1. The Petitioner commenced the present proceedings vide the Petition dated 15/03/2024 where he sought the following orders;
1) A declaration that the 1st, 2nd, 3rd and 4th Respondents are not licensed Microfinance Business of Digital Credit Providers within the meaning of Section 3(1) and related provisions of the Microfinance Act, 2006 and connected provisions.
2) A declaration that the 1st, 2nd 3rd and 4th Respondents are not licensed Digital Credit Providers under the Central Bank of Kenya Act, Cap 491, the Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations 2022.
3) A declaration that all contracts, agreements entered into between the 1st , 2nd 3rd and 4th Respondents and the public, operating either as Microfinance Business or Digital Credit Providers the basis upon which the Respondents supposedly disbursed credit or loans under the Micro finance Act, 2006, the Central Bank of Kenya Act, Cap 491, the Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations 2022 all monies earned or received by the 1st, 2nd 3rd and 4th Respondents in the nature of interest, fees, penalties and connected charges from the public are illegal, invalid and null and void ab initio.
4) Pursuant to prayer (3) above, a declaration that the 1st , 2nd , 3rd and 4th Respondents are constitutionally obligated to refund and compensate all the borrowers from whom they have illegally and fraudulently received and/earned interest, fees, penalties and connected charges in the manner as they shall be ordered by the Court.
5) A declaration that the 5th Respondent is in violation of Article 46(1) of the Constitution of Kenya 2010, Section(s) 2 and 3 of the Microfinance Act, Section(s) 4, 4A, 33R and 33S of the Central Bank of Kenya Act, Cap 491, Section(s) 4(1), (2) and (5) of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022, the Consumer Protection Act, 2012 and other connected provisions relevant thereto.
6) An order directing the 5th Respondent to immediately cease the operations of the 1st, 2nd, 3rd and 4th Respondents pending licensing pursuant to the relevant Statutes.
7) Costs of this Petition.
2. The Petition is supported by the Affidavit sworn by the Petitioner of even date. The Petition is supported by the Affidavit of Mark Esinyen Muko sworn on the same day.
Responses
3. The Respondents on their part filed their responses as follows; The 1st Respondent file Grounds of Opposition dated 3rd June 2024 through their Lawyer M/s Murgor & Murgor. The 2nd Respondent filed a Replying Affidavit sworn by one Richard Shimbala dated 24th April 2024 and Grounds of Opposition dated 2nd April 2024 through their Lawyer M/s Gatonye and Gatonye. The 3rd Respondent filed a Replying Affidavit sworn by one Vallen Omari and a Notice of Preliminary Objection (PO) dated 11th June 2024 through their Lawyer M/s Nyaanga & Mugisha Advocates.
4. The 4th Respondent filed a Replying Affidavit sworn by James Mugambi and grounds of Opposition dated 9th July 2024 through their Lawyer M/s Kimanthi and Associates. The 5th Respondent filed a Repling affidavit sworn by Ms. Evelyne Kilonzo who is the Senior Manager, Bank Supervision in the Central bank of Kenya sworn on 11th June 2024. To all the Replying Affidavits filed, the Petitioner filed Further Affidavits. With the pleadings in place, the Court on 3rd July 2025 directed that the Preliminary Objection file by the 3rd Respondent be heard 1st and Counsel for the 3rd Respondent was to file and serve his submissions on all the parties with leave to the rest of the parties to file their submissions upon service within the given time frame.
5. However, the only submissions on record as at the date of preparing this Ruling were the Petitioner’s dated 14th May 2025those of the 3rd Respondent dated 16th July 2025. The court will therefore proceed and render its Ruling based on these two sets of submissions. The PO is premised on grounds that:
1) This Honorable Court lacks the original jurisdiction to hear and determine the Petition herein in view of the mandatory provisions of sections 33R and 33S of the Central Bank of Kenya Act and Regulation 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 & 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
2) If this Honorable Court proceed to hear and determine the Petition herein, it will be usurping the powers of the regulator, the 5th Respondent herein, under sections 33R and 33S of the Central Bank of Kenya Act and Regulation 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 & 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations,2022.
3) Further, the Petition offends the exhaustion doctrine, the ripeness doctrine and justiciability dogma doctrine hence the same is an abuse of court process, frivolous and vexatious and should be struck out with costs to the 3rd Respondent.
4) The Petition is also incurably defective in form and in substance, as there are no discernible constitutional issues to warrant its admission and adjudication before this court in terms of the principles enunciated in Anarita Karimi Njeru vs. Republic (1975) eKLR and Mumo Matemu vs. Trusted Societies of Human Rights Alliance & 5 others (2013) eKLR.
The 3rd Respondent’s Submissions
6. On whether the petition raises constitutional issues, Counsel for the 3rd Respondent submitted that it is trite law that in a petition claiming violation, threat and/or infringement of the human rights and/or fundamental freedoms of an individual, the Petitioner has the burden of demonstrating the specific provisions said to be infringed and the manner in which they are alleged to have been infringed. Counsel urged that the constitutional transgressions must be pleaded with exactitude and lucidity.
7. Counsel further submitted that the Petitioner must meticulously state the nature of the constitutional violation including the specific provisions of the constitution, alleged to have been infringed and how the violation occurred. In nutshell, the petition must be precise on how a right or fundamental freedom guaranteed under the Constitution has been denied, violated, infringed, or is threatened.
8. He relied on the High Court decision in Anarita Karimi Njeru v Republic [19791KLR, the decision of the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] Eklr, the Supreme Court decision in Communications Commision of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR as well as Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 Others [2018 eKLR.
9. That based on the requirements therein set out, Counsel submitted that that upon careful examination of the reliefs sought in the Petition, none of the prayers enumerated from (1) to (7) expressly invoke or anchor themselves upon a specific right or fundamental freedom guaranteed under the Bill of Rights, which the Petitioner allege has been denied, violated, infringed or threatened with infringement.
