https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13048

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E041 OF 2026** **IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 26, 42, 43, 47, 73, 75, 79, 159, 232 AND 258 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE QUANTITY SURVEYORS ACT, CAP 525, THE FAIR ADMINISTRATIVE ACTION ACT, THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT, THE NATIONAL CONSTRUCTION AUTHORITY ACT, AND THE PHYSICAL AND LAND USE PLANNING ACT** **AND** **IN THE MATTER OF THE COLLAPSE OF A BUILDING UNDER CONSTRUCTION AT KAREN, LANG’ATA SUB- COUNTY, NAIROBI CITY COUNTY** **-BETWEEN-** **FRANCIS AWINO ……………………………………………... PETITIONER** **-VERSUS-** **THE QUANTITY SURVEYORS’** **REGISTRATION BOARD …………………………….… 1ST RESPONDENT** **THE INSTITUTE OF QUANTITY** **SURVEYORS OF KENYA ................................................ 2ND RESPONDENT** **THE OFFICE OF THE DIRECTOR OF** **PUBLIC PROSECUTIONS ............................................... 3RD RESPONDENT** **-AND-** **MOSES A. NYAKIOGORA ………………………… INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The Petitioner, Francis Awino, describes himself as an adult Kenyan citizen of sound mind, a human rights activist and public interest litigant, bringing this Petition pursuant to Articles 22 and 258 of the Constitution of Kenya 2010, in defence of the Constitution, the Bill of Rights, public safety, accountability, and the rule of law. 2. The 1st Respondent, The Quantity Surveyors Registration Board, is a statutory body established under the **Quantity Surveyors Act, Cap 525** Laws of Kenya, mandated to regulate the registration, discipline, and professional conduct of Quantity Surveyors, and is constitutionally bound to protect the public interest, public safety, and professional integrity. 3. The 2nd Respondent, The Institute of Quantity Surveyors of Kenya (IQSK), is a professional body charged with upholding ethical standards, discipline and accountability among its members and is similarly bound by the Constitution, statute and public trust. 4. The 3rd Respondent, The Office of The Director of Public Prosecutions (ODPP), is a constitutional office established under Article 157 of the Constitution with the mandate to independently institute and undertake criminal proceedings in a lawful, fair, impartial, and accountable manner. 5. The factual background of the Petition is that in January 2026, a multi‑storey building under construction collapsed in Karen, along Ngong Road in Lang’ata Sub‑County, Nairobi City County. The collapse occurred while workers were on site, leading to fatalities, serious bodily injuries, permanent physical harm, psychological trauma and destruction of property. 6. Subsequently, investigations by the National Construction Authority (NCA) confirmed that the project had been undertaken without mandatory registration, approvals, inspections, or compliance certifications as required under the National Construction Authority Act. Preliminary observations attributed the disaster to poor workmanship, inadequate structural support, non‑compliance with approved plans and disregard for statutory safeguards. 7. The National Construction Authority (NCA) identified Moses A. Nyakiogora, a registered Quantity Surveyor and former Chairman of both the Institute of Quantity Surveyors of Kenya (IQSK) and the Building Inspectorate, as the developer and person in effective control of the collapsed project. 8. Despite the fatalities and clear statutory breaches, the Petition alleges that regulatory and prosecutorial bodies failed to act. That the Quantity Surveyors Registration Board the 1st Respondent herein and the IQSK the 2nd Respondent did not institute disciplinary proceedings, conduct hearings, render findings, or impose sanctions against the Interested Party. 9. It is further claimed that the Office of the Director of Public Prosecutions, the 3rd Respondent herein, failed to initiate criminal investigations or prosecutions for potential offenses such as manslaughter, criminal negligence, abuse of office and planning law violations. The Petitioner pleads that this regulatory and prosecutorial inaction underscores systemic gaps in accountability, leaving victims without justice and undermining the integrity of professional and public oversight in the construction sector. **The Petition** 1. The Petition dated 20th January 2026 seeks the following reliefs: 2. ***A DECLARATION that the failure of the 1st and 2nd Respondents to commence and conclude disciplinary proceedings against the Interested Party is unconstitutional and unlawful;*** 3. ***A DECLARATION that the inaction of the 3rd Respondent violates Articles 10, 26, 47, 73, 75, and 232 of the Constitution;*** 4. ***AN ORDER OF MANDAMUS compelling the 1st Respondent to immediately commence and conclude disciplinary proceedings against the Interested Party;*** 5. ***AN ORDER OF MANDAMUS compelling the 2nd Respondent to suspend or revoke the Interested Party's membership pending determination of culpability;*** 6. ***AN ORDER OF MANDAMUS compelling the 3rd Respondent to undertake and conclude comprehensive criminal investigations and make a prosecutorial decision;*** 7. ***A DECLARATION that deaths arising from illegal construction attract criminal and professional liability;*** 8. ***Any other or further orders this Honourable Court may deem just and fit;*** 9. ***Costs of this Petition.