1. In the Petition dated 24th November 2025, the petitioners, Samuel Nganga Mukami and James Mbugua Macharia sought a raft of declarations and various other remedies against the respondents, Makomboki Tea Factory Limite d ( 1st respondent) and its Board of Directors ( 2nd respondent) alleging that by their conduct and actions, the respondents had violated their constitutional rights as shareholders of the 1st respondent and had also breached provisions of the Companies Act, The Tea Act and applicable Regulations.
2. Contemporaneous to the filing of the Petition, the petitioners filed a Chamber Summons dated 24th November 2025 seeking several reliefs some of which are now spent. The prayers pending this court’s determination are prayers 3, 5 and 7 in which the applicants sought temporary conservatory orders prohibiting the respondents from convening the Annual General Meeting (AGM) scheduled for 28th November 2025; preservation of the status quo including existing board structure, financial records, corporate decisions, accounting status and all governance structures of the 1st respondent (hereinafter the company) and appointment of an independent auditor pending hearing and determination of the Petition.
3. The application is premised on the grounds stated on its face as well as averments made in the petitioners supporting affidavit dated 24th November 2025. The petitioners (hereinafter the applicants) contend that on 29th October 2025, the respondents issued a notice of the 1st respondents AGM scheduled to take place on 28th November 2025 but belatedly circulated the companies audited accounts 9 days prior to the proposed AGM which was contrary to Article 136 of the Company’s Memorandum and Articles of Association as read with Section 663 of the Companies Act which require that accounts be circulated to members at least 21 days before an
AGM.
4. The applicants further contended that there had been premature nomination and election of the interested party as a director; proposed unlawful extension of the director’s tenure to the year 2027; and, mismanagement and misuse of company funds. In addition, they alleged that the AGM was intended to sanitize and legitimize illegal decisions such as irregular procurement practices and mismanagement of funds contrary to shareholder rights and democratic governance.
5. The application was strenuously opposed by the respondents and the interested party. The respondents filed two replying affidavits, both sworn on 2nd December 2025 by Mr. Benard Kiragu , the 1st respondent’s Company Secretary and Mr. Charles Maina , an
Auditor.
6. The respondents also filed a Notice of Motion dated 2nd December 2025 seeking setting aside of the Ex-Parte interim orders issued by this court on 26th November 2025 which restrained them from holding the proposed AGM. They also prayed that the Petition be struck out and or dismissed as in their view, it did not disclose any constitutional issues. They also claimed that the Petition was premature as the petitioners had failed to exhaust available remedies prior to filing of the Petition.
7. In response, the petitioners filed a replying affidavit asserting, inter alia, that available remedies had been exhausted and that the Petition disclosed triable constitutional issues.
8. On his part, the interested party, Titus Karanja Kinyua , filed a Notice of Preliminary objection dated 23rd January 2026 and a replying affidavit sworn on 24th January 2026. In the main, the interested party sought striking out of the entire Petition under the doctrine of constitutional avoidance arguing that there were available statutory remedies to effectively redress the petitioner’s grievances which the petitioners had failed to exhaust before filing the Petition.
9. On 27th January 2026, I gave directions that the interested party’s preliminary objection be treated as part of his opposition to the petitioner’s application dated 24th November 2025 and that both applications, that is, the application dated 24th November 2025 and 2nd December 2025 be heard together through written submissions which all the parties duly filed.
10. Having carefully considered the Petition, the two applications, the affidavits sworn in support and in opposition thereto, the preliminary objection raised by the interested party, the parties rival written submissions and all material placed before me, I find it prudent to first deal with the respondents application dated 2nd December 2025 together with the preliminary objection filed by the interested party since both challenge the court’s jurisdiction to entertain the Petition and their outcome will determine whether or not it will be necessary to consider the petitioners application dated 24th November 2025.
11. Although the respondents have in their application sought setting aside of the interim conservatory orders issued by this court on 26th November 2025, I will not deal with this prayer at this point in time since it will be decided one way or the other depending on the outcome of the petitioners application if its determination becomes necessary.