10. Counsel therefore urged that the absence of express linkage of prayers to any constitutional provision clearly shows that the Petition does not meet the threshold for enforcement of rights under Articles 22 and 23 of the Constitution. Further, Counsel submitted that the Petitioner has not established a clear connection between the alleged constitutional violations and the 3rd Respondent, and that the Petition is laced with ambiguity and confusion and there is no clarity in the presentation of factual situations to the extent that the claim against the 3rd Respondent has not been substantiated with cogent and empirical evidence.
11. Counsel submitted that in actual fact, the Petitioner has entirely relied and cited statutory provisions and not constitutional provisions and referred the court to paragraph 8 to 37 of the Petition in which he states that the Petitioner has alleged violations of various provisions of Microfinance Act and the Central Bank Act and that it is only in part c and paragraphs 38 and 39 where he has cited Articles 22 (1), (c), 23(1), 3, 258, 259 (1) and 46 of the Constitution which he opines do not at all disclose any particulars of any constitutional violation.
12. Counsel further submitted that throughout its Petition, the Petitioner has not even tried to particularize how the 3rd Respondent and even how all the Respondents have violated any specific provisions of the constitution. Counsel urged that there is no demonstration of how the Respondents have violated or infringed his rights. Specifically, there is no connection between allegations of statutory violations and the constitutional infringements.
13. Counsel added that the declaratory prayers sought by the Petition is with regard to violation of statutory provisions, being Microfinance Act, 2006; Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022 and that there are no prayers sought for infringement, violation or threatened violation of any fundamental freedoms and human rights at all.
14. Counsel observed that although there is an allegation of violation of consumer rights under Article 46, the Petitioner has not pleaded with specificity and no factual foundation, and more particularly, the Petitioner has not particularized how Article 46 has been violated with backing of empirical evidence. Counsel submits that this is in fact a complaint of statutory violation rather than a constitutional petition. Counsel urged that this Petition is vague, jumbled, imprecise and embarrassing as was held in the case of Gesicho v Kenyatta & 3 others (Constitutional Petition 321 of 2018) [20221 KEHC 10935 (KLR), the Mumo Matemu case (Supra) and Omondi & Another v Attorney General & 2 Others; Ethekon & 7 Others (Interested Parties) (Constitutional Petition E269 of 2025) [2025] KEHC 9956(KLR) (Constitutional and Human Rights) (10th July 2025) (Judgement)
15. That in n view of the foregoing cited persuasive and binding authorities, Counsel urged the Court to proceed and dismiss the instant Petition for failing to meet the threshold for filing a constitutional petition.
16. On whether this Court will be usurping the mandate of the Central Bank Counsel submitted that the gravamen in the Petition is that the 3rd Respondent as well as the 1st, 2nd and 4th Respondents are providing digital credit lending services without licensing by the Central Bank of Kenya, the 5th Respondent, as required by the Central Bank of Kenya (Amendment)Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
17. Counsel observed that in his prayers, the Petitioner has sought various declaratory orders including an order directing the 5th Respondent, the Central Bank of Kenya, to immediately cease the operations of the 1st, 2nd, 3rd and 4th Respondents and is also seeking an order declaring that these Respondents are not licensed digital credit providers. Counsel submitted that however, the regulatory and licensing mandate has been bestowed upon the Central Bank of Kenya, the 5th Respondent, which is duly established under Article 231 of the Constitution and Section 3 of the Central Bank of Kenya Act and that Article 231 (1) provides that the Central Bank of Kenya shall perform other functions conferred upon it by an Act of Parliament.
18. Counsel submitted that Section 33R of the CBK Act, the 5th Respondent has the powers to register, license, regulate and supervise the operations of the digital credit providers. Further, he submitted that in Section 33S, no digital credit provider shall operate without licensing by the 5th Respondent and added that this mandate has constitutional credence under Article 231 (1) of the Constitution.
19. Counsel submitted that the procedure for application for licensing to provide digital credit lending services is clear stated under Section 33S (2), (3) and (4) of the CBK Act as read together with Regulations 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
20. Counsel further submitted that licensing procedure is rigorous, lengthy, intensive and/or comprehensive as it involves three stages. First, the applicants are required to submit their names for consideration and approval. Secondly, the applicants are required to file and electronically submit application for licensing. The last stage is provision of data for testing before issuance of a license.
21. Counsel added that once the 5th Respondent has satisfied itself that all the requirements have been met, it has the discretionary power to grant or reject an application for a license by written notice addressed to the applicant within sixty days from the date of receipt of an application under Section 33S (5) of the Central Bank of Kenya Act.
22. Counsel submitted that Regulation 9 of the Digital Credit Providers Regulations, 2022 gives the 5th Respondent the power to suspend and/or revoke the license of any digital credit lender for reasons stipulated in Sub clause (a) to (h) of Regulation 9 and that there are other conditions including the right to be heard, giving reasons as well as transfer of data and closure of operations.
23. Counsel urged that the cessation of operations of digital credit providers cannot be done in haphazard or unmethodological manner as argued by the Petitioner. Counsel argued that the court cannot step into the arena of regulation of financial institutions which are dealing with sensitive personal data and maintained that these powers are constitutionally and statutorily reserved for the 5th Respondent. Counsel posited that looking at the body and the prayers in the Petition, the Petitioner has directly invited this Honorable Court to usurp and/or interfere with the constitutional and statutory regulatory and licensing mandate of the Central Bank of Kenya, the 5th Respondent and urged that this invitation must be rejected by this court as it directly affronts the well-established doctrines of law.