*** 10. The Petition is premised on the grounds and the facts on the face of it and further supported by an affidavit sworn by the Petitioner who acts *pro se*, on even date with the Petition. **Response** 1. In response to the Petition, only **the 3rd Respondent**, the Director of Public Prosecutions, filed **Grounds of Opposition** dated **4th February 2026** contending that the petition is premature, misconceived, bad in law and an abuse of the court process. 2. The 3rd Respondent states that under ***Section 24 of the National Police Service Act,*** police carry out criminal investigations, whereas the ODPP’s mandate under ***Article 157 of the Constitution*** is limited to making prosecutorial decisions. Thus, an Order of Mandamus asking the 3rd Respondent to investigate is legally misplaced. 3. Further, the 3rd Respondent states that it has already directed that investigations be carried out expeditiously and the result inquiry file be forwarded to its office for review, meaning no final decision to charge has been made yet. 4. Consequently, the 3rd Respondent asserts in its Grounds that the Petitioner has failed to demonstrate any constitutional violation of rights and that the petitioner has offended the Doctrine of Exhaustion by prematurely filing the petition before seeking a status update on pending investigations or decisions against persons of interest. 5. For these reasons, the 3rd Respondent maintains that the Petition is a non-starter and prays for its dismissal with costs. **Further Affidavit** 1. The Petitioner filed a further Affidavit sworn on **4th March 2026** responding to the 3rd Respondent’s Grounds of Opposition in which he deposes that his Petition raises serious constitutional concerns regarding an illegal construction incident. 2. The Petitioner reiterates the facts in the Petition and states that in January 2026, a multi-storey building under construction on Plot No. 12882/197 along Ngong View Lane in Karen, Lang’ata Sub-County, collapsed during concrete casting works and that this incident resulted in two fatalities, two critical injuries and minor injuries to seven other individuals. He reiterates that the plot and development are tied to the Interested Party, Mr. Moses A. Nyakiogora a registered Quantity Surveyor listed as a Fellow in good standing with the Institute of Quantity Surveyors of Kenya (IQSK) and a former Chairman of the IQSK and the Building Inspectorate. 3. The Petitioner highlights that the National Construction Authority (NCA) publicly confirmed that the project lacked mandatory registrations, statutory approvals, and required inspections prior to the collapse, leading the NCA to issue a formal suspension order. That preliminary findings indicated the collapse stemmed from unlawful construction practices, unapproved plans, poor workmanship, and a failure of the formwork system under the weight of fresh concrete. 4. It is his deposition that despite these severe statutory breaches and the loss of lives, the Quantity Surveyors Registration Board, the 1st Respondent, the Institute of Quantity Surveyors of Kenya -2nd Respondent and the Office of the Director of Public Prosecutions-mv 3rd Respondent have failed to initiate any disciplinary or criminal proceedings against the developer. 5. The Petitioner contends that this institutional inaction directly breaches fundamental constitutional guarantees, including the right to life, public safety and fair administrative action while fostering impunity within Kenya’s construction industry. 6. The petition was canvassed by way of written submissions. **Submissions** 1. **The Petitioner’s submissions** are dated **25th May 2026**. He isolates seven issues for determination: 2. ***Whether the Petition is properly before this Court and meets constitutional thresholds;*** 3. ***Whether the Petitioner has locus standi;*** 4. ***Whether the failure by the 1st and 2nd Respondents to act amounts to violation of constitutional and statutory obligations;*** 5. ***Whether the inaction complained of violates Articles 10, 26, 47, 73 and 232;*** 6. ***Whether the Petition is premature and barred by exhaustion;*** 7. ***Whether the relief of mandamus is available and*** 8. ***Whether the Petition should be allowed.