, devoid of merit and therefore an abuse of the process of this Honourable Court as it was filed by the Petitioner prior to exhaustion of all remedies available to them.
(2 the Petition herein is intended to impede and derail the Respondent’s primary statutory mandate of receiving unclaimed financial assets from holders of such assets, safeguard these unclaimed assets, and re-unite the assets with their rightful owners.
(3 the issue of two-thirds gender rule raised by the Petitioner is not a fact in issue as to warrant the Honorable Court’s attention of its determination.
(4 the financial audits and inspections carried out by the Respondent against the Petitioner were lawful, justifiable and tenable in the circumstances and were further done in the discharge of their statutory mandate.
(5 the intent of the Petitioner through their assertions in the Petition is to evade incurring legal liability as well as compliance with the provisions of Unclaimed Financial Assets Act hence rendering the Petition devoid of merit.
(6 the Petitioner failed to invoke the dispute resolution mechanisms available to them as is provided under the Unclaimed Financial Assets Act hence failing to exhaust all available remedies present to them prior to the filing of this instant Petition hence rendering the Petition premature before the Honorable Court.
(7 the orders sought in the instant Petition are untenable in the circumstances of the case as the Petitioner is in grave breach of the provisions of the statute as a holder of unclaimed financial assets.
(8 the instant Petition is baseless, implausible and totally devoid of merit, thus subsequently, it ought to be dismissed with costs to the Respondent .
21. The petition was canvassed by way of written submissions.
The petitioner’s Submissions
22. The Petitioner’s Submissions are dated 3 rd February 2025. It is submitted on behalf of the Petitioner that the Petition was competent because it meets the strict threshold of precision required for constitutional matters as prescribed by the case of Anarita Karimi Njeru v. Republic (1976) KLR as it explicitly details the infringement of rights and discrimination by the Respondent. It is argued that the Respondent demanded to attach Kshs. 16,499,568/= in the Petitioner’s possession as unclaimed assets yet they are private institutional funds hence, denying the petitioner the right to own property as guaranteed by Article 40 of the Constitution .
23. It is submitted that the decision to seize their property was made by an unconstitutionally constituted board which does not meet the two-thirds gender rule and amounts to discrimination under Article 27 of the Constitution . Counsel submits that the board at the time consisted of 6 men and 2 women which is 25% female. That even the Respondent’s counter-argument of a 7-member board still leaves it composition at 28.57% falling short of the constitutionally mandated minimum. Counsel cites the High Court’s decision in Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR in support and G’Oganyo v Independent Electoral Commission Selection Panel & 2 others; Independent Electoral and Boundaries Commission & 6 others (Interested Parties) (Constitutional Petition E345 of 2022) [2022] KEHC 10184 (KLR) for the proposition that while elective bodies may achieve gender parity progressively, appointive bodies must comply immediately. That as a consequence, all decisions emanating from the Board including the demand letter are null and void.
24. On whether the disputed funds are exempt from the Act, Counsel for the Petitioner argues that the Unclaimed Financial Assets Act explicitly exempts private institutional funds governed by privity of contract. Further, that the auditor’s own report identified the depositors, thereby directly disqualifying the funds under Section 3 of the Act which states that assets are only ‘unclaimed’ if the owner’s identity is completely unknown which was not so in the present case.
25. Counsel for the petitioner outlines the composition of the demanded amount and legally defends it as follows: -
(a) Unclaimed Student Deposits in the sums of Kshs. 6,020,080/= is governed by the University policy which explicitly states fees are non-refundable. Counsel argues that excess balances are only returnable after graduation and clearance and that accordingly, these funds belong to inactive, deferred or withdrawn students, or graduates who owe the university money.
(b) Unclaimed Caution Fees in the sum of Kshs. 648,000/= which Counsel explained is only refundable upon official clearance. It cannot be refunded if the student is active, has a debit balance, is on a scholarship where it reverts to the general fund, or has failed to clear.
(c) Unclaimed Unrecognized Deposits in the sum of Kshs. 8,157,175/= which Counsel explains are internal revenues fully accounted for in university operations such as scholarship funds, orientation fees, application fees and library compensation.
(d) Unclaimed Trade Payables in the sum of Kshs. 1,674,313/= which are private commercial transactions between the university and its suppliers. It is submitted that the Respondent is a stranger to these private payment plans and cannot interfere due to privity of contract.
26. On the unconstitutionality of Sections 50, 51(1), and 52(5) of the Unclaimed Financial Assets Act, Counsel submits that the High Court is vested with inherent powers under Article 165 of the Constitution to declare as unconstitutional and void, the above sections. They invoke the Supreme Court’s statutory testing guidelines in the case of The Cabinet Secretary of the Ministry of Treasury and Planning & Others v Okiya Omtata & Others (2024) eKLR .
27. Counsel submits that Section 50 of the Unclaimed Financial Assets Act gives the Respondent the power to prosecute criminal matters, which directly usurps the exclusive constitutional powers of the Director of Public Prosecutions under Article 157 (6) of the Constitution .
