https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10211

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E794 OF 2025** **IN THE MATTER OF ARTICLES 1, 2, 3, 10, 22, 23, 35, 47, 73, 201, 232 AND 258 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ALLEGED VIOLATIONS OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE, THE RIGHT TO ACCESS INFORMATION, THE RIGHT TO FAIR ADMINISTRATIVE ACTION, PUBLIC FINANCIAL INTEGRITY, LEADERSHIP AND INTEGRITY REQUIREMENTS AND PRINCIPLES OF PUBLIC SERVICE** **AND** **IN THE MATTER OF THE CAPITAL MARKETS ACT (САР. 485A), THE CAPITAL MARKETS (TAKE-OVERS AND MERGERS) REGULATIONS, 2002, AND THE REGULATORY MANDATE OF THE CAPITAL MARKETS AUTHORITY** **AND** **IN THE MATTER OF THE PROPOSED ACQUISITION OF 29.2% OF THE ISSUED SHARE CAPITAL OF EAST AFRICAN PORTLAND CEMENT PLC BY KALAHARI CEMENT LIMITED AND THE REGULATORY HANDLING THEREOF BY THE CHIEF EXECUTIVE OFFICER OF THE CAPITAL MARKETS AUTHORITY** **-BETWEEN-** **FRANCIS AWINO ………………………………………...….. PETITIONER** **-VERSUS-** **WYCLIFFE M. SHAMIAH ……………...………………… RESPONDENT** **-AND-** **THE CAPITAL MARKETS AUTHORITY … 1ST INTERESTED PARTY** **THE NATIONAL SOCIAL SECURITY FUND (NSSF) …………………………………………………… 2ND INTERESTED PARTY** **JUDGMENT** **Background** 1. The Petitioner, Francis Awino, describes himself as is an adult Kenyan citizen, a public interest litigant and an advocate for transparent governance in public institutions and capital markets. He brings this Petition under Articles 22 and 258 of the Constitution in the public interest, seeking judicial intervention to address alleged unconstitutional, unlawful and procedurally unfair regulatory actions and omissions by the Respondent in the exercise of public authority. 2. The Respondent, Wyckliffe M. Shamiah, is decribed as he current Chief Executive Officer of the **Capital Markets Authority**, appointed to that office on 19th November 2020. He is sued in his official capacity as the statutory and administrative head of the Authority responsible for regulatory oversight over capital markets, and in his personal capacity to the extent that he bears constitutional obligations of transparency, accountability, integrity and fair administrative conduct. 3. The Respondent is said to be charged with implementing and enforcing the **Capital Markets Act** and its subsidiary legislation, including the **Capital Markets (Take-overs and Mergers) Regulations, 2002**, and is the ultimate supervisory authority over disclosures, approvals, exemptions and regulatory decisions pertaining to the transaction that is the subject of this Petition. 4. The 1st Interested Party, **The Capital Markets Authority (CMA)** is described as a statutory regulatory body established under **Section 5 of the Capital Markets Act** with the mandate to regulate and supervise capital markets in Kenya. 5. The Petition challenges the decisions, omissions and processes allegedly undertaken under the authority and direction of its C**hief Executive Officer**. 6. The CMA is joined as an Interested Party to facilitate the enforcement of any orders of this Honourable Court and to provide the institutional context and records necessary for fair and complete adjudication. 7. The 2nd Interested Party, the **National Social Security Fund (NSSF)** is described as a statutory institution established under the **NSSF Act** charged with safeguarding public retirement savings. The NSSF is also said to be one of the largest shareholders in **East African Portland Cement Plc**. 8. The petition claims that the proposed transfer of 29.2% of the company’s shares and the alleged regulatory failures have a direct bearing on the Fund’s financial exposure and obligations to the public. Its participation is said to be necessary to represent the interests of contributors and ensure that issues of public financial integrity are comprehensively addressed. 9. **The Petition** is dated **2nd December 2025** and is centred on a **Share Purchase Agreement (SPA)** dated 31st July 2025, through which a newly incorporated entity, **Kalahari Cement Limited**, seeks to acquire a 29.2% stake (26,324,884 shares) in **East African Portland Cement Plc (EAPC**) at a cost of Kshs. 27.30 per share. 10. The Petitioner’s beef is the alleged Respondent’s arbitrary and opaque handling of the transaction which in his view, violates constitutional rights regarding fair administrative action under *Article 47,* access to information under *Article 35* and the prudent management of public resources under *Article 201.* 11. The Petition seeks the following reliefs: - 12. ***A DECLARATION that the actions, omissions, conduct, and decisions of the Respondent in purporting to process or consider the allocation of Land Reference No. 13871 (L.R. No. 141305) to unqualified, non-resident, and fraudulent claimants constitute a violation of Articles 10, 35, 40, 47, 60, 67, 73, 75, 232 of the Constitution of Kenya, the Land Act, the Land Registration Act, and the National Land Commission Act.*** 13. ***A DECLARATION that the Respondent, by entertaining. endorsing, or facilitating an unlawful allocation process based on false claims, acted ultra vires, in bad faith, and in gross violation of the principles of integrity, accountability, transparency, and lawful administration of land in Kenya.