*** 9. The petitioner commences with the question of locus standi and submits that the Court of Appeal in the ***Mumo Matemu*** case observed that ***Articles 22 and 258 of the Constitution*** fundamentally transformed the law of standing by replacing historical restrictions with an expansive, public-interest model. That litigants are no longer required to demonstrate direct personal injury, proprietary harm or a unique private interest to approach the court. He asserts that public interest entities and individual citizens possess constitutional standing to file proceedings to defend the rule of law and challenge alleged constitutional breaches, provided the litigation is brought *bona fide* and is not hypothetical, abstract or an abuse of the court process. 10. He submits that the Constitution establishes a broad, citizen-centered model allowing litigation to be brought by individuals acting in their own interest, on behalf of others, as part of a group, or in the public interest and that this deliberate framework removes procedural obstacles to ensure citizens can hold public bodies accountable and preserve constitutional order without being limited to immediate victims. 11. It is submitted that because the Petition involves public safety, regulatory inaction, professional accountability and the protection of life following a fatal incident, the Petitioner retains proper *locus standi* as a public interest litigant. Under ***Article 3(1),*** every citizen has a duty to uphold the Constitution, making the suit a legitimate exercise of constitutional citizenship. 12. The Petitioner also cites the Court of Appeal’s decision in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR)*** which reaffirmed that constitutional pleadings must adhere to the standard established in ***Anarita Karimi Njeru v Republic [1979] KLR.*** He outlines that to establish a valid constitutional petition, a litigant is required to plead with reasonable precision the specific constitutional provisions alleged to have been violated, the exact acts or omissions complained of, and the specific remedies sought. 13. The Petitioner submits on the 1st issue that although the Court of Appeal clarified that ***Anarita Karimi Njeru*** should not be applied mechanically or formalistically to create procedural hurdles to public interest access, it emphasized that procedural rules remain essential to afford fair notice to adverse parties and define the precise matters in dispute. That where a Petition relies on generalized allegations of constitutional infringements without setting out basic underlying facts and particulars, it fails to meet the requisite standard of constitutional pleading. 14. He states that the Petition meets this threshold by specifically identifying the violated constitutional provisions, ***Articles 10, 26, 47, 73, 75*** and ***232***, detailing the specific omissions regarding statutory duties and regulatory inaction, naming the responsible public bodies, outlining the concrete reliefs sought, and setting out an extensive factual foundation. He asserts that with the factual averments remaining largely uncontroverted by the key Respondents, the matter presents a live constitutional controversy properly before the Court for determination on its merits. 15. On the third issue it is submitted that the 1st and 2nd Respondents failed to discharge their binding constitutional and statutory obligations following the fatal building collapse. That under the 2010 Constitution, public authorities are constitutional fiduciaries required to actively discharge their mandates to protect public safety and rights. It is asserted that passivity is impermissible when human life and regulatory compliance are threatened, as statutory regulatory duties are affirmative, proactive and continuous rather than purely discretionary. 16. He adds that under ***Article 10***, principles of good governance, transparency, accountability and responsiveness require public bodies to demonstrate substantive engagement with their statutory duties. ***Article 232*** reinforces these as enforceable constitutional requirements demanding high ethical standards, efficiency, and prompt responsiveness to public needs, while ***Article 47*** guarantees fair, reasonable, and expeditious administrative action. 17. The petitioner relies on J***udicial Service Commission v Mbalu Mutava*** and ***Dry Associates Limited v Capital Markets Authority*** in his submission that administrative justice is a direct constitutional imperative and that inaction or silence when action is required constitutes an unlawful breach of ***Article 4***. 18. The Petitioner emphasizes that he is not asking the Court to take over regulatory or disciplinary functions. Rather, the complaint is that despite a public tragedy involving loss of life, the 1st and 2nd Respondents failed to initiate any form of investigation, enforcement, inspection, or preliminary inquiry. That this regulatory silence and total abdication of responsibility in the face of foreseeable risk to fundamental rights violates constitutional duties, inviting judicial intervention. 