REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E849 OF 2025
IN THE MATTER OF: THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 1, 2, 3, 4, 5, 10, 19, 20, 21, 22, 23, 24, 25, 28, 31, 40, 46, 47, 73, 74, 75, 159, 165, 174, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES
AND
IN THE MATTER OF: THE LEADERSHIP AND INTEGRITY ACT CHAPTER 185C OF THE LAWS OF KENYA
AND
IN THE MATTER OF: THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, CAP 65 OF THE LAWS OF KENYA
AND
IN THE MATTER OF: THE ETHICS AND ANTI-CORRUPTION COMMISSION ACT, CAP 7H OF THE LAWS OF KENYA
-BETWEEN-
MICHAEL THIONG'O KINYANJUI ............................... 1 ST PETITIONER
MARGARET MUKAMI KIMOTHO ...............................2 ND PETITIONER
-AND-
KENYA POWER & LIGHTING
COMPANY LIMITED ………………………………….. 1 ST RESPONDENT
FREDRICK OCHIENG ................................................... 2 ND RESPONDENT
SIMIYU W. EMMANUEL ............................................... 3 RD RESPONDENT
CHARLES MAKORI ....................................................... 4 TH RESPONDENT
AND
ETHICS AND ANTI-CORRUPTION
COMMISSION ........................................................... INTERESTED PARTY
RULING ON THE PRELIMINARY OBJECTION
1. The dated 20 th December 2025 arises from an incident on 17 th December 2025 when the 2 nd , 3 rd and 4 th Respondents who are employees of the 1 st Respondent, are alleged to have, accompanied by security goons, invaded the Petitioners’ residence and property in Umoja II Estate, Nairobi County. The Respondents are alleged to have vandalized property, cut electricity lines with hacksaws and pliers, left live wires hanging dangerously and confiscated items.
2. The Petitioners’ case is that during the said raid, the officers demanded bribes from the 2 nd Petitioner and that when she refused, they molested and sexually harassed her while her children were studying upstairs and her husband was at work. The incident was then formally reported to Buruburu Police Station under OB Number 55/17/12/25. The Petitioners claim that they have consistently paid their electricity bills and were not issued with any prior written demand or bill justifying the disconnection. They allege that in addition, five adjacent rental shops lost power, an LG refrigerator and TV set worth Kshs. 50,000/= and Kshs. 40,000/= respectively were damaged, stored food was spoiled and the family was left in darkness.
3. The Petitioners assert that the Respondents’ acts violated national values and principles of governance under Article 10(2), public service principles under Article 232, the right to privacy under Article 31, human dignity under Article 28, property rights under Article 40, consumer rights to quality service under Article 46 and the right to fair, lawful and procedurally fair administrative action under Article 47(1) of the Constitution.
4. In their said Petition, the Petitioners seek the following reliefs:
(a) AN ORDER OF DECLARATION declaring that the Respondents have violated the Petitioners’ guaranteed right to privacy, the right to acquire and own property and the 2 nd Petitioner’s right to dignity.
(b) AN ORDER OF DECLARATION declaring that the Respondents have violated the Petitioners' guaranteed right to goods and services of reasonable quality and the full benefit of the said goods and services as enshrined under Article 46 of the Constitution.
(c) AN ORDER OF DECLARATION declaring that the impugned violation of the Petitioners' right to goods and services of reasonable quality and the enjoyment of the full benefit thereof has occasioned them loss of money as a resource.
(d) AN ORDER OF PROHIBITION prohibiting the Respondents from visiting, trespassing or in any way whatsoever accessing the Petitioners’ all that property known as Plot No.431 Umoja II Zone 8 measuring 0.015 hectares or in any way harassing, and/or intimidating the Petitioners on matters hereof.
(e) AN ORDER OF MANDAMUS compelling the Interested Party to conduct investigations regarding the bribery claims and abuse of office by the 2 nd , 3 rd and 4 th Respondents.
(f) AN ORDER OF DECLARATION declaring that the 2 nd , 3 rd and 4 th Respondents have violated the Constitution hence not fit to hold public office.
(g) The Honourable Court be pleased to order the Respondents to compensate the Petitioners for the damage of their fridge make LG and Television set make LG, serial number 307SYEV05244, model number 42LN540V/ZA that they bought at KSh.50,000/= and KSh.40,000/= respectively.
(h) The Honourable Court be pleased to compel the Respondents to compensate the Petitioners for violation of their rights.
(i) Costs of the Petition.
(j) Any other orders that the Honourable Court may deem just and fit to grant as the justice of this case may permit.
5. The Petition is supported by the sworn affidavit of Margaret Mukami Kimotho, the 2 nd Petitioner who outlines the factual background and constitutional grounds surrounding the incident of 17 th December 2025, when individual respondents accompanied by unruly individuals acting as security personnel, unlawfully entered her Umoja II residential and commercial property. She details how the Respondents vandalized property, cut electricity lines, disconnected multiple power meters and confiscated personal belongings.
6. The second Petitioner deposes that in addition to causing severe emotional trauma and leaving the family home in total darkness, the power disconnection halted business for the five commercial shops adjacent to their residence and destroyed electrical appliances, including an LG television set and a refrigerator.
7. It is deponed that these actions were taken without any prior written demand or bill, despite the Petitioners consistently paying all electricity consumption charges on time. That following the incident, the Petitioners immediately reported the criminal and unconstitutional conduct to the Buruburu Police Station under Occurrence Book (OB) Number 55/17/12/25.
8. The deponent asserts that the Respondents’ conduct violated core provisions of the Constitution, specifically infringing on the right to privacy under Article 31 , human dignity under Article 28 , property ownership under Article 40 , access to quality goods and services under Article 46 , and fair administrative action under Article 47 . Further, she accuses the respondents for failing to uphold national values, principles of governance, and public service standards enshrined under Articles 10 and 232 .
9. The deponent urges the Court to urgently hear the Petition and grant the requested legal reliefs to safeguard their rights, prevent ongoing harm, and uphold the rule of law.
