https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9729

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E040 OF 2026** **BETWEEN** **FRANCIS AWINO ............................................................................. PETITIONER** **VERSUS** **ENG. KIPKEMOI KIBIAS...............................................................RESPONDENT** **AND** **THE BOARD OF DIRECTORS, KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED (KETRACO)........................... 1ST INTERESTED PARTY** **THE ETHICS AND ANTI-CORRUPTION** **COMMISSION.............................................................. 2ND INTERESTED PARTY** **THE ATTORNEY-GENERAL..................................... 3RD INTERESTED PARTY** **JUDGMENT** 1. In his petition dated 19th January 2026 the petitioner, Francis Awino, seeks the following reliefs: 1. ***A Declaration that the Respondent, Eng. Kipkemoi Kibias, in his capacity as the Acting Managing Director and Chief Executive Officer of Kenya Electricity Transmission Company Limited (KETRACO), violated Articles 2, 10, 41, 47, 73, 232 and Chapter Six of the Constitution of Kenya, 2010.*** 2. **A Declaration *that the Respondent abused his office, exceeded his lawful authority, and exercised public power arbitrarily and unconstitutionally, as judicially confirmed by the Judgment and Decree of the Employment and Labour Relations Court delivered on 17th December 2025.*** 3. ***A Declaration that the Respondent lacks the integrity, constitutional fidelity, and ethical threshold required under Chapter Six of the Constitution, and is therefore unfit to hold public office within the meaning of Articles 73 and 75 of the Constitution.*** 4. ***An Order declaring that the Respondent is disqualified from holding the office of Managing Director and Chief Executive Officer of KETRACO, or any other public office requiring compliance with Chapter Six of the Constitution, unless and until he is subjected to lawful vetting and cleared in accordance with the Constitution.*** 5. ***An Order of Suspension suspending the Respondent from the office of Acting Managing Director and Chief Executive Officer of KETRACO, pending: investigations into his unconstitutional conduct, and determination of his suitability to continue holding public office.*** 6. ***An Order of Mandamus compelling the Board of Directors of KETRACO to immediately initiate disciplinary and governance processes against the Respondent in compliance with the Constitution, the State Corporations Act, and applicable governance instruments.*** 7. ***An Order of Mandamus compelling the Ethics and Anti-Corruption Commission (EACC) to investigate the Respondent for abuse of office, misuse of authority, and violation of Chapter Six of the Constitution.*** 8. ***An Order of Mandamus compelling the Public Service Commission and/or the State Corporations Advisory Committee to conduct a comprehensive integrity, leadership, and suitability review of the Respondent.*** 9. ***An Order restraining the Respondent, whether by himself, agents, servants, or proxies, from exercising disciplinary or human resource powers within KETRACO pending full compliance with this Court’s orders.*** 10. ***An Order directing that all administrative and human resource decisions undertaken by the Respondent in violation of constitutional and statutory requirements be reviewed, audited, and, where necessary, nullified.*** 11. ***A Declaration that State officers cannot hide behind corporate entities to evade personal accountability for unconstitutional actions undertaken under their authority.*** 12. ***An Order directing the Respondent to personally bear responsibility for any costs, damages, or losses occasioned to the public arising from litigation precipitated by his unconstitutional conduct.*** 13. ***General Damages for violation of the Constitution, public interest litigation costs, and affront to constitutional governance, in an amount to be assessed by this Honourable Court.*** 14. ***Costs of this Petition be borne personally by the Respondent.*** 15. ***Interest on costs and any monetary awards at court rates from the date of judgment until payment in full.*** 16. ***Such further or other orders as this Honourable Court may deem fit and just to grant in the circumstances, in order to uphold the Constitution, enforce accountability, and protect the public interest.*** 2. The petition is premised on grounds on the face thereof and supported by an affidavit sworn on even date. The petitioner states that the respondent was the acting Managing Director and Chief Executive Officer of the Kenya Electricity Transmission Company Limited (KETRACO) and as such bore overall executive authority, supervisory control and ultimately responsibility over all human resource decisions, disciplinary processes and administrative actions undertaken by KETRACO. 3. It is stated that on or 19th September 2025, under his authority, KETRACO issued a letter referenced KET/5/1A/10013/kk/lck, purporting to send Eng. Antony Tawayi Wamukota, a senior employee of the corporation, on a three (3) month compulsory leave. That Eng. Antony Tawayi Wamukota was aggrieved and therefore filed a constitutional petition before the Employment and Labour Relations Court (ELRC), challenging the legality, constitutionality, and procedural propriety of the Respondent’s actions. In a judgment delivered on 17th December 2025, the Court made definitive findings condemning the actions of KETRACO undertaken under the leadership of the Respondent. 4. It is averred that the Court declared that the three-month compulsory leave imposed on Eng. Antony Tawayi Wamukota was irregular, unprocedural, illegal, and unconstitutional, and therefore null and void ab initio. The Court further issued a mandatory order directing KETRACO to unconditionally revoke the compulsory leave and to allow the immediate resumption of duty by the affected officer. 5. It is further asserted that the Court also revoked and nullified the Respondent’s letter dated 19th September 2025 and restrained the Respondent and KETRACO from terminating or otherwise interfering with the employment of the affected officer on the basis of the illegal compulsory leave, and found that the Respondent’s actions amounted to double jeopardy, rendering him functus officio in the matter and that the Court condemned the Respondent’s conduct by awarding costs against KETRACO. 6. The petitioner contends that the Judgment and Decree of the Court remain valid and constitute a judicial determination that the Respondent presided over and implemented an unlawful, arbitrary, and unconstitutional employment regime within a critical State Corporation. He asserts that the Respondent’s actions demonstrate a blatant disregard for the rule of law, judicial authority, and constitutional safeguards governing fair labour practices and administrative justice. Further that by the compulsory leave, the Respondent abused his office, undermined institutional integrity, and exposed a culture of impunity and executive excess at KETRACO. 