19. It is the Petitioner’s further submission that the Respondents’ complete failure to act or investigate following a fatal incident constitutes a multi-layered breach of constitutional duties rather than a mere administrative oversight. That by failing to take proactive steps against known public safety hazards, the Respondents violated the positive obligation under ***Article 26*** to protect human life. Furthermore, this institutional silence and unjustified delay infringe upon ***Article 47 and the Fair Administrative Action Act***, which demand that administrative justice cover both actions and omissions through reasonable, prompt, and rational procedures. 20. Additionally, he argues that this sustained inaction undermines the overarching values of public governance and administrative integrity. That by ignoring the tragedy, the Respondents breached ***Article 10’s*** national values of transparency and accountability, as well as ***Article 73’s*** mandate that public authority remain a public trust. Coupled with a failure to meet the efficiency and responsiveness standards required of public service under ***Article 232,*** it is submitted that this institutional neglect severely erodes public confidence, necessitating direct judicial intervention to restore constitutional compliance and the rule of law. 21. No submissions were made with respect to issues 5, 6 and 7. 22. The 3rd Respondent, the Director of Public Prosecutions (DPP), filed written submissions dated **21st May 2026**. It is submitted that the Petition is premature, speculative and completely devoid of merit, as no investigation file has yet to be forwarded to its office for review or decision-making. Relying on ***Anarita Karimi Njeru v Republic*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance***, the DPP argues that constitutional claims require a ripe, identifiable dispute rather than hypothetical grievances. 23. The DPP contends that its constitutional mandate under ***Article 157*** is strictly to independently evaluate evidence and make prosecutorial decisions, not to conduct criminal investigations, which legally fall under the domain of the National Police Service pursuant to ***Section 24 of the National Police Service Act***. Consequently, that compelling the DPP to carry out investigations would violate the constitutional division of powers among state organs. 24. The DPP further maintains that the Petitioner has failed to meet the required evidentiary threshold to demonstrate any violation of constitutional rights under ***Articles 10, 26, 47, 73, or 232***. That directives have already been issued to expedite investigations, meaning the DPP has acted fully within his legal bounds, and that mere dissatisfaction with the speed of an ongoing inquiry does not amount to a constitutional breach. 25. Relying on ***Diamond Hasham Lalji*** and ***Meixner v Attorney General***, the DPP submits that courts must safeguard prosecutorial independence under ***Article 157(10)*** unless clear evidence shows illegality, bad faith, or abuse of power. 26. Finally, the DPP argues that the petition offends the doctrine of exhaustion established in ***Speaker of the National Assembly v Karume*** by bypassing administrative processes without exceptional justification, thereby rendering the petition an abuse of the court process. He urges the court to dismiss the petition with costs. **Analysis and Determination** 1. I have considered the petition and response by the 3rd respondent as well as their written submissions. The following issues arise for determination: - 2. ***Whether the Petitioner has locus standi*** 3. ***Whether the Petition is premature and barred by the doctrine of exhaustion and or constitutional avoidance.*** ***Whether the Petitioner has locus standi*** 1. The issue of *locus standi* is now well settled. In **William Odhiambo Ramogi & 2 Others vs. Attorney General & 6 Others [2018] eKLR**, the court stated that: - ***“68. ……. The judicial approach to locus standi has been relaxed post-2010 courtesy of Articles 22 and 258 of the Constitution. The import of the said provisions is that every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or claiming that the Constitution has been contravened or is threatened with contravention. In addition to a person acting in their own interest, Court proceedings under Articles 22(1) and 258(1) of the Constitution may be instituted by—*** ***a. a person acting on behalf of another person who cannot act in their own name;*** ***b. a person acting as a member of, or in the interest of, a group or class of persons;*** ***c. a person acting in the public interest; or*** ***d. an association acting in the interest of one or more of its members.