https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10462

Obura v CEC, Trade, Tourism, Cooperatives & Marketing County Government of Kisumu & another (Civil Appeal E027 of 2025) [2026] KEHC 10462 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10462 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E027 of 2025 AK Ithuku, J June 26, 2026 Between Clement Obura Appellant and CEC, Trade, Tourism, Cooperatives & Marketing County Government of Kisumu 1st Respondent Paul Odhiambo 2nd Respondent (Being an appeal from the ruling of Hon. G.C. Serem, Resident Magistrate, delivered on 9th January 2025 in Kisumu Chief Magistrate's Court, Civil Case No. E400 of 2024) Judgment A. Introduction 1.The Appellant, Clement Obura, being dissatisfied with the ruling of the Learned Resident Magistrate, Hon. G.C. Serem, delivered on 9th January 2025, has preferred this appeal to the High Court. The ruling the subject of this appeal struck out the Appellant's suit in the Chief Magistrate's Court at Kisumu in Civil Case No. E400 of 2024, upon upholding a Preliminary Objection (hereinafter "the PO") filed by the 1st Respondent, the CEC Trade, Tourism, Cooperatives and Marketing, County Government of Kisumu. The PO was premised on the doctrine of exhaustion of remedies. 2.The dispute underlying the suit arose from the election of the Chairperson of the Holo Market Management Committee held on 16th October 2024 in West Kisumu Ward. The Appellant contended that he was the validly elected Chairperson but that the 1st Respondent improperly interfered with the electoral outcome and thereafter purported to appoint the 2nd Respondent, Paul Odhiambo, to the said position, notwithstanding that the 2nd Respondent had lost the election. The Appellant further contended that an appointment letter issued to him by the Chief Officer, Trade, Tourism, Cooperatives, Industry and Marketing was unlawfully revoked by the 1st Respondent. 3.The appeal is supported by the Appellant's Written Submissions dated 23rd April 2026 filed by M/S Peter M. Warindu & Co. Advocates. The 2nd Respondent has filed Written Submissions dated 20th May 2026 through Otieno, Yogo, Ojuro & Company Advocates, opposing the appeal. The 1st Respondent has not filed submissions before this Court. The Court proceeds to determine the appeal on the basis of the record of appeal, the lower court proceedings, and the submissions of both the Appellant and the 2nd Respondent. B. Background Facts 4.The Holo Market in Kisumu West Ward is a public market within the County Government of Kisumu. The governance of the market is overseen, inter alia, by a Market Management Committee whose officials are periodically elected by traders within the market. 5.On 9th October 2024, elections were first held for Sector Leaders at the Holo Market. Following those elections, the executive elections for the Market Management Committee were held on 16th October 2024 at the Ward Administrator's Office, overseen by the Ward Administrator, Mr Collins Otieno, and supervised by the Department of Trade under the leadership of one Rosemary Ochiewo. A total of 15 aspirants were cleared to contest for executive positions, with 19 sectors being eligible to vote. 6.According to the official results declared on 16th October 2024, the Chairperson position was contested between the Appellant, Clement Obura, and the 2nd Respondent, Paul Odhiambo Ouko. The 2nd Respondent emerged victorious with 68 votes against the Appellant's 62 votes. The results were publicly declared by the Ward Administrator. 7.Notwithstanding the election result, the Appellant contended that the 2nd Respondent did not meet the qualifying criteria for the position because he was not a registered trader within the Holo Market for the preceding three years. Relying on this contention, the Chief Officer, Trade, Tourism, Cooperatives, Industry and Marketing, Timothy Kajwang Nyakwamba, issued the Appellant with a letter dated 28th October 2024 appointing him Chairperson of Holo Market. The Appellant duly assumed the position. 8.However, on 4th November 2024, the 1st Respondent, the CECM Hon. Farida Ahmed Salim, issued a letter revoking the Appellant's appointment, describing it as having been issued erroneously. A separate confirmation letter was thereafter issued to the 2nd Respondent by the CECM, confirming him as the duly elected Chairperson of Holo Market. 9.Aggrieved by these developments, the Appellant filed a Notice of Motion dated 5th November 2024 in the Chief Magistrate's Court at Kisumu in Civil Case No. E400 of 2024, seeking inter alia a temporary injunction restraining the 2nd Respondent from managing, operating or collecting revenue from Holo Market, and an order allowing the Appellant to take over the management and revenue collection of the market. 