[2022] KEHC 13627 (KLR)

Brookside Dairy Limited v Mohamed & another (Constitutional Petition E339 of 2022) [2022] KEHC 13627 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13627 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Constitutional Petition E339 of 2022

HI Ong'udi, J

October 13, 2022

Between

Brookside Dairy Limited

Petitioner

and

Mohamed Ali Mohamed

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The 1st respondent filed a Preliminary Objection (PO) dated July 19, 2022 raising the following grounds, that: -a.The instant Petition is brought under Articles 22 and 23 of theConstitution and alleges violation of Articles 20, 27 and 33 of theConstitution;b.The Bill of Rights affords protections and guarantees for natural persons as individuals which protection does not extend to limited liability companies such as the Petitioner herein.c.According to Article 19 (3) (a) of theConstitution, the rights and fundamental freedoms in the Bill of Rights belong to individuals and are incapable of being granted to a limited liability company.d.The jurisdiction of this Honorable Court has been improperly invoked since it’s expressly ousted by virtue of the Petitioner being a corporate entity. The Petitioner is not lawfully capable of petitioning the High Court for violation of own fundamental rights and freedoms under Articles 22 and 23 of theConstitution as purported;e.The Petition gravely offends the principles laid down in various judicial decisions and principally, in the matter of Anarita Karimi Njeru v Republic [1979] eKLR as affirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. The Petition does not in any manner whatsoever disclose with precision and particularity any constitutional or human rights violations, as is legally mandatory.f.The Petition herein is fatally defective and militates against the time honored doctrine of ex turpi causa non oritur actio affirmed by the Court of Appeal in the matter of Kenya Ports Authority v Fadhil Juma Kisuwa [2017] eKLR, to the extent that the Petitioner continues to financially oppress Kenyan farmers in utter disregard of the Dairy Industry (Pricing of Dairy Produce) Regulations, 2021;g.The Petitioner herein is manifestly using the disguised proceedings herein for collateral purposes in utter abuse of legal process, more so to unlawfully gag the 1st Respondent;h.The Petition does not disclose any cause of action known to law, against the 1st Respondent;i.The instant Petition is absolutely incompetent, hence this Honourable Court lacks jurisdiction to entertain the same;j.It is in the interest of justice that the Petitioner approaches a proper adjudicatory forum in the event of a valid legal grievance, yet none is discernible in the current case.

Background of the case 2. The petitioner filed the petition dated July 6, 2022. It is the owner of a manufacturing business that purchases milk from dairy farmers, carries out manufacturing processes of the said milk and sells milk products to public consumers in Kenya and in several other countries.

3. It is aggrieved because of the utterances by the 1st respondent made on March 3, 2022 at a public rally in Nyeri town and broadcasted by various local and international channels which by innuendo meant that the petitioner buys milk at Kshs 20 goes, boils it and then resells it to the milk suppliers at Kshs 120.

4. Its case is that the said utterances meant that, the petitioner exploits dairy farmers who sell and supply milk to it as raw materials for its business; it subjects the said farmers of suppliers to unfair treatment; it sells processed milk products that are not processed or manufactured to required health or safety standards and are of substandard quality.

5. That the said statements are meant and did cause public resentment against it, its business practice and the products which it manufactures and sells as part of its business operations. The statement was meant to and did cause economic harm to it and its business.

6. As such its rights under Articles 20, 33(2) (d) and 27 of theConstitution were violated by the 1st respondent.

7. In the petition, it seeks for orders that: -a.A permanent injunction restraining the 1st respondent howsoever and whatsoever from advocating public hatred against the petitioner.b.A permanent injunction restraining the 1st respondent howsoever and whatsoever from inciting the public to cause economic or commercial harm to the petitioner and its business.c.A mandatory injunction compelling the 1st respondent to respect the rights and reputation of the petitioner.d.The 1st respondent do pay compensation as determined by this Honourable court for harm and loss caused to the petitioner by the constitutional violations pleaded hereinabove.e.Costs of the petitioner be borne by the respondent.