10. Concurrently with the Petition, the Petitioners filed a Notice of Motion on the even date under Certificate of Urgency seeking urgent interim relief to restrain the Respondents from entering, accessing, or interfering within their Umoja II property (Plot No. 431) and harassing them. They specifically request conservatory orders directing the immediate restoration of electricity supply across five specified meter numbers, alongside protection against further disconnection or interference, with costs and any additional just relief awarded to them.
Responses
11. The 1 st Respondent, Kenya Power and Lighting Company Limited filed Grounds of Opposition in which it contends that the Court lacks the jurisdiction to hear and determine both the Application and the underlying Petition. The 1 st Respondent argues that the dispute falls squarely under the mandate of the Energy and Petroleum Regulatory Authority [EPRA] or the Energy and Petroleum Tribunal [EPT] pursuant to the provisions of the Energy Act, 2019, and the Energy (Complaints and Disputes Resolution) Regulations, 2012, thereby rendering the proceedings un-procedural, fatally defective, incurably incompetent, and brought in direct contravention of established legal procedures.
12. Further, the 1 st Respondent states that there is no proper petition validly before the Court and that the Petitioners/Applicants have failed to disclose all material facts or place any factual or legal evidence before the Court to substantiate their claims.
13. Characterizing the Application as misconceived, frivolous, scandalous and an abuse of the court process, the 1 st Respondent maintains that the requested orders violate the settled principles governing injunctive relief under Order 40 of the Civil Procedure Rules 2010 and mislead the Court regarding the existence of a valid factual claim, thereby disentitling the Applicants to any reliefs and warranting a dismissal with costs.
14. The 1 st Respondent also filed a Notice of Preliminary Objection dated 2 nd June 2026 raising the following ground:
This Honourable Court lacks jurisdiction to hear and determine this dispute and the application together with all consequential orders should be dismissed with costs as the same offends the provisions of sections 3, 10; 11(e), (f), (i), (k) & (l); 23; 24; 36; 40; 42; 159(3); 160(3) and 224(2)(e) of the Energy Act, 2019 together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 as read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and sections 9(2) and (3) Fair Administrative Action Act, 2015.
15. On their part, the Interested Party, The Ethics and Anti-Corruption Commission (EACC) filed Grounds of Opposition seeking dismissal of the Petition nd the Notice of Motion for conservatory orders the basis that they are frivolous, vexatious and an abuse of the court process. The EACC states its statutory and constitutional establishment as a body corporate under the Ethics and Anti-Corruption Commission Act 2011, mandated to investigate corruption and economic crimes either on its own motion or upon receiving a complaint.
16. It asserts that the Applicants have not lodged any formal complaint with the Commission regarding the bribery and abuse of office allegations levelled against the 2 nd , 3 rd and 4 th Respondents.
17. The Interested Party Further contends that granting the orders sought against it would directly violate Article 249(2)(a) and (b) of the Constitution and Section 28 of the Ethics and Anti-Corruption Commission Act, 2011 , which guarantee the functional independence of constitutional commissions and subject them solely to the Constitution and the law. Finally, it is the EACC’s case that the Petition fails to respect established legal principles by directly offending the doctrine of constitutional avoidance.
18. Both the Petition, the Application and Preliminary objection were canvassed by way of written submissions, .
Submissions
19. In their Submissions dated 7 th July 2026 , the Petitioners robustly oppose the 1 st Respondent’s Notice of Preliminary Objection dated 2 nd June 2026 and contend that the 1 st Respondent, being a state organ, failed to file a Replying Affidavit to rebut allegations of sexual harassment, property damage, and constitutional violations, thereby violating the mandatory provisions of Rule 15(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules).
20. They submit that a Notice of Preliminary Objection cannot stand in a vacuum without a Replying Affidavit or Statement of Defence. Relying on Daniel Kibet Mutai & 9 others v. Attorney General [2019] eKLR and Crown Berger Kenya Ltd v. Kalpech Vasuder Devan and another (Civil Case No. 246 of 2006), the Petitioners emphasize that unrefuted affidavit evidence is deemed admitted. The Petitioners further relied on Raila Odinga v. Independent Electoral and Boundaries Commission and 3 others [2013] eKLR and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission and 6 others [2013] eKLR , and argued that procedural rules are mandatory imperatives that cannot be bypassed by invoking Article 159(2)(d) of the Constitution.
21. The Petitioners also reject the 1 st Respondent’s argument regarding the doctrine of exhaustion under Sections 3, 9, 10, 11, 12, 25, 36, and 160 of the Energy Act, 2019 (Cap. 314) and submit that statutory exhaustion is not absolute and highlighted the statutory exceptions under Section 9(4) of the Fair Administrative Action Act (No. 4 of 2015) where constitutional violations and irreparable harm exist.
22. It is submitted that because the Petition alleges severe constitutional infringements including sexual harassment and violation of Article 28 on the right to dignity and abuse of office, the Petitioners contend that the Energy and Petroleum Regulatory Authority or Tribunal lack jurisdiction over tortious or constitutional claims against individual employees. They submit that under Article 165(3)(b) of the Constitution, exclusive jurisdiction over fundamental rights violations resides in the High Court. They support their argument with the case of Chisima & another v. Kenya Power & Lighting Company Limited & another [2023] KEHC 23830 and Mwangi & 844 others v. KPLC Ltd & another [2022] KEELC 15455 (KLR), and submit that their pleadings meet the specificity threshold established in Anarita Karimi Njeru v. The Republic [1979] eKLR, Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, and Rule 10(2) of the Mutunga Rule. They concluded that the Preliminary Objection should be dismissed with costs.
23. The 1 st Respondent filed its written submissions dated10 th June 2026 in support of its Notice of Preliminary Objection dated 2 nd June 2026. The 1 st Respondent challenges the Court’s jurisdiction to entertain the Petition regarding an alleged unlawful disconnection of power supply and damage to electrical property. Relying on the principles set out in Mukisa Biscuits Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EALR 696 and Mulemi v. Angwenye & Another (Civil Appeal 170 of 2016), the 1 st Respondent contends that its preliminary objection raises a pure point of law that can dispose of the entire petition without delving into factual merits.
24. Invoking the locus classicus Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd. [1989] KLR 1 and the case of Esther Gachambi Mwangi v. Samuel Mwangi Mbiri [2013] eKLR , the 1 st Respondent submits that jurisdiction is foundational and the court must "down its tools" at the earliest opportunity upon finding that it lacks competence over the subject matter.