24. Further hat it is now an established doctrine of law in our jurisdiction that the constitutional and statutory bodies and/or organs must be allowed to discharge their mandates unhindered provided that their actions are within the confines of the constitution and the law and that the court will only interfere if there is a justifiable reason to do so as was stated in the case of Njeru v Office of the Director of Public Prosecutions & 2 Others (Constitutional Petition 206 of 2021) [2024] KEHC 356 (KLR) and in Waweru Munyi Jackson v Director of Criminal Investigation & 4 Others [2021] eKLR
25. Counsel further urged that it is trite law that where the constitution and the law has distributed functions to various constitutional and statutory bodies and/or organs, the court cannot be invited to usurp. He placed reliance on the case of Shaban Mohamud Hassan & 3others [2013] eKLR.
26. In addition, Counsel submitted that the doctrine of separation of powers presupposes that constitutional organs, including this court, are required to keep to their lane and exercise restraint by avoiding undue interference with matters within the constitutional mandate of other constitutional organs. Counsel maintained that the court's intervention is only limited to the scope of checks and balances as was explained by the Court of Appeal in the Mumo Matemu case (supra) and the Court of Appeal decision in Salaries and Remuneration Commission v National Hospice Insurance Fund Management Board & 2 Others (Civil Appeal 165 of 2016) [2024] KECA 419 (KLR) (26th April 2024) (Judgement)
27. Counsel submitted that in view of the foregoing, in hearing and determining the present petition, the court will be usurping and interfering with the 5th Respondent's constitutional and statutory mandate to register, license, regulate and supervise the operations of the digital credit providers, the 1st to 4th Respondents herein.
28. On whether the instant petition offends the doctrine of exhaustion, ripeness and justiciability, Counsel urged that it is trite law that litigants must exhaust alternative dispute resolution mechanisms before approaching the court. Further, Counsel urged that the doctrines of constitutional avoidance, justiciability and ripeness precludes the court from entertainment a constitutional where there are other available remedies to the litigant. He observed that doctrine of exhaustion of alternative dispute resolution procedures before approaching court was well stated by the Court of Appeal in the case of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992| KECA 42(KLR).
29. Counsel further submitted that the doctrine of constitutional avoidance and justiciability are now well known in constitutional litigation. Counsel pointed out that whereas constitutional avoidance allows the courts to decline to hear a matter due to existence of other alternative mechanism, justiciability encompasses the principles of ripeness and mootness of the issue in dispute. He added that the Supreme Court of Kenya in Communication Commission of Kenya & 5 Others v Roval Media Services Ltd & 5 others (at para 256) held that courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine.
30. Counsel argued that it is now clear that the 5th Respondent has constitutional and statutory mandate to grant, reject, suspend and/or revoke license for digital credit provision services. Counsel maintained that this in itself is an administrative decision which is governed by the CBK Act, the Digital Credit Providers Regulations as well as Article 47 of the Constitution and the Fair Administrative Action Act.
31. Counsel submitted that the Petitioner is complaining that the 1st to 4th Respondents are operating without license and that the 5th Respondent has prolonged the issuance of license thus violating his consumer protection laws under Article 46 of the Constitution and that he is also seeking the invalidation of contracts and refund of interest, fees, penalties and other charges to customers. That however, a keen scrutiny of the Petition reveals that the Petitioner appears to be a dissatisfied with the operations of the 1st to 4th Respondents with the permission and/or licensing by the 5th Respondent and added that the Petitioner has also acknowledged that although the licensing of the 1st to 4th Respondents is ongoing, the same has been prolonged or delayed.
32. Counsel submitted that first, Regulation 22 of the Digital Credit Providers Regulations, provides for the procedure for resolution of consumer disputes and states that any complaints against the operations of the digital credit provider should be first reported to concerned provider for resolution within 30 days, and thereafter escalated to the regulator if dissatisfied. Secondly, that Regulations 48, 49, 50 and 51 of the Digital Credit Providers Regulations has established a mandatory procedure for resolution of disputes concerning the operations of the digital credit providers. Counsel observed that it provides that any person is aggrieved with the administrative decision of the CBK has a right to request for review within 14 days of being aware of the decision.
33. Counsel added that once a request for review has been filed, CBK has the mandate to determine the request and communicate its decision within 30 days pursuant to Regulation 51 (1). Counsel observed that under Regulation 51 (2) of the Digital Credit Providers Regulations, the Bank must hear the representation of the digital credit provider or other persons on the request for review before rendering its decision.
34. Counsel submitted that under Regulation 52 of the Digital Credit Providers Regulations, the decision on the request for review must be backed by reasons and that this requirement is in accordance with Article 47(1) and (2) of the Constitution and Section 4, 5 and 6 of the Fair Administrative Action Act (FAA) which requires administrative decisions to be effective, efficient, timely and with reasons.
35. Counsel submitted that although the CBK Act and the Digital Credit Providers Regulations are silent on the right to appeal against their decisions, these decisions are administrative decisions within the meaning of Article 47 (1) and (2) of the Constitution and Section 4, 5 and 6 of the FAA Act and are thus subject to judicial review under Sections 7, 8 and 9 of the FAA Act.
36. Counsel maintained that the Petitioner ought to have complied with the above dispute resolution procedures before approaching this court by way of judicial review and not a constitutional petition. Counsel urged that this court must therefore invoke the constitutional avoidance doctrine as the Petition offends the exhaustion, the ripeness and justifiability doctrines as postulated in the in the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020)[2022] KEHIC 289 (KLR), the Court of Appeal decision in Speaker of the National Assembly v Karume(Civil Application 92 of 1992)[1992] KECA 42 (KLR) (29th May 1992( Ruling), the Supreme Court decision in the Communications Commission of Kenya case(supra), and the High Court decision in Chilango v Independent Electoral Boundaries Commission & 3 Others ( Constitutional Petition E005 of 2022 [2022] KEHC (KLR) (17th June 2022)( Judgement)
Petitioner’s Submissions
37. Counsel submitted that the Notice of Preliminary Objection raised by the 3rd Respondent as under Section(s) 33R and 33S do not merit as a preliminary objection towards the hearing and determination of this Petition. That the jurisprudence ancillary to preliminary objections is elaborate and settled in law. He relied on the case of Mukisa Biscuit Manufacturing Ltd vs West End Distributors (1969) EA 696 and the case of Hassan Nyanje Charo-vs-Khatib Mwashetani & 3 other (2014) eKLR.
