REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E047 OF 2023
IN THE MATTER OF ARTICLES 10,23,27,28,29,41,47 & 236 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES,2023.
AND
IN THE MATTER OF THE PRIVATE SECURITY REGULATIONS ACT 2016
AND
IN THE MATTER OF CERTIFICATE OF REGISTRATION
AND
IN THE MATTER OF SECURITY TRAINING
AND
IN THE MATTER OF VIOLATIONS AND THREATENED VIOLATIONOF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER (INTER ALIA) ARTICLES 10,27,28,29,41,47,227 AND 236 OF THE CONSTITUTION OF KENYA 2010.
BETWEEN
PROTECTIVE SECURITY INDUSTRY ASSOCIATION……..PETITIONER
AND
FAZUL MOHAMMED………………………………………1 ST RESPONDENT
THE ATTORNEY GENERAL…………………………..….2 ND RESPONDENT
THE ATTORNEY GENERAL…………………….…….….3 RD RESPONDENT
JUDGMENT
1. The Petitioner herein, Protective Security Industry Association vide its Petition dated 13th February, 2023 and filed on 15th February, 2023 describes itself as a registered association under the Societies Act Cap 108 of the Laws of Kenya and that it is also an umbrella for dozens of private security firms and other stakeholders offering and or interested in the private security and safety services within the Republic of Kenya.
2. The petitioner avers that the 1st and 2nd respondents are issuing certificates of registration and or licenses on the basis of unfair, unjust, discriminatory and openly biased manner contrary to the Bill of Rights and the provisions of the Private Security Regulations Act, 2016 (PSR Act)
3. According to the petitioner, section 24 of the Private Security Regulation Act mandates the 1st respondent to issue certificates of registration to all successful applicants following the submissions of an application that meets all the necessary requirements.
4. The petitioner sets out the requirements for eligibility for a security firm to make an application for registration to the Authority, as stipulated in section 23 of the Act as well as the requirements for registration as a corporate private security service provider as set out in section 29 (2) of the PSR Act.
5. It contends that the 1 st respondent has refused and failed to issue the certificates of registration to various members of the petitioner despite submission of the applications which meet all the requirements as set out in sections 23 and 29 of the Act. Further, that the members who have submitted their applications for registration have not been provided with any specific reasons for refusal to register and or license them as required by section 30 (3) of the Act.
6. According to the petitioner, the affected members of the petitioner association have not been able to exercise their right of appeal in accordance with the law because of such refusal by the 1 st and 2 nd respondents to provide reasons justifying the refusal to issue them with certificates of registration, yet they have been in operation as registered private security service providers and employing thousands of Kenyans as well as providing services to various consumers of private security services.
7. The petitioner further avers that the 1 st and 2 nd respondents have been issuing advisories and warnings as well as notices to various clients and consumers of private security services, asking them to stay away from the private security firms that do not have the current certificates of registration and even published a list of security firms by way of notice warning consumers of the said services that they risk criminal liability and being fined Kshs 2 million for contracting private security firms which do not have registration certificates. The petitioner claims that such warnings are discriminatory and are not backed by any legal framework.
8. Additionally, the petitioner asserts that its members who are being treated unfairly are already registered but that they were only seeking the current registration certificates which they have not been issued with, despite lodging applications for such registration, with no reasons being given for such refusal to register them.
9. The petitioner avers that those consumers of services of its services have threatened to terminate the current contracts for provisions of private security services currently in pace with those consumers.
10. Consequently, it is contended that the members of the petitioner are suffering loss of business and employment by thousands of employees who depend on the petitioner’s members for their livelihoods thereby violating the right to fair labour practices as guaranteed under Article 41 of the Constitution.
11. Further, that there is no legal framework for issuance of certificates of registration and certificates of training hence there is absolutely no legal basis that warrants the non-approval of successful applications by members of the petitioner. That contrary to section 23 of the Act, the Authority has not made prescribed any manner of or the forms or guidelines for making an application nor prescribed the fees payable by applicants for certificates of registration.
12. That owing to absence of legal framework for obtaining certificate of registration, the 1 st and 2 nd respondents have simply been issuing applicants with letters in their sole discretion , which has created an avenue for corruption , bribery , extortion and oppression of members of private who are seeking to comply with the law, which practice has created discrimination in awards of tenders to only selected firms which promotes non-competitive practices thereby unlawfully disadvantages dozens of small and medium sized enterprises offering these services.
13. The Petitioner therefore seeks the following reliefs from this Court:
a. A declaration do issue that the failure by the 1 st and 2 nd respondents to issue certificates of registration to successful applicants is unlawful and unconstitutional
b. A declaration do issue that the actions of the 1 st and 2 nd respondents to issue advisories to consumers of private security services is discriminatory and illegal in the absence of a clear legal framework on obtaining of certificates of registration
c. An order of mandamus do issue directing the 1 st and 2 nd respondents to provide a clear legal framework on obtaining certificate of registration and certificate of training and which framework should state the fees payable .
d. A declaration do issue that the 1 st and 2 nd respondents have violated Article 27 of the Constitution regarding the right to equality and freedom from discrimination by unlawfully, illegally and selectively issuing letters purporting to be certificates of registration
e. In the absence of accredited institutions offering training of security personnel and a clear legal framework on issuance of certificates of registration, an order of prohibition do issue prohibiting the public procuring entities from asking and or making it mandatory requirement in so far as it touches on and or refers to a certificate of registration and certificate of training from private security Regulatory Authority, the 1 st Respondent herein
f. Any other relief that this honourable court may deem just and expedient in the circumstances
g. That costs of the petition be borne by the respondents
14. The petition is supported by the affidavit sworn by John Mbiyu Karanja,who describes himself as a member and the trustee of the petitioner authorized by the petitioner to swear the affidavit on its behalf as evidenced by the annexed authority JMK1 given by one, Cosmas Mutava the chairman of the petitioner to the deponent and one Daniel Muriuki Mwangi dated 13 th February, 2023.
