[1] The petitioner is a resident of Mombasa County within the Republic of Kenya. He filed the Petition dated 17 th March 2023 pursuant to Articles 22(1) and 258 of the Constitution of Kenya alleging that on the 23 rd September 2021, the respondent made a decision restricting the film “I am Samuel” by prohibiting its exhibition, distribution, possession or broadcasting within the Republic of Kenya. He further contended that, on the same day, the respondent communicated the said decision to the public by issuing a press statement titled “Press Statement By the Kenya Film Classification Board on the Restricting of ‘I Am Samuel’ Film Issued on Thursday 23 rd September, 2021 at 10.00 am at the Board Offices, Nairobi” and published this statement on its website www.kenyafilmcommission.go.ke .
[2] The petitioner further stated that, being aggrieved by the said decision, he issued a demand letter dated 24 th September 2021 requiring the respondent to withdraw its decision, which letter was served upon the respondent on the 25 th September 2021, but stamped 23 rd September 2021 by the respondent. He added that the respondent neither responded to the letter nor complied with the request therein.
[3] The petitioner explained that the film, “I Am Samuel” is a documentary that was shot over a period of 5 years, telling the life of Samuel, a Kenyan young man living in Nairobi, his partner and parents and his interaction with the society around him, the law and religion. The petitioner stated that when the film was submitted to the respondent for classification, the respondent restricted it instead; yet the film had already been released to the public for viewing and uploaded on the website www.wachiamsamuel.org where it was available for viewing upon release. He further pointed out that the film had been nominated for several awards, having been screened at more than 25 festivals around the world, including South Africa. The petitioner also mentioned that the film has been available across Africa from October 2021 apart from Kenya where it is geo-blocked following the decision of the respondent.
[4] The petitioner surmised that, the effect of the decision of the respondent was to make it an offence for anyone to watch the said documentary. He consequently contended that the said decision is in violation of the Constitution in the following respects:
[a] The said decision is based on subjective and personal values in breach of the constitutional values under Article 10 ; which values bind all state organs, state officers, public officers and all persons whenever applying or interpreting the Constitution, or applying any law or making any public policy decision.
[b] The decision is based on a personal interpretation of the culture of Kenya people as opposed to the constitutional definition under Articles 11 and 258 of the Constitution.
[c] The said decision contravened Article 20 of the Constitution as it lacks values that underlie an open democratic society, human dignity, equality, equity and freedom and the spirit, purport and objectives of the Bill of Rights.
[d] The said decision contravenes Article 32 which guarantees the freedom of conscience, religion, thought, belief and opinion.
[e] The said decision further contravenes Article 33 which guarantees the freedom of expression, freedom to seek, receive and impart information or ideas and the freedom of artistic creativity.
[f] The said decision amounts to censorship contrary to Article 32 and 33 of the Constitution.
[g] The decision bars Kenyans from watching the documentary and forming their own opinion on the matter.
[h] There is no justifiable reason why the respondent does not want Kenyans to think about the issues presented in the documentary and make their own opinion.
[i] That all the issues tackled in the documentary are available readily in the media in Kenya including both online and traditional media.
[5] Consequently, the petitioner prayed for the following reliefs against the respondent:
[a] A declaration that the decision of the Kenya Film Classification Board banning and/or restricting the film “I Am Samuel” is in violation of Articles 10, 11, 12, 19, 20, 24, 27, 32, 33 and 34 of the Constitution and is therefore null and void.
[b] Any other relief that the Court deems fit to grant under the circumstances.
[c] An order that each party bears its own costs of the Petition.
[6] The Petition was supported by the affidavit of the petitioner, sworn on 17 th March 2023 in which he reiterated the averments set out in the Petition. He annexed copies of the respondent’s press statement, his demand letter dated 24 th September 2021 as well as a copy of a synopsis of the movie from its website and a copy of the introduction page on the African launch of the documentary. The documents were marked Annexures “KM-1”, “KM-2”, “KM-3” and “KM-4 to the Supporting Affidavit.