25. The 1 st Respondent argues that the core foundation or substratum of the Petitioners’ claim is the disconnection of electricity supply. Citing Mehret Gebreyesus (suing as legal rep. Estate of Stefanos Egzibher) v. Kenya Power & Lighting Company Limited & Another Milimani HCCHRPET No. E564 of 2025 , the 1 st Respondent argues that secondary claims of constitutional violations do not alter the true nature of a dispute anchored in power supply and billing grievances.
26. Further submission is that under Section 3(1) of the Energy Act 2019 , the provisions of the Energy Act prevail over any other Act regarding the distribution, supply, or use of electrical energy and associated apparatus. The 1 st Respondent highlights that Parliament created statutory bodies pursuant to Article 169(1)(d) of the Constitution , specifically empowering the Energy & Petroleum Regulatory Authority (EPRA) under Sections 9 and 11 of the Energy Act 2019 , as well as Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations 2012, to investigate and determine complaints involving disconnections, wayleaves and service quality.
27. Additionally, the 1 st Respondent submits that Section 25 and Section 36(3) of the Energy Act, 2019 grant the Energy & Petroleum Tribunal original civil jurisdiction over disputes between licensees and third parties, complete with the authority to award equitable reliefs such as injunctions and damages under Section 36(5). Citing Speaker of National Assembly v. Njenga Karume [1992] 1 KLR 425, Cyrus Komo Njoroge v. Kiringa Njoroge Gachoka & 2 Others [2015] eKLR, and Dhow House Limited v. Kenya Power and Lighting Company (Constitutional Petition E058 of 2021), the 1 st Respondent contends that where a specific statutory procedure for dispute resolution exists, it must be strictly followed.
28. The 1 st Respondent submits that the doctrine of exhaustion of statutory remedies is further supported by Sections 9(2) and 9(3) of the Fair Administrative Action Act 2015 , and the binding Court of Appeal precedent in Abidha Nicholus v. Attorney General & 7 Others (Civil Appeal No. 42 of 2021) . The 1 st Respondent maintains that under Section 27(1) of the Civil Procedure Act (Cap. 21) and the holding in Joseph Nzyoki Mwanthi v. Kenya Power & Lighting Co. Ltd. [2017] eKLR, costs follow the event and therefore prays that the Petition and Application be struck out with costs.
Analysis and Determination
29. From my consideration of the Notice of Preliminary Objection, the pleadings and the rival submissions, the central issue for determination is whether the 1 st Respondent’s Preliminary Objection dated 2 nd June 2026 is merited . To determine this, the Court will address the following sub-issues:-
(i) Whether the 1 st Respondent’s Preliminary Objection is procedurally competent in the absence of a Replying Affidavit.
(ii) Whether the Petition and Application are premature for offending the twin doctrines of exhaustion of statutory remedies and constitutional avoidance.
(i) Whether the 1 st Respondent’s Preliminary Objection is procedurally competent in the absence of a Replying Affidavit.
30. The law on preliminary objections is now well-settled. In the locus classicus Mukisa Biscuit Manufacturing Co. Ltd. vs. West End Distributors Ltd [1969] EA 696, it was held that a preliminary objection consists of a pure point of law raised on the assumption that all facts pleaded by the opposing party are true. The Supreme Court of Kenya in Independent Electoral & Boundaries Commission vs. Cheperenger &2 others [2015] KESC 2 (KLR) explained elaborately the nature of a preliminary objection as follows:
“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.”
31. The Petitioners herein impugn the procedural competence of the Notice of Preliminary Objection arguing that the 1 st Respondent could not maintain a Preliminary Objection without first filing a Replying Affidavit.
32. I however note that the question of law being raised in the Preliminary Objection is an issue of jurisdiction which if found lacking, this Court will dispose off the petition in limine . In Ngingo t/a Muchangi Nduati & Company Advocates v Samia Properties Limited; Kudoi (Interested Party) (Environment and Land Originating Summons, E105 of 2020) [2026] KEELC 1735 (KLR) (23 February 2026) (Ruling) the Court held that:
“A preliminary objection, properly taken, is not a procedural fourish . It is a jurisdictional challenge founded upon a pure point of law.”
33. It is unquestionable that jurisdiction is a pure point of law. In other words, a Preliminary Objection is not just a technical point raised for form’s sake. Instead, it is a substantive legal mechanism with real consequences, that is, genuine legal issues capable of determining the case. A party raising an objection to a subject-matter jurisdiction does not require factual counter-affidavits.
34. At the same time, Jurisdiction is determined or tested on the face of the Petitioner’s own pleadings. Since the issue of jurisdiction is a pure question of law, when a party raises an objection to subject‑matter jurisdiction, the court does not need to weigh evidence or resolve factual disputes. Put simply, jurisdiction is not dependent on contested facts and therefore, the 1 st Respondent does not need to file affidavits to rebut or prove anything. The Preliminary Objection stands or fails purely on the legal sufficiency of the pleadings.
35. It is therefore this Court’s determination in this regard that the lack of a Replying Affidavit does not invalidate the 1 st Respondent’s Preliminary Objection, and that the preliminary objection raises a pure point of law on jurisdiction of the Court whose merits I now proceed to determine in the succeeding issue.
(ii) Whether the Petition and Application are premature for offending the twin doctrines of exhaustion of statutory remedies and constitutional avoidance
36. Jurisdiction is foundational and without it, a court cannot make a further step towards determining a case. As affirmed by the Supreme Court in Samuel Kamau Macharia v KCB & Others [2012] eKLR :
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
37. While Articles 165(3)(b) (d) and 23(1) of the Constitution endow this Court with broad jurisdiction to redress Bill of Rights violations, this power and jurisdiction is harmonized through the twin doctrines of exhaustion and constitutional avoidance .
38. The doctrine of exhaustion dictates that where Parliament has enacted a comprehensive statutory framework providing a specialized mechanism for dispute resolution, an aggrieved party must first pursue and exhaust those statutory remedies before invoking the judicial process. This principle is codified under Section 9(2) and (3) of the Fair Administrative Action Act, 2015 , which prohibits judicial review or court intervention unless all internal review, appeal or statutory remedies are exhausted.