*** 14. ***A DECLARATION that the Respondent's conduct amounts to gross misconduct, abuse of office, dereliction of duty, and violation of Chapter Six of the Constitution, thereby rendering him UNFIT to hold public office within the meaning of Articles 73, 75, and 259 of the Constitution.*** 15. ***A DECLARATION that the true and lawful representatives and residents of Land Reference No. 13871 (L.R. No. 141305) are the persons listed in the petition and not the individuals falsely presenting themselves as owners or beneficiaries.*** 16. ***AN ORDER OF PROHIBITION restraining the Respondent, his agents, employees, assigns, or any persons acting under his authority from processing, issuing, approving, allocating, alienating, or otherwise dealing with Land Reference No. 13871 (L.R. No. 141305) in favour of persons who are not the lawful owners or residents of the said land.*** 17. ***AN ORDER OF MANDAMUS compelling the Respondent to carry out his constitutional and statutory duties strictly in accordance with the Constitution, the Land Act, the Land Registration Act, and all applicable land administration regulations.*** 18. ***AN ORDER OF MANDAMUS compelling the Respondent to forthwith undertake a verification exercise and formally recognise the lawful community representatives of the land as listed in this Petition.*** 19. ***AN ORDER OF CERTIORARI quashing, nullifying, and expunging from all public records any application, recommendation, approval, correspondence, or administrative step made in relation to the attempted illegal allocation of Land Reference No. 13871 (L.R. No. 141305).*** 20. ***AN ORDER directing the Ethics and Anti-Corruption Commission (EACC), the Director of Public Prosecutions (DPP), and the Head of Public Service to commence immediate investigations into the Respondent's conduct, with a view to instituting appropriate criminal, civil, and administrative proceedings.*** 21. ***AN ORDER directing the President, the Public Service Commission, and Parliament (where applicable) to initiate removal proceedings against the Respondent for gross violation of the Constitution, abuse of office, and breach of integrity requirements under Chapter Six of the Constitution.*** 22. ***A PERMANENT INJUNCTION restraining the Respondent or any person claiming through him from ever purporting to deal with, allocate, alienate, or transact Land Reference No. 13871 (L.R. No. 141305) contrary to the rights and interests of the rightful community.*** 23. ***GENERAL DAMAGES, aggravated damages, and compensation for the threatened violation of constitutional rights and community land interests, to be assessed by the Court.*** 24. ***COSTS of this Petition.*** 25. ***Any other or further orders, reliefs, declarations, or directions that this Honourable Court may deem fit, just, and expedient to grant in the circumstances of this case.*** 26. The Petition is premised on the facts pleaded therein and the averments of the Petitioner in his Supporting Affidavit sworn on even date in which he deposes challenging the Capital Markets Authority’s (CMA) alleged opaque regulatory handling of the Share Purchase Agreement dated 31st July 2025, which allows Kalahari Cement Limited to acquire a 29.2% effective controlling stake in East African Portland Cement Plc (EAPC) from Associated International Cement Limited and Cementia Holding AG at Kshs. 27.30 per share. 27. The Petitioner avers that the Respondent processed this major acquisition as a secretive private transaction, failing to mandate a public takeover offer to protect minority shareholders, justify the undervalued share price, or disclose critical valuation and due diligence reports. 28. He further contends that the Respondent failed to provide reasoned explanations for exempting Kalahari from the mandatory take-over requirements. The Petitioner also asserts that the transaction effectively hands company control to Kalahari. 29. It is further deposed that because EAPC’s major shareholders include the National Treasury and the NSSF, the Petitioner contends that the Respondent’s failure to provide proper oversight or independent valuation reports directly risks public financial loss. He states that he made formal information demands to the CMA but received an inadequate and incomplete response. 30. The Petitioner argues that these omissions constitute an unlawful abdication of statutory duty that violates ***Articles 10, 35, 47, 73, 232 and 201 of the Constitution*** by compromising transparency, access to information, fair administrative action, public service integrity and the heightened financial vigilance required to prevent severe losses to the public funds invested through the National Treasury and the NSSF. 31. The Petition is not responded to despite service upon the Respondent and the Interested Parties. The Petitioner has since filed his written submissions which are now on record. **Submissions** 1. **The Petitioner’s Submissions** are **dated 18th February 2026**. The Petitioner who appears in person isolates four issues for determination being: 2. ***Whether the Petition meets the constitutional threshold for a public interest constitutional petition;*** 3. ***Whether the Respondent violated the Petitioner’s Constitutional rights particularly Article 35 and 47 of the Constitution;*** 4. ***Whether the Respondent acted ultra vires his statutory mandate contrary to the Constitution in the regulation of the EAPC Transaction; and*** 5. ***Costs.