10.In response, the 1st Respondent filed a Notice of Preliminary Objection dated 26th November 2024, grounded on Section 9(1)(2) and (3) of the Fair Administrative Action Act No. 4 of 2015 (hereinafter "the FAAA"), asserting that the Appellant had not exhausted the administrative remedies available under the Market Development and Management Guide 2021, which provided for a Dispute Resolution Settlement Committee. The PO was accompanied by a Supporting Affidavit by John Ming'ala, Director of Trade, Cooperatives and Marketing. The 2nd Respondent filed a Replying Affidavit. Both parties filed written submissions on the PO, which was argued by correspondence. A ruling was delivered on 9th January 2025. C. The Ruling Of The Subordinate Court 11.In the impugned ruling, the Learned Magistrate framed the central issue as whether the court had jurisdiction to hear the matter. The Learned Magistrate found that the subject matter was an administrative decision by the 1st Respondent, made in the exercise of functions vested in the County Government under the Fourth Schedule to the Constitution of Kenya 2010, and that the proper challenge was by way of judicial review, over which the Chief Magistrate's Court had no jurisdiction. The Learned Magistrate relied on Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR), and Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR. 12.At paragraph 10 of the ruling, the Learned Magistrate notably observed that the Appellant "did not discharge the burden to show how binding the guide was" and that "the said guide is not one set out by parliament herein." Despite this finding, the Learned Magistrate proceeded at paragraph 11 to uphold the PO on grounds of lack of jurisdiction, struck out the suit, and ordered each party to bear its own costs. D. The Grounds Of Appeal 13.The Appellant filed a Memorandum of Appeal dated 31st January 2025 raising five grounds, which may be summarised as: (i) the Learned Magistrate erred in failing to find that the PO did not raise a pure point of law; (ii) the Learned Magistrate erred in failing to find that the issues required affidavit evidence and therefore could not found a valid PO; (iii) the Learned Magistrate erred in upholding a PO based on non-statutory guidelines; (iv) the Learned Magistrate erred in awarding costs when the PO did not meet the legal threshold; and (v) the Learned Magistrate contradicted itself by finding the Guide was not a statute yet upholding a PO premised on that Guide. E. Submissions Of The Parties Appellant's Submissions 14.The Appellant submits that the PO filed by the 1st Respondent did not satisfy the requirements of a valid preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, because its determination required factual inquiry — specifically, into the existence and applicability of the Market Development and Management Guide 2021 and the Dispute Resolution Settlement Committee established under it. The Appellant further submits that the Learned Magistrate fell into a fundamental internal contradiction when, having correctly found at paragraph 10 that the Guide was not a statute, she nonetheless proceeded to uphold the PO at paragraph 11 on the basis of the doctrine of exhaustion, which requires a statutory remedy. 15.On the doctrine of exhaustion, the Appellant invokes Section 9 of the FAAA and submits that the doctrine cannot apply where the alternative mechanism lacks statutory basis. The Appellant further submits that even if the mechanism existed, the facts of this case present exceptional circumstances under Section 9(4) of the FAAA excusing compliance — specifically, that the very body mandated to superintend market governance, the 1st Respondent, was the party that allegedly interfered in the election. Citing the principle of nemo judex in causa sua as affirmed in Leina Konchellah & Others v Chief Justice and President of the Supreme Court of Kenya & Others [2021] KEHC 12609 (KLR), the Appellant submits that it would be a violation of natural justice to require him to seek redress before a body administered by or answerable to the very respondent he was suing. The Appellant also cites Republic v Were & 2 others; Makhanu & 8 others (Ex parte) [2024] KEHC 8139 (KLR) for the definition of the exhaustion doctrine. 2nd Respondent's Submissions 16.The 2nd Respondent supports the lower court's ruling and urges this Court to dismiss the appeal with costs. He submits, first, that the PO did meet the Mukisa Biscuit threshold. His argument is that the questions of whether an alternative dispute resolution mechanism existed under the Market Development and Management Guide 2021, whether the Appellant had invoked it before approaching the court, and whether the suit was therefore premature, were pure questions touching on jurisdiction and procedural competence — not requiring oral or affidavit evidence. The 2nd Respondent relies on The Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, for the proposition that jurisdictional issues are proper subjects of preliminary objections and must be decided at the earliest opportunity. 