12. That said and having considered the submissions filed by the respondents and the interested party in support of the
Notice of Motion dated 2nd December 2025 and the preliminary objection dated 23rd January 2026 as well as the submissions filed by the petitioners in opposition thereto, I find that the issues that fall for my determination are the following;
1) Whether the interested party’s preliminary objection meets the threshold of a preliminary objection as defined in law,
2) Whether the twin doctrines of constitutional avoidance and exhaustion are applicable in this case.
3) If the answer to issue No. 2 is in the negative, whether the petition is ripe for adjudication.
13. Starting with the first issue, what in law constitutes a preliminary objection was discussed in the celebrated case of Mukisa Biscuit Company V West End Distributors Ltd (1969) EA 696 in which Sir Charles Newbold defined a preliminary objection in the following terms,
“A preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of the court’s discretion”.
14. The three points raised in the preliminary objection are to the effect that the petitioners’ main grievances stem from alleged breaches of provisions of the Companies Act and the 1st respondents Articles of Association; that there were other available and adequate remedies under statute which the petitioners failed to pursue before filing the Petition hence the necessity of constitutional avoidance.
15. The petitioners have submitted that the preliminary objection is incompetent as in their view, it does not meet the test set out in the Mukisa Biscuit case (Supra ) since in their view, it does not raise pure points of law. The petitioners further contend that the question of availability of other remedies and their adequacy or otherwise would require evidence and balancing of facts which put the preliminary objection outside the ambit of a preliminary objection as defined in law.
16. In support of the above submissions, the petitioners relied on the authority of Oraro V Mbaja (2005) 1 KLR 141 in which Ring era J (as he then was) held as follows;
“ Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed”.
17. Having considered the grounds raised in the preliminary objection and the parties rival written submissions, I am unable to agree with the petitioner’s submissions because in my view, the doctrines of constitutional avoidance and exhaustion go to the jurisdiction of the court to entertain the Petition and are thus preliminary points of law which can lead to disposal of the entire Petition. Secondly, to determine the applicability or otherwise of the above doctrines, no evidence is required. A thorough scrutiny of the matters raised in the Petition, the pleadings filed in response thereto and the applicable law is sufficient. In the premises, it is my finding that the preliminary objection meets the threshold of a preliminary objection as defined in law and is thus properly before this court.
18. Having resolved the first issue, I now turn to consider whether the doctrines of constitutional avoidance and exhaustion are applicable in this Petition. The starting point is to seek to understand what is meant by the above doctrines.
19. The doctrine of constitutional avoidance was well articulated by the Supreme Court in Khalid & 16 others V Attorney General & 2 others (petition No. 21 of 2017) (2019) KESC 93 KLR in which the court cited with approval the case of J ohn Harun Mwau V Peter Gastrow & 3 others (2014) eKL R and stated as follows;
“ …..Courts will not normally consider a constitutional question unless the existence of a remedy depend on it; if a remedy is available to an applicant under some other legislative provision or some of the basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights.
It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved at all”.
20. The doctrine of constitutional avoidance dictates that a court should decline to determine a constitutional issue if the dispute giving rise to it can be adequately resolved through other avenues set out in statute or other law. This legal position was further emphasized by the Court of Appeal in Gabriel Mutava & 2 others V Managing Director Kenya Ports Authority & another (2016) eKLR when it expressed itself thus;
“….. Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the constitutional court by bringing actions that could very well and affectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation……”
21. Lastly on this point, I wish to associate myself with the holding of Ohungo J in Ibrahim Wakhanya & 2 others vs Chief Magistrates Court Kakamega & 2 others, Attorney General for Land Registrar Kakamega (interested party) (2022) eKLR when he stated as follows;
“… one of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exists ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. …….”
22. The doctrine of exhaustion on the other hand is to the effect that a litigant ought to utilize and exhaust alternative dispute resolution mechanisms established by relevant legislation before seeking redress in a court of law. The doctrine was well espoused by the Court of Appeal in Geoffrey Muthiga Kabiru & others V Samuel Munga Henry & 1756 others (2015) eKLR which has also been cited by the interested party in which the court expressed itself thus;
“ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution”.
