https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12511

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CONSTITUTIONAL PETITION NO. E024 OF 2023** **BETWEEN** **ANDOLE M. CHRISTIAN ........................................................................... PETITIONER** **VERSUS** **ALICE GATHONI T/A TIVOLI HOMES LIMITED ...................................... RESPONDENT** **JUDGEMENT** 1. By a Constitutional Petition dated 5th December 2023, the Petitioner sought orders from the Court inter alia that:- 2. *The Applicant entered into a periodic lease agreement with the Respondent for a period of 24 months with the option to renew the Agreement on or about 1st June 2022.* 3. *At all material times, the Applicant performed his obligations under the Agreement until on or about 1st September 2023 when the Respondent abruptly and without default notice served demanded the Applicant to immediately vacate the suit property being Tivoli Golden Heights Kibichiku, House B03, being a two bedroom apartment.* 4. *The Respondent's email without a default notice dated 1st September 2023 breached the Periodic Lease Agreement to the prejudice of the Applicant occasioning him damages on grand scale.* 5. *The suit property serves the Applicant as his temporary place of business after the adoption of the Working from Home Formula in the wake of COVID-19 pandemic.* 6. *The suit property contains the Applicants implements and tools of trade including but not limited to his client's files, library, artistic paintings, apparels among others.* 7. *Vide an email dated 30th November 2023 and unsolicited calls, the Respondent unlawfully, illegally and without color of right, applied for distress for rent in total oblivion of the terms of the Periodic Lease Agreement and the security contextual predicament of the Applicant* 8. *Despite the Applicant requesting service of the Distress application, the Respondent has failed, ignored and or neglected to effect service in blatant infraction of the Applicant's right to a fair administrative action and hearing.* 9. *The Respondent's agents have further proceeded to infringe on the Applicant's right to privacy under Article 31 of the Constitution of Kenya 2010 by searching the suit property, unnecessarily revealing his family details and communication to the detriment of his persona and advocate-client privilege.* 10. *To add insult to injury, the Respondent, jointly and severally with its agents, assignees and servants, continue to maliciously slander the Applicant with the intention to disparage his professional reputation.* 11. *The Applicant is apprehensive that unless this Honourable Court intervenes and grants the orders sought, the Respondent shall proceed and illegally distress his movable properties contrary to the law and defeat the suit herein.* 12. *No prejudice and harm shall be suffered by the Respondent if the orders sought herein are granted.* 13. *It is in the best interest of justice and the rule of law that the orders herein are granted.* 14. The gravamen of the Petition is that the Petitioner was a tenant in the Respondent’s residential project known as Tivoli Golden Heights Kibichiku situated in Mwimuto near Wangige Area wherein he entered into a periodic lease agreement for a two -bedroom apartment on or about 1/6/2022 and paid the sum of Ksh. 500,000/= constituting security deposit for his performance of obligations under the Lease Agreement. 15. It is the Petitioner’s case that the parties executed the lease agreement for 24 months at an annual rent of Ksh. 300,000/= payable monthly in advance subject to the condition that any overdue rent would attract 10% interest per month while a bounced cheque would attract a surcharge of 30% of its face value. It was also agreed that in the event of any default under the agreement, either party would issue notice of default and an opportunity to correct such default. 16. The Petitioner states that on 6/2/2023, pursuant to numerous complaints from the tenants' abode, he authored an email with the reference “Structural Integrity of Tivoli Apartments” in which he expressed concerns regarding the structural integrity of the apartment building and the constant overflow of water from the flashing area of the apartment’s toilets. He sought the intervention of the owners while noting that he was keen to involve the relevant government agencies to test the structural integrity of the building. 17. The Petitioner avers that his complaint resulted in bad blood between him and the Respondent and on 1/9/2023, he received an email informing him that they would not be renewing his lease for another term and issuing him notice to vacate on account of claims of instances of disturbances and breaches of the terms of the existing lease agreement. 