*** 6. On the first issue, the petitioner submits that the case is not a private commercial matter, because the transaction involves public resources, pension savings through the 2nd Interested Party (NSSF) and a state regulator, any citizen has the right to act as a public watchdog. That under the Constitution, a petitioner does not need to prove personal loss or direct injury to have *locus standi* in constitutional public interest litigation. 7. The petitioner cites the case of ***Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 Others (2013) eKLR*** in support and states that the Petition meets the public interest threshold under ***Articles 22 & 258*** of the Constitution. The case of ***Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General (2012) eKLR*** is cited to show that a person need not show personal injury where the issue concerns the legality of the conduct of public officials and observance of constitutional values. 8. He further cites ***Trusted Society of Human Rights Alliance v Attorney General & 2 Others (2012) eKLR*** as well as the Supreme Court decision in ***Communications Commission of Kenya & 5 Others v Royal Media Service Ltd & 5 Others (2014) eKLR*** for the proposition that public interest litigation is an essential enforcement mechanism under the constitution in which the courts should be reluctant to place technical obstacles before litigants. 9. On the second issue, the Petitioner argues that the 1st Interested Party the CMA is a state organ and has a positive duty to disclose information. That by withholding essential regulatory records including valuation analyses and legal determinations, the Respondent blocked public accountability and investor transparency in violation of the Right to Information under ***Article 35 of the Constitution.*** 10. The ep[titioners cites the case of ***Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company & 2 Others (2013) eKLR*** and ***Katiba Institute v Presidents Delivery Unit & 3 Others (2017) eKLR*** where the courts are said to have stressed that the default position under ***Article 35*** for public institutions is disclosure. That in this case, the information sought by the Petitioner was not private commercial information but was regulatory information which required the exercise of statutory authority and safeguarding of public investments. 11. On the third issue, the petitioner submits that administrative regulatory bodies are constitutionally obligated to offer reasoned decisions in accordance with Article 47. He asserts that the constitutional requirement to give reasons for administrative decisions is no longer optional as stated in the case of ***Judicial Service Commission v Mbalu Mutava & Another (2015) eKLR, Dry Associates Limited v Capital Markets Authority & Ano (2012) eKLR*** and the Court of Appeal’s decision in ***Suchan Investment Ltd v Ministry of National Heritage and Culture & 3 Others (2016) eKLR***. 12. It is submitted that the Respondent’s failure to publish a formal regulatory decision or issue written explanations regarding the transaction amounts to arbitrary, unconstitutional administrative conduct in violation of fair administrative action under ***Article 47 of the Constitution***. 13. On the final issue, the petitioner submits that a statutory body has no inherent powers and must operate strictly within the law. He cites the cases of ***Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Ltd (2004) eKLR; Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300;*** and ***Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others (2014) eKLR*** in this regard. 14. He submits that by treating a substantial control transaction comprising 29.2% stake as a private arrangement and failing to enforce mandatory takeover rules, the Respondent effectively abdicated his legal duties. It is submitted that this undermined national values of public financial integrity, openness, and prudence under *Articles 10, 73, 201, and 232* and was an abuse ofstatutory mandate***.*** 15. It is the Petitioner’s submission that public office is a trust that cannot be executed in opacity. He urges the Court to allow the Petition, grant the requested declarations and judicial review orders, award compensatory reliefs and award the costs of the suit to the Petitioner. **Analysis of the Issue(s) for Determination** 1. I have carefully read the entire Petition, the supporting affidavit and the elaborate submissions by the Petitioner. I note that there is a severe mismatch between the body or the facts of the Petition and the final prayers sought. 2. I note that pages 1 through 19 comprehensively detail a capital markets dispute regarding the corporate acquisition of shares in East African Portland Cement Plc, but the Prayers enlisted on pages 20–22,numbered (a–n) completely shifts focus to a land dispute involving the irregular allocation of ***Land Reference No. 13871 (L.R. No. 141305)****.* 3. This indicates a major, fatal and an incurable copy-paste blunder where the remedies from an entirely unrelated land law petition were appended to this capital markets Petition. In light of this, the only issue for my determination is ***whether the Petition is competent for determination by the Court.