https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10205

Awino & another v Nderitu & 4 others (Constitutional Petition E806 of 2025) [2026] KEHC 10205 (KLR) (Constitutional and Human Rights) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10205 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E806 of 2025 RE Aburili, J July 10, 2026 Between Francis Awino 1st Petitioner Charles Mc’Olonde 2nd Petitioner and Anne Nderitu Respondent and Independent Electoral And Boundaries Commission 1st Interested Party Office Of Registrar Of Political Parties 2nd Interested Party The Attorney General 3rd Interested Party Democracy For Citizens Party 4th Interested Party Ruling 1.The petitioners’ complaint in their Petition dated 5th December, 2025 is that the Respondent then registrar of political Parties, used short cuts and fast tracked the registration the 4th interested party as a political party without verification of the required 24 regional /county offices; conducting any physical inspections of its offices, verifying membership registers, confirming the existence of its party organs or interim officials and ensuring compliance with national presence requirements. 2.The respondent is accused of various constitutional and statutory violations including violation of Chapter Six of the Constitution, the Political Parties Act among others. 3.The respondent filed a preliminary objection dated 11th June, 2026 on joinder of the respondent in her personal capacity while the 3rd interested party filed grounds of opposition. 4.The 4th interested party filed a preliminary objection dated 23rd March, 2026 on jurisdiction of this court contending that the petitioners had not exhausted the internal dispute resolution mechanisms established under the Political Parties Act and which preliminary objection as argued yesterday is the subject of this Ruling on jurisdiction of the Court.1.It is contended that the matter falls within the jurisdiction of the Political Parties Tribunal established under Section 40(b) of the Political Parties Act, 2011.2.The hearing of the preliminary objection was set for 8.00 am by consent of all the parties but the petitioner did not appear at that time hence the interested parties and the respondents counsel who were present urged the preliminary objection at 8.29 am after waiting for the petitioners to appear in vain, as scheduled and I reserved this ruling. Determination 5.I have considered the petition as presented and given a snapshot of what the petitioners seek from this Court, claiming that the respondent did not follow the procedure for registration of the 4th interested party hence she violated the law and the Constitution and that therefore she is not even fit to serve as the Commissioner for IEBC because her conduct in the registration of the 4th interested party is questionable and violates Chapter Six of the Constitution. That she issued the 4th interested party with a registration certificate as a political party without verification, transparency, accountability, documentary record and adherence to statutory timelines. They call on this court to invalidate the aforesaid impugned registration of the 4th interested party. 6.The petitioner also sought for mandamus against the respondent to produce records pertaining to the registration of the 4th interested party; EACC, DCI and DPP to to investigate the respondent’s conduct including possibility of abuse of office on her part, maladministration and breach of statutory duty and that the IEBC to report to court on her suitability to continue serving as a Commissioner. 7.Section 39 of the political parties Act establishes the Political Parties Tribunal while section 40 of the Act provides for jurisdiction of the tribunal as follows:Jurisdiction of Tribunal(1)The Tribunal shall determine—(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms. 8.Section 41 provides for determination of disputes as follows:1.(1)The Tribunal shall determine any dispute before it expeditiously, but in any case, shall determine a dispute within a period of three months from the date the dispute is lodged.2.(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to the Court of Appeal and the decision of the Court of Appeal shall be final.(3)A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court but the Tribunal shall have the powers of the High Court to punish for any acts or omissions amounting to contempt of the Tribunal.(3A)The Chief Justice may, in consultation with the Tribunal, prescribe regulations for determination of disputes under this section.(4)The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80) and the Civil Procedure Act (Cap. 21), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities. 9.The question is, in view of section 40 of the Political Parties Act that clothes the Political Parties Tribunal with jurisdiction to hear and determine disputes relating to registration of political parties and appeals from decisions of the Registrar of Political Parties, whether a party aggrieved by the decision to register a political party can challenge that decision in court and therefore whether this Court has jurisdiction to hear and determine the petition herein which challenges the registration of the 4th interested party by the respondent Registrar of Political Parties. 10.To answer that question, principles have been developed by Courts over time, on jurisdiction, exhaustion of remedies and the doctrine of constitutional avoidance, following which, those principles have now been legislated into vide the fair Administrative Action Act, 2015, which Act implements Article 47 of the Constitution that guarantees ever person the right to fair administrative action. 