Replying Affidavit and Notice of Preliminary Objection
15. Opposing the petition, the 1st and 2 nd Respondents filed a notice of preliminary objection dated 30 th June, 2023 together with a replying affidavit sworn by Kevin Ngarari on the even date.
16. In the notice of preliminary objection to the petition, the 1 st and 2 nd respondents contend that:
1. This honourable court lacks jurisdiction to hear this matter since the petitioner has not exhausted the statutory administrative remedies set out under section 43 of the Private Security Regulations Act, 2016.
2. This case is speculative and purports to preempt the mandatory security vetting process under section 29 (2) (d) of the Act which process does not have aby statutory timelines tied to it.
3. Having alleged unfairness in the award of tenders, this court lacks jurisdiction to hear this matter since the petitioner has not exhausted the statutory/administrative remedies set out under section 167 of the Public Procurement and Asset Disposal Act.
4. The petitioner having by its own admission at paragraph 27 of its petition that some of its members are committing an offence under section 69 (1)(a) of the PSR Act, the petitioner is not entitled to any relief and or benefit on the ground of illegality of the conduct of its members.
5. Having alleged corruption, bribery, extortion and oppression, the said petition is bad in law on account that there are tax payer funded institutions established by the Constitution to investigate and prosecute such allegations and as such, the petition purports to deny the Ethics and Anti-Corruption Commission its constitutional and statutory mandate under section 11(d) of the Ethics and Anti-corruption Commission Act to investigate corruption and further purports to deny the Director of Public Prosecutions the constitutional right of directing and prosecuting the alleged corruption, bribery ad oppression.
6. That this court lacks jurisdiction to entertain the petition because the petitioner has not exhausted the statutory/administrative remedies under section 31 of the Competition Act.
7. The petition is bad in law, misconceived, vexatious scandalous and founded on generalities hence it should be dismissed in limine.
17. In the replying affidavit sworn by Kevin Ngarari the 1 st respondents’ head of compliance, the 1 st and 2 nd respondents reiterate what is contained in their notice of preliminary objection and add that the petitioner has failed to demonstrate any particulars of any alleged violations of its constitutional rights or any rights of its members enshrined under the Constitution and that neither has the petitioner specified with particularity what the alleged cause of action is.
18. That allegations made in the petition, including discrimination, bribery, extortion, corruption and oppression have not been proved and that the only documents exhibited are a copy of an incomplete certificate of registration and a newspaper excerpt detailing what constitutes private security services.
19. That the authority is mandated by statute to, among others, under section 9 © of the Act, register and license all persons involved in or conducting private security services in Kenya.
20. According to the 1 st and 2 nd respondents, on 9 th December, 2019, the 1 st respondent issued a press statement informing private security service providers and the general public that the Government had commenced vetting and licensing of all private security service providers and that the said press statement clarified the registration requirements and documents submitted as part of the application for one to be licensed as a private security service provider.
21. That the aforesaid press statement reminded such service providers and the general public of the mandatory requirement under section 28 of the PSRA that no person shall offer private security services unless that person has been vetted and licensed by the Authority and that following that press statement, the 1 st respondent received applications for registration and licensing from private security service providers across the country, which application is free of charge hence the petitioner should avail evidence of any demand for payment.
22. That as mandated by the Act at section 29, the 1 st respondent received applications and vetted applicants for licensing although the process was affected by the Covid-19 pandemic in 2020/2021 until March 2022 when the vetting and licensing process commenced successfully and it then issued a legal notice PSRA/004/2023 notifying the public of the duly registered private security service providers in accordance with sections 6, 9( c), 28,29,30(1) and 31 of the Act as per the annexed legal notice which is also available on the 1 st respondent’s website for access.
23. The respondents contend in deposition that 98% of the licensed private security firms are incorporate din Kenya, contrary to the assertions by the petitioner that foreign private security firms serving foreign interests are given preeminence.
24. According to the respondents, it has 103 members out of which 87 of them have submitted their applications for licensing as private security service providers and that 75 of them had already been vetted and issued with licenses hence the allegations of discrimination are far-fetched.
25. That the Act envisage the private security industry to collaborate with the national security organs for the maintenance of law and order hence the need for registration and licensing.
26. That the petitioner contradicts itself by saying that there is no legal framework yet there is an admission of existence of a legal framework regulating registration and licensing of private security service providers.
27. That section 9(o) of the Act mandates the 1 st respondent to provide users with information regarding compliance with the Act by private security service providers hence the legal notice issued pursuant to statutory requirements cannot be illegitimate or illegal.