39. At the same time, the doctrine of constitutional avoidance as illuminated by the Supreme Court in Cabinet Secretary for the National Treasury & Planning & 4 others v Okiya Omtatah Okoiti & 52 others [2024] KESC 63 (KLR) and applied by this Court quite recently in Prof. Remmy Shiundu Barasa v Attorney General & 3 Others (Nairobi HC Const. Pet. No. E266 of 2026) dictates that courts must refrain from deciding constitutional questions if a dispute can be properly resolved on statutory or administrative grounds. The Supreme Court in the above cited case emphasized the necessity of judicial restraint, holding that where legal rights can be vindicated through established statutory pathways, litigants should not routinely convert statutory or common law grievances into constitutional petitions.
40. In evaluating whether the petition offends these twin doctrines, the Court must examine the substratum or true character of the claim rather than the superficial legal attire in which it may be dressed. As observed by this Court in Prof. Remmy Shiundu Barasa v AG & 3 Others ( supra ):
“81. This doctrine of avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should not be disguised and tried as Constitutional litigations.”
41. The dispute before this Court stems from the alleged illegal and unfair disconnection of power supply to the residence of the Petitioners herein. Amongst other complaints, the petitioners allege that during the said incident, the 1 st Respondent and its employees who are the 2 nd , 3 rd and 4 th Respondents committed various constitutional violations as well as criminal acts which were reported to Buruburu Police Station and for which the petitioner now seek redress from this Court.
42. Under Sections 9, 11, and 160(3) of the Energy Act, 2019 , any dispute relating to electricity supply, billing, or disconnections shall be referred to Energy and Petroleum Regulatory Authority [EPRA]. Further, Section 36(1) & (3) grants the Energy and Petroleum Tribunal original civil jurisdiction over disputes between licensees and consumers, explicitly empowering the Tribunal under Section 36(5) to award equitable reliefs, including injunctions and damages. Appeals lie from EPRA to the Tribunal under Section 40 and thereafter to the High Court under Section 37(3).
43. A careful examination of the instant Petition reveals a bifurcated cause of action. The core remedies sought in Prayers (a), (b), (c), and (g) of the Petition and the entirety of the Notice of Motion concern the disconnection of power, billing propriety, quality of consumer services under Article 46 and compensation for damaged home appliances which the Petitioners list as LG Refrigerator and Television Set. These claims arise directly from the licensee-consumer relationship regulated under the Energy Act, 2019.
44. The Energy Tribunal possesses explicit statutory authority under Section 36(5) to grant injunctive restoration orders and award damages. Accordingly, bypassing EPRA and the Energy and Petroleum Tribunal on these electricity-related grievances by the consumers directly breaches the mandatory exhaustion requirements under Section 160(3) of the Energy Act and Section 9(2) of the Fair Administrative Action Act .
45. Secondly, the Petitioners plead distinct claims involving alleged sexual harassment of the 2 nd Petitioner and other actions which they allege were violating their human dignity under Article 28 and right to privacy under Article 31. The Petitioners also mention extortion and bribery demands by the 2 nd , 3 rd and 4 th Respondents in their individual capacities.
46. I note that the EPRA and the Energy and Petroleum Tribunal are specialized technical organs designed to adjudicate energy supply, billing, licensing and sectoral compliance. They possess no statutory mandate or jurisdictional competence to adjudicate tortious or criminal claims of sexual harassment, enforce criminal accountability, or grant constitutional declarations regarding personal dignity violations against individual citizens.
47. Under Section 9(4) of the Fair Administrative Action Act , the High Court retains discretion to exempt a party from exhaustion where exceptional circumstances exist or where the statutory forum lacks jurisdiction over the core fundamental rights violated. It means that the 2 nd Petitioner, being a victim of alleged sexual harassment, dignity violations and individual misfeasance cannot find redress before the Energy and Petroleum Regulatory Authority or the Tribunal established under the Act.
48. However, the question is whether these grievances were sufficient to found a constitutional claim. A critical element in evaluating whether the Constitutional Court should be invoked as a court of first instance is the availability of established civil or criminal justice mechanisms. The record reveals that following the incident on 17 th December 2025, the Petitioners reported allegations of sexual harassment, extortion and trespass to the Buruburu Police Station and were issued Occurrence Book (OB) numbers.
49. Having formally set the criminal law in motion, this Court cannot again serve as a shortcut or substitute for the completion of criminal investigations and potential prosecution.
50. Under Articles 245 and Article 247 of the Constitution as read with Sections 24, 28, and 35 of the National Police Service Act (No. 11A of 2011), the National Police Service, specifically through the Directorate of Criminal Investigations (DCI), is the statutory authority mandated to detect, prevent and investigate criminal conduct.
51. Once a complaint is lodged such as the one by the 2 nd Petitioner of alleged sexual harassment, investigations are conducted and then the power to evaluate evidence, proffer criminal charges and institute criminal proceedings before a Magistrate’s court is vested exclusively in the Office of the Director of Public Prosecutions (ODPP) under Article 157(4) and (6)(a) of the Constitution . Under Article 157(10), the ODPP operates with constitutional independence and cannot be bypassed or directed by civil courts prior to the conclusion of an investigation.
52. Therefore, since the Petitioners herein had lodged a complaint with the police regarding the alleged sexual harassment and obtained an OB number, the proper course is to allow the investigative agencies and the ODPP to discharge their constitutional mandates. Filing this constitutional petition to bypass or pre-empt ongoing police investigations offends the doctrine of primary jurisdiction and renders this Court an improper first port of call.
53. Further, the Petitioners have also not furnished this Court with material to demonstrate police inaction or that there was abuse of the police investigatory powers if at all.
54. Based on the foregoing, I find that the Petitioners ought to have isolated their distinct grievances and directed them to their respective statutory and constitutional fora rather than commingling them into a single constitutional petition.
55. The alleged constitutional rights infringements ought to have been raised before this Court under Article 165(3)(b) only where no other statutory or specialized forum possesses the jurisdictional competence to offer redress or where exceptions existed, which they failed to do.