7. According to the petitioner, the respondent’s conduct violated the provisions of articles 10, 41, 47, 73 and Chapter Six of the Constitution, sections 4 (1), 4(2) and 4(3) of the Fair Administrative Action Act, 2015 and the Employment Act, 2007.Further that unless restrained by this Court, the Respondent’s continued stay in office poses danger to constitutional governance, lawful administration, and the rights of employees and citizens who interact with KETRACO. **Responses to the petition.** 1. In response, the 1st respondent and 1st interested party filed replying affidavit sworn by Eng. Kipkemoi Kibias on 2nd April 2026 and preliminary objection dated 21st March 2026 opposing the petition on several grounds. **The preliminary objection** 1. The preliminary objection is predicated upon the grounds that the petition offends the doctrines of exhaustion and constitutional avoidance by virtue of the provisions of sections 11(1) (d), (e) and (f) and Part IV of the Ethics and Anti-Corruption Commission; section 60, 62(1) (f) and 62(2) of the Public Service Commission Act; and sections 9(2) and (4) of the Fair Administrative Actions Act, 2015. **Replying affidavit** 1. The respondent swore a replying affidavit on 2nd April 2026 on his own behalf and on behalf of the 1st interested party in which he deposes that he assumed the office of the Managing Director of the 1st interested party in an acting capacity on 19th September 2025. That prior to his appointment, the 1st interested party had commenced and set in motion a disciplinary process against one Eng. Antony Tawayi Wamukota. 2. It was deposed that sometimes in 2023, KETRACO tendered for provisions of long haulage transport services and heavy-duty handling equipment under tender No. KETRACO-ST-006-2023. That upon completion of the tender evaluation exercise, Elsogom Limited emerged as the successful bidder and was consequently awarded the tender at a total contractual sum of Kshs. 9,538,500. 3. According to the respondent and 1st interested party, that the award was communicated through letter of intent dated 10th July 2023 and the subsequent execution of a formal contract between KETRACO and Elsogom Limited upon expiry of 14 days from the date of issuance. He explains that the subject tender concerned the provision of long-haul transport services and heavy-duty handling equipment for the transportation of two transformers; 90/110 MVA and 18/23 MVA, from the port of Mombasa to Kitale and Ortum respectively. 4. It is contended by the respondent and 1st interested party that nnotwithstanding KETRACO’s stipulation of the conditions governing the implementing of the award, Eng. Anthony Tawayi Wamukota approved a memo dated 20th July 2023 authorizing officers to travel to Mombasa to supervise the loading of the subject transformers, thereby initiating their transportation. That consequently, Elsogom Limited proceeded to load the transformers from the CFS Console Base at Terminal 2, operated by Ken freight Limited for transport to Ortum and Kitale substations, notwithstanding that a formal contract had not yet been duly executed and prior to the expiration of the 14 days stipulated in the letter of intent to award. 5. That KETRACO’s management learnt of the occurrence of the scenarios described herein above and initiated investigations by issuing a notice to show cause letter dated 1st December 2023, to Eng. Antony Tawayi, by the then Managing Director of KETRACO. 6. That Eng. Wamukota offered no reply and instead instituted proceedings before the Employment and Labour Relations Court through Petition No. E213 of 2023, seeking to stay the Notice to Show Cause but that upon final determination of the matter on 8th April 2024, no such orders were granted. 7. The respondent and 1st interested party narrate that on 18th January 2024, Eng. Wamukota submitted a response in respect of an investigation being undertaken by the Manager, Security Services, wherein the said Manager sought to ascertain his role in the tender for long haul transport services and heavy-duty handling equipment for the two transformers destined for Ortum and Kitale. 8. That the Board of Directors, KETRACO reviewed Eng. Wamukota’s response dated 18th January 2024 and found it to be unsatisfactory and a communication was made through their letter dated 24th April 2024 issued by the then Managing Director, Dr. Eng. John Muoki Mativo and consequently, Eng. Wamukota was summoned to appear for a disciplinary hearing. It is deposed that Eng. Wamukota responded through response dated 30th April 2024 and he underwent a disciplinary hearing on 13th May 2024 in accordance with the Section 11 of the company’s Human Resource Policy and Procedures Manual, 2019 and the Employment Act,2007. That upon review of the response and upon deliberations of the Board it was determined that he be cautioned. He was thus cautioned through a letter dated 7th June 2024. 9. The respondent and 1st interested party states that following a resolution of the Board of Directors at its meeting held on 18th September 2025, new information relating to the tender for transportation of the two transformers was discovered, in which Eng. Wamukota was implicated. Eng. Wamukota was accordingly placed on compulsory leave pursuant to the Board’s resolution of 18th September 2025; the said decision was expressed by the letter dated 19th September 2025 to allow for investigations. 10. It is thus asserted that the respondent was accordingly wholly uninvolved in the disciplinary proceedings concerning Eng. Tawayi Wamukota from their inception, through the issuance of any caution, to the 1st interested party’s determination to place him on compulsory leave. Further that the respondent’s act of issuing the letter dated 19th September 2025, by which the 1st interested party’s decision was formally communicated, fell within the ambit of his authority by virtue of section 17.1 of KETRACO’s Human Resource policy and Procedures Manual. 11. The respondent and 1st interested party contend that the entire investigations involved the whole procurement architecture from the user department, the supply of chain management and ultimately to the Office of the Managing Director. Peter Njehia, a then Senior Supply Chain Manager, was suspended through letter dated 28th May 2024 and later dismissed for contravention of Part IV section 2 (iii) (a)and (s) of the Company Code of Conduct, Section 11 Part 11.7 (iii) (a) and (r) of the Company Human Resource Policy Procedures Manual as well as section 44 (4) of the Employment Act. That nother officer from the supply chain management department, one Collins Rono was processed through Human Resource Advisory Committee and was punished with a warning letter and increment deferred for a period of 1 year. One Eng. Evans Papa, received a warning letter and his annual increment deferred for a period of one year. Further, that the then Managing Director Dr. Eng. John Muoki Mativo, was also subjected to disciplinary proceedings culminating in his dismissal on 18th September 2025. 