28. That the petitioner has delayed in the filing of these proceedings and the law gives the 1 st respondent discretion on how to perform a public duty hence mandamus cannot issue in such circumstances to command performance of that duty in a specific way. Finally, that the petition is based on imaginary and unverified allegations hence it should not be entertained by this court as it is a waste of judicial time. The 1 st and 2 nd respondents pray that the petition be dismissed.
Response to the Notice of Preliminary Objection
29. The petitioner filed a replying affidavit to the preliminary objection dated 30 th June 2023. The replying affidavit is dated 11 th July 2023 sworn by John Mbiyu Karanja who introduces himself as a trustee and member of the petitioner herein, reiterating depositions in the affidavit dated 13 th February, 2023.
30. On alleged non exhaustion of remedies, the petitioner invokes Article 22 of the Constitution and asserts that section 43 of the Act does not bar the petitioner from seeking the reliefs herein. He denies that the petition is intended to pre-empt any of the processes to be undertaken by the respondents since the petition seeks to make the procedure for licensing made clear, predictable and accessible in line with section 9 of the Act.
31. That there is unfairness in licensing which renders awards of PSSP tenders unfair; that there is no procedure to be followed in applying for licensing and that neither is there fees prescribed and that the unfairness is also demonstrated in issuing warnings issued to consumers against taking services of certain members of the petitioner.
32. That there is no evidence of receipts for money paid for registration and that although there is no evidence of collection of bribes, there are confessions by members of the petitioner that they were extorted only that they cannot swear such affidavits.
33. That this court has jurisdiction to hear and determine the petition, which has nothing to do with the Competition Act and that the respondents have acted illegally, contrary to the law and the constitution hence the preliminary objection should be dismissed.
34. Directions were given by the Court to consider the Preliminary objection together with the main petition. This court notes that vide a notice of motion dated 7 th November, 2024, the 1 st and 2 nd respondents filed an application urging this court to order that the petition herein has been overtaken by events, spent and therefore rendered nugatory or that in the alternative, the proceedings in this petition be stayed pending the finalization of public participation exercise being conducted by the 1 st respondent on the various regulations published by the Cabinet Secretary for Interior and National Administration, pursuant to section 11(2) 70, 61 (4) and 53(3) of the Private Security Regulations Act.
35. That application was never canvassed although the application for conservatory orders appears to have been abandoned in favor of a merit determination of the Petition hence the parties filed written submissions to canvass the petition, which submissions were highlighted before me on 14th April, 2026.
The petitioner’s submissions
36. In summary, the petitioner submits that the 1 st respondent is bound by the constitutional values and principles of governance as espoused in Articles 10 and 132 of the Constitution. That it is equally bound by statute at section 9 (j) of the PSR Act to set standards for accreditation of private security service providers. That section 23 of the said Act mandates training for private security service providers.
37. That contrary to the statutory mandates, there are no standards or regulations promulgated on the form and or any prescribed fee for application for registration by the private security service providers. That the 1 st respondent provides what fee to charge applicants which opaqueness has made the 2 nd respondent to act outside the law since there is no clear legal framework for registration and prescribe fees payable.
38. On the 2 nd issue of issuance of certificates of security training in the absence of accredited institutions and regulations. Section 23 (d) of PSR Act mandates training in security matters in an accredited institution. It was submitted that since there are no standards for accreditation, with no institutions for training, no licences can issue.
39. On the 3 rd issue of whether the 1 st respondent has set standards for registration and licensing of private corporate security providers, it was submitted that Section 28 of the Act mandates licencing to provide services of private security provider and that to be licensed, they have to make an application in a prescribed form and pay a prescribed fee yet to date, there is no prescribed form for application or fees payable prescribed. The petitioner urged the court to allow the petition with costs.
40. Various decisions were relied on and which this court has taken cognizance of.
The Respondents’ submissions
41. On the part of the respondents, relying on grounds of opposition dated 4/3/2024 and submissions of 18/11/2024, as well as the preliminary objection, three issues for determination were framed. The 1 st issue is exhaustion of remedies under Sections 43 and 44 of the PSR Act which provide for an appeal to the Cabinet Secretary. The respondents argue that since the licensing and registration issue is an administrative function, the petition was filed in violation of the twin principles of exhaustion and constitutional avoidance.
42. The second issue submitted on is whether the petitioner’s rights were violated and whether the reliefs sought are available. It was submitted that differential treatment is not unconstitutional while unfair discrimination is unconstitutional. That the 2 nd schedule to the PS General Regulations Act provide for an annual fee payable by Corporate Private Security Providers, which amount is determined by the type and size of the security provider. That there is a listing and categorization given hence the petition is mischievous because the petitioners failed to comply with the Regulation and instead approached this court which according to the respondents, is an abuse of court process.
43. Various decided cases were relied on in the submissions and which this court has considered.
44. On costs, it was submitted that since the petition is not merited, it should be dismissed with costs to the respondents.