18. It is the Petitioner’s averment that since he executed a new lease agreement on 1/6/2023, the notice to vacate was in breach of the agreement. He avers that despite his attempts to resist the notice to vacate the premises by 30/9/2023, his email seeking mediation over the notice elicited no response from the Respondent. 19. The Petitioner states that on 2/10/2023, the Respondent’s three emissaries visited him and arbitrarily demanded his exit from the premises, prompting him to write an email promising to vacate by the end of October. 20. The Petitioner avers that the Respondent’s email dated 1/9/2023 and the arbitrary command dated 2/10/2023 violated his right to fair administrative action under Article 47; his right to family under Article 45; his freedom of residence pursuant to Article 39 (3) and his right to property under Article 40 of the Constitution. 21. The Petitioner further avers that on or about 28/10/2023 at about 0545 hours, he was in his residence when he was accosted by two men who invaded his apartment, burnt his passport and national identity card, scuttled his files and took off with his Ksh. 450,000/= in a khaki envelope and two pairs of watches and a silver necklace; an incident he reported at Parklands Police Station before taking flight to Kakamega where he sought refuge. The Petitioner avers that the two people had orally given him 48 hours to go back to the village and as a result, he was terrified and traumatized. 22. The Petitioner avers that the two men’s retorts established a nexus of agency with the Respondent’s principals and/or servants which violated his right to life under Article 26 (1), his rights as a youth under Article 55 and his right to dignity and freedom and security of the person under Articles 28 and 29 of the Constitution. He also accused the Respondent of violating his right to privacy under Article 31 of the Constitution. 23. It is the Petitioner’s averment that the Respondent locked him out of the demised premises, then proceeded to call his next of kin on 1/9/2023 and 30/11/2023 alleging inter alia, that he was insane and in need of urgent medical attention, thereby maliciously slandering him with intentions of degrading his reputation as an advocate before right-thinking people of the society. 24. The Petitioner further avers that the Respondent through its agents proceeded to levy distress for rent against him purportedly for October rent whereby in the company of unlicensed auctioneers or unregulated persons, they fetched his implements of work including but not limited to L-shaped pallet seats, Television, DSTV, refrigerator and a study armchair all valued at Ksh. 300,000/=. The Petitioner avers that as a result of the unlawful distress, he suffered and continues to suffer irrepressible injury. 25. The Petitioner, who avers that this court has jurisdiction to determine this matter seeks the court’s determination of the legal issues raised in the above paragraphs and prays for a declaration that his rights as aforesaid and a finding that the Respondent’s distress for rent was illegal, unfair, inconsistent, unproportionate and contrary to the Constitution of Kenya (2010) together with the Distress for Rent Act. He also prays for damages for wrongful and illegal distress for rent, a refund of the security deposit of Ksh. 500,000/=, statutory damages under the Land Act as read together with Article 40(4) of the Constitution, incidental and consequential damages of Ksh. 605,000/= comprising stolen cash and illegal distress for rent, compensation for breach of his constitutional rights, general damages for defamation and slander, exemplary damages, that the Respondent be compelled to issue a written apology to the Petitioner for slander, plus costs and interest on the damages. 26. The Respondent filed a replying affidavit dated 11/6/2024 in opposition to the Petition. In the affidavit sworn by Alice Gathoni, she avers that Tivoli Homes is not a limited liability company and denies all the averments in the Petition. The Respondent contends that not every infringement or violation of a right qualifies to be taken up as a Constitutional Petition and asserts that there are alternative remedies that the Petitioner should have pursued through ordinary courts. In response to the claims, the Respondent avers that the contractual relationship between the two parties was created through a periodic lease agreement dated 1/6/2022 but, despite several notices to vacate issued to the Petitioner, he ignored the same only to respond on 19/9/2023 with a disturbing email where the Petitioner who was known as an Advocate, referred to himself as a Resident Magistrate and his house as a Circuit Court. 