' 1. Before court is a petition amended on 5 July 2024 and in which the petitioner prays for:
(a) A declaration that the Petitioner''s rights to fair compensation for work done and certified by the Respondent be made as per Contract No. RD 0227A.
(b) An order that the Respondent do compensate the Petitioner as prayed in the Petition.
(c) An order of Judicial Review of Mandamus do issue compelling the Respondent to pay compensate fully the Petitioner forthwith and failing to which a Certificate of enforcement do issue compelling the Respondent to pay the sum claimed of Kshs. 301,052,444.12/=.”
2. Briefly, the background of the petitioner’s petition is that a company by the name Dhanjal Brothers Ltd, was contracted by the Ministry of Roads, Transport and Public Works to carry out works, described in the petition as “Kilifi Bridge Project, South Access Road” under Contract No. RD 0227A.
3. According to the petitioner, the works were carried out with skill and duly completed after which the Respondent authorized the consulting engineer to issue a Completion Certificate which was duly prepared on 29 April 1993 and forwarded, apparently to the respondent, on 27 May 1993.
4. The respondent is said to have offered to pay “a trifling” which the company rejected. As at 13 June 2001, the outstanding amount and interest was Kshs. 81,605,533.87. Efforts to have the money paid have, in the words of the petitioner “reached a dead end.” As at the time of filing suit, the total amount outstanding was Kshs. 301,052,444.12.
5. In response to the petition, Ms. Immaculate Opio, the learned state counsel for the the respondent, filed a notice of preliminary objection dated 4 October 2024 and objected to the hearing of the petitioner’s petition on grounds that:
“1. The Petitioner as named has no legal capacity to institute these proceedings.
2. The Petitioner has failed the test of specificity established in the celebrated case of Anarita Karimi vs Republic.
3. The petition is fatally defective and should be struck out in limine.
4. The Petition is misconceived, fatally defective, incurable and untenable in law and is an abuse of the process of the Court.
5. As a result of (1), (2), (3) and (4) hereinabove, this Honourable Court cannot grant and/or enforce any of the Orders sought for in the amended Petition as against the Respondents.”
6. The learned counsel has asked this Honourable Court to uphold the preliminary objection and strike out the petition. This ruling is with respect to the preliminary objection.
7. To begin with it is apparent from the petitioner’s own pleadings that the dispute arises out of a contract between, a company, Dhanjal Brothers Limited, and the Government of Kenya. Under the doctrine of privity of contract, Dhanjal Brothers Limited, as a juristic person, would be the right party to sue or be sued on the contract.
8. That a company is legal corporate entity independent of its shareholders is not in doubt (see Salomon versus Salomon (1897) AC 22). As such an independent entity, a company is capable of suing and being sued in its own name. Thus, the proper plaintiff in any proceedings or action in respect of a wrong done to the company, is the company itself. This principle was established in Foss vs. Harbottle (1843) 67 ER 189. The principle is referred to in company law as “the rule in Foss v. Harbottle” and was restated by Jenkins L. J. in Edwards vs. Halliwell (1950) All ER 1064 in the following terms: -
“The rule in Foss-v-Harbottle, as I understand it, comes to no more than this. First, the proper Plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that if a mere majority of the members of the company or association is in favour of what has been done, then cadit quaestio; or if the simple majority challenges the transaction, there is no valid reason why the company should not sue.”
9. In Amin Akberali Manji & 2 others v Altaf Abdulrasul Dadani, 2015 (eKLR), the Court of Appeal held that the rule established two principles the first of which is the "proper plaintiff principle" and the second is "the majority principle”. Under “the proper plaintiff principle”, a wrong done to the company may be vindicated by the company alone. As for the second principle, if the alleged wrong can be confirmed or ratified by a simple majority then a shareholder is barred from bringing an action. The principal effect in the rule is to bar actions by minority shareholders.
10. In the instant application, I am concerned about the first principle which would be to the effect that if the Government of Kenya wronged Dhanjal Brothers Limited, the proper plaintiff, or the proper petitioner as the case may be, is Dhanjal Brothers Limited and not any of its directors or shareholders.
11. On this score alone, the petitioner’s suit ought to fail because it is incompetent and misconceived.
12. But even if Dhanjal Brothers Limited had brought this petition in its own name, the next question would be whether, being a dispute arising from what, for all intents and purposes, is a commercial contract, a constitutional petition rather than an ordinary civil suit would be the proper course open to the petitioner to enforce the contract.