28. That Section 51(1) grants UFAA unlimited authority to enter and search any premises at any time, directly violating the constitutional right to privacy and protection against arbitrary searches under Article 31 .
29. Finally, that Section 52(5) criminalizes the refusal to hand over assets upon a mere written demand by the Respondent which Counsel argues bypasses a fair trial and deprives institutions of lawful, procedurally fair administrative action under Articles 47 & 50 of the Constitution . Counsel urges the Court to allow the petition, invalidate the unconstitutional sections of the Act, and grant the structural reliefs sought to protect its private property.
The Respondent’s Submissions
30. The respondent’s submissions are dated 6 th January 2026. Learned Counsel for the respondent submits that the Respondent’s actions are strictly grounded in its statutory mandate under the Unclaimed Financial Assets Act and are backed by the Beemkay & Company Final Audit Report of January 2023. They argue that the Petitioner’s own financial schedules and correspondence prove that their grievance is a standard statutory and administrative compliance issue, not a constitutional violation by the Authority/Respondent. The Authority submits that the Petition is non-justiciable, premature and a misuse of the Court’s constitutional jurisdiction.
31. Counsel isolates six issues for determination being:
i. whether the Petition presents a justiciable constitutional dispute;
ii. whether the Petition is premature for failure to exhaust statutory remedies;
iii. whether the Respondent lawfully exercised its statutory mandate,
iv. whether the Petition meets the constitutional precision threshold;
v. whether the funds in question constitute unclaimed financial assets under the law; and
vi. whether any constitutional rights of the Petitioner were violated.
32. It is argued that the dispute involves ordinary statutory reporting and regulatory audits, which the Petitioner has improperly elevated into a constitutional crisis. Citing the Supreme Court and High Court ecisions in Communications Commission of Kenya v. Royal Media Services Ltd & 5 Others [2014] eKLR and John Harun Mwau v. Peter Gastrow & 3 Others [2014] eKLR respectively, the Respondent submits that the Constitution should not be invoked if a remedy exists under regular legislative provisions.
33. Counsel submits that the Petitioner bypassed a mandatory, multi-step internal administrative process laid out in the Unclaimed Financial Assets Act before rushing to court. That Sections 33 to 36 of the Act requires holders to submit records, allow audits and provide explanations to the Authority which creates an ongoing regulatory dialogue meant for self-correction.
34. The respondent’s counsel points out that the claims mechanism under Sections 37 and 41 of the Act which stipulates that if a holder disputes whether funds are truly unclaimed, the Act provides a structured administrative forum to handle disputes over asset ownership and classification. That under Section 9 of the Fair Administrative Action Act and Article 159 (2) (c) of the Constitution which promotes alternative dispute resolution, parties must exhaust internal mechanisms first. Citing Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, a submission was made that courts must be fora of last resort and that in this case, the Petitioner provided no evidence of attempting these internal remedies.
35. The respondent submits that it acted entirely within the bounds of the law. That once the independent Beemkay & Company audit and the Petitioner’s own dormant financial schedules established that the statutory thresholds for abandoned assets were met, the Respondent’s mandate to claim those funds became obligatory, not discretionary. Citing Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Ltd [2004] eKLR , it is contended by Counsel that courts cannot interfere with a public body’s lawful statutory actions simply because the affected party views them as harsh.
36. On the fourth issue, Counsel reaffirms the strict pleading standard established in Anarita Karimi Njeru v. Republic (1976) eKLR and Mumo Matemu v. Trusted Society of Human Rights Alliance [2013] eKLR and notes that a Petitioner must outline their complaints and the specific manner of infringement with total precision. Counsel states that the principle in the Anarita case is not a mere technicality but a substantive requirement aimed at fair notice to the respondent.
37. That further, a reading of the Petition and the documents annexed thereto shows that the annexures speak to audits, compliance and statutory engagement, not unconstitutional conduct as stated in the Petitioner’s Supporting Affidavit and Annexures. That therefore, the Petitioner’s submissions cannot cure defective pleadings whose legal documents only talk about financial audits and statutory engagement and consequently, the Petition fails to establish clear, unconstitutional conduct or the requisite constitutional petition threshold.
38. On the fifth issue, it is submitted that the Petitioner’s funds legally constitute unclaimed assets since the disputed Kshs. 16,499,568/= fully fits the statutory definition of unclaimed assets. The respondent Authority emphasizes that this classification is strictly supported by the Beemkay audit report, the Respondent’s documentary evidence and corroborated by Petitioner’s own internal financial records, which show prolonged dormancy and an absence of active student or vendor claims over the required statutory period. It is further submitted that the Petitioner failed to present any expert evidence to challenge these audit findings.
39. On the last issue, the respondent submits that none of the Petitioner’s evidence demonstrates unlawful confiscation, discrimination or arbitrary deprivation of property. It cites the case of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR and reiterates that mere allegations are not enough. That since the Respondent acted fairly and lawfully under an Act of Parliament, it did not violate Articles 27 on discrimination, Article 40 on the right to property or Article 47 on fair administrative action. Finally, that the Petition is entirely without merit and legally deficient and should be dismissed in its entirety with costs to the Respondent.