27. The Respondent further avers that the Petitioner had also filed a claim in the Copyright Tribunal regarding the alleged violation of his rights and was attempting to evade settlement of his several months of rent in the sum of Ksh. 202,350/= as shown in the annexures AG1 – AG5. The Respondent avers that she had filed suit for recovery of the said rent in Kikuyu MCCOMMSU E014 of 2024. 28. The Respondent also avers that the Petitioner, who is still in occupation of her premises, had failed to disclose to this court that he had filed Cause No. B03/001 of 2023 at the Cooperative Tribunal, which, although irrelevant, he had not disclosed to this court. 29. Directions were issued that the Petition be canvassed through written submissions. **Petitioner’s Submissions** 1. The Petitioner submits that Tivoli Homes Ltd alias Alice Gathoni is liable to compensate him for damages and relied on the case of **Thomas Masare v. George Anyoka Rogito & 3 others Civil Case No. 3 of 2003 [2003] KLR**. 2. In his supplementary affidavit dated 5/12/2026, the Petitioner takes umbrage with the replying affidavit sworn by Alice Gathoni regarding misjoinder and urges the court to have due regard to Section 23 of the Registration of Business Names Act and find that since the Respondent failed to comply with the said statutory provisions, then his Petition should not be struck out on account of misjoinder. Conversely, the Petitioner avers that the replying affidavit is defective as it was expressed to have been sworn in Kitale before one or two commissioners despite the fact that the deponent avers that she is a resident of Kikuyu. He urges the court to strike out the replying affidavit for being incurably defective. 3. The Petitioner maintains that the substratum of the Petition relates to the infringement of his constitutional rights. Citing Article 259 of the Constitution, he urges the court to find that the Petition raised constitutional issues for the court’s determination. He also quotes the cases of **Advocates Coalition for Development and others v. Attorney General & Another [2014] 3 EA and Anarita Karimi Njeru v. Republic [1979] KEHC 30 (KLR)**. 4. The Petitioner submits that the Respondent violated all his constitutional rights under the Articles cited in the Petition and that as a consequence, he is entitled to suitable damages. He relies on **Gitobu Imanyara & 3 others v. Attorney General [2012] KEHC 845 (KLR)**. **Respondent’s Submissions** 1. The Respondent submits that the Petition did not disclose reasonable constitutional grievances or issues and is an abuse of the process of the court. She further submits that the Petitioner ought to have pursued his claim before other courts rather than by way of a Constitutional Petition. She also contends that the Petitioner is mischievous in filing the petition hundreds of kilometres away from the County where the premises that gave rise to the dispute are situated. 2. The Respondent also submits that the Petition is incompetent as it was filed against a non-existing entity and the Petitioner purported to amend the Petition through the supplementary affidavit without leave of the court. It is her submissions that the Petition is not merited. **Analysis and Determination** 1. I have perused the parties’ pleadings and their submissions, and I find the following issues arising for determination: - 2. *Whether the Petition is fatally defective for misjoinder.* 3. *Whether the Petition raises Constitutional issues.* 4. *Whether the replying affidavit is fatally defective.* 5. *Whether the Petition is merited.* 6. *Whether an order of costs should issue.* 7. The Petition is predicated on a residential tenancy agreement between the Petitioner and Alice Gathoni, the owner of an apartment block known as Tivoli Homes. The Petitioner was, by his own admission, a tenant of House B03 in respect of which he had entered into a one-year Lease agreement. The landlord was an individual and not the cited Limited Liability Company, which the owner of the property contends is non-existent. There was therefore misjoinder. 8. Regarding the replying affidavit, there is nothing on the record to prove that the same was not sworn in Kitale. Whereas the deponent expressed that she is a resident of Kikuyu, it is trite that business persons are highly mobile and nothing would preclude a person from travelling to another County within the same country, or even outside the country. It was therefore not sufficient for the Petitioner to claim that the affidavit was defective for being sworn in Kitale. He needed to prove that his assertion was right. Absent such proof, I find the claim flimsy and untenable. 