23. A scrutiny of the Petition particularly its sub headings C and D in which the petitioners pleaded the facts predicating the grievances they wanted addressed in the Petition show clearly that although they claimed that the respondents had violated or threatened to violate their constitutional right to information under Article 35, their right to property under Article 40 and procedural fairness under Article 47 of the Constitution, their grievances basically related to the respondents alleged breaches of the Companies Act 2015, the Tea Act 2020 and the Regulations made thereunder. Their complaints revolved around proposed extension of the director’s tenure upto 2027, premature election of the interested party, late circulation of the company’s audited accounts and alleged mismanagement and misappropriation of funds.
24. The petitioners in their submissions admitted that the above were their core grievances. This admission was made in paragraphs 25,32,33,35 and paragraph 40 (erroneously indicated as paragraph 32) in their submissions. Further, in their submissions, the Petitioners proceeded to identify the specific provisions of the Companies Act, the Tea Act and the Regulations made thereunder as well as the Articles of Association of the 1st respondent which the respondents had by their impugned acts or omissions allegedly violated.
25. In view of the foregoing, I fully agree with the respondents and the interested party’s submissions that the facts giving rise to the Petition and the prayers thereof relate to purely commercial disputes between a company and its shareholders which can be effectively addressed either through an AGM or through the statutory mechanism established under the Companies Act (the Act) particularly Section 780 as read with Section 782 of the Act. In my opinion, the grievances enumerated in the Petition though framed as constitutional violations do not warrant invocation of this courts jurisdiction under Article 165 (3) of the Constitution. They are grievances which, as noted earlier, can be effectively addressed and remedied in civil actions instituted under the Companies Act or through the mechanisms provided under the 1st respondent’s Articles of Association.
26. It is important to remember that not every breach of a statutory provision should give rise to a Constitutional Petition. Constitutional Petitions should only be filed for redress of actual breach of the Constitution or where there was denial, violation or a threat to violation of a right or fundamental freedom enshrined in the Constitution which is not the case in the instant Petition.
27. For the above reasons, it is my finding that the doctrine of constitutional avoidance squarely applies in this case and having made this finding, I do not find it necessary to delve into a consideration of issue No. 3 isolated earlier for my determination. In the result, the respondents Notice of Motion dated 2nd December 2025 as well as the interested party’s preliminary objection succeeds. This finding in effect means that the petitioners Petition is incompetent and is a candidate for striking out.
28. In the end, the Petition dated 24th November 2025 together with the petitioners Notice of Motion dated 24th November 2025 are hereby struck out with costs to the respondents and the interested party.
29. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026.
HON . C. W GITHUA
JUDGE
2. Contemporaneous to the filing of the Petition, the petitioners filed a Chamber Summons dated 24th November 2025 seeking several reliefs some of which are now spent. The prayers pending this court’s determination are prayers 3, 5 and 7 in which the applicants sought temporary conservatory orders prohibiting the respondents from convening the Annual General Meeting (AGM) scheduled for 28th November 2025; preservation of the status quo including existing board structure, financial records, corporate decisions, accounting status and all governance structures of the 1st respondent (hereinafter the company) and appointment of an independent auditor pending hearing and determination of the Petition.
3. The application is premised on the grounds stated on its face as well as averments made in the petitioners supporting affidavit dated 24th November 2025. The petitioners (hereinafter the applicants) contend that on 29th October 2025, the respondents issued a notice of the 1st respondents AGM scheduled to take place on 28th November 2025 but belatedly circulated the companies audited accounts 9 days prior to the proposed AGM which was contrary to Article 136 of the Company’s Memorandum and Articles of Association as read with Section 663 of the Companies Act which require that accounts be circulated to members at least 21 days before an
AGM.
4. The applicants further contended that there had been premature nomination and election of the interested party as a director; proposed unlawful extension of the director’s tenure to the year 2027; and, mismanagement and misuse of company funds. In addition, they alleged that the AGM was intended to sanitize and legitimize illegal decisions such as irregular procurement practices and mismanagement of funds contrary to shareholder rights and democratic governance.
5. The application was strenuously opposed by the respondents and the interested party. The respondents filed two replying affidavits, both sworn on 2nd December 2025 by Mr. Benard Kiragu , the 1st respondent’s Company Secretary and Mr. Charles Maina , an
Auditor.
6. The respondents also filed a Notice of Motion dated 2nd December 2025 seeking setting aside of the Ex-Parte interim orders issued by this court on 26th November 2025 which restrained them from holding the proposed AGM. They also prayed that the Petition be struck out and or dismissed as in their view, it did not disclose any constitutional issues. They also claimed that the Petition was premature as the petitioners had failed to exhaust available remedies prior to filing of the Petition.