12. Further, that disciplinary proceedings were also instituted against the then Accounting Officer and Head of Procurement, Prisca Kubasu, with a show cause letter dated 8th December 2023 and eventual dismissal on 2nd September 2024. Prisca Kubasu challenged her dismissal through ELRC Petition E 143 of 2024 where the Court in its judgment struck out the petition directing recourse to the Public Service Commission. 13. There after, that the Public Service Commission, in PSC State Corporations Appeal 054 of 2024, upheld the dismissal and through letter dated 12th July 2025 directed, among others the 1st interested party to initiate disciplinary proceedings against all officers implicated in the tender process governing the transportation of the 90/110 MVA and 18/23 MVA Ortum and Kitale transformers to the Turkwel Ortum -Kitale Substation. 14. It is stated that the disciplinary proceedings against Eng. Wamukota were informed solely by information received by the 1st interested party, arising from the subtleties and intricacies embedded within the tender process, up to the moment when Elsogom Limited loaded the transformers from the CFS. That therefore, the subsequent investigations, which informed the decision to place him on compulsory leave, were undertaken wholly in faithful adherence to and in furtherance of the directive issued by the Public Service Commission. The compulsory leave was therefore a lawful and necessary interim measure pending the forensic investigation mandated by the PSC, and not a punitive sanction itself. 15. It is asserted that considered together with Clause 11.2 of the Company’s Human Resource Policy and Procedures Manual, 2019 which vests oversight of employees in Grades KETI-KET4 with the Board, and all others with the Human Resource Advisory Committee, the pattern of conduct exhibited by the 1st interested party demonstrates that the disciplinary process were fair, anchored in legitimate concerns and executed with impartiality and integrity noting that in the case of Prisca Kubasu, her dismissal was upheld by the PSC. 16. Accordingly, it is averred that no malice, corrupt intent, or personal interests can be ascribed to the 1st interested party or the respondent. In the circumstances, by communicating the 1st interested party’s resolution of 18th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and procedure Manual. The 1st interested party equally discharged its responsibilities in line with 11 of the same Policy. 17. It is stated that based on the foregoing, the respondent did not have a hand in Eng. Wamukota’s disciplinary process. Further, that the issues arising from the board’s decision were adjudicated by ELRC in Petition E 185 of 2025 wherein the court sitting in its constitutional jurisdiction, granted remedies to him as the full and final legal consequence of the Boards decision. Hence fully exhausted and the issue is moot. 18. It is contended that the petition therefore amounts to an abuse of the court process; the decision to place Eng. Wamukota on compulsory leave was undertaken exclusively to enable a fair, transparent and unhindered investigative process and pursuant to Regulation 62(3) of the Public Service Regulations and clause 11.13 of the company’s Human Resource Policy and Procedures Manual 2019. They urge the court to give effect to the doctrine of exhaustion of administrative remedies. **2nd interested party’s response** 1. The 2nd interested party EACC opposed the petition through grounds of opposition dated 16th February 2026. It is contended that the 2nd interested party is empowered pursuant to the provisions of Chapter Six of the Constitution of Kenya; the Anti-Corruption & Economics Crimes Act, 2023; Ethics & Anti-Corruption Commission Act, 2011 and Leadership and Integrity Act, Cap 182 Laws of Kenya to investigate the conduct of any person and/or body which is its opinion constitutes corruption, economic crime and unethical conduct. 2. It is stated that pursuant to article 79 of the constitution, the 2nd interested party is vested with the mandate to investigate corruption, economic crimes and unethical conduct. Section 11 (1) (d-(f) EACC Act mandates it to investigate allegations of breaches of Codes of conduct; recommend appropriate actions to be taken against state officers or public officers alleged to have engaged in unethical conduct and oversee the enforcement of codes of ethics prescribed for public office. 3. In addition, that the 2nd interested party is bestowed the responsibility of overseeing and enforcing the implementation of LIA pursuant to section 4(2) Leadership and Integrity Act which includes the mandate to inquire into and investigate allegations of breach of code of ethics upon receipt of a complaint or on its own motions under section 42 (10). 4. The 2nd interested party contends that the petitioner has not demonstrated to this court that prior to the filing of this petition, the 2nd interested party was without any proper or justifiable reason failed or refused to investigate such complaints to warrants the issuance of the orders sought to compel it to investigate the respondent. 5. Further, that the petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 2nd interested party which calls for adjudication before this court. Similarly, that no acts or omission attributed to the 2nd interested party, have been disclosed by the petitioner which are in violation of likely to be in violation of any part of the Constitution. 6. It is thus contended that granting the order sought against the 2nd interested party would contravene article 249 (2)(b) of the Constitution and section 28 of the Ethics and Anti-corruption Act. **3rd interested party’s response** 1. The 3rd interested party did not file formal repose to the petition. **Petitioner’s submissions** 1. The petitioner in his submissions dated 3rd February, 2026 argues that by exercising public power in a manner that was subsequently invalidated by a court of law, the respondent acted in defiance of the rule of law, undermined accountability, and offended the national values and principles of governance enshrined under Article 10 of the Constitution. 2. The petitioner contends that the ELRC expressly held that the compulsory leave had no legal basis and could not stand in law. This finding, the petitioner argues, demonstrates that under the respondent’s leadership, KETRACO was administered in a manner that institutionalized illegality, thereby exposing employees to arbitrary and unlawful labour practices in direct violation of Article 41 of the Constitution. 3. The petitioner submits that the respondent’s decision failed to align with the requirements of article 47 of the Constitution. That there was no notice, no hearing, no lawful justification and no procedural compliance. He places reliance on the Court of Appeal decision in Judicial **Service Commission v Mbalu Mutava & another [2015] eKLR**where it is said that the Courtemphatically held that Article 47 constitutionalizes administrative justice and renders invalid any administrative action taken without adherence to due process. 