*** ***69. The issue of locus standi in Constitutional Petitions is now well settled. The Court of Appeal in Nairobi Civil Appeal No. 290 of 2012 Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR substantively dealt with the issue and laid down the applicable test which was affirmed by the Supreme Court. In that case it was argued that the Respondent, an NGO (Trusted Society of Human Rights Alliance) whose mandate included the pursuit of constitutionalism lacked locus standi to challenge the appointment of Mumo Matemu as the Chair of the Ethics and Anti-Corporation Commission. In responding to the question, the Court of Appeal firmly stated as follows:*** ***26. It is hard to maintain the argument that the first respondent did not suffer any injury to warrant this standing to lodge the Petition before the High Court. It is equally hard to maintain the position that the first Respondent was acting as an interlocutor for a private third party, in a matter of public interest such as this. In the context of our commitment to integrity in leadership as expressed in the Constitution, we cannot gainsay the importance of the issue of the leadership and institutional integrity of the Ethic and Anti-Corruption Commission.*** ***27. More so, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the Courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the Petition was filed before the High Court by an NGO whose mandate includes pursuit of constitutionalism and we therefore reject the arguments of lack of standing by Counsel for the Appellant. We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the Petition. Apart from this, we agree with the Superior Court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution....*** ***28. It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some specific interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest …*** ***29. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reasons of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution …”*** 1. **Articles 22 and 258 of the Constitution** create a broad standing for parties to institute constitutional proceedings. **Article 22(2)** enlarges the class of people who can file constitutional suits by stipulating that any person can bring proceedings on behalf of another whose rights are threatened, on behalf of a group or class of persons, or in the public interest. 2. **Article 258(2)** empowers any person to institute proceedings claiming that the Constitution has been contravened, whether or not that person has suffered personal injury or proprietary loss. This expansion reflects a deliberate constitutional design to promote access to justice and safeguard public interest by ensuring that violations of the Constitution can be challenged even where individual harm is not easily demonstrable. 3. In the present case, the Petitioner approaches the Court as a public interest litigant following a fatal construction collapse those questions public safety, regulatory compliance and professional accountability. He asserts that the collapse resulted in loss of life, serious injuries and destruction of property, raising systemic questions of governance and enforcement of statutory safeguards. 4. By invoking **Articles 22 and 258**, the Petitioner places the claim within the broader public interest, seeking judicial intervention to prevent recurrence and to enforce constitutional obligations of accountability. 5. I therefore find that the Petitioner has demonstrated sufficient *locus standi*, as the matter transcends individual grievances and touches on fundamental constitutional values of human dignity, safety and the rule of law. 6. ***Whether the is premature and barred by the doctrine of exhaustion.*** 7. The exhaustion of remedies doctrine has been explained in several authorities. The Court of Appeal in **National Assembly v. Njenga Karume [1992] 1KLR 425** held that:- ***“There was considerable merit in the submission that where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of parliament that procedure should have been strictly followed.”*** 1. In **Republic v IEBC Ex Parte NASA-Kenya & 6 Others [2017] eKLR**, the doctrine of exhaustion was well laid out by a three-judge bench as follows:- ***“42. This doctrine [of exhaustion] is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words: -*** ***‘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.’*** ***43.While this case was decided before the Constitution of Kenya, 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal stated that:-*** ***It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be 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. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.