11.Firstly, is that the 4th interested party has raised an objection as to jurisdiction of this Court to entertain the petition in its present form, arguing that the dispute falls within the jurisdiction of the Political Parties Tribunal established under section 39 of the Political Parties Act and with its jurisdiction clearly spelt out in section 40 of the same Act. 12.In Raytheon Aircraft Credit Corp. & Another v Air Alfaraj Ltd. CA No. 326 of 1998, the Court of Appeal stated as follows on preliminary objections:“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of a pleading or an application before the court and which, if argued as a preliminary point, may dispose of the suit. Examples clearly are (amongst others):(1)whether or not a court has jurisdiction to try the suit;(2)whether the claim is barred under and by virtue of the Limitation of Actions Act;(3)whether or not a condition precedent to refer the dispute to arbitration bars a court from hearing the suit (if proper steps are taken by the applicant);and(4)whether or not parties' choice of law and forum can bar another forum from applying any other law.” 13.The above decision followed the earlier case in Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd [1969]EA 696 in which the Court of Appeal for Eastern Africa is famed for defining what a preliminary objection is. Law, JA stated as follows, a statement that continues to ring the bell in judicial circles:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit.” 14.On his part, a member of that Bench, Sir Charles Newbold, P, in his concurring opinion, added thus:“A preliminary objection is in the nature of what used to be called a demurrer. 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 if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 15.The Court of Appeal nonetheless cautioned parties against improperly raising preliminary objections and stated as follows by Sir Charles Newbold, P.“The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop”. 16.From the above dictions, I am satisfied that the preliminary objection raised by the 4th interested party is a pure point of law on jurisdiction of the court and exhaustion of remedies as it is capable of deciding the petition herein without going into the merits, if found to be merited. This is because, jurisdiction is everything and is the power conferred on courts and tribunals to adjudicate over disputes and without which, a court of law or tribunal can do no more than down its tools. 17.Jurisdiction is derived from the Constitution and statutes or both. A court of law cannot arrogate itself of jurisdiction that it does not have and neither can it by craft assume jurisdiction, or that jurisdiction be assumed by consent of parties to a dispute before the court. 18.In Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling), the Supreme Court stated as follows concerning jurisdiction of Courts:“ 68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 19.On the other hand, the principle of exhaustion was first considered in the case of Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling) by the Court of Appeal and has since been developed further, thereby answering the very question that I have posed above. 20.In the above Karume case, the Court of Appeal), was dealing with a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the then Constitution. In granting the order, the Court made the often-quoted statement that:“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 21.The Court of Appeal adopted the submission by Mr. Satish Gautama advocate on behalf of the Speaker of the National Assembly that Parliament in its own wisdom having prescribed the procedure to be followed by anyone seeking to challenge a declaration made by the Speaker under section 18 of the Elections Act, it was not open to the respondent to bypass this procedure by invoking the prerogative orders under order 53 of the Civil Procedure Rules. In his view, where there is an elective remedy available it is not open to a party to invoke order 53 of the Civil Procedure Rules. The other point which Mr Gautama stressed was that the respondent failed to disclose in his statement of facts the fact that he had already filed an election petition which was still pending before the Court. In his submission this amounted to a concealment of a material fact which could have elected the judge’s exercise of his discretion and he may well have declined to grant the leave and/or the order of stay. 22.In furtherance of the doctrine of exhaustion as espoused in the Karume case, Courts have faithfully adhered to the doctrine, albeit it has exceptions to it as shown in section 9) of the Fair Administrative Action Act. 23.In Mutanga Tea & Coffee Company Limited v Shikara Limited & another (Civil Appeal 54 of 2014) [2015] KECA 469 (KLR) (31 July 2015) (Judgment), the Court of Appeal stated as follows, quite elaborately on this doctrine of exhaustion of remedies:“ 19.It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court. 24.The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms. 25.Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner. In RICH PRODUCTIONS LTD. V. KENYA PIPELINE COMPANY & ANOTHER, PETITION NO. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.” 26.On the same reasoning, this Court, in Republic V. The National Environmental Management Authority, CA NO 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in Vania Investment Pool Ltd. V. Capital Markets Authority & 8 Others, CA NO 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its dispute to the Capital Markets Appeals Tribunal established by the Capital Markets Act. 28.We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts. 29.What we have stated above also sufficiently disposes of the appellant’s contention that the High Court failed to invoke its inherent jurisdiction or abdicated its jurisdiction. It also answers the applicant’s contention that the failure to follow the prescribed dispute resolution mechanism was a mere technicality curable under Article 159 (2) (d) of the Constitution. Granted the express constitutional principle under which the dispute resolution mechanisms provided by the PPA and the EMCA are underpinned, it cannot be claimed that lack of compliance with those mechanisms is a mere technicality. In Raila Odinga & 5 Others V. Iebc & 3 Others, Petition No. 5 OF 2013, the Supreme Court stated that in interpreting the Constitution, it must be read as one whole and that Article 159(2)(d) cannot be read or applied in a manner that ousts the provisions of other clear Articles of the Constitution. And in Lemanken Aramat V. Harun Maitamei Lempaka, Petition No. 5 of 2014, the same Court, while considering the provisions of Article 159(2) (d) of the Constitution noted that where the issue at hand is one of mere procedural lapse which has no bearing on jurisdiction, the court can cure the same under Article 159(d). However, where the Constitution links certain vital conditions to the power of the court to adjudicate a matter, Article 159(2)(d) has no application.” 24.From the above judicial pronouncements, the question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available statutory remedies before another competent body or authority or tribunal. 