Oral arguments 8. The PO was argued orally on July 21, 2022. Mr Kamotho for the 1st respondent argued that the bill of rights affords protection for natural persons hence this court’s jurisdiction has been improperly invoked. He relied on the Court of Appeal case of Meru County Government v EACC [2018] eKLR in support of that argument. He further argued that the petition breaches the principles of filing petitions and relied on Anarita Karimi case (supra) concluding that this petition cannot stand.

9. Mr E Mutuma also for the 1st respondent argued that a look at the prayers sought in the petition reveals that, the dispute should be addressed by the civil or commercial divisions. The issue therein relates to defamation which is not for this division.

10. Ms Wamuyu for the 2nd respondent supported submissions by the counsel, for the 1st respondent.

11. Mr Oyatsi for the petitioner argued that a person is defined under Article 260 of theConstitution. Further, Articles 2 & 27 also give the rights of a person. Accordingly, the petitioner is a person and enjoys equal rights with all others. He argued that the petition relates to rights under Articles 27 and is protected under Article 33 and that the petitioner is included in the others. That the petitioner can clearly move the court under Article 33. He invited the court to consider Articles 258. He submitted that Article 22 (1) gives the right to institute proceedings and stated that there is distinction between a right and a fundamental freedom and it was not clear what the respondent is challenging.

12. Regarding the Anarita Karimi case, (supra) he submitted that the same interprets the old Constitution. He relied on Mumo Matemu (supra) which deals with the issue of locus standi and argued that the petitioner has the right to move the court.

13. He argued that the issue of defamation has nothing to do with the PO. The law on defamation on its own does not contain sufficient remedies on vilification and it is an enabling law on human dignity protected under Article 28 and reputation under Article 33 (3) which is different from vilification.

14. In reply, Mr Mutuma argued that the petitioner has failed to demonstrate which right has been violated and that the beneficiary in Article 33 is the person who has been denied that right. Being a corporate body it has failed to demonstrate any violation. He finally submitted that defamation has two remedies; injunction and damages.

15. Mr Kamotho argued reiterating that corporates are not included in the word person. Contrary to the petitioner’s argument, he submitted that the Anarita Karimi case (supra) is a locus classicus case that has been referred to in many cases.

Analysis and determination 16. Having carefully considered the parties’ pleadings and oral arguments, the following issues arise for determination: -i.Whether the preliminary objection meets the threshold for such.ii.Whether the bill of rights affords protections and guarantees to limited liability companies.iii.Whether the petition offends the doctrine of constitutional avoidance.

Issue no. (i). Whether the preliminary objection meets the threshold for such. 17. What constitutes a preliminary objection was set out in the case of Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696. This was later emphasized by the supreme Court of Kenya in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR as follows at paragraph 31:'To restate the relevant principle form the precedent in setting case, Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors (1969) EA 696:'A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.'

18. The Supreme Court further pronounced itself on the purpose of a preliminary objection in the case of Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 others (2015) eKLR as follows: -'(21)– The occasion to hear this matter accords us opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: Firstly, it serves as a shield for the originator of the objection – against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time. So it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.'

19. The 1st respondent has raised 10 objections. In my view objections Nos 1, 5, 6, 7, 8 and 9 do not qualify as points of law as they would require this court to look into the facts as pleaded by the petitioner.

Issue no (ii). Whether the bill of rights affords protections and guarantees to limited liability companies. 20. The respondents have submitted that being that the petitioner is a limited company, it has no rights. The petitioner submitted in the contrary.

21. Article 260 of theConstitution defines person to include a company, association or other body or persons whether incorporated or unincorporated.

22. Article 20 of theConstitution on the application of the bill of right is categorical that the bill of rights applies to all law and binds all state organs and all persons. Further that every person shall enjoy the rights and fundamental freedoms in the bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom.

23. Article 22 of theConstitution provides for the enforcement of bill of rights as follows: -1. 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,2. In addition to a person acting in their own interest, court proceedings under clause (1) 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; ord.An association acting in the interest of one or more of its members.

24. Article 258 of theConstitution also provides for enforcement of theConstitution follows: -1. Every person has the right to institute court proceedings, claiming that this constitution has been contravened, or is threatened, or is threatened with contravention,2. In addition to a person acting in their own interest, court proceedings under clause (1) 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; ord.An association acting in the interest of one or more of its members.