*** 1. The Petitioner seeks an order of mandamus compelling the 3rd Respondent to conduct criminal investigations and make a prosecutorial decision. He also decries inaction by the Regulators, who are the 1st and 2nd respondents herein and the police, the latter who are not parties to the petition. In this regard, I find it necessary to set out the constitutional and statutory division of functions between investigative and regulatory agencies and the Office of the Director of Public Prosecutions (ODPP). 2. **Article 157 of the Constitution** vests the ODPP with the power to institute and undertake criminal proceedings. This role is limited to prosecutorial powers only and does not confer investigative powers. **Section 24 of the National Police Service Act**, on the other hand, provides the mandate of criminal investigations, including interviewing witnesses, gathering evidence, and compiling inquiry files to the National Police Service through its Directorate of Criminal Investigations. In both cases, none of these functions is subject to the control of any person or office. The regulators on their part, the 1st and 2nd respondents, regulate the practice of the respective professions and set standards for the professionals in the respective professions. 3. Accordingly, while the ODPP has the constitutional authority to review evidence and decide whether to prosecute, it cannot itself initiate or conduct investigations. The proper course is for the National Police Service to carry out investigations and submit the investigations file to the ODPP, which latter then exercises its discretion under **Article 157(6)** to prosecute or decline prosecution. 4. Section 11 of the Architects and Quantity Surveyors Act (**AQS Ac**t) provides for removal of a person registered under the Act from the Register is such person has, among other things, **been found by the Board to be guilty of misconduct as is described in**[**section 13**](https://kenyalaw.org/akn/ke/act/1933/60/eng%402023-12-11#sec_13)**of the Act**. 5. Under the Architects and Quantity Surveyors Act: ***13. Orders to suspend registration, etc.*** ***If any person registered under this Act is convicted of an offence under this Act, or is, after due inquiry held by the Board, found to have been guilty of any act or omission amounting to improper or disgraceful conduct in a professional respect the Board may—*** ***(a) caution or censure such person;*** ***(b) direct that, during such period as the Board may specify, his registration shall not have effect;*** ***(c) impose a fine not exceeding five thousand shillings on that person; or*** ***(d) direct that his name be removed from the register.*** ***13A. Appeals*** ***(1) Any person aggrieved by a decision of the Board to refuse to register his name, or to remove his name from the register, or to suspend the effect of registration of his name, or to refuse to restore his name to the register, may appeal to the High Court against the decision of the Board and in any such appeal the High Court may give such directions in the matter as it thinks proper, and any order of the High Court under this section shall be final.*** ***(2) The Board may appear as respondent and be heard at any appeal against its decision and, for the purpose of enabling directions to be given as to costs of any such appeal, the Board shall be deemed to be a party thereto, whether or not it appears at the hearing of the appeal.*** ***(3) Until rules of court are made under the Judicature Act (Cap. 8) for such appeals, and subject to any such rules when made, the provisions of the Civil Procedure Act (Cap. 21) shall apply as if the decision or direction of the Board appealed against under this section were a decree of a court exercising original jurisdiction.*** 1. The Architects and Quantity Surveyors By laws provide for a complaint processing mechanism as follows: ***INQUIRY INTO CONDUCT OF ARCHITECTS AND QUANTITY SURVEYORS*** ***46. Institution of inquiry*** ***(1)Inquiry into the conduct of a registered person may be instituted by the Board upon the Board’s initiative or upon complaint addressed to the Board in writing, made by or on behalf of any person alleging unprofessional conduct on the part of a registered person.(2)The Board may conduct such inquiry or may refer the inquiry to a subcommittee appointed by the Board for the purpose.*** ***47. Complainant to file particulars on affidavit if required*** ***The Board may require the complainant to file further particulars of any of the matters complained of and may require the complaint or any part thereof to be verified by affidavit.*** ***48. Person complained of to be notified*** ***Upon receipt of a complaint against a registered person, the Board shall notify the person complained of, giving the grounds of the complaint, under cover of registered letter, sent to his last address acknowledged by the Registrar.*** ***49. Person complained of to file explanation*** ***The Board may call upon the person whose conduct is complained of or is under investigation to file, within ten days thereafter, an explanation in answer to the complaint and may require such explanation to be verified by affidavit.