25.This doctrine of exhaustion encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution as was aptly expounded in Republic v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, that:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” 26.The Court of Appeal in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR provided the constitutional basis for this doctrine when it stated that:“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the court is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… 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 of resolution outside the Courts.” 27.Besides the doctrine, we have its twin sister, the doctrine of constitutional avoidance. This doctrine has been defined as a principle of judicial restraint which dictates that courts must resolve disputes on non-constitutional grounds whenever possible, strictly avoiding ruling on constitutional matters unless absolutely necessary to the case's disposition. 28.The doctrine avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Thus, disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus not be disguised and tried as Constitutional litigations. 29.Expounding on this doctrine, the Court in Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] eKLR observed thus:“ 17.One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist 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. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR as follows:… where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).(17)In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. ….18.Similarly, the same court stated in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR 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 effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation.…A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done.” 30.Further, in C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR, the Court observed as follows:“ 11.Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011where after considering several authorities on the issue, Justice Lenaola remarked as follows:All the authorities above would point to the fact that the Constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.” (Emphasis added). 31.The Supreme Court of India in Re Application by Bahadur[1986] LRC (Const) also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. At page 307, the Court stated:“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... the Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for invoking judicial control of administrative action.”(See Harrikissoon v A-G [1979] 3 WLR 62).13.It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J);Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.” 32.Further holding in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor [2001] (2) ZLR 501 (S) was that :“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights..” 33.The exceptions to the twin doctrines are: where the constitutional violation is so clear and of direct relevance to the matter; in the absence of an apparent adequate alternative form of ordinary relief and; where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute; and where there are exceptional circumstances warranting such exemption by the Court and on application. 34.I have said enough of the two doctrines which are also related to the doctrine of ripeness and justiciability of the constitutional petition. 35.I will now apply the above principles to this petition and the preliminary objection raising the doctrine of exhaustion citing Section 40 of the Political Parties Act which I have already reproduced above on the jurisdiction of the Political Parties Tribunal as established under section 39 of the Act. 36.Section 34 of the Political Parties Act provides the functions of the Registrar of political parties that includes to register, regulate, monitor, investigate and supervise political parties to ensure compliance with the act and to maintain a register of political parties and the symbol of political parties among others. 37.Section 39 of the Political Parties Act establishes the Political Parties Disputes Tribunal and Section 40 outlines the jurisdiction of the Tribunal. 38.Considering the instant petition, it is clear in my mind that the Petitioners’ grievances as averred and reproduced herein above is that the respondent unprocedurally registered the 4th interested party as apolitical party without proper verification on whether it was qualified to be so registered, thereby violating the laid down procedures under the Political Parties Act, 2011. 39.That complaint is a dispute that squarely falls under Section 40(1)(f) of the Political parties Act and should have been filed as an appeal directly to the Political Parties Tribunal. As discussed above, there is ample authorities on this subject of exhaustion of remedies and constitutional avoidance which this Court is guided by that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be followed. 40.Indeed, the Petitioners herein ought to have explored that avenue first before approaching court. The Court of Appeal in Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille [2017] eKLR stated that an alternative and more convenient remedy in some other tribunal or forum should, in the Court’s opinion be a good ground for the court to decline to act. 41.From the foregoing, this Court holds that the Petition is barred by the doctrine of exhaustion and constitutional avoidance. The Petitioners ought to have pursued their remedies in the Political Parties Tribunal before approaching this Court. Had the Petitioners exhausted the forum, then they would have established the Court’s Jurisdiction as the proper forum to appeal the decision of the Tribunal’s decision on merits as appropriate. All other accusations against the respondent are matters which the Tribunal could have decided on before accusing the Registrar violating the Constitution and the law. 42.In the end, I find and hold that the Preliminary Objection succeeds on account of want of exhaustion of the statutory procedure for appeal under section 40 of the Political Parties Act No. 11 of 2011. 43.And as espoused in the Owners of the Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd [supra]“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 44.Having found that this court lacks Jurisdiction, I down my tools and strike out the petition dated 5th December, 2025 with no orders as to costs. 45.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2026R.E. ABURILIJUDGE