[7] With the leave of the Court, the petitioner filed a Supplementary Affidavit on 16 th February 2024 to demonstrate that the respondent has arbitrarily restricted any and all content that contains LGBTQ themes. By way of example, the petitioner deposed that on the 23 rd February 2016, the respondent banned the gay themed music video “Same Love”. He also averred that in or about the month of October 2017, the respondent banned “Andy Mack” , which he believes was a popular TV cartoon show.
[8] The petitioner listed two other gay themed Indian movies at paragraphs 7 and 8 of his Supplementary Affidavit and averred that, on or about the month of September, the respondent banned all LGBTQ themed content from Kenya. He produced documents marked Annexure “MK-1” to back up his assertions. He added that the respondent has never reviewed its decision, yet the banned content is available for viewing across Africa.
[9] The respondent allegedly filed Grounds of Opposition dated 2 nd August 2023 but no such document was accessible in the e-filing portal.
[10] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 5 th February 2024. The petitioner relied on his written submissions dated 14 th July 2024. He submitted on his locus standi and the Court’s jurisdiction to entertain the Petition. He reiterated the factual basis of his Petition and relied on Articles 22 and 258 of the Constitution and stated that he has brought the Petition, not only on his own behalf, but also in the public interest.
[11] The petitioner further submitted that, under Articles 23 and 165 of the Constitution , the High Court has jurisdiction to hear any question regarding the violation of rights and the interpretation of the Constitution, including questions of contradiction between any law and the Constitution. To augment his submissions on locus standi , the petitioner quoted extensively from the decision of the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
[12] The petitioner also made submissions on the applicable law and pointed out that the respondent is established under Section 11 of the Film and Stage Plays Act , Cap 22 of the Laws of Kenya; and that its functions are provided for under Section 15 of the Act. They include examining and classifying films, posters with a view of imposing age restrictions and providing appropriate and protective guidance to consumers. The petitioner also recognized that it is the function of the respondent to protect women and children from sexual exploitation or degradation.
[13] The petitioner made reference to Articles 10, 11, 19 and 20 of the Constitution and submitted that every citizen is entitled to rights, privileges and benefits of citizenship as guaranteed by the Constitution, subject only to any lawful limitations. From the standpoint of Article 24, he submitted that the onus is on the State to justify a particular limitation and demonstrate that the requirements of Article 24 has been met. He also submitted on the freedoms enshrined in Articles 27, 33 and 34 before embarking on his submissions on the subject film and its ban.
[14] The petitioner gave a synopsis of the film as depicted in the document marked Annexure “KM-4”. He then restated the grounds put forth by the respondent for its decision to restrict the film and urged the Court to find that the respondent’s grounds fail the constitutional test. The petitioner relied on the following decisions to support his arguments:
[a] Non-Governmental Organizations Co-ordination Board v E G & 5 others (Civil Appeal 145 of 2015) [2019] KECA 902 (KLR) (22 March 2019);
[b] Okiya Omtatah Okoiti v Attorney General & 2 others [2013] eKLR;
[c] Nairobi High Court Constitutional Petition No. 313 of 2018: Wanuri Kabibu & another v Kenya Film Classification Board and 4 others;
[d] E G & 7 others v Attorney General; D K M & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae); and
[e] Republic v Kenya Power & Lighting Company Ltd & another [2013] KEHC 6677 (KLR).
[15] The respondent filed written submissions dated 19 th June 2024. The respondent pitched the argument that the Petition contravenes the principle of constitutional avoidance; the petitioner having failed to exhaust the statutory remedies available to him under the applicable law. Accordingly, the respondent proposed the following two issues for determination:
[a] Whether the petitioner has exhausted the statutory remedies before filing the Petition herein;
[b] Whether the petitioner is deserving of the orders sought.
[16] The respondent relied on Section 29 of the Films and Stage Play Act as well as Rule 13 of the Films and Stage Play Rules ( Film Censorship) Rules to support its submissions that there is in place a statutory provision for appeal from its decisions; and therefore the petitioner ought to have pursued that alternative mechanism for the resolution of his grievance. The respondent also relied on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR on the principle of avoidance and Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] eKLR for the proposition that, although a court may have jurisdiction to hear and determine certain issues presented before it, it may nonetheless exercise restraint or refrain itself from making a determination on such matters if there are other appropriate legislatively mandated institutions to handle such disputes.