Rejoinder submissions
45. In a rejoinder, the petitioner’s counsel submitted that Article 22 (1) of the Constitution allows every person the right to approach this court on infringement or violation of their rights. That the duty of the respondents is to set standards which they have failed to set standards to accredit institutions and make regulations. It was submitted that exhaustion of remedies is not absolute where there is no other alternative effective remedy. That since 2015 there have been no such standards or regulations hence the petitioner could not have appealed to the same violators. That only this court can give redress.
46. That there is no fees or regulation prescribing fees payable no regulations and that there is differential treatment amounting to discrimination.
Analysis and Determination
47. I have considered the petition and the opposition thereto. In my view, the main issues for determination are:
a. Whether the petitioner has locus standi to bring this petition and therefore whether the petition is competently before this Court
b. Whether the doctrine of exhaustion applies to these proceedings
c. Depending on the answer to issues a and b above, whether the petitioner is entitled to the reliefs sought.
d. What orders should this Court make.
48. This Court has suo moto identified the first issue herein to be core to this Petition because without locus standi of the Petitioner to institute these proceedings, it would be a waste of judicial time to venture into the merits of the petition.
49. Articles 22 and 258 of the Constitution, whose wording is materially identical, constitute the most explicit and authoritative provisions on standing. Article 22(1) empowers “every person” to institute court proceedings alleging a violation or threatened violation of a right or fundamental freedom in the Bill of Rights, while Article 258(1) grants “every person” the right to institute proceedings claimin g that the Constitution “has been contravened, or is threatened with contravention.
50. These provisions deliberately broaden locus standi and remove the pre 2010 restrictive impediments that characterised the former constitutional order, thereby permitting any individual, regardless of personal prejudice, to approach the Court where a constitutional question or a matter of public interest is raised.
51. These twin provisions are clear that “every person” has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention and secondly, in addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by - a) a person acting on behalf of another person who cannot act in their own name; b) a person acting as a member of, or in the interest of, a group or class of persons; c) a person acting in the public interest; or d)An association acting in the interest of one or more of its members.
52. Additionally, the enactment of the Fair Administrative Action Act, 2015 has codified and expanded the principles relating to locus standi in administrative law. Section 7(1) expressly provides that “any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision,” while Section 5(2) of the Act reinforces that position by providing that “every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.”
53. These provisions of the Fair Administrative Action Act mirror the broad standing contemplated under Articles 22 and 258 of the Constitution and affirm that any person aggrieved by an administrative action, has the right to seek judicial redress.
54. This statutory framework therefore removes any doubt that standing in administrative law and where there are allegations or claims of violation or threatened violation of the Constitution or of rights guaranteed under the Constitution, standing is intentionally wide, and not restricted to persons personally subjected to the administrative decision.
55. The aim of the Fair Administrative Action Act is to regulate administrative action, ensure that decisions of administrative, judicial or quasi-judicial bodies are confined within the law and provide a mode of access to redress.
56. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling), the Supreme Court stated as follows concerning a preliminary objection raised on locus standi :
“38. The 17th Interested Party challenges this Court’s Jurisdiction on three limbs namely, that the Applicant lacks the locus standi to institute the Reference before us; that the issues raised in the Reference are sub-judice in view of Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017, and that the Reference is an appeal of the various determined Petitions by the High Court camouflaged as an application for advisory opinion.
57. In the Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) (9 December 2014) (Ruling) case, the Supreme Court stated as follows concerning locus standi:
[92] The Constitution enlarges the capacity to file a claim in defence of the Constitution thereby laying the basis for rights and constitutional enforcement. Article 3(1) provides that “every person has an obligation to respect, uphold and defend this Constitution.” It further defines “person” to “include a company, association or other body of persons whether incorporated or unincorporated.” The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, adopts the constitutional definition of person. Article 258(1) in turn provides that “every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.” In constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim. This resonates with the holding of the Court of Appeal in this very matter, at paragraph 27 that:
“Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution…..”
58. This Court acknowledges that under Articles 22 and 258 of the Constitution, standing is broad, such that an Association which is an unincorporated entity may institute proceedings on behalf of its members or in the public interest. In addition, Article 260 of the Constitution defines who a person is and the definition includes unincorporated associations. As stated above, that position is now settled, as was affirmed in the above cited case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others .
59. However, that latitude does not dispense with the requirement of precision in constitutional pleadings, of the person suing or being sued.
60. The Court of Appeal in Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR considered the issue of locus standi , referring to the above Mumo Matemu case and stated as follows:
“Having found that the respondent did not discharge its burden of proof, we need not consider the next and final ground; the capacity of the appellants to be sued. But for the development of the law, we shall consider it nonetheless.
The appellants were sued as Finmax Community Based Group, the Chairman, Treasurer and Secretary. It was readily admitted that the 1 st appellant was registered, as the name shows, as a community-based Group under the Ministry of Gender, Children and Social Development. The 2 nd , 3 rd and 4 th appellants were its officials.
The question posed to the Judge was whether, in those circumstances the respondent could institute an action against appellants. In his answer, the Judge found that the 1 st appellant could only be sued through its officials. But since the 1 st appellant’s Chairman, Secretary and Treasurer were joined in the suit, the Judge was of the view that that was sufficient; and that to insist on the particulars of the officials would be to place technicality above substance. He also justified the joinder on the ground that, since in such community organizations high turnover of offi
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E047 OF 2023
IN THE MATTER OF ARTICLES 10,23,27,28,29,41,47 & 236 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES,2023.