4. The petitioner asserts that Article 73 of the Constitution demands that authority assigned to a state officer be exercised in a manner that brings honour to the nation, promotes public confidence, and is consistent with the purposes and objects of the Constitution. Further, that a state officer whose actions are judicially condemned, revoked, restrained, and penalized through an award of costs cannot be said to have exercised authority honourably or in a manner that promotes public confidence. 5. The petitioner maintains that judicial nullification of executive action is the clearest and most objective evidence that constitutional trust has been breached. That the respondent’s conduct therefore violated Articles 10, 41, 47, and 73, and triggered the integrity implications contemplated under Chapter Six of the Constitution. 6. As to whether the respondent meets the Chapter Six integrity threshold to hold public office, the petitioner relies on the decision in **Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR**, and ***International Centre for Policy and Conflict & 5 others v Attorney General & 4 others* [2013] eKLR** for the proposition that the respondent’s integrity must be evaluated against the undisputed fact that a court of law found that he presided over and implemented an unconstitutional employment regime, abused administrative authority, and subjected a public institution to judicial censure. 7. The petitioner submits that a state officer who authorizes or permits illegal administrative action, ignores due process and exposes a state corporation to adverse judicial findings and costs cannot be said to exemplify integrity, accountability, or selfless service as required under Articles 73 and 75 of the Constitution. 8. The petitioner therefore urges this Court to find that a state officer whose actions have been judicially declared illegal and unconstitutional cannot satisfy the integrity threshold required under Articles 73 and 75, and is unfit to continue holding public office without undergoing lawful accountability and vetting mechanisms. 9. The petitioner cites the provisions of Articles 22, 23 and 165 (3) (b) of the Constitution and the decisions in **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** and **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others** for the submission that this court has jurisdiction to hear and determine the instant petition and that the petition raises constitutional questions concerning: abuse of public office, breach of Articles 10, 41, 47, 73, and Chapter Six, and continued occupation of public office in the face of judicial findings of unconstitutionality. **The Respondent and 1st interested party’s submissions** 1. In their joint written submissions, the respondent and the 1st interested party rely on the *locus classicus* on a preliminary objection and jurisdiction of the Court as was settled in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696; Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947 (KLR); Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR** and ***Samuel Kamau Machaira & another v Kenya Commercial Bank Limited & 2 others* [2012] KESC 8 (KLR)** for the propositions that the present objection fall’s within the well settled ***Mukisa Biscuit*** yardstick. 2. It is submitted the petition is cast as a Chapter Six and public service ethics grievance hence, the petitioner should have exhausted the alternative dispute resolution mechanisms stipulated under section 11(1) (d), (e) (f) and 13(2) (c) of the Ethics and Anti-Corruption Commission Act; section 4(2) of the Leadership and Integrity Act and sections 60, 62(1) (f) and 62(2) of the Public Service Commission Act, before invoking this court’s jurisdiction. Reliance is placed on the cases of **Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others [2024] KEHC 7955 (KLR); Agoro & 2 others v Orengo & another; Oduol & another (Interested Parties) [2023] KEHC 25200 (KLR) and Speaker of the National Assembly v James Njenga Karume [1992] KECA 42 (KLR).** 3. The respondent and 1st interested party contend that while the petitioner relies on Article 47 of the Constitution, the rights under that Article are implemented through the Fair Administrative Action Act and that under section 9(3) and 9(4) of the Act, the petitioner was required to first exhaust the available statutory remedies or obtain an exemption. They argue that since no exemption had been sought, the petition is premature. 4. They further argue that the petitioner has improperly framed an employment and administrative dispute as a constitutional matter. Relying on **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others**, the respondent and 1st interested party contend that the dispute should first be addressed through the relevant statutory mechanisms. They submit that allegations relating to Chapter Six should be pursued under the relevant legislation, including the EACC Act, the Leadership and Integrity Act, the Anti-Corruption and Economic Crimes Act, and applicable codes of ethics, while public service personnel matters should first be handled under the Public Service Commission Act. 5. Further reliance is placed on **Agoro & 2 others v Ethics & Anti-Corruption Commission & 4 others and Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR)**. They refute the petitioner’s claims that he has pleaded or demonstrated any exceptional circumstances to justify bypassing the established statutory architecture. It is argued that the invocation of Articles 22 and 258 of the Constitution does not displace jurisdictional discipline and that public interest litigation remains tethered to ripeness, exhaustion and constitutional avoidance. 6. The respondent and the 1st interested party rely on the case of **Matemu v Trusted Society of Human Rights alliance & 5 others [2013] KECA 445 (KLR)** where the court stressed that allegations of want of integrity require cogent and tested evidence. They contend that the petitioner seeks a declaration that the respondent is unfit for office without a concluded investigation by the EACC, without exhausting the Public Service Commission's disciplinary process and without any conclusive evidence linking the respondent to the alleged misconduct. They therefore submit that this court is being asked to make a finding of unfitness prematurely and in the absence of the certainty required by law. 7. The respondent and the interested party wholly reiterate the averments in their replying affidavit and maintain that the respondent’s role was administrative in nature. That by communicating the 1st interested party’s resolution of 18th September 2025, the respondent acted within the bounds of his assigned duties under section 17.1 of KETRACO’s Human Resource Policy and Procedures Manual. In addition, that the 1st interested party executed its obligations within the dictates of section 11 of the same Policy. 