17.Second, the 2nd Respondent submits that the internal contradiction argument is misconceived. He contends that the PO was not solely or even primarily anchored on the Guide as a statute, but rather on Section 9(2) and (3) of the FAAA, the doctrine of exhaustion, and the existence of an internal administrative dispute resolution framework. He submits that the Market Development and Management Guide 2021 was cited only to demonstrate the existence of a specialised dispute settlement mechanism, not to establish it as binding law. 18.Third, the 2nd Respondent submits that County Governments have authority under Part 2 of the Fourth Schedule to the Constitution of Kenya 2010 to regulate trade functions and markets, and were therefore entitled to establish internal administrative structures and dispute resolution processes for market management. He relies on Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR, for the broader proposition that courts should not unnecessarily interfere where internal mechanisms exist, and on Speaker of the National Assembly v James Njenga Karume [1992] eKLR and Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, for the exhaustion doctrine. 19.The 2nd Respondent urges that the trial court properly appreciated that the Market Development and Management Guide, while not a statute, nevertheless established a valid internal administrative mechanism whose exhaustion was mandated under Section 9 of the FAAA. He prays that the appeal be dismissed with costs to the Respondents. F. Issues For Determination 20.Having considered the record of appeal and the submissions of both parties, this Court identifies the following issues for determination:(i)Whether the Preliminary Objection met the threshold of a valid preliminary objection as a pure point of law.(ii)Whether the Learned Magistrate's ruling was internally contradictory and thereby occasioned a miscarriage of justice.(iii)Whether the doctrine of exhaustion of remedies was properly applied in the circumstances of this case.(iv)What orders should issue. G. Analysis And Determination Issue 1: Whether the PO met the threshold of a pure point of law 21.The law on what constitutes a valid preliminary objection is settled in this jurisdiction. The locus classicus is Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Sir Charles Newbold P stated as follows:“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." 22.The 2nd Respondent argues, citing The Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, that a jurisdictional objection is a pure point of law that must be decided at the earliest opportunity. This Court accepts the principle in Lillian S without reservation — where a court has no jurisdiction, it must down its tools and decide the point at once. The question, however, is whether the jurisdictional issue raised in the PO in this case was itself a pure point of law, or whether it required the ascertainment of facts before it could be determined. 23.This distinction is critical. A PO claiming lack of jurisdiction on the face of the pleadings — for instance, where the suit is filed in the wrong court or the subject matter is outside the court's statutory competence — would be a pure point of law determinable without evidence. But a PO asserting lack of jurisdiction because a claimant has not exhausted an alternative mechanism is different in character: to sustain it, the court must first satisfy itself that the alternative mechanism exists, that it is applicable to the dispute in question, and that the claimant failed to invoke it. These are factual inquiries. 24.In the present case, the PO required the court to determine: whether the Market Development and Management Guide 2021 existed and applied to this dispute; whether a Dispute Resolution Settlement Committee was established under it and was functional at the Holo Market; whether that committee had jurisdiction over this specific type of dispute; and whether the Appellant had failed to invoke it. None of these questions could be resolved on the face of the pleadings alone. The 2nd Respondent's own submission that the Guide was cited "only to demonstrate the existence of a specialised dispute settlement mechanism" concedes that facts beyond the pleadings had to be looked at and relied upon. The Learned Magistrate's own ruling at paragraph 10 demonstrates this — she was compelled to examine the Guide and its provenance before reaching any conclusion. This is precisely the kind of factual inquiry that the Mukisa Biscuit principle prohibits at the PO stage. 