13. A similar question arose in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment).
14. The case was about digital migration of terrestrial television broadcasting from analogue to digital platform. Media houses, namely, Royal Media Services Limited, Nation Media Services Limited and Standard Group Limited alleged, inter alia, that their intellectual property rights had been violated and sought reliefs by way of a constitutional petition.
15. The late Majanja, J. captured their case as follows:
“130. The petitioners allege at paragraph 72 of the petition that, “In breach of the Petitioners'' intellectual property rights, the 3rd Respondent has by a letter dated 19th August 2013 unlawfully authorized the 4th, 5th, 6th, 7th and 8th Respondents to intercept and transmit the Petitioners'' broadcasts, the Petitioners'' locally produced programs and third party licensed programs without their authorization or consent.” As a result they seek a permanent injunction against the 4th, 5th, 6th and 7th respondents to restrain the violation.
16. In dismissing the petitioners’ s argument that they could seeks remedy by way of a constitutional petition, the learned judge held as follows:
“In any case a violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights and freedoms because there is a specific legal regime established by law to address intellectual property rights. This court has on several occasions emphasized that where there is a specific mechanism of dispute resolution established by ordinary law, then such a process ought to be pursued and that not every wrong attracts constitutional relief. In Sanitam Services (EA) Ltd v Tamia Ltd and Others Nairobi Petition No. 305 of 2012 [2012]eKLR the court noted that, “[10] Any breach of the intellectual property rights against the respondents can be enforced through the legal mechanisms provided by statute or common law, where applicable, hence it is unnecessary to invoke the provisions of Article 22 to enforce what are ordinary rights.”
17. When the case escalated to the Supreme Court as Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment), the Supreme Court upheld the learned judge’s reasoning and noted as follows:
“It was the trial Court’s finding that the content generated by the 1st, 2nd and 3rd respondents had been freely available to the public on the digital platform, since its launch in 2009 (paragraph 66 of the Judgment). The learned Judge observed that a case of violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights (paragraph 134). He relied on Sanitam Services (EA) Ltd. v. Tamia Ltd.&16 Others, Nairobi Petition No. 305 of 2012; [2012] eKLR, in which the Court held that a breach of intellectual property rights can be enforced through the legal mechanisms provided by statute or the common law, and that the invocation of the Constitution, particularly Article 22, was not necessary to enforce ordinary rights (paragraph 10).
[254] The Appellate Court (Musinga J.A) agreed with Majanja J.,that if indeed the appellants had violated the intellectual property rights of the broadcasters, a petition to enforce fundamental rights and freedoms was not the proper recourse, as there exists a definite legal regime for the resolution of such complaint (paragraph 136).
[255] Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides:
Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff:
a. relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;
(b)delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”
18. The court the underscored the doctrine of constitutional avoidance as articulated by the appellants before and noted, thus:
“(256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
19. The court then referred to a United States decision in which the conditions under which the doctrine of constitutional avoidance may be applied were outlined and held as follows:
(257) Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).
20. The court then concluded as follows:
“(258) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”
21. There is no doubt, the petitioner and the respondent were in a contractual relationship. However, just as it was urged by the petitioners in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra), the petitioner has, in its petition, invoked several articles of the Constitution as underpinning his quest for the reliefs sought. But the description of a suit that is, for all intents and purposes, an ordinary civil claim or invoking constitutional provisions in such a suit does not necessarily qualify it as a constitutional petition.
22. Granted; like any other person, the petitioners have a constitutional right to property, regardless of its form. However, as long as their property rights are traceable to a contract those rights can only be enforced as between the parties to the contract through an ordinary suit and not by way of a constitutional petition. In the Communications Commission of Kenya & 5 Others versus Royal Media Services Limited & 5 others (supra), the Supreme Court agreed with this Honourable Court that the petitioners’ right to intellectual property had not been violated but even if there was such a violation, their remedy as much as the manner of approaching court was available under statute, in particular, section 34 of the Copyright Act.
23. It is possible that the petitioner opted for the constitutional petition route because in all likelihood, the claim, having been filed more than three decades since the cause of action arose, is caught out by the Limitation of Actions Act, cap. 22. Under section 4 (1) (a) of the Act, an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. And with specific reference to causes or action arising out of contracts with Government section 3 (2) of the Public Authorities Limitation of Actions Act, cap. 39 provides that an action on contract must be brought within three years since the cause of action arose. It reads as follows:
(2) No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.
24. For the reasons I have given I uphold the preliminary objection and strike out with costs the petitioner’s petition. Orders accordingly.