[17] Further to the foregoing, it was the contention of the respondent that the Petition is a non-starter because it does not state with exactitude the constitutional rights which have been violated or the exact nature of the alleged violations. In this regard, the respondent relied on Anarita Karimi Njeru v Republic [1979] eKLR and submitted that the Petition presents a jumbled up mix of issues in the petitioners two affidavits. The respondent particularly mentioned the fact that although the Petition is in respect of the film “I Am Samuel”, in the Supplementary Affidavit, the petitioner purported to introduce other films that were allegedly banned without showing how the previous decisions were connected to the instant subject matter.
[18] I have given due consideration to the Petition, the averments in support thereof as set out in the petitioner’s Supporting Affidavit. I have similarly taken into account the written submissions filed by the parties. Before delving into the merits of the Petition, it is necessary to address the technical points raised by the respondent. While there is no dispute that the Court has the requisite jurisdiction to entertain the Petition by dint of Articles 22, 23 and 165(3) of the Constitution , the respondent contended that the Petition was not pleaded with the requisite specificity. The respondent also pleaded the doctrine of constitutional avoidance, contending that on the basis of those two grounds the Petition is a non-starter.
A. On the Requirement for Specificity:
[19] The respondent contended that the petitioner has neither identified the rights that he alleges to have been denied, violated, infringed, or threatened; nor the articles in the Constitution alleged to have been denied, violated or infringed. It further contended that the petitioner has not identified the actors responsible for the alleged denial, violations or infringement as required. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] 1 KLR 154 in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[20] The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[21] And, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court made the point as follows: -
“[34]…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[22] Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. I have looked at the Petition dated 17 th March 2023 and noted that the petitioner has not only set out the facts, but also the injuries suffered as a result of the impugned decision. As has been pointed out herein above, the petitioner also set out his locus standi and the provisions of the Constitution alleged to have been violated by the respondent. I am therefore satisfied that the Petition as pleaded is in compliance with the principle of specificity enunciated in Anarita Karimi Njeru v Republic (supra). The concerns of the respondent as to the additional information set out in the Supplementary Affidavit are matters of evidence and therefore ought not to be the reason for denying the petitioner access to justice.
[23] Besides, Rule 10(3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, recognizes that:
“(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”
[24] I am likewise persuaded in this regard by the position taken by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another (supra) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
B. On the Doctrine of Constitutional Avoidance:
[25] The respondent relied on Section 29 of the Films and Stage Play Act . as well as Rule 13 of the Films and Stage Play (Film Censorship) Rules. Section 29 States:
“Any person who is aggrieved by a decision of a licensing officer, licensing authority, or the Board may appeal to the Cabinet Secretary, and the Cabinet Secretary may, subject to this Act, confirm, vary or reverse that decision, and in so doing the Cabinet Secretary may give such directions in the matter as may be necessary to give effect to his decision and any decision of the Cabinet Secretary under this section shall be final.”
[26] Rule 13 aforementioned further states:
An appeal under section 29 of the Act by a person who is aggrieved by a decision of the Board shall be made to the Cabinet Secretary in writing within thirty days of the decision having been notified to the person aggrieved, and shall state in detail the grounds of appeal:
Provided that the Cabinet Secretary may in writing extend the period of making an appeal under this regulation if he deems it fit to do so.
[27] Accordingly, the respondent submitted that there is in place a statutory provision for appeal from the respondent’s decisions; and therefore the petitioner ought to have pursued that alternative mechanism for the resolution of his grievance before approaching the Court.
[28] In the case of K K B v S C M & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) expressed himself on the doctrine or ripeness as hereunder:
“In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…”
[29] Similarly, in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR) (27 April 2022) (Judgment) the court held:
“27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.”
…
29.The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system…”
[30] And, in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (29 th September 2014) (Judgment) the Supreme Court made it clear that:
“[256] …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.”
[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)).
[31] The respondent also relied on Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] eKLR for the proposition that, although a court may have jurisdiction to hear and determine certain issues presented before it, it may nonetheless exercise restrain or refrain itself from making a determination on such matters if there are other appropriate legislatively mandated institutions to handle such disputes.