38. Counsel further submitted that Section 33R and 33S of the Central Bank of Kenya (Amendment) Act, 2021 and the cited Regulations deal with the licensing and regulation of Digital Credit Providers by the 5th Respondent and urged that the subject of the Petition is whether by failing to license the Respondents and/or comply with the Act and the Regulations above stated, the 5th Respondent has violated, infringed on and/or threatened the provisions of Article 46 of The Constitution of Kenya (2010).
39. He submitted that if the answer be in the affirmative, it then renders all the activities and operations of the Respondents as Digital Credit Providers (within the meaning of the Act and the Regulations) illegal and in violation of Article 46 and the provisions of statute. That in their opinion, they do not raise pure points of law and/or material to disposing off the proceedings and that on the contrary, the two provisions are critical in determining the legality of the activities and operations of the 1st to 4th Respondents and the statutory obligations of the 5th Respondent in compliance with Article 46.
40. Counsel added that as to whether the 1st to 4th Respondents are licensed Digital Credit Providers authorized to operate as they do, is a contested fact and that neither the 1st to 4th Respondents nor the 5th Respondent have provided any evidence to justify if indeed the 1st to 4th Respondents have made any applications to be licensed. Counsel observed that on the other hand, and quite astonishing at that, the 1st Respondent in its Replying affidavit contends that it is not a Digital Credit Provider, contrary to the deposition made by the 5th Respondent in its response that the 1st Respondent has applied for a license and operates as a Digital Credit Provider. Counsel urged that these are unascertained and contested matters of fact for determination by the Court. Further to the above, Counsel submitted that the doctrines of exhaustion, ripeness and justiciability dogma border on proof of facts, discernible during a trial and not at such preliminary stage of the proceedings and urged that the PO must fail at the door step.
41. On the jurisdiction of the Court, Counsel cited Article 166(1) of the Constitution on the jurisdiction of the High Court and submitted that Article 23 (1) and (3) vests in the High Court, the power to hear and determine applications for redress of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and grant appropriate relief. Counsel argued that the Petition is civil in nature and that the Petitioner has exercised his right to institute the Petition pursuant to Article 22(1) of the Constitution. Counsel added that the Article bestows upon the Petitioner the unfettered right to institute a Petition before the Court claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened.
42. Counsel urged that the Petitioner is acting in the public interest in line with Article 22(2) (c) claiming denial, violation, infringement and/or threats to consumer rights as provided for under Article 46 in the Bill of Rights. That in this regard, this Court bears the exclusive original and unlimited jurisdiction to interpret and implement the Bill of Rights as enshrined. Counsel submitted that as noted above Section 33R and 33S deal with licensing and regulation of Digital Credit Providers. Counsel argued that they do not in any way oust the constitutional jurisdiction of the High Court to interrogate and adjudicate as to whether there is a denial, violation or threat to a right in the Bill of Rights that is enforced in statute, in this case Section 33R and 33S.
43. Counsel further urged that the 5th Respondent bears no constitutional and/or statutory mandate to implement the Bill of Rights within the meaning of Article 23. Counsel added that its duty in reference to the cited provisions and Regulations is limited to licensing and regulation. That in view of the foregoing, the contention that in determining the Petition the Court shall be usurping the powers of the 5th Respondent is misplaced, misrepresented and misleading and urged that this Court has jurisdiction.
44. On the Anarita Karimi Njeru case (Supra), Counsel submitted that the principles sought to be relied upon in the respective case constitute orbiter dictum and not a statement of law. That it is purely judicial opinion, not the Court's holding and/or determination of a point or question of law. Counsel observed that the Court of Appeal in the Mumo Matemu case(supra) broadly and reasonably emphasized on the need for Court's to employ a progressive approach in determining the admissibility and propriety of constitutional petitions; that is adopting the subjective test.
45. Counsel added that Article 159 (1) and (2) is instructive in terms of the modern day constitutional approach to the fair administration of justice without focus on unnecessary limitations and submitted that the Petition is well framed, precise and articulate on the violation of Article 46. That in the Mumo Matemu Case the Court restated that what is critical is that the Petition should be well drafted and precise in articulating the violation and/or infringement of the rights in the Bill of Rights and further adequate notice of the violation(s) be given to the adversary(ies) to respond to the Petition. That in the instant case, the Petition was duly served upon the Respondents.
46. That the 2nd and 5th Respondents have comprehensively responded to the petition by filing Replying Affidavits. Counsel argued that the responses clearly demonstrate a clear understanding of the issues by the respective Respondents, to the extent that the 1st Respondent even contends that it is not a Digital Credit Provider within the meaning of the Act. Counsel submitted that the responses manifest adequate notice and preparation by the Respondents. Counsel argued that the simple function of pleadings, hearing submissions and judicial decision is to define the issues in litigation and adjudication.
47. Counsel urged that to demand exactitude and mathematical precision in drafting of constitutional petitions is to miss the point, hence the superior Court's advice on the subjective test in approaching such petitions and further submitted that it is only when a Petition raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy. Counsel urged that the dictum in the Anarita Karimi Njeru Case is widely deemed as being oppressive and to say the least myopic, often tossed around by opposing Counsel to frustrate litigation of constitutional issues.
48. Counsel reiterated that the Petition is accurate, is in simple language and clearly sets down the violation, infringement and/or threat to the provision(s) of The Constitution and statute as narrated. In the end, Counsel urged that the objections raised are not pure points of law to merit a preliminary objection to the Petition.
Determination
49. Having addressed my mind to the Preliminary Objection raised by the 3rd Respondent herein, it is my considered opinion that the primary issue for determination is whether the Preliminary Objection based on the grounds raised has merit.
50. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
“a preliminary objection
[...truncated]
1) A declaration that the 1st, 2nd, 3rd and 4th Respondents are not licensed Microfinance Business of Digital Credit Providers within the meaning of Section 3(1) and related provisions of the Microfinance Act, 2006 and connected provisions.
2) A declaration that the 1st, 2nd 3rd and 4th Respondents are not licensed Digital Credit Providers under the Central Bank of Kenya Act, Cap 491, the Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations 2022.
3) A declaration that all contracts, agreements entered into between the 1st , 2nd 3rd and 4th Respondents and the public, operating either as Microfinance Business or Digital Credit Providers the basis upon which the Respondents supposedly disbursed credit or loans under the Micro finance Act, 2006, the Central Bank of Kenya Act, Cap 491, the Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations 2022 all monies earned or received by the 1st, 2nd 3rd and 4th Respondents in the nature of interest, fees, penalties and connected charges from the public are illegal, invalid and null and void ab initio.
4) Pursuant to prayer (3) above, a declaration that the 1st , 2nd , 3rd and 4th Respondents are constitutionally obligated to refund and compensate all the borrowers from whom they have illegally and fraudulently received and/earned interest, fees, penalties and connected charges in the manner as they shall be ordered by the Court.
5) A declaration that the 5th Respondent is in violation of Article 46(1) of the Constitution of Kenya 2010, Section(s) 2 and 3 of the Microfinance Act, Section(s) 4, 4A, 33R and 33S of the Central Bank of Kenya Act, Cap 491, Section(s) 4(1), (2) and (5) of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022, the Consumer Protection Act, 2012 and other connected provisions relevant thereto.
6) An order directing the 5th Respondent to immediately cease the operations of the 1st, 2nd, 3rd and 4th Respondents pending licensing pursuant to the relevant Statutes.
7) Costs of this Petition.
2. The Petition is supported by the Affidavit sworn by the Petitioner of even date. The Petition is supported by the Affidavit of Mark Esinyen Muko sworn on the same day.
Responses
3. The Respondents on their part filed their responses as follows; The 1st Respondent file Grounds of Opposition dated 3rd June 2024 through their Lawyer M/s Murgor & Murgor. The 2nd Respondent filed a Replying Affidavit sworn by one Richard Shimbala dated 24th April 2024 and Grounds of Opposition dated 2nd April 2024 through their Lawyer M/s Gatonye and Gatonye. The 3rd Respondent filed a Replying Affidavit sworn by one Vallen Omari and a Notice of Preliminary Objection (PO) dated 11th June 2024 through their Lawyer M/s Nyaanga & Mugisha Advocates.
4. The 4th Respondent filed a Replying Affidavit sworn by James Mugambi and grounds of Opposition dated 9th July 2024 through their Lawyer M/s Kimanthi and Associates. The 5th Respondent filed a Repling affidavit sworn by Ms. Evelyne Kilonzo who is the Senior Manager, Bank Supervision in the Central bank of Kenya sworn on 11th June 2024. To all the Replying Affidavits filed, the Petitioner filed Further Affidavits. With the pleadings in place, the Court on 3rd July 2025 directed that the Preliminary Objection file by the 3rd Respondent be heard 1st and Counsel for the 3rd Respondent was to file and serve his submissions on all the parties with leave to the rest of the parties to file their submissions upon service within the given time frame.
5. However, the only submissions on record as at the date of preparing this Ruling were the Petitioner’s dated 14th May 2025those of the 3rd Respondent dated 16th July 2025. The court will therefore proceed and render its Ruling based on these two sets of submissions. The PO is premised on grounds that:
1) This Honorable Court lacks the original jurisdiction to hear and determine the Petition herein in view of the mandatory provisions of sections 33R and 33S of the Central Bank of Kenya Act and Regulation 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 & 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
2) If this Honorable Court proceed to hear and determine the Petition herein, it will be usurping the powers of the regulator, the 5th Respondent herein, under sections 33R and 33S of the Central Bank of Kenya Act and Regulation 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 & 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations,2022.
3) Further, the Petition offends the exhaustion doctrine, the ripeness doctrine and justiciability dogma doctrine hence the same is an abuse of court process, frivolous and vexatious and should be struck out with costs to the 3rd Respondent.
4) The Petition is also incurably defective in form and in substance, as there are no discernible constitutional issues to warrant its admission and adjudication before this court in terms of the principles enunciated in Anarita Karimi Njeru vs. Republic (1975) eKLR and Mumo Matemu vs. Trusted Societies of Human Rights Alliance & 5 others (2013) eKLR.
The 3rd Respondent’s Submissions
6. On whether the petition raises constitutional issues, Counsel for the 3rd Respondent submitted that it is trite law that in a petition claiming violation, threat and/or infringement of the human rights and/or fundamental freedoms of an individual, the Petitioner has the burden of demonstrating the specific provisions said to be infringed and the manner in which they are alleged to have been infringed. Counsel urged that the constitutional transgressions must be pleaded with exactitude and lucidity.
7. Counsel further submitted that the Petitioner must meticulously state the nature of the constitutional violation including the specific provisions of the constitution, alleged to have been infringed and how the violation occurred. In nutshell, the petition must be precise on how a right or fundamental freedom guaranteed under the Constitution has been denied, violated, infringed, or is threatened.
8. He relied on the High Court decision in Anarita Karimi Njeru v Republic [19791KLR, the decision of the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] Eklr, the Supreme Court decision in Communications Commision of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR as well as Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 Others [2018 eKLR.
9. That based on the requirements therein set out, Counsel submitted that that upon careful examination of the reliefs sought in the Petition, none of the prayers enumerated from (1) to (7) expressly invoke or anchor themselves upon a specific right or fundamental freedom guaranteed under the Bill of Rights, which the Petitioner allege has been denied, violated, infringed or threatened with infringement.
