The application is dated 25th September 2025 and is brought under articles 21(1) and (3), 22,23, 35, 45, 57, 64(b), 159 and 165 of the Constitution of Kenya 2010, sections 1A, 1B, 3, 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and 0.40 r.1 of the Civil Procedure Rules seeking the following orders;
i. THAT the application herein be certified urgent, service of the same be dispensed with and the same be heard ex-parte in the first instance.
ii. THAT leave be and is hereby granted to the Petitioner herein to bring these proceedings on behalf of Grace Khalayi Barasa [WHO IS ELDERLY AND INCAPABLE OF PROTECTING HER INTERESTS WHEN SUING OR BEING SUED OWING TO HER INFIRIMITY OF MIND AND BODY].
iii. THAT this Honourable Court be pleased to issue conservatory orders barring restricting any dealings and all transactions over property title Mavoko Municipality Block 44/49 pending hearing and determination of this suit.
iv. THAT pending hearing and determination of this suit, this honorable court be pleased to issue a temporary injunction restraining the Respondents individually and jointly or through their agents, representatives or assigns from any further dealings over property Mavoko Municipality Block 44/49.
v. THAT this Honourable Court be pleased to make an order of judicial review against the 2nd Respondent requiring the 2nd Respondent to immediately submit the land parcel file of the suit property to this Court for the Honourable Court to satisfy itself that the process of transferring the title purportedly by way of gift, from Grace Khalayi Barasa to the 1st Respondent complied with all legal requirements.
vi. THAT this Honourable Court be pleased to make an order directed to the Sub-County Criminal Investigations officer, Machakos County, to obtain copies of the submitted land parcel file of the suit property, conduct investigations and submit to this Honourable Court results of criminal investigation and a document examiner's report and analysis of all the signatures in any transfer deed purported to have been signed by Grace Khalayi Barasa gifting away her property.
vii. Pending hearing and determination of the suit, the Court be pleased to call for all medical reports for Grace Khalayi Barasa, examine the same and appoint a suitable person or persons from amongst the family members, to act as guardian ad litem in respect of the suit property and all her immovable properties (land).
viii. THAT pending hearing and determination of the suit, the Court be pleased to order that all documents of title to all immovable properties belonging to Grace Khalayi Barasa be submitted to the Court appointed guardian ad litem.
ix. THAT the Honorable Court be please to order the court appointed guardian ad litem to file accounts within such time as the Honorable Court deems fit, for all lands in which Grace Khalayi Barasa has an interest.
x. THAT the Honourable Court be pleased to make these and such further orders that this Honourable Court may deem just to grant in the interests of law, equity, justice and good conscience.
It is based annexed affidavit of Mark Nabuyumbu Barasa and on the following grounds that the 1st Respondent is suspected to have fraudulently transferred title Mavoko Municipality Block 44/49 to herself because the original owner Grace Khalayi Barasa has been laboring under infirmity of mind and therefore is incapable of making such a transfer out of her free consent and will. That Grace Khalayi Barasa on whose behalf the proceedings herein are brought is unable, owing to her age and infirmity to pursue her rights hence she stands to suffer irreparably if the land transfer complained of herein turns out to be fraudulent unless the Honorable Court intervenes. That the 1st Respondent after purporting to transfer the said property to herself, has gone ahead to charge the same with the 1st Interested Party herein and in the event of default of the loan secured by the charge, or the transfer turns out to be fraudulent, illegal or voidable, irreparable damage and loss will occur because owing to her age and health condition it is not in the interests of justice for Grace Khalayi Barasa to pursue her rights through unnecessary litigation and criminal investigations. That unless this Honourable Court calls for the land parcel file and restrains further dealings on the same, the criminal investigations shall also be
prejudiced because there is a possibility of further interference with the land parcel file by the 2nd Respondent whose administrative actions are being questioned. That Grace Khalayi Barasa on whose behalf the proceedings herein are brought is vulnerable on account of her age and she needs to be protected against exploitation hence the orders sought are meant to serve the interests of justice. That both respondents have been uncooperative and have not provided, despite repeated demands from the petitioner and the police, copies of the purported transfer deed to enable analysis of signature by a document examiner.
The Respondent opposed the application and stated that the Petitioner has not obtained any consent from Grace Khalayi Barasa and has no locus standi. That he has not obtained leave of the court to bring these proceedings in a representative capacity as required by rule 4(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. That he did not set out the procedures set out in Order 32 of the Civil Procedure Rules in order to sue on behalf of a third party. That the said Grace Khalayi Barasa is alive and lucid capable of managing her own affairs. That this is a civil matter and should not be brought under the guise of a constitutional petition.