The Interested Party’s Submissions
40. The Attorney General’s submissions are dated 20 th June 2025. She identifies two issues for determination namely:
i. Whether the Petition presents a justiciable issue and
ii. Whether the Interested Party is a necessary party to the petition.
41. On the first issue, it is submitted that the Petition and Notice of Motion seek orders which are speculative in nature and do not present a justiciable issue before this Court for its determination. Counsel references The Black’s Law Dictionary, 9 th Edition, Thomson Reuters Publishers at page 943-944 for the definition of justiciability which is, “proper to be examined in courts of justice or a question as may properly come before a tribunal for decision.”
42. Counsel further cites the case of Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR , where the Court cited several foundational authorities for the proposition that it is not enough to make general, omnibus allegations of constitutional violations being, Matiba v Attorney General HC Misc Appl 666 of 1990, American Constitutional Law 2 nd Edition by Lawrence Tribe at pg 67, Anarita Karimi Njeru V R (No 1) 1979 KLR 154 and Cyprian Kubai V Stanley Kanyonga Mwenda – Nairobi HC Misc 612 (2002) . That consequently, a Petitioner must explicitly state the exact provision infringed, the specific details of the infringement and the tangible, individualized harm suffered.
43. It is urged that that the Doctrine of Non-Justiciability dictates that courts should decline to hear disputes that are better suited for other branches of government or alternative dispute mechanisms. Specifically, the Attorney General Highlights the case of Kirungia v Ruto, Deputy Leader of Jubilee Party (Constitutional Petition 11 of 2022) [2022] KEHC 9940 (KLR) where the Court discussed the question of justiciability and stated that it comprises three doctrines being the Political Question Doctrine, the Constitutional-Avoidance Doctrine and thirdly, the Ripeness Doctrine. It is argued that under the Political Question Doctrine, courts should respect the separation of powers and avoid interfering with discretionary policy, statutory or executive functions, as established in Baker v Carr 369 U.S. 186 and the Court of Appeal in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others .
44. It is argued that the Unclaimed Financial Assets Act applies universally and does not exempt private institutions. That under Section 51 of the Act , the Authority has a lawful statutory mandate to audit, inspect and receive unclaimed assets from any entity and therefore, the Petitioner cannot use its status as a private university to escape the Authority’s jurisdiction or extricate itself from audit liabilities.
45. On the two-thirds gender rule and board composition argument, it is submitted that the Petitioner’s grievance regarding the gender composition of the Respondent’s Board is a distraction and a bad-faith attempt to evade financial liability and that neither the law nor the Constitution invalidates the statutory acts of a corporate body based on its gender composition.
46. Further submission is that every statute enjoys a rebuttable presumption of constitutionality as held in The Law Society of Kenya v National Assembly& 2 others; Association of Professional Societies In East Africa & another (Interested Parties) (Petition 215 of 2020) 2022/KEHC 10070 (KLR) , and that the burden lies entirely on the Petitioner to prove otherwise by examining the purpose and effect of the Act as held in the case of Eunice Nganga & another v Law Society of Kenya & another (2019) eKLR and Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika (Interested Party) (Petition E016 of 2023) [2024] KEHC 2890 (KLR) , which burden they have failed to discharge.
47. The Interested Party argues that she has been unnecessarily joined to the petition and that the Petitioner has failed to show how the Interested Party violated their rights and that notably, none of the formal court orders sought by the Petitioner at paragraph 65 of the Petition are directed against the Interested Party. She cites the case of High Court Anti-Corruption and Economic Crimes Petition E001 of 2024 James Ambuso v. State Law and Ethics and Anti-Corruption Commission and 1 Other (Unreported) in support of this argument. She urges this Court to find that the petition is meritless, an abuse of the court process designed to evade legal compliance and urges the Court to dismiss it with costs.
Analysis and Determination
48. I have considered the petition, the responses thereto and submissions for and against. The main issue for determination is whether the Petition is merited and whether the reliefs sought ought to issue . This mega issue has many facets and therefore this Court will further address determine questions of:
(i) Whether the Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.
(ii) Whether the Interested Party is properly joined.
(iii) Whether the alleged violation of the two-thirds gender rule in the composition of the Respondent’s Board invalidates its statutory enforcement actions and the impugned demand notice.
(iv) Whether the Petition meets the precision threshold required under Anarita Karimi Njeru case.
(v) Whether the Respondent’s demand to seize Kshs. 16,499,568/= violates of Articles 27, 31, 40, 47 and of the Constitution.
(vi) Whether Sections 50, 51(1) and 52(5) of the Unclaimed Financial Assets Act are unconstitutional.
(i) Whether this Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.
49. In its submissions, the Respondent contends that the dispute involves ordinary statutory reporting and regulatory audit
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