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E849 OF 2025
IN THE MATTER OF: THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 1, 2, 3, 4, 5, 10, 19, 20, 21, 22, 23, 24, 25, 28, 31, 40, 46, 47, 73, 74, 75, 159, 165, 174, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES
AND
IN THE MATTER OF: THE LEADERSHIP AND INTEGRITY ACT CHAPTER 185C OF THE LAWS OF KENYA
AND
IN THE MATTER OF: THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, CAP 65 OF THE LAWS OF KENYA
AND
IN THE MATTER OF: THE ETHICS AND ANTI-CORRUPTION COMMISSION ACT, CAP 7H OF THE LAWS OF KENYA
-BETWEEN-
MICHAEL THIONG'O KINYANJUI ............................... 1 ST PETITIONER
MARGARET MUKAMI KIMOTHO ...............................2 ND PETITIONER
-AND-
KENYA POWER & LIGHTING
COMPANY LIMITED ………………………………….. 1 ST RESPONDENT
FREDRICK OCHIENG ................................................... 2 ND RESPONDENT
SIMIYU W. EMMANUEL ............................................... 3 RD RESPONDENT
CHARLES MAKORI ....................................................... 4 TH RESPONDENT
AND
ETHICS AND ANTI-CORRUPTION
COMMISSION ........................................................... INTERESTED PARTY
RULING ON THE PRELIMINARY OBJECTION
1. The dated 20 th December 2025 arises from an incident on 17 th December 2025 when the 2 nd , 3 rd and 4 th Respondents who are employees of the 1 st Respondent, are alleged to have, accompanied by security goons, invaded the Petitioners’ residence and property in Umoja II Estate, Nairobi County. The Respondents are alleged to have vandalized property, cut electricity lines with hacksaws and pliers, left live wires hanging dangerously and confiscated items.
2. The Petitioners’ case is that during the said raid, the officers demanded bribes from the 2 nd Petitioner and that when she refused, they molested and sexually harassed her while her children were studying upstairs and her husband was at work. The incident was then formally reported to Buruburu Police Station under OB Number 55/17/12/25. The Petitioners claim that they have consistently paid their electricity bills and were not issued with any prior written demand or bill justifying the disconnection. They allege that in addition, five adjacent rental shops lost power, an LG refrigerator and TV set worth Kshs. 50,000/= and Kshs. 40,000/= respectively were damaged, stored food was spoiled and the family was left in darkness.
3. The Petitioners assert that the Respondents’ acts violated national values and principles of governance under Article 10(2), public service principles under Article 232, the right to privacy under Article 31, human dignity under Article 28, property rights under Article 40, consumer rights to quality service under Article 46 and the right to fair, lawful and procedurally fair administrative action under Article 47(1) of the Constitution.
4. In their said Petition, the Petitioners seek the following reliefs:
(a) AN ORDER OF DECLARATION declaring that the Respondents have violated the Petitioners’ guaranteed right to privacy, the right to acquire and own property and the 2 nd Petitioner’s right to dignity.
(b) AN ORDER OF DECLARATION declaring that the Respondents have violated the Petitioners' guaranteed right to goods and services of reasonable quality and the full benefit of the said goods and services as enshrined under Article 46 of the Constitution.
(c) AN ORDER OF DECLARATION declaring that the impugned violation of the Petitioners' right to goods and services of reasonable quality and the enjoyment of the full benefit thereof has occasioned them loss of money as a resource.
(d) AN ORDER OF PROHIBITION prohibiting the Respondents from visiting, trespassing or in any way whatsoever accessing the Petitioners’ all that property known as Plot No.431 Umoja II Zone 8 measuring 0.015 hectares or in any way harassing, and/or intimidating the Petitioners on matters hereof.
(e) AN ORDER OF MANDAMUS compelling the Interested Party to conduct investigations regarding the bribery claims and abuse of office by the 2 nd , 3 rd and 4 th Respondents.
(f) AN ORDER OF DECLARATION declaring that the 2 nd , 3 rd and 4 th Respondents have violated the Constitution hence not fit to hold public office.
(g) The Honourable Court be pleased to order the Respondents to compensate the Petitioners for the damage of their fridge make LG and Television set make LG, serial number 307SYEV05244, model number 42LN540V/ZA that they bought at KSh.50,000/= and KSh.40,000/= respectively.
(h) The Honourable Court be pleased to compel the Respondents to compensate the Petitioners for violation of their rights.
(i) Costs of the Petition.
(j) Any other orders that the Honourable Court may deem just and fit to grant as the justice of this case may permit.
5. The Petition is supported by the sworn affidavit of Margaret Mukami Kimotho, the 2 nd Petitioner who outlines the factual background and constitutional grounds surrounding the incident of 17 th December 2025, when individual respondents accompanied by unruly individuals acting as security personnel, unlawfully entered her Umoja II residential and commercial property. She details how the Respondents vandalized property, cut electricity lines, disconnected multiple power meters and confiscated personal belongings.
6. The second Petitioner deposes that in addition to causing severe emotional trauma and leaving the family home in total darkness, the power disconnection halted business for the five commercial shops adjacent to their residence and destroyed electrical appliances, including an LG television set and a refrigerator.
7. It is deponed that these actions were taken without any prior written demand or bill, despite the Petitioners consistently paying all electricity consumption charges on time. That following the incident, the Petitioners immediately reported the criminal and unconstitutional conduct to the Buruburu Police Station under Occurrence Book (OB) Number 55/17/12/25.
8. The deponent asserts that the Respondents’ conduct violated core provisions of the Constitution, specifically infringing on the right to privacy under Article 31 , human dignity under Article 28 , property ownership under Article 40 , access to quality goods and services under Article 46 , and fair administrative action under Article 47 . Further, she accuses the respondents for failing to uphold national values, principles of governance, and public service standards enshrined under Articles 10 and 232 .
9. The deponent urges the Court to urgently hear the Petition and grant the requested legal reliefs to safeguard their rights, prevent ongoing harm, and uphold the rule of law.