This court has considered the application and the submissions therein. There issue for determination at this preliminary stage is as follows;
1. Locus standi
2. Threshold for Constitution Petitions
In the case of Alfred Njau & Others vs City Council of Nairobi (1982) KAR 229, the court held as follows;
“The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that the has no right to appear or be heard in such and such proceedings.”
Similarly, in the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the court held that;
“Locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in court of law.”
In the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others, the court stated that while the court should not sanction hurdles to access to justice by restricting the definition of locus standi, it should nevertheless not entertain litigation that is hypothetical, abstract or is an abuse of the judicial process.
Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, party has no basis to claim anything before the Court.
I have perused the court file and the Petitioner states that Grace Khalayi Barasa is elderly and incapable of protecting her rights. He has attached a referral to a Consultant clinic which does not give a conclusive diagnosis. There is no report declaring her of unsound mind and the court cannot rely on the same. The Petitioner has no authority to act for the said Grace Khalayi Barasa and I find he does not have locus standi. Inreaching this conclusion lam guided by the case of John Patrick Machira vs Patrick Kahiaru Muturi Civil Case No 113 of 1999 where it was held that;
“Questioning one’s mental health is a serious thing. He who questions another’s mental well-being must demonstrate the basis of the question. Everybody is presumed to be of sound mind unless and until the contrary is shown on credible evidence. That is why there are stringent provisions in the Mental Health Act (Cap 248) setting out a laborious process by which a conclusion is to be reached concerning a person’s state of mind. That process has not been embarked upon in the instant case, and no medical evidence has been furnished to the court to support any allegation putting the mental health of the defendant in doubt and to rebut the initial presumption of sanity…”
Be that as it may, for a constitutional petition to be considered on merit by the court, it has to meet the threshold set out in Anarita Karimi Njeru vs The Republic (1979) eKLR, where it was held,
“We would, however, again stress that 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.”
The Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR, emphasised the principles set out in Anarita Karimi and held that,
“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.
The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars. We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case.”
I have perused the petition and evidence in support and I do note that as much as the
Petitioners have cited Articles 40 of the Constitution of Kenya 2010, no particulars of the alleged violations and the manner of the alleged infringements have however, been established. It is well established that a Petitioner who seeks redress under the Constitution must state his claim with precision by reference to the provisions of the Constitution violated and the manner of the alleged violation.
The Petitioners’ case is that the Applicant submits that the 1st Respondent is suspected to have fraudulently transferred title Mavoko Municipality Block 44/49 to herself because the original owner Grace Khalayi Barasa (his mother) has been laboring under infirmity of mind and therefore is incapable of making such a transfer out of her free consent and will. That she is unable, owing to her age and infirmity to pursue her rights hence she stands to suffer irreparably if the land transfer complained of herein turns out to be fraudulent unless the Honorable Court intervenes. That the 1st Respondent has further gone ahead to charge the same with the 1st Interested Party herein and in the event of default of the loan secured by the charge, or the transfer turns out to be fraudulent, illegal or voidable, irreparable damage and loss will occur because owing to her age and health condition it is not in the interests of justice for Grace Khalayi Barasa to pursue her rights through unnecessary litigation and criminal investigations. The Respondents submitted that the Petition does not meet the threshold of a constitutional petition and should be dismissed.
In my view, going by the allegations above, there is no presence of constitutional violations. The grievances did not warrant the filing of a Constitutional Petition in the manner dictated by the Petitioner. Thus, I see no constitutional violations as contemplated by the Petitioner.
In Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others (2014) eKLR the Supreme Court held as follows: -
“(256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
Similarly, in Uhuru Muigai Kenyatta v Nairobi Star Publications Limited (2013) eKLR, Lenaola, J. (as he then was) stated;
“I need say no more. Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.
In Peter O. Ngoge vs Francis ole Kaparo & 4 Others (2007) eKLR, the Court of Appeal applied the case of Harriksson vs Attorney General of Trinidad And Tobago (1980) Ac 265, where Lord Diplock stated;
“The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious ... the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for the unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
The Petitioners in filing this petition have not fully complied and thus offend the doctrine of ripeness and constitutional avoidance. In John Harun Mwau vs Peter Gastrol & 3 others (2014) eKLR, the court discussed the principle of constitutional avoidance as follows;
“courts will not normally consider a constitutional question unless the existence of a remedy is dependent on it... It is an established practice that where a matter can be disposed of without recourse to the constitution, the constitution should not be invoked at all.”
Further, in I Currie & J De Waal The Bill of Rights Handbook (2013) 72 the author stated that the exceptions to the above doctrine are:
“The exceptions to the application of the doctrine of constitutional avoidance are:
i. where the constitutional violation is so clear and of direct relevance to the matter,
ii. in the absence of an apparent alternative form of ordinary relief and
iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.”