10. Counsel therefore urged that the absence of express linkage of prayers to any constitutional provision clearly shows that the Petition does not meet the threshold for enforcement of rights under Articles 22 and 23 of the Constitution. Further, Counsel submitted that the Petitioner has not established a clear connection between the alleged constitutional violations and the 3rd Respondent, and that the Petition is laced with ambiguity and confusion and there is no clarity in the presentation of factual situations to the extent that the claim against the 3rd Respondent has not been substantiated with cogent and empirical evidence.
11. Counsel submitted that in actual fact, the Petitioner has entirely relied and cited statutory provisions and not constitutional provisions and referred the court to paragraph 8 to 37 of the Petition in which he states that the Petitioner has alleged violations of various provisions of Microfinance Act and the Central Bank Act and that it is only in part c and paragraphs 38 and 39 where he has cited Articles 22 (1), (c), 23(1), 3, 258, 259 (1) and 46 of the Constitution which he opines do not at all disclose any particulars of any constitutional violation.
12. Counsel further submitted that throughout its Petition, the Petitioner has not even tried to particularize how the 3rd Respondent and even how all the Respondents have violated any specific provisions of the constitution. Counsel urged that there is no demonstration of how the Respondents have violated or infringed his rights. Specifically, there is no connection between allegations of statutory violations and the constitutional infringements.
13. Counsel added that the declaratory prayers sought by the Petition is with regard to violation of statutory provisions, being Microfinance Act, 2006; Central Bank of Kenya (Amendment) Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022 and that there are no prayers sought for infringement, violation or threatened violation of any fundamental freedoms and human rights at all.
14. Counsel observed that although there is an allegation of violation of consumer rights under Article 46, the Petitioner has not pleaded with specificity and no factual foundation, and more particularly, the Petitioner has not particularized how Article 46 has been violated with backing of empirical evidence. Counsel submits that this is in fact a complaint of statutory violation rather than a constitutional petition. Counsel urged that this Petition is vague, jumbled, imprecise and embarrassing as was held in the case of Gesicho v Kenyatta & 3 others (Constitutional Petition 321 of 2018) [20221 KEHC 10935 (KLR), the Mumo Matemu case (Supra) and Omondi & Another v Attorney General & 2 Others; Ethekon & 7 Others (Interested Parties) (Constitutional Petition E269 of 2025) [2025] KEHC 9956(KLR) (Constitutional and Human Rights) (10th July 2025) (Judgement)
15. That in n view of the foregoing cited persuasive and binding authorities, Counsel urged the Court to proceed and dismiss the instant Petition for failing to meet the threshold for filing a constitutional petition.
16. On whether this Court will be usurping the mandate of the Central Bank Counsel submitted that the gravamen in the Petition is that the 3rd Respondent as well as the 1st, 2nd and 4th Respondents are providing digital credit lending services without licensing by the Central Bank of Kenya, the 5th Respondent, as required by the Central Bank of Kenya (Amendment)Act, 2021 and the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
17. Counsel observed that in his prayers, the Petitioner has sought various declaratory orders including an order directing the 5th Respondent, the Central Bank of Kenya, to immediately cease the operations of the 1st, 2nd, 3rd and 4th Respondents and is also seeking an order declaring that these Respondents are not licensed digital credit providers. Counsel submitted that however, the regulatory and licensing mandate has been bestowed upon the Central Bank of Kenya, the 5th Respondent, which is duly established under Article 231 of the Constitution and Section 3 of the Central Bank of Kenya Act and that Article 231 (1) provides that the Central Bank of Kenya shall perform other functions conferred upon it by an Act of Parliament.
18. Counsel submitted that Section 33R of the CBK Act, the 5th Respondent has the powers to register, license, regulate and supervise the operations of the digital credit providers. Further, he submitted that in Section 33S, no digital credit provider shall operate without licensing by the 5th Respondent and added that this mandate has constitutional credence under Article 231 (1) of the Constitution.
19. Counsel submitted that the procedure for application for licensing to provide digital credit lending services is clear stated under Section 33S (2), (3) and (4) of the CBK Act as read together with Regulations 4, 5, 9, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 52 of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022.
20. Counsel further submitted that licensing procedure is rigorous, lengthy, intensive and/or comprehensive as it involves three stages. First, the applicants are required to submit their names for consideration and approval. Secondly, the applicants are required to file and electronically submit application for licensing. The last stage is provision of data for testing before issuance of a license.
21. Counsel added that once the 5th Respondent has satisfied itself that all the requirements have been met, it has the discretionary power to grant or reject an application for a license by written notice addressed to the applicant within sixty days from the date of receipt of an application under Section 33S (5) of the Central Bank of Kenya Act.
22. Counsel submitted that Regulation 9 of the Digital Credit Providers Regulations, 2022 gives the 5th Respondent the power to suspend and/or revoke the license of any digital credit lender for reasons stipulated in Sub clause (a) to (h) of Regulation 9 and that there are other conditions including the right to be heard, giving reasons as well as transfer of data and closure of operations.
23. Counsel urged that the cessation of operations of digital credit providers cannot be done in haphazard or unmethodological manner as argued by the Petitioner. Counsel argued that the court cannot step into the arena of regulation of financial institutions which are dealing with sensitive personal data and maintained that these powers are constitutionally and statutorily reserved for the 5th Respondent. Counsel posited that looking at the body and the prayers in the Petition, the Petitioner has directly invited this Honorable Court to usurp and/or interfere with the constitutional and statutory regulatory and licensing mandate of the Central Bank of Kenya, the 5th Respondent and urged that this invitation must be rejected by this court as it directly affronts the well-established doctrines of law.