10. Concurrently with the Petition, the Petitioners filed a Notice of Motion on the even date under Certificate of Urgency seeking urgent interim relief to restrain the Respondents from entering, accessing, or interfering within their Umoja II property (Plot No. 431) and harassing them. They specifically request conservatory orders directing the immediate restoration of electricity supply across five specified meter numbers, alongside protection against further disconnection or interference, with costs and any additional just relief awarded to them.
Responses
11. The 1 st Respondent, Kenya Power and Lighting Company Limited filed Grounds of Opposition in which it contends that the Court lacks the jurisdiction to hear and determine both the Application and the underlying Petition. The 1 st Respondent argues that the dispute falls squarely under the mandate of the Energy and Petroleum Regulatory Authority [EPRA] or the Energy and Petroleum Tribunal [EPT] pursuant to the provisions of the Energy Act, 2019, and the Energy (Complaints and Disputes Resolution) Regulations, 2012, thereby rendering the proceedings un-procedural, fatally defective, incurably incompetent, and brought in direct contravention of established legal procedures.
12. Further, the 1 st Respondent states that there is no proper petition validly before the Court and that the Petitioners/Applicants have failed to disclose all material facts or place any factual or legal evidence before the Court to substantiate their claims.
13. Characterizing the Application as misconceived, frivolous, scandalous and an abuse of the court process, the 1 st Respondent maintains that the requested orders violate the settled principles governing injunctive relief under Order 40 of the Civil Procedure Rules 2010 and mislead the Court regarding the existence of a valid factual claim, thereby disentitling the Applicants to any reliefs and warranting a dismissal with costs.
14. The 1 st Respondent also filed a Notice of Preliminary Objection dated 2 nd June 2026 raising the following ground:
This Honourable Court lacks jurisdiction to hear and determine this dispute and the application together with all consequential orders should be dismissed with costs as the same offends the provisions of sections 3, 10; 11(e), (f), (i), (k) & (l); 23; 24; 36; 40; 42; 159(3); 160(3) and 224(2)(e) of the Energy Act, 2019 together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 as read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and sections 9(2) and (3) Fair Administrative Action Act, 2015.
15. On their part, the Interested Party, The Ethics and Anti-Corruption Commission (EACC) filed Grounds of Opposition seeking dismissal of the Petition nd the Notice of Motion for conservatory orders the basis that they are frivolous, vexatious and an abuse of the court process. The EACC states its statutory and constitutional establishment as a body corporate under the Ethics and Anti-Corruption Commission Act 2011, mandated to investigate corruption and economic crimes either on its own motion or upon receiving a complaint.
16. It asserts that the Applicants have not lodged any formal complaint with the Commission regarding the bribery and abuse of office allegations levelled against the 2 nd , 3 rd and 4 th Respondents.
17. The Interested Party Further contends that granting the orders sought against it would directly violate Article 249(2)(a) and (b) of the Constitution and Section 28 of the Ethics and Anti-Corruption Commission Act, 2011 , which guarantee the functional independence of constitutional commissions and subject them solely to the Constitution and the law. Finally, it is the EACC’s case that the Petition fails to respect established legal principles by directly offending the doctrine of constitutional avoidance.
18. Both the Petition, the Application and Preliminary objection were canvassed by way of written submissions, .
Submissions
19. In their Submissions dated 7 th July 2026 , the Petitioners robustly oppose the 1 st Respondent’s Notice of Preliminary Objection dated 2 nd June 2026 and contend that the 1 st Respondent, being a state organ, failed to file a Replying Affidavit to rebut allegations of sexual harassment, property damage, and constitutional violations, thereby violating the mandatory provisions of Rule 15(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules).
20. They submit that a Notice of Preliminary Objection cannot stand in a vacuum without a Replying Affidavit or Statement of Defence. Relying on Daniel Kibet Mutai & 9 others v. Attorney General [2019] eKLR and Crown Berger Kenya Ltd v. Kalpech Vasuder Devan and another (Civil Case No. 246 of 2006), the Petitioners emphasize that unrefuted affidavit evidence is deemed admitted. The Petitioners further relied on Raila Odinga v. Independent Electoral and Boundaries Commission and 3 others [2013] eKLR and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission and 6 others [2013] eKLR , and argued that procedural rules are mandatory imperatives that cannot be bypassed by invoking Article 159(2)(d) of the Constitution.
21. The Petitioners also reject the 1 st Respondent’s argument regarding the doctrine of exhaustion under Sections 3, 9, 10, 11, 12, 25, 36, and 160 of the Energy Act, 2019 (Cap. 314) and submit that statutory exhaustion is not absolute and highlighted the statutory exceptions under Section 9(4) of the Fair Administrative Action Act (No. 4 of 2015) where constitutional violations and irreparable harm exist.
22. It is submitted that because the Petition alleges severe constitutional infringements including sexual harassment and violation of Article 28 on the right to dignity and abuse of office, the Petitioners contend that the Energy and Petroleum Regulatory Authority or Tribunal lack jurisdiction over tortious or constitutional claims against individual employees. They submit that under Article 165(3)(b) of the Constitution, exclusive jurisdiction over fundamental rights violations resides in the High Court. They support their argument with the case of Chisima & another v. Kenya Power & Lighting Company Limited & another [2023] KEHC 23830 and Mwangi & 844 others v. KPLC Ltd & another [2022] KEELC 15455 (KLR), and submit that their pleadings meet the specificity threshold established in Anarita Karimi Njeru v. The Republic [1979] eKLR, Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, and Rule 10(2) of the Mutunga Rule. They concluded that the Preliminary Objection should be dismissed with costs.
23. The 1 st Respondent filed its written submissions dated10 th June 2026 in support of its Notice of Preliminary Objection dated 2 nd June 2026. The 1 st Respondent challenges the Court’s jurisdiction to entertain the Petition regarding an alleged unlawful disconnection of power supply and damage to electrical property. Relying on the principles set out in Mukisa Biscuits Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] EALR 696 and Mulemi v. Angwenye & Another (Civil Appeal 170 of 2016), the 1 st Respondent contends that its preliminary objection raises a pure point of law that can dispose of the entire petition without delving into factual merits.
24. Invoking the locus classicus Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd. [1989] KLR 1 and the case of Esther Gachambi Mwangi v. Samuel Mwangi Mbiri [2013] eKLR , the 1 st Respondent submits that jurisdiction is foundational and the court must "down its tools" at the earliest opportunity upon finding that it lacks competence over the subject matter.