25. In the case of Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR, the court held as follows:34. Article 260 of theConstitution defines a 'Person' to include a company, association or other body of persons whether incorporated or not. In that regard, the 1st petitioner is a person for purposes of Article 47 of theConstitution in that its right as an entity was adversely affected by the respondent’s impugned decision and was therefore entitled to an administrative action that was not only procedurally fair and lawful but also reasonable. It was equally entitled to a hearing before the adverse action was taken against it.

26. In the case of Muhia & 2 others v Kenya Power & Lighting Company Ltd [2004] eKLR the court held the following with regards to whether a corporation has constitutional rights:Does the defendant which is a corporation or limited liability company fall among the 'others' whose rights must be protected. Does a corporation have constitutional rights? In my view the corporate body corporation or limited liability company is a legal person or entity.Once an inanimate body acquires corporate personality and is capable of suing or being sued in its name then it acquires rights and is burdened with obligations and duties. A commercial corporation for instance has property rights protected by section 75 of theConstitution. It may be true that there are some fundamental rights which cannot be enjoyed by or apply to a corporate legal person e.g the protections of right to life and freedom of conscience. However, I do not see why it should not be protected and enjoy those rights that can be enjoyed by a non-human legal entity like protection from deprivation of property, freedom of expression, etc. The plaintiffs have sought protection of this court against being held in servitude in breach of their fundamental rights as guaranteed by A 73 of theConstitution. Servitude is the condition of being a servant or slave to another (see Black’s law Dictionary 8th Edition). Being an involuntary condition, this includes the condition of one forced to labour – for pay or not for another by coercion or imprisonment. If theConstitution protects the Plaintiffs’ against such condition then the enforcement of such right which to me is automatic must ensure that equally the rights of the defendant are not prejudiced.

27. I have equally considered the case of Meru County Government v EACC [2018] eKLR heavily relied upon by the 1st respondent for its proposition that the petitioner is not natural person hence cannot enforce the bill of rights. I note that, that case is different from the case herein for the reason that the case was brought by a state organ and not a company and/ or corporation. Now a state organ is not defined under Article 260 of theConstitution as a person. The argument also advanced therein was that the fact that it could sue and be sued in its name, did not mean that it could enjoy and enforce the bill of rights.

28. Nonetheless this is what the Court of Appeal stated:'For purposes of enforcement, therefore, all one needs establish is that he or she is a person capable of suing and Article 21 must, consistently and in conformity with the contextual command of Article 260, be so construed as to include persons other than individual human persons in the construction of the persons who can enforce rights even though, against contextually, such non-individuals may not be themselves holders or wielders of rights and fundamental freedoms under the Bill of Rights.'We respectfully agree with the sentiments expressed in that case. State organs can indubitably file suit inter se to protect various rights, capabilities, competencies and privileges accorded to them by theConstitution. What they cannot in and of themselves do, is to purport to claim for themselves and enforce for themselves qua State organs, the rights enumerated in the Bill of Rights. Such rights as we have stated, and the Kisumu Bench as well, belong only to individuals as natural persons who only can enforce or protect them in person or through any other persons be they natural or juristic.

29. Based on the cited Articles of theConstitution and the decided cases I find that the petitioner is a person for the purpose of enjoying the bill of rights and enforcing the same.

Issue no. (iii). Whether the petition offends the doctrine of constitutional avoidance. 30. The 1st respondent has argued that the petition does not raise a constitutional question but raises issues to do with defamation which should be handled in the civil/ commercial courts. The petitioner submitted that the law on defamation on its own does not contain sufficient remedies on vilification and it is an enabling law on human dignity protected under Article 28 and reputation under Article 33 (3) which is different from vilification.

31. The doctrine of constitutional avoidance does not divest this court of the jurisdiction to hear and determine this matter. What the doctrine means is that while this court can indeed hear and determine this matter, it restrains itself to hear the same because there is another appropriate forum that can hear and determine the matter effectively.