7. In response, the petitioners filed a replying affidavit asserting, inter alia, that available remedies had been exhausted and that the Petition disclosed triable constitutional issues.
8. On his part, the interested party, Titus Karanja Kinyua , filed a Notice of Preliminary objection dated 23rd January 2026 and a replying affidavit sworn on 24th January 2026. In the main, the interested party sought striking out of the entire Petition under the doctrine of constitutional avoidance arguing that there were available statutory remedies to effectively redress the petitioner’s grievances which the petitioners had failed to exhaust before filing the Petition.
9. On 27th January 2026, I gave directions that the interested party’s preliminary objection be treated as part of his opposition to the petitioner’s application dated 24th November 2025 and that both applications, that is, the application dated 24th November 2025 and 2nd December 2025 be heard together through written submissions which all the parties duly filed.
10. Having carefully considered the Petition, the two applications, the affidavits sworn in support and in opposition thereto, the preliminary objection raised by the interested party, the parties rival written submissions and all material placed before me, I find it prudent to first deal with the respondents application dated 2nd December 2025 together with the preliminary objection filed by the interested party since both challenge the court’s jurisdiction to entertain the Petition and their outcome will determine whether or not it will be necessary to consider the petitioners application dated 24th November 2025.
11. Although the respondents have in their application sought setting aside of the interim conservatory orders issued by this court on 26th November 2025, I will not deal with this prayer at this point in time since it will be decided one way or the other depending on the outcome of the petitioners application if its determination becomes necessary.
12. That said and having considered the submissions filed by the respondents and the interested party in support of the
Notice of Motion dated 2nd December 2025 and the preliminary objection dated 23rd January 2026 as well as the submissions filed by the petitioners in opposition thereto, I find that the issues that fall for my determination are the following;
1) Whether the interested party’s preliminary objection meets the threshold of a preliminary objection as defined in law,
2) Whether the twin doctrines of constitutional avoidance and exhaustion are applicable in this case.
3) If the answer to issue No. 2 is in the negative, whether the petition is ripe for adjudication.
13. Starting with the first issue, what in law constitutes a preliminary objection was discussed in the celebrated case of Mukisa Biscuit Company V West End Distributors Ltd (1969) EA 696 in which Sir Charles Newbold defined a preliminary objection in the following terms,
“A preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of the court’s discretion”.
14. The three points raised in the preliminary objection are to the effect that the petitioners’ main grievances stem from alleged breaches of provisions of the Companies Act and the 1st respondents Articles of Association; that there were other available and adequate remedies under statute which the petitioners failed to pursue before filing the Petition hence the necessity of constitutional avoidance.
15. The petitioners have submitted that the preliminary objection is incompetent as in their view, it does not meet the test set out in the Mukisa Biscuit case (Supra ) since in their view, it does not raise pure points of law. The petitioners further contend that the question of availability of other remedies and their adequacy or otherwise would require evidence and balancing of facts which put the preliminary objection outside the ambit of a preliminary objection as defined in law.
16. In support of the above submissions, the petitioners relied on the authority of Oraro V Mbaja (2005) 1 KLR 141 in which Ring era J (as he then was) held as follows;
“ Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed”.
17. Having considered the grounds raised in the preliminary objection and the parties rival written submissions, I am unable to agree with the petitioner’s submissions because in my view, the doctrines of constitutional avoidance and exhaustion go to the jurisdiction of the court to entertain the Petition and are thus preliminary points of law which can lead to disposal of the entire Petition. Secondly, to determine the applicability or otherwise of the above doctrines, no evidence is required. A thorough scrutiny of the matters raised in the Petition, the pleadings filed in response thereto and the applicable law is sufficient. In the premises, it is my finding that the preliminary objection meets the threshold of a preliminary objection as defined in law and is thus properly before this court.
18. Having resolved the first issue, I now turn to consider whether the doctrines of constitutional avoidance and exhaustion are applicable in this Petition. The starting point is to seek to understand what is meant by the above doctrines.