9. In **Anarita Karimi Njeru v. Republic [1979] eKLR**, the Court, in determining a constitutional petition, held that a person who seeks redress for alleged violation of their Constitutional rights should set out with a reasonable degree of precision that which he complains of, the provisions said to be infringed, and the manner in which they are alleged to have been infringed. 10. The dispute between the Petitioner and his landlord gravitates around alleged breach of the Lease Agreement, which is strictly a civil claim between two private entities. The Petitioner has listed a litany of alleged infringements of his Constitutional rights without any specificity as to how the said rights were infringed. It is an amorphous claim that lacks coherence, precision, and clarity. It advances a civil claim and clothes it in constitutional robes in an effort to invoke the constitutional jurisdiction of this court. None of his grievances disclose a breach of his constitutional rights. 11. It is now well settled that courts should decline to grant orders in disputes disguised as Constitutional disputes and where the law provides a specific remedy. In **Uhuru Muigai Kenyatta v. Nairobi Star Public Limited [2013] KEHC 6084 (KLR)**, Lenaola J. (as he then was), held that:- ***“…Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear, however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions. The complaint in this case is not so serious as to attract Constitutional sanction.”*** 1. Where a petition does not raise Constitutional issues, it fails to disclose a reasonable cause of action and is therefore fundamentally and fatally defective. The remedy for the alleged ill committed by the landlord against the Petitioner does not lie in this court but in other courts. In **Communications Commission of Kenya & 5 others v. Royal Media Services Ltd & 5 others [2014] eKLR**, the Supreme Court held:- ***“…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”*** 1. The Petitioner has not demonstrated that the violations that he has complained about cannot receive adequate redress through the civil or criminal process. In my view, the breach of a tenancy agreement is merely a civil dispute, as is the unlawful eviction of a tenant from rental premises. The trespass onto the Petitioner’s house and the destruction of his personal effects is a matter that should have been reported to the police and can be addressed through the criminal process. All the ills that the Petitioner has raised against the Respondent, in a nutshell, do not disclose any breach of his constitutional rights. In **Grace Jepkemoi Kiplagat v. Zakayo Cheruiyot [2021] KEELC 4674 (KLR)**, Mutungi J. held:- ***“…there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well Constitute an abuse of the due process of the court, I need to observe 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 the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the Constitutional Court…”*** 1. In the case of **James Kanyiita Nderitu v. Attorney General & Another [2019] KECA 1006 (KLR)**, the Court of Appeal, in dismissing a claim, held that:- ***“…As we have stated above, the remedy for the appellant was to institute a suit for malicious prosecution. He has failed to do so and a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. It is not open to the appellant to urge that there can be no wrong without a remedy. Indeed, this legal principle is correct; the appellant had a remedy in the tort of malicious prosecution or an action for defamation, he has chosen not to pursue the causes of action within the legal time frame.”*** 1. Additionally, in **Godfrey Paul Okutoyi & others v. Habil Olaka & Another [2018] eKLR**, the Court held:- ***“65. 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 the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***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.”*** 1. Where the statutes provide adequate and effective mechanisms for redress of wrongs, a party should not resort to the constitutional process as this violates the doctrine of exhaustion of remedies. The jurisdiction of the Constitutional Court should only be invoked within the strict confines of the Constitution. Since the dispute relates to an alleged breach of contract, the tort of defamation, threats to the person, or malicious damage to property as the Petitioner has enumerated, he should have filed a civil suit and lodged a complaint with the police. 2. From the foregoing, the Court finds that the Petition is incompetent, having been filed against a non-existent entity, and for failure to disclose any violation of the Petitioner’s Constitutional rights. It is therefore dismissed with costs to the Respondent. Dated, signed and delivered at Kakamega this 30th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** No appearance for the Petitioner Mr. Oindi holding brief for Mr. Kraido for the Respondent Court Assistant: Polycap