8. They maintain that the issues arising from the Board’s decision to place Eng. Antony Tawayi Wamukota on compulsory leave were adjudicated by the ELRC and remedies were granted as the full and final legal consequence of the Board decision. Therefore, they argue, that any further ventilation of the same substratum of facts amounts to an abuse of the process of this Court. They further submit that the substratum of the petition is spent and therefore moot. 9. The respondent and 1st interested party submit that no liability can attach to the respondent for the 1st interested party’s resolution, his role having been confined to the lawful communication thereof under the governing legal and policy framework. It is reiterated that the placement of Eng. Wamukota on compulsory leave was a measured and lawful step taken to secure unfettered investigative process in line with Regulation 62(3) of the Public Service Regulations and Clause 11.13 of the KETRACO Human Resource Policy and Procedures Manual, 2019. **The 2nd interested party’s submissions** 1. the 2nd interested party submits that it is mandated to investigate corruption, economic crimes, and unethical conduct by dint of Articles 79 and 252 of the Constitution and section 11(1)(d) of the Ethics and Anti-Corruption Commission Act, 2011 to conduct investigations on its initiative or a complaint made by a member of the public into acts of corruption, bribery, economic crimes or violation of codes of ethics. 2. It is asserted that the Commission has put in place mechanisms that protect the rights of members of the public to report acts of corruption or violation of codes of ethics. The petitioner has not demonstrated to this Court that a complaint regarding the respondent was made to the Commission or that the Commission has failed to investigate such a complaint. 3. The 2nd interested party further urges that all available avenues provided by the law must be exhausted before this Court can be approached or the orders sought can be granted. Alternatively, that a litigant has to demonstrate that the matter falls within the exceptions to the doctrine of exhaustion. It relies on **International Centre for Policy and Conflict & 5 Others vs The Attorney General & 5 Others.** 4. Reliance is also placed on **Trusted Society of Human Rights Alliance vs Attorney General & Another [2012] eKLR,** for the argument that the powers of the Court to investigate allegations of breach of the Constitution as enshrined in Article 23 of the Constitution, do not take away the fact that where the Constitution itself has established institutions in charge of certain issues, those avenues must first be exhausted before the court powers can be invoked. 5. Accordingly. the 2nd interested party argues that the petitioner has not demonstrated that the issue alleged is ripe for examination by the court because the institution concerned has failed to carry out its mandate according to the Constitution or legislation. It relies on **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** for the contention that granting the orders sought in the absence of any impropriety on the part of the 2nd interested party will be akin to fettering its mandate contrary to Section 28 of the Ethics and Anti-Corruption Commission Act which provides for its independence. 6. The 2nd interested party urges that it cannot be directed in the manner in which it should perform its constitutional and statutory mandate in the absence of impropriety on its part. Reliance is placed on **Beth Wanjiku Kiura v Attorney General & 2 others [2021] eKLR and Emmanuel Wanjala Wamalwa v Robert Pavel Oimeke & 5 others [2020] KEELRC 419 (KLR)** and Article 249 of the Constitution. **Analysis and Determination** 1. I have considered the petition, responses thereto and the rival arguments in the respective parties’ written submissions. The issues arising for determination are: 2. ***Whether this court has jurisdiction in light of the doctrine of exhaustion of remedies and constitutional avoidance*** 3. ***Whether the petition is merited*** **On Whether this court has jurisdiction in light of the doctrine of exhaustion and constitutional avoidance** 1. The respondent and 1st interested party contended and submitted that the petition is premature and offends the doctrine of exhaustion of remedies and constitutional avoidance. According to them, there is an alternative dispute resolution mechanism available in the Ethics and Anti-Corruption Act, the Leadership and integrity Act and the Public Service Commission Act that ought to have been utilised by the petitioner before invoking this court’s jurisdiction. Further that in total disregard of the provisions of section 9(2) and ((4) of the Fair Administrative Action Act, the petitioner has not demonstrated any exceptional circumstances that would make him bypass the remedies stipulated in the said Acts nor has he sought an exemption. This position is also supported by the 2nd interested party which submitted that the petitioner has not pleaded that it received a complaint and yet failed to exercise its mandate. 2. In the respondent and 1st interested party’s view, the issue of exhaustion is a jurisdictional issue that warrants to be determined first before any other issue can be considered. 3. The Supreme Court in **Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR)** stated as follows concerning jurisdiction: ***“41.This court’s jurisdiction flows from the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and the applicable statutes. See***[***Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2012/8)***, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.”*** 1. The Court of Appeal in **Public Service Commission & 4 Others v Cheruiyot & 20 Others [2022] KECA 15 (KLR*)*** had the following to say on the aspect of jurisdiction: - ***“35. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:*** ***By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.*** 1. ***The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:*** ***…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 a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.*** 1. ***A decision made by a court of law without proper jurisdiction amounts to nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.*** 2. ***The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:*** ***…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.*** 1. ***In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:*** ***(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 itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. The Supreme Court in**Munene v Kingara and 2 others [2014] eKLR**, stated that ***‘jurisdiction is a pure question of law’ and should be resolved on priority basis.*** 2. In**Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947** (KLR) it was held that: ***“15. The Preliminary objection in this matter is founded on basis of the doctrine of exhaustion. The doctrine is a sound legal one which is applicable to constitutional petitions. In essence, except in instances where the exceptions to the doctrine apply to a matter, the doctrine of exhaustion presents a complete bar to proceedings in Court. Therefore, the objection is capable of wholly disposing the matter if successful. To that end, the objection passes the propriety test and is for consideration.