This petition has failed in all three exceptions as the Petitioner did not comply with the first step and secondly this is a claim which can be instituted as a civil suit. Consequently, I find that the application and the petition are not merited and I strike them out with costs.
It is so ordered.
i. THAT the application herein be certified urgent, service of the same be dispensed with and the same be heard ex-parte in the first instance.
ii. THAT leave be and is hereby granted to the Petitioner herein to bring these proceedings on behalf of Grace Khalayi Barasa [WHO IS ELDERLY AND INCAPABLE OF PROTECTING HER INTERESTS WHEN SUING OR BEING SUED OWING TO HER INFIRIMITY OF MIND AND BODY].
iii. THAT this Honourable Court be pleased to issue conservatory orders barring restricting any dealings and all transactions over property title Mavoko Municipality Block 44/49 pending hearing and determination of this suit.
iv. THAT pending hearing and determination of this suit, this honorable court be pleased to issue a temporary injunction restraining the Respondents individually and jointly or through their agents, representatives or assigns from any further dealings over property Mavoko Municipality Block 44/49.
v. THAT this Honourable Court be pleased to make an order of judicial review against the 2nd Respondent requiring the 2nd Respondent to immediately submit the land parcel file of the suit property to this Court for the Honourable Court to satisfy itself that the process of transferring the title purportedly by way of gift, from Grace Khalayi Barasa to the 1st Respondent complied with all legal requirements.
vi. THAT this Honourable Court be pleased to make an order directed to the Sub-County Criminal Investigations officer, Machakos County, to obtain copies of the submitted land parcel file of the suit property, conduct investigations and submit to this Honourable Court results of criminal investigation and a document examiner's report and analysis of all the signatures in any transfer deed purported to have been signed by Grace Khalayi Barasa gifting away her property.
vii. Pending hearing and determination of the suit, the Court be pleased to call for all medical reports for Grace Khalayi Barasa, examine the same and appoint a suitable person or persons from amongst the family members, to act as guardian ad litem in respect of the suit property and all her immovable properties (land).
viii. THAT pending hearing and determination of the suit, the Court be pleased to order that all documents of title to all immovable properties belonging to Grace Khalayi Barasa be submitted to the Court appointed guardian ad litem.
ix. THAT the Honorable Court be please to order the court appointed guardian ad litem to file accounts within such time as the Honorable Court deems fit, for all lands in which Grace Khalayi Barasa has an interest.
x. THAT the Honourable Court be pleased to make these and such further orders that this Honourable Court may deem just to grant in the interests of law, equity, justice and good conscience.
It is based annexed affidavit of Mark Nabuyumbu Barasa and on the following grounds that the 1st Respondent is suspected to have fraudulently transferred title Mavoko Municipality Block 44/49 to herself because the original owner Grace Khalayi Barasa has been laboring under infirmity of mind and therefore is incapable of making such a transfer out of her free consent and will. That Grace Khalayi Barasa on whose behalf the proceedings herein are brought is unable, owing to her age and infirmity to pursue her rights hence she stands to suffer irreparably if the land transfer complained of herein turns out to be fraudulent unless the Honorable Court intervenes. That the 1st Respondent after purporting to transfer the said property to herself, has gone ahead to charge the same with the 1st Interested Party herein and in the event of default of the loan secured by the charge, or the transfer turns out to be fraudulent, illegal or voidable, irreparable damage and loss will occur because owing to her age and health condition it is not in the interests of justice for Grace Khalayi Barasa to pursue her rights through unnecessary litigation and criminal investigations. That unless this Honourable Court calls for the land parcel file and restrains further dealings on the same, the criminal investigations shall also be
prejudiced because there is a possibility of further interference with the land parcel file by the 2nd Respondent whose administrative actions are being questioned. That Grace Khalayi Barasa on whose behalf the proceedings herein are brought is vulnerable on account of her age and she needs to be protected against exploitation hence the orders sought are meant to serve the interests of justice. That both respondents have been uncooperative and have not provided, despite repeated demands from the petitioner and the police, copies of the purported transfer deed to enable analysis of signature by a document examiner.
The Respondent opposed the application and stated that the Petitioner has not obtained any consent from Grace Khalayi Barasa and has no locus standi. That he has not obtained leave of the court to bring these proceedings in a representative capacity as required by rule 4(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. That he did not set out the procedures set out in Order 32 of the Civil Procedure Rules in order to sue on behalf of a third party. That the said Grace Khalayi Barasa is alive and lucid capable of managing her own affairs. That this is a civil matter and should not be brought under the guise of a constitutional petition.
This court has considered the application and the submissions therein. There issue for determination at this preliminary stage is as follows;
1. Locus standi
2. Threshold for Constitution Petitions
In the case of Alfred Njau & Others vs City Council of Nairobi (1982) KAR 229, the court held as follows;
“The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that the has no right to appear or be heard in such and such proceedings.”