32. The question as to what constitutes a constitutional question was determined in the case CNM V WMG [2018] eKLR where J Mativo stated:'20. In my view, this Petition does not raise constitutional questions at all. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values. The issues raised here will only require the Court to examine defamation law.21. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others in which Justice O’Regan recalling the Constitutional Court’s observations in S vs Boesak notes that:-'TheConstitution provides no definition of 'constitutional matter.' What is a constitutional matter must be gleaned from a reading of theConstitution itself: If regard is had to the provisions of theConstitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with theConstitution, as well as issues concerning the status, powers and functions of an organ of State, the interpretation, application and upholding of theConstitution are also constitutional matters. So too, is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of theConstitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.'

33. He further states,'Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.'

34. It is evident that for one to determine whether the argument raises a constitutional issue, the court should consider whether the argument forces the court to consider constitutional rights or values. The petitioner has brought this suit against the respondents for utterances that were made in a public rally by the 1st respondent. As to whether it raises a constitutional question, it would be necessary to examine the provisions alleged to be contravened and how they have been contravened and whether the petitioner has suffered any damage / loss as a result of the said contravention or violation.

35. It is also important to consider the nature of the orders sought in the petition, as to whether they fall under the ambit of those provided for under Article 23 (3) of theConstitution. If both aspects are in the negative, then the petition does not raise a constitutional question.

36. The doctrine of constitutional avoidance has been addressed in quite a number of decisions by our courts. It was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. Where court held as follows:-'(256)The appellants in this case are seeking to invoke the 'principle of avoidance', also known as 'constitutional avoidance'. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.'(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.'

37. In Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court stated;'30. So as to ensure that constitutional jurisdiction of the court is not misused, the doctrine of constitutional avoidance comes in handy. It frowns upon the practice of bringing ordinary disputes to the constitutional court. In that regard, the Supreme Court observed as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR.'Also see Council of County Governors v Attorney General & 12 others [2018] eKLR.

38. Justice J M Mutungi in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR observed that: -'Parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional petitions which is not proper where there is an alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of theConstitution court.'

39. In the case of Bernard Murage -vs- Fine Serve Africa Ltd & others (2015) eKLR the Court stated:-'Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exist an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.'

40. In the case ofGodfrey Paul Okutoyi & others –vs- Habil Olaka & Another (2018) eKLR Chacha , J on the issue of there being an alternative remedy in lieu of constitutional remedies at paragraph 65 stated:-'It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of theConstitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.'

41. In the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) Mativo J set out the exceptions to the doctrine of constitutional avoidance as hereunder: -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 andiii.Where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.25

42. The petitioner herein has raised issues on breach of Article 20, 27(1), and 33(2) (d) of theConstitution. The petitioner is aggrieved as a result of the utterances made during a public rally by the 1st respondent and has ascribed meaning to those utterances. This court will have to look into issues like whether the utterances meant that the petitioner exploits the dairy farmers who sell and supply milk to the petitioner as raw material for its business, whether it also means that the petitioner subjects the said farmers of suppliers to unfair treatment, whether the utterances are false, etc. In my humble view this petition does not raise a constitutional question.

43. This question will be better and effectively determined in a civil court on what the alleged utterances meant and whether they were false or not. In as much as the petitioner makes reference to Article 33(2) (d) and 27 of theConstitution, this court will have to determine the issues aforesaid before it can eventually determine the issue of breach of the said Articles. The key grievance here is whether the utterances were in the first instance made and whether they mean what the petitioner is alleging. The court will also have to determine whether the utterances are false and consequently whether the petitioner should be compensated or not. If that other court agrees with the petitioner then it will grant the effective remedies. It is therefore not the only course that will give the petitioner the remedy it seeks. I am guided by the case of KKB v SCM & 5 others (supra) wherein it was stated,36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause.

44. In conclusion I find that this petition offends the doctrine of constitutional avoidance and does not raise a constitutional question. Let the petitioner file its claim before the correct forum. The upshot is that the preliminary objection succeeds and the petition is struck out with costs.Orders accordingly.

DATED AND SIGNED THIS 11TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDE*JUDGE OF THE HIGH COURT