*** 1. Based on the foregoing authorities it is trite that a jurisdictional issue has to be determined first and that the twin doctrines of exhaustion and constitutional avoidance are jurisdictional issues. 2. Article 159(2) (c) of the Constitution recognises and entrenches the use of alternative mechanisms of dispute resolution in the following terms: - ***159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-*** ***(a)…*** ***(b)…*** ***(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.*** 1. The Supreme Court in **Sammy Ndung’u Waity v Independent Electoral & Boundari2es Commission & 3 Others [2019] eKLR** stated as follows concerning exhaustion of remedies: ***“63.Where***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complainant the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed:*** ***“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of******the Courts be 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 for resolution outside the courts.”*** 1. The Court of Appeal in the case of **Benjamin v General & 55 others [2024] KECA 1672 (KLR)** addressed this as follows:- ***“(116).The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance…”*** 1. Three Acts of Parliament have been referred to, to wit, the Ethics and Anti Corruption Commission Act, the Leadership and Integrity Act and the Public Service Commission Act. It is therefore important that this court examines the provisions of these Acts to determine whether the said Acts have alternative dispute resolution mechanisms that should have been utilised by the petitioner before invoking this court’s jurisdiction. 2. Article 79 of the Constitution mandates Parliament to enact legislation to establish an independent ethics and anti-corruption commission which shall be and have the status and powers of a Commission under Chapter Fifteen, for purposes of ensuring compliance with and enforcement of the provisions of Chapter Six of the Constitution on leadership and integrity. 3. The Ethics and Anti Corruption Act, 2011 is the Act of Parliament that enacted to give effect to Article 79 of the Constitution. Section 3 of the EAC Act- EACA establishes the Commission. Section 11 of the Act provides for the additional functions of the Commission. Clause (1) provides that in addition to the functions of the Commission under Article 252 and Chapter Six of the Constitution, the Commission shall- ***(c) receive complaints on the breach of code of ethics by public officers,*** ***(d) investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of ethics or other matter prescribed under the Act or any other law enacted pursuant to Chapter Six of the Constitution,*** ***(e) recommend appropriate action to be taken against state officers or public officers alleged to have engaged in unethical conduct and*** ***(f) oversee the enforcement of codes of ethics prescribed for public offices among others.*** 1. Section 13 (2) (b) of the Act provides that ***the Commission shall have the power to undertake preventive measures against unethical and corrupt practises and (c) conduct investigations on its own initiative or on a complaint made by any person.*** 2. Similarly, Article 80 of the Constitution mandates Parliament to enact legislation ***(a) establishing procedures and mechanisms for the effective administration of this Chapter; (b) prescribing the penalties, in addition to the penalties referred to in Article 75, that may be imposed for a contravention of this Chapter; (c) providing for the application of this Chapter, with the necessary modifications, to public officers; and (d) making any other provision necessary for ensuring the promotion of the principles of leadership and integrity mentioned in Chapter Six and its enforcement.*** 3. The Leadership and Integrity Act was enacted to give effect to Article 80 of the Constitution. Section 4 (2) of the Leadership and Integrity Act [LIA] provides that the Commission (Ethics and Anti-Corruption Commission) is responsible for overseeing and enforcing the implementation of the said Act. Under subsection (5) where a public entity has failed to comply with the requirements under subsection (3), the Commission may make an application before a High Court judge for appropriate orders requiring the public entity to comply. 4. The petitioner imputes the conduct of the respondent while undertaking his mandate at the KETRACO and questions the respondent’s fitness to hold the position he holds at that institution. According to the petitioner, the respondent is not fit for the office because ***he issued a letter for compulsory leave to Eng. Wamukota a senior employee at KETRCO and that the letter was quashed in an ELRC petition instituted by the said senior officer.*** 5. Examining the relief sought, it is clear that the petition revolves around the leadership and integrity issue against the respondent. In my view, the petition falls squarely within the mandate of the 2nd interested party EACC by dint of the above cited provisions and it has not been demonstrated that a complaint was lodged against the respondent to the EACC 2nd interested party and that the EACC refused to process the complaint. 6. In addition, Section 60 of the Public Service Commission Act Cap 185 Laws of Kenya provides that the Commission (Public Service Commission) may, upon a complaint or on its own motion, investigate the organization, administration and personnel practices of the public service. Under section 62(1) (f), the Commission is required to promote efficiency and effectiveness of the public service by investigating and making recommendations to the authorised officer on its own motion or upon receipt of a complaint on inefficiently and ineffectiveness of service delivery on public bodies including- general practices that lead to inefficiently in the public service and reported breach of any law, code of conduct or values and principles of governance and public service or making recommendation to the respective authorised officer, public body or office for the improved efficiency and effectiveness of the public service. Under section 62(2), the Commission may impose sanctions and make recommendations to the President on any penalty to be imposed on an authorised officer who does not ensure efficiency and effectiveness of a public body. 7. Indeed, as correctly stated by the respondent and the 1st and 2nd interested parties, the above provisions of the Public Service Commission Act are clear that the Public Service Commission too has the constitutional and statutory mandate to look into issues of the way in which public office personnel conduct themselves. The petitioner would therefore have used those available remedies before approaching this court. 