Similarly, in the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the court held that;
“Locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in court of law.”
In the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others, the court stated that while the court should not sanction hurdles to access to justice by restricting the definition of locus standi, it should nevertheless not entertain litigation that is hypothetical, abstract or is an abuse of the judicial process.
Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, party has no basis to claim anything before the Court.
I have perused the court file and the Petitioner states that Grace Khalayi Barasa is elderly and incapable of protecting her rights. He has attached a referral to a Consultant clinic which does not give a conclusive diagnosis. There is no report declaring her of unsound mind and the court cannot rely on the same. The Petitioner has no authority to act for the said Grace Khalayi Barasa and I find he does not have locus standi. Inreaching this conclusion lam guided by the case of John Patrick Machira vs Patrick Kahiaru Muturi Civil Case No 113 of 1999 where it was held that;
“Questioning one’s mental health is a serious thing. He who questions another’s mental well-being must demonstrate the basis of the question. Everybody is presumed to be of sound mind unless and until the contrary is shown on credible evidence. That is why there are stringent provisions in the Mental Health Act (Cap 248) setting out a laborious process by which a conclusion is to be reached concerning a person’s state of mind. That process has not been embarked upon in the instant case, and no medical evidence has been furnished to the court to support any allegation putting the mental health of the defendant in doubt and to rebut the initial presumption of sanity…”
Be that as it may, for a constitutional petition to be considered on merit by the court, it has to meet the threshold set out in Anarita Karimi Njeru vs The Republic (1979) eKLR, where it was held,
“We would, however, again stress that 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.”
The Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR, emphasised the principles set out in Anarita Karimi and held that,
“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.
The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars. We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case.”
I have perused the petition and evidence in support and I do note that as much as the
Petitioners have cited Articles 40 of the Constitution of Kenya 2010, no particulars of the alleged violations and the manner of the alleged infringements have however, been established. It is well established that a Petitioner who seeks redress under the Constitution must state his claim with precision by reference to the provisions of the Constitution violated and the manner of the alleged violation.
The Petitioners’ case is that the Applicant submits that the 1st Respondent is suspected to have fraudulently transferred title Mavoko Municipality Block 44/49 to herself because the original owner Grace Khalayi Barasa (his mother) has been laboring under infirmity of mind and therefore is incapable of making such a transfer out of her free consent and will. That she is unable, owing to her age and infirmity to pursue her rights hence she stands to suffer irreparably if the land transfer complained of herein turns out to be fraudulent unless the Honorable Court intervenes. That the 1st Respondent has further gone ahead to charge the same with the 1st Interested Party herein and in the event of default of the loan secured by the charge, or the transfer turns out to be fraudulent, illegal or voidable, irreparable damage and loss will occur because owing to her age and health condition it is not in the interests of justice for Grace Khalayi Barasa to pursue her rights through unnecessary litigation and criminal investigations. The Respondents submitted that the Petition does not meet the threshold of a constitutional petition and should be dismissed.
In my view, going by the allegations above, there is no presence of constitutional violations. The grievances did not warrant the filing of a Constitutional Petition in the manner dictated by the Petitioner. Thus, I see no constitutional violations as contemplated by the Petitioner.
In Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others (2014) eKLR the Supreme Court held as follows: -
“(256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
Similarly, in Uhuru Muigai Kenyatta v Nairobi Star Publications Limited (2013) eKLR, Lenaola, J. (as he then was) stated;
“I need say no more. Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.
In Peter O. Ngoge vs Francis ole Kaparo & 4 Others (2007) eKLR, the Court of Appeal applied the case of Harriksson vs Attorney General of Trinidad And Tobago (1980) Ac 265, where Lord Diplock stated;
“The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious ... the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for the unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
The Petitioners in filing this petition have not fully complied and thus offend the doctrine of ripeness and constitutional avoidance. In John Harun Mwau vs Peter Gastrol & 3 others (2014) eKLR, the court discussed the principle of constitutional avoidance as follows;
“courts will not normally consider a constitutional question unless the existence of a remedy is dependent on it... It is an established practice that where a matter can be disposed of without recourse to the constitution, the constitution should not be invoked at all.”
Further, in I Currie & J De Waal The Bill of Rights Handbook (2013) 72 the author stated that the exceptions to the above doctrine are:
“The exceptions to the application of the doctrine of constitutional avoidance are:
i. where the constitutional violation is so clear and of direct relevance to the matter,
ii. in the absence of an apparent alternative form of ordinary relief and
iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.”
This petition has failed in all three exceptions as the Petitioner did not comply with the first step and secondly this is a claim which can be instituted as a civil suit. Consequently, I find that the application and the petition are not merited and I strike them out with costs.
It is so ordered.