Signed, dated, and delivered on 25 July 2025
'
(a) A declaration that the Petitioner''s rights to fair compensation for work done and certified by the Respondent be made as per Contract No. RD 0227A.
(b) An order that the Respondent do compensate the Petitioner as prayed in the Petition.
(c) An order of Judicial Review of Mandamus do issue compelling the Respondent to pay compensate fully the Petitioner forthwith and failing to which a Certificate of enforcement do issue compelling the Respondent to pay the sum claimed of Kshs. 301,052,444.12/=.”
2. Briefly, the background of the petitioner’s petition is that a company by the name Dhanjal Brothers Ltd, was contracted by the Ministry of Roads, Transport and Public Works to carry out works, described in the petition as “Kilifi Bridge Project, South Access Road” under Contract No. RD 0227A.
3. According to the petitioner, the works were carried out with skill and duly completed after which the Respondent authorized the consulting engineer to issue a Completion Certificate which was duly prepared on 29 April 1993 and forwarded, apparently to the respondent, on 27 May 1993.
4. The respondent is said to have offered to pay “a trifling” which the company rejected. As at 13 June 2001, the outstanding amount and interest was Kshs. 81,605,533.87. Efforts to have the money paid have, in the words of the petitioner “reached a dead end.” As at the time of filing suit, the total amount outstanding was Kshs. 301,052,444.12.
5. In response to the petition, Ms. Immaculate Opio, the learned state counsel for the the respondent, filed a notice of preliminary objection dated 4 October 2024 and objected to the hearing of the petitioner’s petition on grounds that:
“1. The Petitioner as named has no legal capacity to institute these proceedings.
2. The Petitioner has failed the test of specificity established in the celebrated case of Anarita Karimi vs Republic.
3. The petition is fatally defective and should be struck out in limine.
4. The Petition is misconceived, fatally defective, incurable and untenable in law and is an abuse of the process of the Court.
5. As a result of (1), (2), (3) and (4) hereinabove, this Honourable Court cannot grant and/or enforce any of the Orders sought for in the amended Petition as against the Respondents.”
6. The learned counsel has asked this Honourable Court to uphold the preliminary objection and strike out the petition. This ruling is with respect to the preliminary objection.
7. To begin with it is apparent from the petitioner’s own pleadings that the dispute arises out of a contract between, a company, Dhanjal Brothers Limited, and the Government of Kenya. Under the doctrine of privity of contract, Dhanjal Brothers Limited, as a juristic person, would be the right party to sue or be sued on the contract.
8. That a company is legal corporate entity independent of its shareholders is not in doubt (see Salomon versus Salomon (1897) AC 22). As such an independent entity, a company is capable of suing and being sued in its own name. Thus, the proper plaintiff in any proceedings or action in respect of a wrong done to the company, is the company itself. This principle was established in Foss vs. Harbottle (1843) 67 ER 189. The principle is referred to in company law as “the rule in Foss v. Harbottle” and was restated by Jenkins L. J. in Edwards vs. Halliwell (1950) All ER 1064 in the following terms: -
“The rule in Foss-v-Harbottle, as I understand it, comes to no more than this. First, the proper Plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that if a mere majority of the members of the company or association is in favour of what has been done, then cadit quaestio; or if the simple majority challenges the transaction, there is no valid reason why the company should not sue.”
9. In Amin Akberali Manji & 2 others v Altaf Abdulrasul Dadani, 2015 (eKLR), the Court of Appeal held that the rule established two principles the first of which is the "proper plaintiff principle" and the second is "the majority principle”. Under “the proper plaintiff principle”, a wrong done to the company may be vindicated by the company alone. As for the second principle, if the alleged wrong can be confirmed or ratified by a simple majority then a shareholder is barred from bringing an action. The principal effect in the rule is to bar actions by minority shareholders.
10. In the instant application, I am concerned about the first principle which would be to the effect that if the Government of Kenya wronged Dhanjal Brothers Limited, the proper plaintiff, or the proper petitioner as the case may be, is Dhanjal Brothers Limited and not any of its directors or shareholders.
11. On this score alone, the petitioner’s suit ought to fail because it is incompetent and misconceived.
12. But even if Dhanjal Brothers Limited had brought this petition in its own name, the next question would be whether, being a dispute arising from what, for all intents and purposes, is a commercial contract, a constitutional petition rather than an ordinary civil suit would be the proper course open to the petitioner to enforce the contract.