8. Again, on exhaustion of remedies, Section 9 of the Fair Administrative Action Act, 2015 which Act gives effect to Article 47 of the Constitution that guarantees the right to fair administrative action provides that: - ***(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.*** ***(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.*** ***(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).*** ***(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.*** ***(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.*** 1. The petitioner has raised various issues regarding an administrative letter issued by the respondent. He has further pleaded violation of various constitutional provisions including Article 47 of the Constitution. Section 9(2) of the Fair Administrative Action Act is explicit that the where there is an alternative dispute resolution mechanism it ought to explore first. If this is not possible then an application should be made under section 9(4) for exemption and in exceptional circumstances. Faced with similar scenario, Mativo J (as he then was) in the decision in **Republic v Kenya Revenue Authority Ex Parte Style Industries Limited [2019] eKLR** stated, ***42. The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of a successful application under section 9(4) of the FAA Act.******[[41]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn41%22%20%5Co%20%22) The person seeking exemption must satisfy the court, first that there are exceptional circumstances, and, second, that it is in the interest of justice that the exemption be given.******[[42]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn42%22%20%5Co%20%22) Section 9(4) of the FAA Act******[[43]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn43%22%20%5Co%20%22) postulates an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. My reading of the said provision is that the applicant must first apply to the court and demonstrate the existence of exceptional circumstances.*** ***43. The law is that Section 9(4) of the FAA Act******[[44]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn44%22%20%5Co%20%22) postulates an application to the court, by the aggrieved party, for exemption from the obligation to exhaust an internal remedy. Put differently, an applicant must formally apply to the court and demonstrate exceptional circumstances. The law contemplates a situation where by an applicant makes his application, demonstrates the existence of exceptional circumstances and consistent with rules of fair play, afford the other party the opportunity to respond or disapprove his case and leave it to the court to determine. No application was presented before this court to determine the existence of exceptional circumstances; nor do I see any exceptional circumstances in the circumstances of this case.*** 1. No such application has been made or exceptional circumstance demonstrated. Therefore, the petition offends the provisions of section 9(3) and 9(4) of the Fair Administrative Actions Act. The petition therefore offends the doctrine of exhaustion. See also the decisions in **Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)** [2020] eKLR (paragraphs 52, 59. 60 and 61) and Mombasa Civil Appeal No. 166 of 2018 **Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR** (paragraphs 23, 24 and 25). 2. The other question is whether the petition also offends the doctrine of constitutional avoidance. Speaking on this doctrine the Supreme Court in the decision in **Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR)**the Court observed as follows: ***“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.*** ***Currie and de Waal opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author states:*** ***“When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”*** ***11. An important and critical issue arises from the above statements by Currie and de Waal. It is a fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware, however, of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence, all other laws give full expression to the ideals of the Constitution until found to be inconsistent with it.*** ***….*** ***The exceptions to the application of the doctrine of constitutional avoidance are: -*** ***i. where the constitutional violation is so clear and of direct relevance to the matter,*** ***ii. in the absence of an apparent alternative form of ordinary relief and*** ***iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.”*** 1. Similarly, in **C O D & another vs Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR)** 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)*** ***12. The Supreme Court of India has also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. For instance, in Re Application by Bahadur[1986] LRC (Const) the Court expressed itself as follows at page 307;*** ***“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.”*** 1. The Court further stated that: ***“14. The law above is crystal clear that where there exist sufficient and adequate mechanisms or forums to deal with a specific issue or dispute by other designated constitutional organs or under a statute, the jurisdiction of the High Court under Article 165(3) (b) of the Constitution should not be invoked until such mechanisms have been exhausted. To my mind therefore, not every litigant ought to come to court by way of a constitutional petition even where there are no constitutional issue arising and where there are adequate remedies provided in other laws to determine such situations.*** ***15. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution: See Harrikissoon v A-G [1979] 3 WLR 62. Where it is possible to decide any case or dispute , civil or criminal, without reading a constitutional issue then that is the course that should be followed. The court sitting as a constitutional court must through the doctrine of avoidance steer clear of determining such disputes as if there were constitutional questions being raised: see S v Mhlungu[1995] 3 SA 867 (CC) and also Ashwander v Tennessee 297 US 288.”*** 1. In my view, the petition offends the doctrine of **constitutional avoidance for failing to utilize the available dispute resolution mechanism stipulated in the Acts of Parliament illuminated herein above.** ***Whether the petition is merited*** 1. According to the petitioner, the petition is merited because it raises constitutional issues on the violation of articles 10, 41, 47, 73 and 232 of the Constitution. That owing to the ELRC judgment the respondent is unfit to hold office at KETRACO. It imputes the respondent’s conduct in issuing the compulsory leave letter to Eng. Wamukota. The respondent and 1st interested party have submitted that that issue is already exhausted and moot having been fully determined by the ELRC. 2. In **Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR the court stated;** ***26.A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.[17]*** ***27.The legal doctrine known as 'mootness' is well developed in constitutional law jurisprudence. Accordingly, a case is a moot one if it.