[32] The Court of Appeal, in the lead judgment of Hon. Asike Makhandia, JA , held:
“I find that the learned judge erred in law in finding that the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta that in Speaker of the National Assembly v James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
[33] In the result, it is my finding that the Petition was prematurely filed before exhaustion of the alternative dispute resolution mechanism provided for in the Films and Stage Plays Act. The same is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 30 TH DAY OF MAY 2025
[2] The petitioner further stated that, being aggrieved by the said decision, he issued a demand letter dated 24 th September 2021 requiring the respondent to withdraw its decision, which letter was served upon the respondent on the 25 th September 2021, but stamped 23 rd September 2021 by the respondent. He added that the respondent neither responded to the letter nor complied with the request therein.
[3] The petitioner explained that the film, “I Am Samuel” is a documentary that was shot over a period of 5 years, telling the life of Samuel, a Kenyan young man living in Nairobi, his partner and parents and his interaction with the society around him, the law and religion. The petitioner stated that when the film was submitted to the respondent for classification, the respondent restricted it instead; yet the film had already been released to the public for viewing and uploaded on the website www.wachiamsamuel.org where it was available for viewing upon release. He further pointed out that the film had been nominated for several awards, having been screened at more than 25 festivals around the world, including South Africa. The petitioner also mentioned that the film has been available across Africa from October 2021 apart from Kenya where it is geo-blocked following the decision of the respondent.
[4] The petitioner surmised that, the effect of the decision of the respondent was to make it an offence for anyone to watch the said documentary. He consequently contended that the said decision is in violation of the Constitution in the following respects:
[a] The said decision is based on subjective and personal values in breach of the constitutional values under Article 10 ; which values bind all state organs, state officers, public officers and all persons whenever applying or interpreting the Constitution, or applying any law or making any public policy decision.
[b] The decision is based on a personal interpretation of the culture of Kenya people as opposed to the constitutional definition under Articles 11 and 258 of the Constitution.
[c] The said decision contravened Article 20 of the Constitution as it lacks values that underlie an open democratic society, human dignity, equality, equity and freedom and the spirit, purport and objectives of the Bill of Rights.
[d] The said decision contravenes Article 32 which guarantees the freedom of conscience, religion, thought, belief and opinion.
[e] The said decision further contravenes Article 33 which guarantees the freedom of expression, freedom to seek, receive and impart information or ideas and the freedom of artistic creativity.
[f] The said decision amounts to censorship contrary to Article 32 and 33 of the Constitution.
[g] The decision bars Kenyans from watching the documentary and forming their own opinion on the matter.
[h] There is no justifiable reason why the respondent does not want Kenyans to think about the issues presented in the documentary and make their own opinion.
[i] That all the issues tackled in the documentary are available readily in the media in Kenya including both online and traditional media.
[5] Consequently, the petitioner prayed for the following reliefs against the respondent:
[a] A declaration that the decision of the Kenya Film Classification Board banning and/or restricting the film “I Am Samuel” is in violation of Articles 10, 11, 12, 19, 20, 24, 27, 32, 33 and 34 of the Constitution and is therefore null and void.
[b] Any other relief that the Court deems fit to grant under the circumstances.
[c] An order that each party bears its own costs of the Petition.
[6] The Petition was supported by the affidavit of the petitioner, sworn on 17 th March 2023 in which he reiterated the averments set out in the Petition. He annexed copies of the respondent’s press statement, his demand letter dated 24 th September 2021 as well as a copy of a synopsis of the movie from its website and a copy of the introduction page on the African launch of the documentary. The documents were marked Annexures “KM-1”, “KM-2”, “KM-3” and “KM-4 to the Supporting Affidavit.
[7] With the leave of the Court, the petitioner filed a Supplementary Affidavit on 16 th February 2024 to demonstrate that the respondent has arbitrarily restricted any and all content that contains LGBTQ themes. By way of example, the petitioner deposed that on the 23 rd February 2016, the respondent banned the gay themed music video “Same Love”. He also averred that in or about the month of October 2017, the respondent banned “Andy Mack” , which he believes was a popular TV cartoon show.