25. The 1 st Respondent argues that the core foundation or substratum of the Petitioners’ claim is the disconnection of electricity supply. Citing Mehret Gebreyesus (suing as legal rep. Estate of Stefanos Egzibher) v. Kenya Power & Lighting Company Limited & Another Milimani HCCHRPET No. E564 of 2025 , the 1 st Respondent argues that secondary claims of constitutional violations do not alter the true nature of a dispute anchored in power supply and billing grievances.
26. Further submission is that under Section 3(1) of the Energy Act 2019 , the provisions of the Energy Act prevail over any other Act regarding the distribution, supply, or use of electrical energy and associated apparatus. The 1 st Respondent highlights that Parliament created statutory bodies pursuant to Article 169(1)(d) of the Constitution , specifically empowering the Energy & Petroleum Regulatory Authority (EPRA) under Sections 9 and 11 of the Energy Act 2019 , as well as Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations 2012, to investigate and determine complaints involving disconnections, wayleaves and service quality.
27. Additionally, the 1 st Respondent submits that Section 25 and Section 36(3) of the Energy Act, 2019 grant the Energy & Petroleum Tribunal original civil jurisdiction over disputes between licensees and third parties, complete with the authority to award equitable reliefs such as injunctions and damages under Section 36(5). Citing Speaker of National Assembly v. Njenga Karume [1992] 1 KLR 425, Cyrus Komo Njoroge v. Kiringa Njoroge Gachoka & 2 Others [2015] eKLR, and Dhow House Limited v. Kenya Power and Lighting Company (Constitutional Petition E058 of 2021), the 1 st Respondent contends that where a specific statutory procedure for dispute resolution exists, it must be strictly followed.
28. The 1 st Respondent submits that the doctrine of exhaustion of statutory remedies is further supported by Sections 9(2) and 9(3) of the Fair Administrative Action Act 2015 , and the binding Court of Appeal precedent in Abidha Nicholus v. Attorney General & 7 Others (Civil Appeal No. 42 of 2021) . The 1 st Respondent maintains that under Section 27(1) of the Civil Procedure Act (Cap. 21) and the holding in Joseph Nzyoki Mwanthi v. Kenya Power & Lighting Co. Ltd. [2017] eKLR, costs follow the event and therefore prays that the Petition and Application be struck out with costs.
Analysis and Determination
29. From my consideration of the Notice of Preliminary Objection, the pleadings and the rival submissions, the central issue for determination is whether the 1 st Respondent’s Preliminary Objection dated 2 nd June 2026 is merited . To determine this, the Court will address the following sub-issues:-
(i) Whether the 1 st Respondent’s Preliminary Objection is procedurally competent in the absence of a Replying Affidavit.
(ii) Whether the Petition and Application are premature for offending the twin doctrines of exhaustion of statutory remedies and constitutional avoidance.
(i) Whether the 1 st Respondent’s Preliminary Objection is procedurally competent in the absence of a Replying Affidavit.
30. The law on preliminary objections is now well-settled. In the locus classicus Mukisa Biscuit Manufacturing Co. Ltd. vs. West End Distributors Ltd [1969] EA 696, it was held that a preliminary objection consists of a pure point of law raised on the assumption that all facts pleaded by the opposing party are true. The Supreme Court of Kenya in Independent Electoral & Boundaries Commission vs. Cheperenger &2 others [2015] KESC 2 (KLR) explained elaborately the nature of a preliminary objection as follows:
“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.”
31. The Petitioners herein impugn the procedural competence of the Notice of Preliminary Objection arguing that the 1 st Respondent could not maintain a Preliminary Objection without first filing a Replying Affidavit.
32. I however note that the question of law being raised in the Preliminary Objection is an issue of jurisdiction which if found lacking, this Court will dispose off the petition in limine . In Ngingo t/a Muchangi Nduati & Company Advocates v Samia Properties Limited; Kudoi (Interested Party) (Environment and Land Originating Summons, E105 of 2020) [2026] KEELC 1735 (KLR) (23 February 2026) (Ruling) the Court held that:
“A preliminary objection, properly taken, is not a procedural fourish . It is a jurisdictional challenge founded upon a pure point of law.”
33. It is unquestionable that jurisdiction is a pure point of law. In other words, a Preliminary Objection is not just a technical point raised for form’s sake. Instead, it is a substantive legal mechanism with real consequences, that is, genuine legal issues capable of determining the case. A party raising an objection to a subject-matter jurisdiction does not require factual counter-affidavits.
34. At the same time, Jurisdiction is determined or tested on the face of the Petitioner’s own pleadings. Since the issue of jurisdiction is a pure question of law, when a party raises an objection to subject‑matter jurisdiction, the court does not need to weigh evidence or resolve factual disputes. Put simply, jurisdiction is not dependent on contested facts and therefore, the 1 st Respondent does not need to file affidavits to rebut or prove anything. The Preliminary Objection stands or fails purely on the legal sufficiency of the pleadings.
35. It is therefore this Court’s determination in this regard that the lack of a Replying Affidavit does not invalidate the 1 st Respondent’s Preliminary Objection, and that the preliminary objection raises a pure point of law on jurisdiction of the Court whose merits I now proceed to determine in the succeeding issue.
(ii) Whether the Petition and Application are premature for offending the twin doctrines of exhaustion of statutory remedies and constitutional avoidance
36. Jurisdiction is foundational and without it, a court cannot make a further step towards determining a case. As affirmed by the Supreme Court in Samuel Kamau Macharia v KCB & Others [2012] eKLR :
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
37. While Articles 165(3)(b) (d) and 23(1) of the Constitution endow this Court with broad jurisdiction to redress Bill of Rights violations, this power and jurisdiction is harmonized through the twin doctrines of exhaustion and constitutional avoidance .
38. The doctrine of exhaustion dictates that where Parliament has enacted a comprehensive statutory framework providing a specialized mechanism for dispute resolution, an aggrieved party must first pursue and exhaust those statutory remedies before invoking the judicial process. This principle is codified under Section 9(2) and (3) of the Fair Administrative Action Act, 2015 , which prohibits judicial review or court intervention unless all internal review, appeal or statutory remedies are exhausted.