*** ***[18]“...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”*** ***28.Furthermore, a case will be moot-*** ***[19]“…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”*** ***29.Barron and Dienes put it succinctly when they observe that "a case or controversy requires present flesh and blood dispute that the courts can resolve."*** ***[20]Loots, a South African constitutional commentator, endorses these sentiments and points out that a case-*** ***[21]"....is moot and therefore not justiciable if it no longer presents an existing or live controversy or the prejudice, or threat of prejudice, to the plaintiff no longer exists."*** ***30.However, a court will decide a case despite the argument of mootness if to do so would be in the public interest.[22]*** 1. Further, in **International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] KEHC 5367 (KLR)** the court stated as follows regarding an inquiry on the suitability and fitness to hold office; ***137. In our view, the key question is whether this Court is the right forum, in the first instance, to undertake an assessment of the integrity of persons presenting themselves for public office. The court ideally operates in an environment of competing legal claims founded on evidence. However, in the private sector, the enforcement of general standards of ethical conduct or professional responsibilities are, by their nature, generally collegial exercises, where peers must judge the conduct of those within their own group, profession, or own organization. In the public sector, enforcement of ethics is, to a large extent, similar to the above procedure in the private sector save that the same is regulated by statute. The mechanisms of inquiry would be set out in the parent statute. Such institutions, for example the IEBC and Ethics and Anti-Corruption Commission (EACC) are bestowed with the necessary powers to conduct, inquire and take disciplinary action.*** ***138. The Court should not descend into that arena of inquiry. Its proper role is to ensure that the inquiry is undertaken to the acceptable standards set by the Constitution. This is what distinguishes the present petitions from the one in the Trusted Society of Human Rights Alliance case (supra). In the Trusted Society case some form of inquiry had been undertaken, and the Court found that despite the said inquiry, there were still unresolved questions about the integrity of the candidate in question. There is no evidence before us of any such inquiry having been undertaken in respect of the 3rd and 4th Respondents’ integrity by the relevant institutions established by statute. Our findings as to the inquiries on the integrity of the 5th Respondent are discussed in detail elsewhere in this judgment.*** 1. This Court agrees with the respondent and the 1st interested parties that the issue of compulsory leave having been determined by the ELRC and reliefs granted to the affected party, the rights were realised and the issue is therefore moot. It is also my further finding that the petitioner should have raised the issues being raised now in the ELRC petition and therefore he is litigating in piecemeal which is against the rule that litigation must come to an end. 2. Lastly, this Court observes that the affected party, Eng. Wamukota, is not a party to this petition and therefore determining the issue of the integrity and fitness of the respondent is untenable. Further, no inquiry has been made or finding established regarding the integrity of the respondent or his fitness to hold a position at KETRACO. This Court cannot be the investigator, the prosecutor and the Judge in the petition. I find the petition not merited and the same is hereby dismissed. 3. I make no orders as to costs. 4. As I close this file, emphasize that this Court is unable to accede to the petitioner's invitation to pronounce the respondent unfit to hold public office on the material placed before it. Such a declaration is not only grave in its consequences for the individual concerned, but also for the constitutional architecture governing public service. It cannot rest upon allegation, suspicion, or judicial disquiet alone. It must be founded upon cogent evidence established through the processes prescribed by law. 5. The constitutional and statutory framework contemplates that allegations of breach of integrity by a State or public officer will ordinarily be subjected to investigation by the competent institutions mandated for that purpose. In the present case, the Court has not been referred to any investigation undertaken by the EACC nor is there evidence that the allegations were placed before that body for inquiry and determination in accordance with its statutory mandate and that EACC has slept on its job. 6. Albeit absence of such investigative findings does not foreclose judicial scrutiny where the facts independently warrant intervention, this does mean that the Court must exercise considerable restraint before making a declaration that effectively disqualifies a person from public office. 7. Courts are institutions of adjudication, not investigation. Their constitutional role is to determine disputes on the basis of evidence properly presented before them, not to assume the investigative or disciplinary functions entrusted by law to specialised constitutional and statutory bodies. To hold otherwise would risk unsettling the careful distribution of institutional responsibilities established by the Constitution and would expose public officers to findings of want of integrity without the benefit of the procedural safeguards that investigations are intended to provide. 8. This is not to suggest that the Court is powerless whenever allegations of misconduct arise. Where the evidence before the Court is sufficient to establish constitutional or statutory violations, the Court will not hesitate to grant appropriate relief. Equally, where the evidence discloses matters warranting investigation by the competent authorities, the Court may direct that those matters be brought to their attention. What the Court cannot do is substitute conjecture for proof or investigative omission for evidentiary sufficiency. 9. Accordingly, in the absence of cogent evidence demonstrating that the respondent has been found, through a lawful and fair process or on the basis of compelling evidence before this Court, to have violated the constitutional standards of integrity required of public office, the prayer seeking a declaration that the respondent is unfit to hold public office cannot succeed. 10. The rest of the reliefs sought are speculative and as they are anchored on alleged conduct of the respondent which this court has declined to accept to be amounting to violative of the Constitution, I decline to grant any of the other reliefs sought. 11. The entire petition dated 19th January, 2026 is hereby dismissed. 12. I make no orders as to costs. 13. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 1st Day of July, 2026** **R.E. ABURILI** **JUDGE**