*** ***50. Person complained of to appear in person and produce documents*** ***The Board may summon before it any registered person against whom any complaint may be lodged or whose conduct may appear to the Board to require investigation or order such person to appear before a subcommittee appointed for the purpose of investigation and may call upon such person to produce any document, contract, book, paper, drawing, specification, quantities or other writing in his possession or under his control in any way relating to or concerning the complaint or matter under investigation and may hear any evidence and inspect any document which the complainant or the party complained against may desire to adduce.*** ***51. Right of person complained of to appear before Board*** ***The person against whom the complaint is made shall have the right to appear before the Board and to be heard either personally or through his advocate and may call such evidence and produce such documents as may be relevant.*** ***52. Failure of person complained of to appear at inquiry*** ***Should such person not appear or not file such explanation as provided in by-laws 49 and 50 the inquiry may be proceeded with forthwith.*** ***53. Board’s action on completion of inquiry*** ***The Board having inquired into the alleged misconduct of any person may—(a)take no further action; or(b)caution the person; or(c)inflict a fine, not exceeding £100 on the said person; or(d)apply to the High Court in the terms of section 13 of the Act and thereupon act accordingly.*** 1. The By-laws are made pursuant to section 5 of the Act and in particular, at section 5 (e), ***for a definition of unprofessional conduct and for determining the mode of inquiry into and the method of dealing with such conduct and the penalties which may be imposed upon any member found guilty of such conduct;*** 2. The above provisions set out a clear complaints processing mechanisms against the professionals registered under the Act. In the present case, there is no evidence that the petitioner invoked provisions of the Act to first institute a complaint or to demand that the 1st and 2nd respondents institute an inquiry into the circumstances leading to the collapse of the building and take action against the person of interest and that the said respondents have refused to act in accordance with the provisions of the Act as reproduced hereinabove. 3. In **Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited [2013] eKLR** Lenaola J (as he then was in the High Court) stated: - ***“…Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…”*** 1. The Supreme Court in **Albert Chaurembo Mumba & 7 Others v. Maurice Munyao & 148 Others [2019] eKLR** held that, courts must exercise restraint and deference to statutory bodies established by Parliament to deal with specific technical disputes in the first instance. The apex court observed thus: - ***“(118). In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant parent statute.”*** 1. In other words, parties are not expected to bypass known legal procedures through artful or multifaceted pleading by invoking this Court’s original jurisdiction. This principle finds further support in the statutory framework of Section 9(2) and (3) of the Fair Administrative Action Act, 2015, which Act implements Article 47 of the Constitution that guarantees every person the right to fair administrative action. The section explicitly bars the High Court from reviewing administrative decisions or grievances unless all internal and statutory mechanisms for appeal or review are first exhausted. 2. Similarly, Article 159(2)(c) of the Constitution mandates this Court and Tribunals to promote the use of Alternative dispute resolution mechanisms. 3. On the part of the DPP, its mandate under Article 157 of the Constitution is clear and there is no evidence that the police investigations file had been submitted to the 3rd Respondent for review and that the 3rd Respondent DPP had declined or delayed to Act. The 3rd Respondent has sworn an affidavit stating that the ODPP had in fact, issued directives for the swift completion of investigations, this being the correct legal course and until an inquiry file is forwarded to the 3rd Respondent, the DPP cannot be said to have failed or refused to make a prosecution decision, or that it has acted with demonstrated bad faith, gross irrationality, or illegalities. As the facts stand, no justiciable grievance crystallizes against the ODPP. 4. Accordingly, compelling the DPP to undertake investigations directly would compel it to exercise powers *ultra vires*, that is, outside its constitutional mandate. Furthermore, the 3rd Respondent’s prosecutorial discretion as already stated is insulated from direction or control by any person or authority, including the courts. While judicial review may lie to check illegality, irrationality, or procedural impropriety, the Court cannot substitute its own judgment for that of the DPP or compel the exercise of discretion in a particular manner. To do so would offend the doctrine of separation of powers and undermine the constitutional independence of the prosecutorial office. 