39. At the same time, the doctrine of constitutional avoidance as illuminated by the Supreme Court in Cabinet Secretary for the National Treasury & Planning & 4 others v Okiya Omtatah Okoiti & 52 others [2024] KESC 63 (KLR) and applied by this Court quite recently in Prof. Remmy Shiundu Barasa v Attorney General & 3 Others (Nairobi HC Const. Pet. No. E266 of 2026) dictates that courts must refrain from deciding constitutional questions if a dispute can be properly resolved on statutory or administrative grounds. The Supreme Court in the above cited case emphasized the necessity of judicial restraint, holding that where legal rights can be vindicated through established statutory pathways, litigants should not routinely convert statutory or common law grievances into constitutional petitions.
40. In evaluating whether the petition offends these twin doctrines, the Court must examine the substratum or true character of the claim rather than the superficial legal attire in which it may be dressed. As observed by this Court in Prof. Remmy Shiundu Barasa v AG & 3 Others ( supra ):
“81. This doctrine of avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should not be disguised and tried as Constitutional litigations.”
41. The dispute before this Court stems from the alleged illegal and unfair disconnection of power supply to the residence of the Petitioners herein. Amongst other complaints, the petitioners allege that during the said incident, the 1 st Respondent and its employees who are the 2 nd , 3 rd and 4 th Respondents committed various constitutional violations as well as criminal acts which were reported to Buruburu Police Station and for which the petitioner now seek redress from this Court.
42. Under Sections 9, 11, and 160(3) of the Energy Act, 2019 , any dispute relating to electricity supply, billing, or disconnections shall be referred to Energy and Petroleum Regulatory Authority [EPRA]. Further, Section 36(1) & (3) grants the Energy and Petroleum Tribunal original civil jurisdiction over disputes between licensees and consumers, explicitly empowering the Tribunal under Section 36(5) to award equitable reliefs, including injunctions and damages. Appeals lie from EPRA to the Tribunal under Section 40 and thereafter to the High Court under Section 37(3).
43. A careful examination of the instant Petition reveals a bifurcated cause of action. The core remedies sought in Prayers (a), (b), (c), and (g) of the Petition and the entirety of the Notice of Motion concern the disconnection of power, billing propriety, quality of consumer services under Article 46 and compensation for damaged home appliances which the Petitioners list as LG Refrigerator and Television Set. These claims arise directly from the licensee-consumer relationship regulated under the Energy Act, 2019.
44. The Energy Tribunal possesses explicit statutory authority under Section 36(5) to grant injunctive restoration orders and award damages. Accordingly, bypassing EPRA and the Energy and Petroleum Tribunal on these electricity-related grievances by the consumers directly breaches the mandatory exhaustion requirements under Section 160(3) of the Energy Act and Section 9(2) of the Fair Administrative Action Act .
45. Secondly, the Petitioners plead distinct claims involving alleged sexual harassment of the 2 nd Petitioner and other actions which they allege were violating their human dignity under Article 28 and right to privacy under Article 31. The Petitioners also mention extortion and bribery demands by the 2 nd , 3 rd and 4 th Respondents in their individual capacities.
46. I note that the EPRA and the Energy and Petroleum Tribunal are specialized technical organs designed to adjudicate energy supply, billing, licensing and sectoral compliance. They possess no statutory mandate or jurisdictional competence to adjudicate tortious or criminal claims of sexual harassment, enforce criminal accountability, or grant constitutional declarations regarding personal dignity violations against individual citizens.
47. Under Section 9(4) of the Fair Administrative Action Act , the High Court retains discretion to exempt a party from exhaustion where exceptional circumstances exist or where the statutory forum lacks jurisdiction over the core fundamental rights violated. It means that the 2 nd Petitioner, being a victim of alleged sexual harassment, dignity violations and individual misfeasance cannot find redress before the Energy and Petroleum Regulatory Authority or the Tribunal established under the Act.
48. However, the question is whether these grievances were sufficient to found a constitutional claim. A critical element in evaluating whether the Constitutional Court should be invoked as a court of first instance is the availability of established civil or criminal justice mechanisms. The record reveals that following the incident on 17 th December 2025, the Petitioners reported allegations of sexual harassment, extortion and trespass to the Buruburu Police Station and were issued Occurrence Book (OB) numbers.
49. Having formally set the criminal law in motion, this Court cannot again serve as a shortcut or substitute for the completion of criminal investigations and potential prosecution.
50. Under Articles 245 and Article 247 of the Constitution as read with Sections 24, 28, and 35 of the National Police Service Act (No. 11A of 2011), the National Police Service, specifically through the Directorate of Criminal Investigations (DCI), is the statutory authority mandated to detect, prevent and investigate criminal conduct.
51. Once a complaint is lodged such as the one by the 2 nd Petitioner of alleged sexual harassment, investigations are conducted and then the power to evaluate evidence, proffer criminal charges and institute criminal proceedings before a Magistrate’s court is vested exclusively in the Office of the Director of Public Prosecutions (ODPP) under Article 157(4) and (6)(a) of the Constitution . Under Article 157(10), the ODPP operates with constitutional independence and cannot be bypassed or directed by civil courts prior to the conclusion of an investigation.
52. Therefore, since the Petitioners herein had lodged a complaint with the police regarding the alleged sexual harassment and obtained an OB number, the proper course is to allow the investigative agencies and the ODPP to discharge their constitutional mandates. Filing this constitutional petition to bypass or pre-empt ongoing police investigations offends the doctrine of primary jurisdiction and renders this Court an improper first port of call.
53. Further, the Petitioners have also not furnished this Court with material to demonstrate police inaction or that there was abuse of the police investigatory powers if at all.
54. Based on the foregoing, I find that the Petitioners ought to have isolated their distinct grievances and directed them to their respective statutory and constitutional fora rather than commingling them into a single constitutional petition.
55. The alleged constitutional rights infringements ought to have been raised before this Court under Article 165(3)(b) only where no other statutory or specialized forum possesses the jurisdictional competence to offer redress or where exceptions existed, which they failed to do.
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