AND
IN THE MATTER OF THE PRIVATE SECURITY REGULATIONS ACT 2016
AND
IN THE MATTER OF CERTIFICATE OF REGISTRATION
AND
IN THE MATTER OF SECURITY TRAINING
AND
IN THE MATTER OF VIOLATIONS AND THREATENED VIOLATIONOF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER (INTER ALIA) ARTICLES 10,27,28,29,41,47,227 AND 236 OF THE CONSTITUTION OF KENYA 2010.
BETWEEN
PROTECTIVE SECURITY INDUSTRY ASSOCIATION……..PETITIONER
AND
FAZUL MOHAMMED………………………………………1 ST RESPONDENT
THE ATTORNEY GENERAL…………………………..….2 ND RESPONDENT
THE ATTORNEY GENERAL…………………….…….….3 RD RESPONDENT
JUDGMENT
1. The Petitioner herein, Protective Security Industry Association vide its Petition dated 13th February, 2023 and filed on 15th February, 2023 describes itself as a registered association under the Societies Act Cap 108 of the Laws of Kenya and that it is also an umbrella for dozens of private security firms and other stakeholders offering and or interested in the private security and safety services within the Republic of Kenya.
2. The petitioner avers that the 1st and 2nd respondents are issuing certificates of registration and or licenses on the basis of unfair, unjust, discriminatory and openly biased manner contrary to the Bill of Rights and the provisions of the Private Security Regulations Act, 2016 (PSR Act)
3. According to the petitioner, section 24 of the Private Security Regulation Act mandates the 1st respondent to issue certificates of registration to all successful applicants following the submissions of an application that meets all the necessary requirements.
4. The petitioner sets out the requirements for eligibility for a security firm to make an application for registration to the Authority, as stipulated in section 23 of the Act as well as the requirements for registration as a corporate private security service provider as set out in section 29 (2) of the PSR Act.
5. It contends that the 1 st respondent has refused and failed to issue the certificates of registration to various members of the petitioner despite submission of the applications which meet all the requirements as set out in sections 23 and 29 of the Act. Further, that the members who have submitted their applications for registration have not been provided with any specific reasons for refusal to register and or license them as required by section 30 (3) of the Act.
6. According to the petitioner, the affected members of the petitioner association have not been able to exercise their right of appeal in accordance with the law because of such refusal by the 1 st and 2 nd respondents to provide reasons justifying the refusal to issue them with certificates of registration, yet they have been in operation as registered private security service providers and employing thousands of Kenyans as well as providing services to various consumers of private security services.
7. The petitioner further avers that the 1 st and 2 nd respondents have been issuing advisories and warnings as well as notices to various clients and consumers of private security services, asking them to stay away from the private security firms that do not have the current certificates of registration and even published a list of security firms by way of notice warning consumers of the said services that they risk criminal liability and being fined Kshs 2 million for contracting private security firms which do not have registration certificates. The petitioner claims that such warnings are discriminatory and are not backed by any legal framework.
8. Additionally, the petitioner asserts that its members who are being treated unfairly are already registered but that they were only seeking the current registration certificates which they have not been issued with, despite lodging applications for such registration, with no reasons being given for such refusal to register them.
9. The petitioner avers that those consumers of services of its services have threatened to terminate the current contracts for provisions of private security services currently in pace with those consumers.
10. Consequently, it is contended that the members of the petitioner are suffering loss of business and employment by thousands of employees who depend on the petitioner’s members for their livelihoods thereby violating the right to fair labour practices as guaranteed under Article 41 of the Constitution.
11. Further, that there is no legal framework for issuance of certificates of registration and certificates of training hence there is absolutely no legal basis that warrants the non-approval of successful applications by members of the petitioner. That contrary to section 23 of the Act, the Authority has not made prescribed any manner of or the forms or guidelines for making an application nor prescribed the fees payable by applicants for certificates of registration.
12. That owing to absence of legal framework for obtaining certificate of registration, the 1 st and 2 nd respondents have simply been issuing applicants with letters in their sole discretion , which has created an avenue for corruption , bribery , extortion and oppression of members of private who are seeking to comply with the law, which practice has created discrimination in awards of tenders to only selected firms which promotes non-competitive practices thereby unlawfully disadvantages dozens of small and medium sized enterprises offering these services.
13. The Petitioner therefore seeks the following reliefs from this Court:
a. A declaration do issue that the failure by the 1 st and 2 nd respondents to issue certificates of registration to successful applicants is unlawful and unconstitutional
b. A declaration do issue that the actions of the 1 st and 2 nd respondents to issue advisories to consumers of private security services is discriminatory and illegal in the absence of a clear legal framework on obtaining of certificates of registration
c. An order of mandamus do issue directing the 1 st and 2 nd respondents to provide a clear legal framework on obtaining certificate of registration and certificate of training and which framework should state the fees payable .
d. A declaration do issue that the 1 st and 2 nd respondents have violated Article 27 of the Constitution regarding the right to equality and freedom from discrimination by unlawfully, illegally and selectively issuing letters purporting to be certificates of registration
e. In the absence of accredited institutions offering training of security personnel and a clear legal framework on issuance of certificates of registration, an order of prohibition do issue prohibiting the public procuring entities from asking and or making it mandatory requirement in so far as it touches on and or refers to a certificate of registration and certificate of training from private security Regulatory Authority, the 1 st Respondent herein
f. Any other relief that this honourable court may deem just and expedient in the circumstances
g. That costs of the petition be borne by the respondents
14. The petition is supported by the affidavit sworn by John Mbiyu Karanja,who describes himself as a member and the trustee of the petitioner authorized by the petitioner to swear the affidavit on its behalf as evidenced by the annexed authority JMK1 given by one, Cosmas Mutava the chairman of the petitioner to the deponent and one Daniel Muriuki Mwangi dated 13 th February, 2023.