5. On the part of the 1st and 2nd respondents, there is no material placed before this Court to show that they have refused and or declined to enforce provisions of the Act and as per the bylaws made under section 5 of the Architects and =Quantity Surveyors Act, to carry out an inquiry against the person of Interest, to warrant mandamus to issue. 6. The petitioner has not demonstrated that he sought clarification from any of the respondents regarding the status of the Inquiry or investigations and possible prosecution or even any information pertaining to the incident and actions undertaken. 7. It is trite that constitutional litigation is not intended to supplant ordinary administrative engagement or to be invoked as a first resort without exhausting available avenues of inquiry. By failing to seek clarification or request updates from the relevant regulatory and investigations authorities, I find that the Petitioner deprived the Respondents of an opportunity to explain or demonstrate ongoing action. In these circumstances, the alleged grievance was premature and the Petition amounts to an unnecessary constitutional escalation rather than a genuine enforcement of rights. 8. The doctrine of 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 not be disguised and tried as Constitutional litigations. 9. Illuminating 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 efficient 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.”*** 1. In **C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR,** the Court observed: ***“11. Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011 whereafter 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).*** ***40. In Re Application by Bahadur[1986] LRC (Const), the Supreme Court of India 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 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.”*** ***41. 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 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. In **Valentine Odhiambo& 2 others v Hf Development & Investment Ltd & another [2021] KEELC 392 (KLR)**, the Court observed that constitutional litigation should not be the first port of call where other mechanisms are adequate and available. The Court stated that courts should avoid deciding constitutional issues if a matter can be resolved through statutory or administrative mechanisms. In arriving at that decision, the court stated as follows: ***“The 1st Respondent’s objection which is supported by the 2nd Respondent is that the Petition offends the doctrine of constitutional avoidance. In so doing, the 1st Respondent referred to the Supreme Court decision in Communications Commission of Kenya and 5 Others vs Royal Media Services Limited & 5 Others (Supra). The Supreme Court held that the principle of avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.”*** 1. The Court in the above case further stated: ***“On the jurisdiction of the Water Tribunal established under the Water Act, this Court agrees with the Petitioners that it would not have the jurisdiction to determine any dispute (if any) between the 2nd Respondent. Section 121 of the Water Act, 2016 stipulates the jurisdiction of the Tribunal. First and foremost being to handle appeals from the decisions of the Cabinet Secretary, the Authority and Regulatory Board or any other person acting under their authority. Secondly, the Tribunal shall hear and determine any dispute concerning water resources or water services where there is a business contract and where parties have not otherwise agreed on alternative dispute resolution mechanism.”*** 1. I have already found that the DPP cannot be compelled to investigate alleged crimes as that is not within its constitutional mandate. I have further found that there is a clear statutory mechanism regulating the interested party’s profession, discipline and an inquiry under the **AQS Act** may lead to prosecution just as the police investigations would, where sufficient evidence is found to link the offending professional to the alleged negligent Acts that led to loss of lives. 2. In the end, I find that the Petition is premature ly filed before this Court and the same is hereby dismissed for want of justiciability and for failure to exhaust the available alternative statutory remedies. 3. There shall be no orders as to costs. 4. This file is closed. 5. Orders accordingly. **Dated, Signed & Delivered virtually at Nairobi this 20th Day of August, 2026** **R.E. ABURILI** **JUDGE**