24. Further hat it is now an established doctrine of law in our jurisdiction that the constitutional and statutory bodies and/or organs must be allowed to discharge their mandates unhindered provided that their actions are within the confines of the constitution and the law and that the court will only interfere if there is a justifiable reason to do so as was stated in the case of Njeru v Office of the Director of Public Prosecutions & 2 Others (Constitutional Petition 206 of 2021) [2024] KEHC 356 (KLR) and in Waweru Munyi Jackson v Director of Criminal Investigation & 4 Others [2021] eKLR
25. Counsel further urged that it is trite law that where the constitution and the law has distributed functions to various constitutional and statutory bodies and/or organs, the court cannot be invited to usurp. He placed reliance on the case of Shaban Mohamud Hassan & 3others [2013] eKLR.
26. In addition, Counsel submitted that the doctrine of separation of powers presupposes that constitutional organs, including this court, are required to keep to their lane and exercise restraint by avoiding undue interference with matters within the constitutional mandate of other constitutional organs. Counsel maintained that the court's intervention is only limited to the scope of checks and balances as was explained by the Court of Appeal in the Mumo Matemu case (supra) and the Court of Appeal decision in Salaries and Remuneration Commission v National Hospice Insurance Fund Management Board & 2 Others (Civil Appeal 165 of 2016) [2024] KECA 419 (KLR) (26th April 2024) (Judgement)
27. Counsel submitted that in view of the foregoing, in hearing and determining the present petition, the court will be usurping and interfering with the 5th Respondent's constitutional and statutory mandate to register, license, regulate and supervise the operations of the digital credit providers, the 1st to 4th Respondents herein.
28. On whether the instant petition offends the doctrine of exhaustion, ripeness and justiciability, Counsel urged that it is trite law that litigants must exhaust alternative dispute resolution mechanisms before approaching the court. Further, Counsel urged that the doctrines of constitutional avoidance, justiciability and ripeness precludes the court from entertainment a constitutional where there are other available remedies to the litigant. He observed that doctrine of exhaustion of alternative dispute resolution procedures before approaching court was well stated by the Court of Appeal in the case of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992| KECA 42(KLR).
29. Counsel further submitted that the doctrine of constitutional avoidance and justiciability are now well known in constitutional litigation. Counsel pointed out that whereas constitutional avoidance allows the courts to decline to hear a matter due to existence of other alternative mechanism, justiciability encompasses the principles of ripeness and mootness of the issue in dispute. He added that the Supreme Court of Kenya in Communication Commission of Kenya & 5 Others v Roval Media Services Ltd & 5 others (at para 256) held that courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine.
30. Counsel argued that it is now clear that the 5th Respondent has constitutional and statutory mandate to grant, reject, suspend and/or revoke license for digital credit provision services. Counsel maintained that this in itself is an administrative decision which is governed by the CBK Act, the Digital Credit Providers Regulations as well as Article 47 of the Constitution and the Fair Administrative Action Act.
31. Counsel submitted that the Petitioner is complaining that the 1st to 4th Respondents are operating without license and that the 5th Respondent has prolonged the issuance of license thus violating his consumer protection laws under Article 46 of the Constitution and that he is also seeking the invalidation of contracts and refund of interest, fees, penalties and other charges to customers. That however, a keen scrutiny of the Petition reveals that the Petitioner appears to be a dissatisfied with the operations of the 1st to 4th Respondents with the permission and/or licensing by the 5th Respondent and added that the Petitioner has also acknowledged that although the licensing of the 1st to 4th Respondents is ongoing, the same has been prolonged or delayed.
32. Counsel submitted that first, Regulation 22 of the Digital Credit Providers Regulations, provides for the procedure for resolution of consumer disputes and states that any complaints against the operations of the digital credit provider should be first reported to concerned provider for resolution within 30 days, and thereafter escalated to the regulator if dissatisfied. Secondly, that Regulations 48, 49, 50 and 51 of the Digital Credit Providers Regulations has established a mandatory procedure for resolution of disputes concerning the operations of the digital credit providers. Counsel observed that it provides that any person is aggrieved with the administrative decision of the CBK has a right to request for review within 14 days of being aware of the decision.
33. Counsel added that once a request for review has been filed, CBK has the mandate to determine the request and communicate its decision within 30 days pursuant to Regulation 51 (1). Counsel observed that under Regulation 51 (2) of the Digital Credit Providers Regulations, the Bank must hear the representation of the digital credit provider or other persons on the request for review before rendering its decision.
34. Counsel submitted that under Regulation 52 of the Digital Credit Providers Regulations, the decision on the request for review must be backed by reasons and that this requirement is in accordance with Article 47(1) and (2) of the Constitution and Section 4, 5 and 6 of the Fair Administrative Action Act (FAA) which requires administrative decisions to be effective, efficient, timely and with reasons.
35. Counsel submitted that although the CBK Act and the Digital Credit Providers Regulations are silent on the right to appeal against their decisions, these decisions are administrative decisions within the meaning of Article 47 (1) and (2) of the Constitution and Section 4, 5 and 6 of the FAA Act and are thus subject to judicial review under Sections 7, 8 and 9 of the FAA Act.
36. Counsel maintained that the Petitioner ought to have complied with the above dispute resolution procedures before approaching this court by way of judicial review and not a constitutional petition. Counsel urged that this court must therefore invoke the constitutional avoidance doctrine as the Petition offends the exhaustion, the ripeness and justifiability doctrines as postulated in the in the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020)[2022] KEHIC 289 (KLR), the Court of Appeal decision in Speaker of the National Assembly v Karume(Civil Application 92 of 1992)[1992] KECA 42 (KLR) (29th May 1992( Ruling), the Supreme Court decision in the Communications Commission of Kenya case(supra), and the High Court decision in Chilango v Independent Electoral Boundaries Commission & 3 Others ( Constitutional Petition E005 of 2022 [2022] KEHC (KLR) (17th June 2022)( Judgement)
Petitioner’s Submissions
37. Counsel submitted that the Notice of Preliminary Objection raised by the 3rd Respondent as under Section(s) 33R and 33S do not merit as a preliminary objection towards the hearing and determination of this Petition. That the jurisprudence ancillary to preliminary objections is elaborate and settled in law. He relied on the case of Mukisa Biscuit Manufacturing Ltd vs West End Distributors (1969) EA 696 and the case of Hassan Nyanje Charo-vs-Khatib Mwashetani & 3 other (2014) eKLR.