Replying Affidavit and Notice of Preliminary Objection
15. Opposing the petition, the 1st and 2 nd Respondents filed a notice of preliminary objection dated 30 th June, 2023 together with a replying affidavit sworn by Kevin Ngarari on the even date.
16. In the notice of preliminary objection to the petition, the 1 st and 2 nd respondents contend that:
1. This honourable court lacks jurisdiction to hear this matter since the petitioner has not exhausted the statutory administrative remedies set out under section 43 of the Private Security Regulations Act, 2016.
2. This case is speculative and purports to preempt the mandatory security vetting process under section 29 (2) (d) of the Act which process does not have aby statutory timelines tied to it.
3. Having alleged unfairness in the award of tenders, this court lacks jurisdiction to hear this matter since the petitioner has not exhausted the statutory/administrative remedies set out under section 167 of the Public Procurement and Asset Disposal Act.
4. The petitioner having by its own admission at paragraph 27 of its petition that some of its members are committing an offence under section 69 (1)(a) of the PSR Act, the petitioner is not entitled to any relief and or benefit on the ground of illegality of the conduct of its members.
5. Having alleged corruption, bribery, extortion and oppression, the said petition is bad in law on account that there are tax payer funded institutions established by the Constitution to investigate and prosecute such allegations and as such, the petition purports to deny the Ethics and Anti-Corruption Commission its constitutional and statutory mandate under section 11(d) of the Ethics and Anti-corruption Commission Act to investigate corruption and further purports to deny the Director of Public Prosecutions the constitutional right of directing and prosecuting the alleged corruption, bribery ad oppression.
6. That this court lacks jurisdiction to entertain the petition because the petitioner has not exhausted the statutory/administrative remedies under section 31 of the Competition Act.
7. The petition is bad in law, misconceived, vexatious scandalous and founded on generalities hence it should be dismissed in limine.
17. In the replying affidavit sworn by Kevin Ngarari the 1 st respondents’ head of compliance, the 1 st and 2 nd respondents reiterate what is contained in their notice of preliminary objection and add that the petitioner has failed to demonstrate any particulars of any alleged violations of its constitutional rights or any rights of its members enshrined under the Constitution and that neither has the petitioner specified with particularity what the alleged cause of action is.
18. That allegations made in the petition, including discrimination, bribery, extortion, corruption and oppression have not been proved and that the only documents exhibited are a copy of an incomplete certificate of registration and a newspaper excerpt detailing what constitutes private security services.
19. That the authority is mandated by statute to, among others, under section 9 © of the Act, register and license all persons involved in or conducting private security services in Kenya.
20. According to the 1 st and 2 nd respondents, on 9 th December, 2019, the 1 st respondent issued a press statement informing private security service providers and the general public that the Government had commenced vetting and licensing of all private security service providers and that the said press statement clarified the registration requirements and documents submitted as part of the application for one to be licensed as a private security service provider.
21. That the aforesaid press statement reminded such service providers and the general public of the mandatory requirement under section 28 of the PSRA that no person shall offer private security services unless that person has been vetted and licensed by the Authority and that following that press statement, the 1 st respondent received applications for registration and licensing from private security service providers across the country, which application is free of charge hence the petitioner should avail evidence of any demand for payment.
22. That as mandated by the Act at section 29, the 1 st respondent received applications and vetted applicants for licensing although the process was affected by the Covid-19 pandemic in 2020/2021 until March 2022 when the vetting and licensing process commenced successfully and it then issued a legal notice PSRA/004/2023 notifying the public of the duly registered private security service providers in accordance with sections 6, 9( c), 28,29,30(1) and 31 of the Act as per the annexed legal notice which is also available on the 1 st respondent’s website for access.
23. The respondents contend in deposition that 98% of the licensed private security firms are incorporate din Kenya, contrary to the assertions by the petitioner that foreign private security firms serving foreign interests are given preeminence.
24. According to the respondents, it has 103 members out of which 87 of them have submitted their applications for licensing as private security service providers and that 75 of them had already been vetted and issued with licenses hence the allegations of discrimination are far-fetched.
25. That the Act envisage the private security industry to collaborate with the national security organs for the maintenance of law and order hence the need for registration and licensing.
26. That the petitioner contradicts itself by saying that there is no legal framework yet there is an admission of existence of a legal framework regulating registration and licensing of private security service providers.
27. That section 9(o) of the Act mandates the 1 st respondent to provide users with information regarding compliance with the Act by private security service providers hence the legal notice issued pursuant to statutory requirements cannot be illegitimate or illegal.