19. The doctrine of constitutional avoidance was well articulated by the Supreme Court in Khalid & 16 others V Attorney General & 2 others (petition No. 21 of 2017) (2019) KESC 93 KLR in which the court cited with approval the case of J ohn Harun Mwau V Peter Gastrow & 3 others (2014) eKL R and stated as follows;
“ …..Courts will not normally consider a constitutional question unless the existence of a remedy depend on it; if a remedy is available to an applicant under some other legislative provision or some of the basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights.
It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved at all”.
20. The doctrine of constitutional avoidance dictates that a court should decline to determine a constitutional issue if the dispute giving rise to it can be adequately resolved through other avenues set out in statute or other law. This legal position was further emphasized by the Court of Appeal in Gabriel Mutava & 2 others V Managing Director Kenya Ports Authority & another (2016) eKLR when it expressed itself thus;
“….. Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the constitutional court by bringing actions that could very well and affectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation……”
21. Lastly on this point, I wish to associate myself with the holding of Ohungo J in Ibrahim Wakhanya & 2 others vs Chief Magistrates Court Kakamega & 2 others, Attorney General for Land Registrar Kakamega (interested party) (2022) eKLR when he stated as follows;
“… one of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exists ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. …….”
22. The doctrine of exhaustion on the other hand is to the effect that a litigant ought to utilize and exhaust alternative dispute resolution mechanisms established by relevant legislation before seeking redress in a court of law. The doctrine was well espoused by the Court of Appeal in Geoffrey Muthiga Kabiru & others V Samuel Munga Henry & 1756 others (2015) eKLR which has also been cited by the interested party in which the court expressed itself thus;
“ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution”.
23. A scrutiny of the Petition particularly its sub headings C and D in which the petitioners pleaded the facts predicating the grievances they wanted addressed in the Petition show clearly that although they claimed that the respondents had violated or threatened to violate their constitutional right to information under Article 35, their right to property under Article 40 and procedural fairness under Article 47 of the Constitution, their grievances basically related to the respondents alleged breaches of the Companies Act 2015, the Tea Act 2020 and the Regulations made thereunder. Their complaints revolved around proposed extension of the director’s tenure upto 2027, premature election of the interested party, late circulation of the company’s audited accounts and alleged mismanagement and misappropriation of funds.
24. The petitioners in their submissions admitted that the above were their core grievances. This admission was made in paragraphs 25,32,33,35 and paragraph 40 (erroneously indicated as paragraph 32) in their submissions. Further, in their submissions, the Petitioners proceeded to identify the specific provisions of the Companies Act, the Tea Act and the Regulations made thereunder as well as the Articles of Association of the 1st respondent which the respondents had by their impugned acts or omissions allegedly violated.
25. In view of the foregoing, I fully agree with the respondents and the interested party’s submissions that the facts giving rise to the Petition and the prayers thereof relate to purely commercial disputes between a company and its shareholders which can be effectively addressed either through an AGM or through the statutory mechanism established under the Companies Act (the Act) particularly Section 780 as read with Section 782 of the Act. In my opinion, the grievances enumerated in the Petition though framed as constitutional violations do not warrant invocation of this courts jurisdiction under Article 165 (3) of the Constitution. They are grievances which, as noted earlier, can be effectively addressed and remedied in civil actions instituted under the Companies Act or through the mechanisms provided under the 1st respondent’s Articles of Association.
26. It is important to remember that not every breach of a statutory provision should give rise to a Constitutional Petition. Constitutional Petitions should only be filed for redress of actual breach of the Constitution or where there was denial, violation or a threat to violation of a right or fundamental freedom enshrined in the Constitution which is not the case in the instant Petition.
27. For the above reasons, it is my finding that the doctrine of constitutional avoidance squarely applies in this case and having made this finding, I do not find it necessary to delve into a consideration of issue No. 3 isolated earlier for my determination. In the result, the respondents Notice of Motion dated 2nd December 2025 as well as the interested party’s preliminary objection succeeds. This finding in effect means that the petitioners Petition is incompetent and is a candidate for striking out.
28. In the end, the Petition dated 24th November 2025 together with the petitioners Notice of Motion dated 24th November 2025 are hereby struck out with costs to the respondents and the interested party.
29. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026.
HON . C. W GITHUA
JUDGE