[8] The petitioner listed two other gay themed Indian movies at paragraphs 7 and 8 of his Supplementary Affidavit and averred that, on or about the month of September, the respondent banned all LGBTQ themed content from Kenya. He produced documents marked Annexure “MK-1” to back up his assertions. He added that the respondent has never reviewed its decision, yet the banned content is available for viewing across Africa.
[9] The respondent allegedly filed Grounds of Opposition dated 2 nd August 2023 but no such document was accessible in the e-filing portal.
[10] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 5 th February 2024. The petitioner relied on his written submissions dated 14 th July 2024. He submitted on his locus standi and the Court’s jurisdiction to entertain the Petition. He reiterated the factual basis of his Petition and relied on Articles 22 and 258 of the Constitution and stated that he has brought the Petition, not only on his own behalf, but also in the public interest.
[11] The petitioner further submitted that, under Articles 23 and 165 of the Constitution , the High Court has jurisdiction to hear any question regarding the violation of rights and the interpretation of the Constitution, including questions of contradiction between any law and the Constitution. To augment his submissions on locus standi , the petitioner quoted extensively from the decision of the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.
[12] The petitioner also made submissions on the applicable law and pointed out that the respondent is established under Section 11 of the Film and Stage Plays Act , Cap 22 of the Laws of Kenya; and that its functions are provided for under Section 15 of the Act. They include examining and classifying films, posters with a view of imposing age restrictions and providing appropriate and protective guidance to consumers. The petitioner also recognized that it is the function of the respondent to protect women and children from sexual exploitation or degradation.
[13] The petitioner made reference to Articles 10, 11, 19 and 20 of the Constitution and submitted that every citizen is entitled to rights, privileges and benefits of citizenship as guaranteed by the Constitution, subject only to any lawful limitations. From the standpoint of Article 24, he submitted that the onus is on the State to justify a particular limitation and demonstrate that the requirements of Article 24 has been met. He also submitted on the freedoms enshrined in Articles 27, 33 and 34 before embarking on his submissions on the subject film and its ban.
[14] The petitioner gave a synopsis of the film as depicted in the document marked Annexure “KM-4”. He then restated the grounds put forth by the respondent for its decision to restrict the film and urged the Court to find that the respondent’s grounds fail the constitutional test. The petitioner relied on the following decisions to support his arguments:
[a] Non-Governmental Organizations Co-ordination Board v E G & 5 others (Civil Appeal 145 of 2015) [2019] KECA 902 (KLR) (22 March 2019);
[b] Okiya Omtatah Okoiti v Attorney General & 2 others [2013] eKLR;
[c] Nairobi High Court Constitutional Petition No. 313 of 2018: Wanuri Kabibu & another v Kenya Film Classification Board and 4 others;
[d] E G & 7 others v Attorney General; D K M & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae); and
[e] Republic v Kenya Power & Lighting Company Ltd & another [2013] KEHC 6677 (KLR).
[15] The respondent filed written submissions dated 19 th June 2024. The respondent pitched the argument that the Petition contravenes the principle of constitutional avoidance; the petitioner having failed to exhaust the statutory remedies available to him under the applicable law. Accordingly, the respondent proposed the following two issues for determination:
[a] Whether the petitioner has exhausted the statutory remedies before filing the Petition herein;
[b] Whether the petitioner is deserving of the orders sought.
[16] The respondent relied on Section 29 of the Films and Stage Play Act as well as Rule 13 of the Films and Stage Play Rules ( Film Censorship) Rules to support its submissions that there is in place a statutory provision for appeal from its decisions; and therefore the petitioner ought to have pursued that alternative mechanism for the resolution of his grievance. The respondent also relied on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR on the principle of avoidance and Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] eKLR for the proposition that, although a court may have jurisdiction to hear and determine certain issues presented before it, it may nonetheless exercise restraint or refrain itself from making a determination on such matters if there are other appropriate legislatively mandated institutions to handle such disputes.
[17] Further to the foregoing, it was the contention of the respondent that the Petition is a non-starter because it does not state with exactitude the constitutional rights which have been violated or the exact nature of the alleged violations. In this regard, the respondent relied on Anarita Karimi Njeru v Republic [1979] eKLR and submitted that the Petition presents a jumbled up mix of issues in the petitioners two affidavits. The respondent particularly mentioned the fact that although the Petition is in respect of the film “I Am Samuel”, in the Supplementary Affidavit, the petitioner purported to introduce other films that were allegedly banned without showing how the previous decisions were connected to the instant subject matter.