38. Counsel further submitted that Section 33R and 33S of the Central Bank of Kenya (Amendment) Act, 2021 and the cited Regulations deal with the licensing and regulation of Digital Credit Providers by the 5th Respondent and urged that the subject of the Petition is whether by failing to license the Respondents and/or comply with the Act and the Regulations above stated, the 5th Respondent has violated, infringed on and/or threatened the provisions of Article 46 of The Constitution of Kenya (2010).
39. He submitted that if the answer be in the affirmative, it then renders all the activities and operations of the Respondents as Digital Credit Providers (within the meaning of the Act and the Regulations) illegal and in violation of Article 46 and the provisions of statute. That in their opinion, they do not raise pure points of law and/or material to disposing off the proceedings and that on the contrary, the two provisions are critical in determining the legality of the activities and operations of the 1st to 4th Respondents and the statutory obligations of the 5th Respondent in compliance with Article 46.
40. Counsel added that as to whether the 1st to 4th Respondents are licensed Digital Credit Providers authorized to operate as they do, is a contested fact and that neither the 1st to 4th Respondents nor the 5th Respondent have provided any evidence to justify if indeed the 1st to 4th Respondents have made any applications to be licensed. Counsel observed that on the other hand, and quite astonishing at that, the 1st Respondent in its Replying affidavit contends that it is not a Digital Credit Provider, contrary to the deposition made by the 5th Respondent in its response that the 1st Respondent has applied for a license and operates as a Digital Credit Provider. Counsel urged that these are unascertained and contested matters of fact for determination by the Court. Further to the above, Counsel submitted that the doctrines of exhaustion, ripeness and justiciability dogma border on proof of facts, discernible during a trial and not at such preliminary stage of the proceedings and urged that the PO must fail at the door step.
41. On the jurisdiction of the Court, Counsel cited Article 166(1) of the Constitution on the jurisdiction of the High Court and submitted that Article 23 (1) and (3) vests in the High Court, the power to hear and determine applications for redress of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and grant appropriate relief. Counsel argued that the Petition is civil in nature and that the Petitioner has exercised his right to institute the Petition pursuant to Article 22(1) of the Constitution. Counsel added that the Article bestows upon the Petitioner the unfettered right to institute a Petition before the Court claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened.
42. Counsel urged that the Petitioner is acting in the public interest in line with Article 22(2) (c) claiming denial, violation, infringement and/or threats to consumer rights as provided for under Article 46 in the Bill of Rights. That in this regard, this Court bears the exclusive original and unlimited jurisdiction to interpret and implement the Bill of Rights as enshrined. Counsel submitted that as noted above Section 33R and 33S deal with licensing and regulation of Digital Credit Providers. Counsel argued that they do not in any way oust the constitutional jurisdiction of the High Court to interrogate and adjudicate as to whether there is a denial, violation or threat to a right in the Bill of Rights that is enforced in statute, in this case Section 33R and 33S.
43. Counsel further urged that the 5th Respondent bears no constitutional and/or statutory mandate to implement the Bill of Rights within the meaning of Article 23. Counsel added that its duty in reference to the cited provisions and Regulations is limited to licensing and regulation. That in view of the foregoing, the contention that in determining the Petition the Court shall be usurping the powers of the 5th Respondent is misplaced, misrepresented and misleading and urged that this Court has jurisdiction.
44. On the Anarita Karimi Njeru case (Supra), Counsel submitted that the principles sought to be relied upon in the respective case constitute orbiter dictum and not a statement of law. That it is purely judicial opinion, not the Court's holding and/or determination of a point or question of law. Counsel observed that the Court of Appeal in the Mumo Matemu case(supra) broadly and reasonably emphasized on the need for Court's to employ a progressive approach in determining the admissibility and propriety of constitutional petitions; that is adopting the subjective test.
45. Counsel added that Article 159 (1) and (2) is instructive in terms of the modern day constitutional approach to the fair administration of justice without focus on unnecessary limitations and submitted that the Petition is well framed, precise and articulate on the violation of Article 46. That in the Mumo Matemu Case the Court restated that what is critical is that the Petition should be well drafted and precise in articulating the violation and/or infringement of the rights in the Bill of Rights and further adequate notice of the violation(s) be given to the adversary(ies) to respond to the Petition. That in the instant case, the Petition was duly served upon the Respondents.
46. That the 2nd and 5th Respondents have comprehensively responded to the petition by filing Replying Affidavits. Counsel argued that the responses clearly demonstrate a clear understanding of the issues by the respective Respondents, to the extent that the 1st Respondent even contends that it is not a Digital Credit Provider within the meaning of the Act. Counsel submitted that the responses manifest adequate notice and preparation by the Respondents. Counsel argued that the simple function of pleadings, hearing submissions and judicial decision is to define the issues in litigation and adjudication.
47. Counsel urged that to demand exactitude and mathematical precision in drafting of constitutional petitions is to miss the point, hence the superior Court's advice on the subjective test in approaching such petitions and further submitted that it is only when a Petition raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy. Counsel urged that the dictum in the Anarita Karimi Njeru Case is widely deemed as being oppressive and to say the least myopic, often tossed around by opposing Counsel to frustrate litigation of constitutional issues.
48. Counsel reiterated that the Petition is accurate, is in simple language and clearly sets down the violation, infringement and/or threat to the provision(s) of The Constitution and statute as narrated. In the end, Counsel urged that the objections raised are not pure points of law to merit a preliminary objection to the Petition.
Determination
49. Having addressed my mind to the Preliminary Objection raised by the 3rd Respondent herein, it is my considered opinion that the primary issue for determination is whether the Preliminary Objection based on the grounds raised has merit.
50. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
“a preliminary objection
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