13. A similar question arose in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment).
14. The case was about digital migration of terrestrial television broadcasting from analogue to digital platform. Media houses, namely, Royal Media Services Limited, Nation Media Services Limited and Standard Group Limited alleged, inter alia, that their intellectual property rights had been violated and sought reliefs by way of a constitutional petition.
15. The late Majanja, J. captured their case as follows:
“130. The petitioners allege at paragraph 72 of the petition that, “In breach of the Petitioners'' intellectual property rights, the 3rd Respondent has by a letter dated 19th August 2013 unlawfully authorized the 4th, 5th, 6th, 7th and 8th Respondents to intercept and transmit the Petitioners'' broadcasts, the Petitioners'' locally produced programs and third party licensed programs without their authorization or consent.” As a result they seek a permanent injunction against the 4th, 5th, 6th and 7th respondents to restrain the violation.
16. In dismissing the petitioners’ s argument that they could seeks remedy by way of a constitutional petition, the learned judge held as follows:
“In any case a violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights and freedoms because there is a specific legal regime established by law to address intellectual property rights. This court has on several occasions emphasized that where there is a specific mechanism of dispute resolution established by ordinary law, then such a process ought to be pursued and that not every wrong attracts constitutional relief. In Sanitam Services (EA) Ltd v Tamia Ltd and Others Nairobi Petition No. 305 of 2012 [2012]eKLR the court noted that, “[10] Any breach of the intellectual property rights against the respondents can be enforced through the legal mechanisms provided by statute or common law, where applicable, hence it is unnecessary to invoke the provisions of Article 22 to enforce what are ordinary rights.”
17. When the case escalated to the Supreme Court as Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment), the Supreme Court upheld the learned judge’s reasoning and noted as follows:
“It was the trial Court’s finding that the content generated by the 1st, 2nd and 3rd respondents had been freely available to the public on the digital platform, since its launch in 2009 (paragraph 66 of the Judgment). The learned Judge observed that a case of violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights (paragraph 134). He relied on Sanitam Services (EA) Ltd. v. Tamia Ltd.&16 Others, Nairobi Petition No. 305 of 2012; [2012] eKLR, in which the Court held that a breach of intellectual property rights can be enforced through the legal mechanisms provided by statute or the common law, and that the invocation of the Constitution, particularly Article 22, was not necessary to enforce ordinary rights (paragraph 10).
[254] The Appellate Court (Musinga J.A) agreed with Majanja J.,that if indeed the appellants had violated the intellectual property rights of the broadcasters, a petition to enforce fundamental rights and freedoms was not the proper recourse, as there exists a definite legal regime for the resolution of such complaint (paragraph 136).
[255] Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides:
Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff:
a. relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;
(b)delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”
18. The court the underscored the doctrine of constitutional avoidance as articulated by the appellants before and noted, thus:
“(256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
19. The court then referred to a United States decision in which the conditions under which the doctrine of constitutional avoidance may be applied were outlined and held as follows:
(257) Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).
20. The court then concluded as follows:
“(258) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”
21. There is no doubt, the petitioner and the respondent were in a contractual relationship. However, just as it was urged by the petitioners in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra), the petitioner has, in its petition, invoked several articles of the Constitution as underpinning his quest for the reliefs sought. But the description of a suit that is, for all intents and purposes, an ordinary civil claim or invoking constitutional provisions in such a suit does not necessarily qualify it as a constitutional petition.
22. Granted; like any other person, the petitioners have a constitutional right to property, regardless of its form. However, as long as their property rights are traceable to a contract those rights can only be enforced as between the parties to the contract through an ordinary suit and not by way of a constitutional petition. In the Communications Commission of Kenya & 5 Others versus Royal Media Services Limited & 5 others (supra), the Supreme Court agreed with this Honourable Court that the petitioners’ right to intellectual property had not been violated but even if there was such a violation, their remedy as much as the manner of approaching court was available under statute, in particular, section 34 of the Copyright Act.
23. It is possible that the petitioner opted for the constitutional petition route because in all likelihood, the claim, having been filed more than three decades since the cause of action arose, is caught out by the Limitation of Actions Act, cap. 22. Under section 4 (1) (a) of the Act, an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. And with specific reference to causes or action arising out of contracts with Government section 3 (2) of the Public Authorities Limitation of Actions Act, cap. 39 provides that an action on contract must be brought within three years since the cause of action arose. It reads as follows:
(2) No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.
24. For the reasons I have given I uphold the preliminary objection and strike out with costs the petitioner’s petition. Orders accordingly.
Signed, dated, and delivered on 25 July 2025
'