[18] I have given due consideration to the Petition, the averments in support thereof as set out in the petitioner’s Supporting Affidavit. I have similarly taken into account the written submissions filed by the parties. Before delving into the merits of the Petition, it is necessary to address the technical points raised by the respondent. While there is no dispute that the Court has the requisite jurisdiction to entertain the Petition by dint of Articles 22, 23 and 165(3) of the Constitution , the respondent contended that the Petition was not pleaded with the requisite specificity. The respondent also pleaded the doctrine of constitutional avoidance, contending that on the basis of those two grounds the Petition is a non-starter.
A. On the Requirement for Specificity:
[19] The respondent contended that the petitioner has neither identified the rights that he alleges to have been denied, violated, infringed, or threatened; nor the articles in the Constitution alleged to have been denied, violated or infringed. It further contended that the petitioner has not identified the actors responsible for the alleged denial, violations or infringement as required. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] 1 KLR 154 in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[20] The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[21] And, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court made the point as follows: -
“[34]…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
[22] Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. I have looked at the Petition dated 17 th March 2023 and noted that the petitioner has not only set out the facts, but also the injuries suffered as a result of the impugned decision. As has been pointed out herein above, the petitioner also set out his locus standi and the provisions of the Constitution alleged to have been violated by the respondent. I am therefore satisfied that the Petition as pleaded is in compliance with the principle of specificity enunciated in Anarita Karimi Njeru v Republic (supra). The concerns of the respondent as to the additional information set out in the Supplementary Affidavit are matters of evidence and therefore ought not to be the reason for denying the petitioner access to justice.
[23] Besides, Rule 10(3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, recognizes that:
“(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”
[24] I am likewise persuaded in this regard by the position taken by Hon. Odunga, J . (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another (supra) that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
B. On the Doctrine of Constitutional Avoidance:
[25] The respondent relied on Section 29 of the Films and Stage Play Act . as well as Rule 13 of the Films and Stage Play (Film Censorship) Rules. Section 29 States:
“Any person who is aggrieved by a decision of a licensing officer, licensing authority, or the Board may appeal to the Cabinet Secretary, and the Cabinet Secretary may, subject to this Act, confirm, vary or reverse that decision, and in so doing the Cabinet Secretary may give such directions in the matter as may be necessary to give effect to his decision and any decision of the Cabinet Secretary under this section shall be final.”
[26] Rule 13 aforementioned further states:
An appeal under section 29 of the Act by a person who is aggrieved by a decision of the Board shall be made to the Cabinet Secretary in writing within thirty days of the decision having been notified to the person aggrieved, and shall state in detail the grounds of appeal:
Provided that the Cabinet Secretary may in writing extend the period of making an appeal under this regulation if he deems it fit to do so.
[27] Accordingly, the respondent submitted that there is in place a statutory provision for appeal from the respondent’s decisions; and therefore the petitioner ought to have pursued that alternative mechanism for the resolution of his grievance before approaching the Court.
[28] In the case of K K B v S C M & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) expressed himself on the doctrine or ripeness as hereunder:
“In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…”
[29] Similarly, in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR) (27 April 2022) (Judgment) the court held:
“27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.”
…
29.The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system…”
[30] And, in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (29 th September 2014) (Judgment) the Supreme Court made it clear that:
“[256] …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.”
[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)).
[31] The respondent also relied on Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] eKLR for the proposition that, although a court may have jurisdiction to hear and determine certain issues presented before it, it may nonetheless exercise restrain or refrain itself from making a determination on such matters if there are other appropriate legislatively mandated institutions to handle such disputes.
[32] The Court of Appeal, in the lead judgment of Hon. Asike Makhandia, JA , held:
“I find that the learned judge erred in law in finding that the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta that in Speaker of the National Assembly v James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
[33] In the result, it is my finding that the Petition was prematurely filed before exhaustion of the alternative dispute resolution mechanism provided for in the Films and Stage Plays Act. The same is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 30 TH DAY OF MAY 2025