*** 4. I begin by first citing the Court of Appeal decision in **E. Muriu Kamau & Another v. National Bank of Kenya Ltd., CA No. 258 of 2009 (UR180/2009),** where the learned judges alluded to the overriding objective and held that: - ***“The courts… in interpreting the Civil Procedure Act or the Appellate Jurisdiction Act or exercising any power must take into consideration the overriding objective as defined in the two Acts. Some of the principle aims of the overriding objective include the need to act justly in every situation; and the need to have regard to the principle of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of all is maintained and that as far as it is practicable to place the parties on equal footing.*** (Emphasis added). 1. The main question for this Court is whether the glaring discrepancy between the petition and the reliefs sought is merely a technical procedural issue curable under Article 159 (2) (d) of the Constitution or a substantive issue that defeats the Petition. 2. As already pointed out above, the prayers in the Petition are incongruent to the facts of the Petitioner’s case. While the Petition is anchored on the facts and the averments in the Affidavit, it ultimately boils down to the prayers sought should the court determine in favour of the Petitioner. 3. I have considered the provisions of **Order 2 of the Civil Procedure Rules** which state as follows: - ***ORDER 2 - PLEADINGS GENERALLY*** ***1. Pleadings generally [Order 2, rule 1]*** ***(1) Every pleading in civil proceedings including proceedings against the Government shall contain information as to the circumstances in which it is alleged that the liability has arisen and, in the case of the Government, the departments and officers concerned.*** ***(2) In such proceedings if the defendant considers that the pleading does not contain sufficient information as aforesaid, the defendant may, at any time before the time limited by the summons for appearance has expired, by notice in writing to the plaintiff, request further information as specified in the notice.*** ***(3) Where such a notice has been given, the time for appearance shall expire four days after the defendant has notified the plaintiff in writing that the defendant is satisfied or four days after the court has, on the application of the plaintiff by chamber summons served on the defendant not less than seven days before the return day, decided that no further information is reasonably required.*** ***6. Departure [Order 2, rule 6]*** ***(1) No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.*** ***(2) Subrule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.*** 1. It is a fundamental principle of pleadings and constitutional litigation that the reliefs sought must logically and legally flow from the factual substratum established in a suit or a petition. Similarly, parties are bound by their pleadings. The Supreme Court of Malawi, in **Malawi Railways Ltd vs. Nyasulu [1998] MWSC 3,** quoted with approval an **Article** by **Sir Jack Jacob** entitled, ***“The Present Importance of Pleadings”*** **published in 1960, Current Legal Problems, at p.174** where the author had stated: ***“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice.*** ***….*** ***In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.””*** (See also the Court of Appeal in **Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR)** 1. In this case, the facts are incompatible with the reliefs sought. There is clearly no nexus between the regulatory dispute being raised by the Petitioner and the land issue that emerges from the reliefs sought. This is not a mere technicality but is substantive in nature. [See Limo J. in **Foundation Ministry Church-Kitui & another v Mailu & 3 others (Civil Case E002 of 2022) [2022] KEHC 397 (KLR) (6 May 2022) (Ruling)]** 2. Thus, a court cannot formulate reliefs for a party based on the facts presented in a suit nor can it grant reliefs in a vacuum, or grant remedies that are completely contradictory to, or unsupported by the facts pleaded by the party, in this case the Petitioner. 3. Where there is an irreconcilable variance between the facts stated and the prayers sought, such a Petition is fatally defective and contradictory and must be rendered legally incompetent. 4. From the foregoing, it is my finding that, since the prayers in the Petition dated 2nd December 2025 do not mirror, match, or legally stem from the facts set out in the Petitioner’s affidavit and pleadings, the Court is being invited by the Petitioner to make findings that are mutually exclusive, which it cannot countenance. This is because, in legal proceedings, a fundamental principle governs how courts decide cases. Courts cannot grant reliefs beyond pleadings. 5. Consequently, I find the petition dated 2nd December, 2025 to be lacking a coherent legal architecture and competence and constitutes an abuse of the court process therefore the same is hereby struck out. 6. There shall be no orders as to costs. 7. This file is closed. 8. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 9th Day of July, 2026** **R.E. ABURILI** **JUDGE**