28. That the petitioner has delayed in the filing of these proceedings and the law gives the 1 st respondent discretion on how to perform a public duty hence mandamus cannot issue in such circumstances to command performance of that duty in a specific way. Finally, that the petition is based on imaginary and unverified allegations hence it should not be entertained by this court as it is a waste of judicial time. The 1 st and 2 nd respondents pray that the petition be dismissed.
Response to the Notice of Preliminary Objection
29. The petitioner filed a replying affidavit to the preliminary objection dated 30 th June 2023. The replying affidavit is dated 11 th July 2023 sworn by John Mbiyu Karanja who introduces himself as a trustee and member of the petitioner herein, reiterating depositions in the affidavit dated 13 th February, 2023.
30. On alleged non exhaustion of remedies, the petitioner invokes Article 22 of the Constitution and asserts that section 43 of the Act does not bar the petitioner from seeking the reliefs herein. He denies that the petition is intended to pre-empt any of the processes to be undertaken by the respondents since the petition seeks to make the procedure for licensing made clear, predictable and accessible in line with section 9 of the Act.
31. That there is unfairness in licensing which renders awards of PSSP tenders unfair; that there is no procedure to be followed in applying for licensing and that neither is there fees prescribed and that the unfairness is also demonstrated in issuing warnings issued to consumers against taking services of certain members of the petitioner.
32. That there is no evidence of receipts for money paid for registration and that although there is no evidence of collection of bribes, there are confessions by members of the petitioner that they were extorted only that they cannot swear such affidavits.
33. That this court has jurisdiction to hear and determine the petition, which has nothing to do with the Competition Act and that the respondents have acted illegally, contrary to the law and the constitution hence the preliminary objection should be dismissed.
34. Directions were given by the Court to consider the Preliminary objection together with the main petition. This court notes that vide a notice of motion dated 7 th November, 2024, the 1 st and 2 nd respondents filed an application urging this court to order that the petition herein has been overtaken by events, spent and therefore rendered nugatory or that in the alternative, the proceedings in this petition be stayed pending the finalization of public participation exercise being conducted by the 1 st respondent on the various regulations published by the Cabinet Secretary for Interior and National Administration, pursuant to section 11(2) 70, 61 (4) and 53(3) of the Private Security Regulations Act.
35. That application was never canvassed although the application for conservatory orders appears to have been abandoned in favor of a merit determination of the Petition hence the parties filed written submissions to canvass the petition, which submissions were highlighted before me on 14th April, 2026.
The petitioner’s submissions
36. In summary, the petitioner submits that the 1 st respondent is bound by the constitutional values and principles of governance as espoused in Articles 10 and 132 of the Constitution. That it is equally bound by statute at section 9 (j) of the PSR Act to set standards for accreditation of private security service providers. That section 23 of the said Act mandates training for private security service providers.
37. That contrary to the statutory mandates, there are no standards or regulations promulgated on the form and or any prescribed fee for application for registration by the private security service providers. That the 1 st respondent provides what fee to charge applicants which opaqueness has made the 2 nd respondent to act outside the law since there is no clear legal framework for registration and prescribe fees payable.
38. On the 2 nd issue of issuance of certificates of security training in the absence of accredited institutions and regulations. Section 23 (d) of PSR Act mandates training in security matters in an accredited institution. It was submitted that since there are no standards for accreditation, with no institutions for training, no licences can issue.
39. On the 3 rd issue of whether the 1 st respondent has set standards for registration and licensing of private corporate security providers, it was submitted that Section 28 of the Act mandates licencing to provide services of private security provider and that to be licensed, they have to make an application in a prescribed form and pay a prescribed fee yet to date, there is no prescribed form for application or fees payable prescribed. The petitioner urged the court to allow the petition with costs.
40. Various decisions were relied on and which this court has taken cognizance of.
The Respondents’ submissions
41. On the part of the respondents, relying on grounds of opposition dated 4/3/2024 and submissions of 18/11/2024, as well as the preliminary objection, three issues for determination were framed. The 1 st issue is exhaustion of remedies under Sections 43 and 44 of the PSR Act which provide for an appeal to the Cabinet Secretary. The respondents argue that since the licensing and registration issue is an administrative function, the petition was filed in violation of the twin principles of exhaustion and constitutional avoidance.
42. The second issue submitted on is whether the petitioner’s rights were violated and whether the reliefs sought are available. It was submitted that differential treatment is not unconstitutional while unfair discrimination is unconstitutional. That the 2 nd schedule to the PS General Regulations Act provide for an annual fee payable by Corporate Private Security Providers, which amount is determined by the type and size of the security provider. That there is a listing and categorization given hence the petition is mischievous because the petitioners failed to comply with the Regulation and instead approached this court which according to the respondents, is an abuse of court process.
43. Various decided cases were relied on in the submissions and which this court has considered.
44. On costs, it was submitted that since the petition is not merited, it should be dismissed with costs to the respondents.
Rejoinder submissions
45. In a rejoinder, the petitioner’s counsel submitted that Article 22 (1) of the Constitution allows every person the right to approach this court on infringement or violation of their rights. That the duty of the respondents is to set standards which they have failed to set standards to accredit institutions and make regulations. It was submitted that exhaustion of remedies is not absolute where there is no other alternative effective remedy. That since 2015 there have been no such standards or regulations hence the petitioner could not have appealed to the same violators. That only this court can give redress.
46. That there is no fees or regulation prescribing fees payable no regulations and that there is differential treatment amounting to discrimination.
Analysis and Determination
47. I have considered the petition and the opposition thereto. In my view, the main issues for determination are:
a. Whether the petitioner has locus standi to bring this petition and therefore whether the petition is competently before this Court
b. Whether the doctrine of exhaustion applies to these proceedings
c. Depending on the answer to issues a and b above, whether the petitioner is entitled to the reliefs sought.
d. What orders should this Court make.
48. This Court has suo moto identified the first issue herein to be core to this Petition because without locus standi of the Petitioner to institute these proceedings, it would be a waste of judicial time to venture into the merits of the petition.
49. Articles 22 and 258 of the Constitution, whose wording is materially identical, constitute the most explicit and authoritative provisions on standing. Article 22(1) empowers “every person” to institute court proceedings alleging a violation or threatened violation of a right or fundamental freedom in the Bill of Rights, while Article 258(1) grants “every person” the right to institute proceedings claimin g that the Constitution “has been contravened, or is threatened with contravention.
50. These provisions deliberately broaden locus standi and remove the pre 2010 restrictive impediments that characterised the former constitutional order, thereby permitting any individual, regardless of personal prejudice, to approach the Court where a constitutional question or a matter of public interest is raised.
51. These twin provisions are clear that “every person” has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention and secondly, in addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by - a) a person acting on behalf of another person who cannot act in their own name; b) a person acting as a member of, or in the interest of, a group or class of persons; c) a person acting in the public interest; or d)An association acting in the interest of one or more of its members.
52. Additionally, the enactment of the Fair Administrative Action Act, 2015 has codified and expanded the principles relating to locus standi in administrative law. Section 7(1) expressly provides that “any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision,” while Section 5(2) of the Act reinforces that position by providing that “every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.”
53. These provisions of the Fair Administrative Action Act mirror the broad standing contemplated under Articles 22 and 258 of the Constitution and affirm that any person aggrieved by an administrative action, has the right to seek judicial redress.
54. This statutory framework therefore removes any doubt that standing in administrative law and where there are allegations or claims of violation or threatened violation of the Constitution or of rights guaranteed under the Constitution, standing is intentionally wide, and not restricted to persons personally subjected to the administrative decision.
55. The aim of the Fair Administrative Action Act is to regulate administrative action, ensure that decisions of administrative, judicial or quasi-judicial bodies are confined within the law and provide a mode of access to redress.
56. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling), the Supreme Court stated as follows concerning a preliminary objection raised on locus standi :
“38. The 17th Interested Party challenges this Court’s Jurisdiction on three limbs namely, that the Applicant lacks the locus standi to institute the Reference before us; that the issues raised in the Reference are sub-judice in view of Constitutional Petition No. 68 of 2017 and Constitutional Petition No. 142 of 2017, and that the Reference is an appeal of the various determined Petitions by the High Court camouflaged as an application for advisory opinion.
57. In the Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) (9 December 2014) (Ruling) case, the Supreme Court stated as follows concerning locus standi:
[92] The Constitution enlarges the capacity to file a claim in defence of the Constitution thereby laying the basis for rights and constitutional enforcement. Article 3(1) provides that “every person has an obligation to respect, uphold and defend this Constitution.” It further defines “person” to “include a company, association or other body of persons whether incorporated or unincorporated.” The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, adopts the constitutional definition of person. Article 258(1) in turn provides that “every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.” In constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim. This resonates with the holding of the Court of Appeal in this very matter, at paragraph 27 that:
“Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution…..”
58. This Court acknowledges that under Articles 22 and 258 of the Constitution, standing is broad, such that an Association which is an unincorporated entity may institute proceedings on behalf of its members or in the public interest. In addition, Article 260 of the Constitution defines who a person is and the definition includes unincorporated associations. As stated above, that position is now settled, as was affirmed in the above cited case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others .
59. However, that latitude does not dispense with the requirement of precision in constitutional pleadings, of the person suing or being sued.
60. The Court of Appeal in Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR considered the issue of locus standi , referring to the above Mumo Matemu case and stated as follows:
“Having found that the respondent did not discharge its burden of proof, we need not consider the next and final ground; the capacity of the appellants to be sued. But for the development of the law, we shall consider it nonetheless.
The appellants were sued as Finmax Community Based Group, the Chairman, Treasurer and Secretary. It was readily admitted that the 1 st appellant was registered, as the name shows, as a community-based Group under the Ministry of Gender, Children and Social Development. The 2 nd , 3 rd and 4 th appellants were its officials.
The question posed to the Judge was whether, in those circumstances the respondent could institute an action against appellants. In his answer, the Judge found that the 1 st appellant could only be sued through its officials. But since the 1 st appellant’s Chairman, Secretary and Treasurer were joined in the suit, the Judge was of the view that that was sufficient; and that to insist on the particulars of the officials would be to place technicality above substance. He also justified the joinder on the ground that, since in such community organizations high turnover of offi
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