25.The Court accordingly finds that the PO filed by the 1st Respondent did not qualify as a valid preliminary objection. The Learned Magistrate erred in entertaining and sustaining it. This issue is resolved in favour of the Appellant. 26.Issue 2: Whether the Learned Magistrate's ruling was internally contradictory 27.The duty of a first appellate court was articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the court held that the appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always make allowance for the fact that it has not seen or heard the witnesses and should not interfere with findings unless the trial court has clearly failed to take account of particular circumstances or proceeded on wrong principles. 28.At paragraph 10 of the ruling, the Learned Magistrate correctly found that the Market Development and Management Guide 2021 was "not one set out by parliament" and that the Appellant "did not discharge the burden to show how binding the guide was." The 2nd Respondent argues that this finding is irrelevant to the upholding of the PO because the PO was anchored on Section 9 of the FAAA and the doctrine of exhaustion, not solely on the Guide as a statute. This argument does not withstand scrutiny. 29.The doctrine of exhaustion under Section 9(2) of the FAAA requires the exhaustion of an "internal or statutory" remedy. The Learned Magistrate had just found that the Guide was not statutory. If the remedy to be exhausted was neither internal in any legally enforceable sense nor statutory, then there was no remedy whose exhaustion was mandated under Section 9 of the FAAA. A non-statutory ministerial policy document cannot, as a matter of law, be elevated to the status of a binding legal framework mandating exhaustion under the FAAA. To hold otherwise would be to allow a government agency to create jurisdictional bars to court access through its own internal policy documents — a result that is constitutionally impermissible given the right of access to justice guaranteed under Article 48 of the Constitution of Kenya 2010. 30.The Learned Magistrate having correctly found that the Guide was not a statute, the legally tenable conclusion was that the PO had no foundation and ought to have been dismissed. The decision to uphold the PO at paragraph 11 contradicted the finding at paragraph 10, constituting a misdirection in law that warrants appellate interference. This issue is resolved in favour of the Appellant. Issue 3: Whether the doctrine of exhaustion was properly applied 31.The doctrine of exhaustion is firmly entrenched in Kenyan jurisprudence. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal held that 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. This was reaffirmed in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, where the Court of Appeal stated that it is imperative that where a dispute resolution mechanism exists outside the courts, the same be exhausted before the jurisdiction of the courts is invoked, and that courts ought to be fora of last resort. This Court accepts these principles and their importance to the orderly administration of justice and the encouragement of alternative dispute resolution under Article 159 of the Constitution. 32.However, this Court parts ways with the 2nd Respondent on the question of whether those principles apply on the facts of this case. The common thread in all the authorities on exhaustion is that the alternative remedy being referred to must have a legal foundation — whether constitutional, statutory, or at minimum, grounded in a legally enforceable instrument. In Karume, the procedure was prescribed by the Constitution or an Act of Parliament. In Geoffrey Muthinja, the exhaustion doctrine was applied in the context of a dispute resolution mechanism established under constitutional or statutory instruments governing the organisation in question. The Court of Appeal was not speaking to mechanisms established solely by ministerial policy documents of unproven binding force. 33.The 2nd Respondent relies on Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR, where the Court of Appeal acknowledged the important role played by administrative decision-making structures and held that courts should not unnecessarily interfere where internal mechanisms exist. This Court notes, however, that in Suchan, the administrative decisions in question were those of a Minister acting under the National Museums & Heritage Act — a statutory instrument. That is materially different from the present case, where the mechanism relied upon derives from a non-statutory ministerial policy guide. 34.Furthermore, the 2nd Respondent's argument that the County Government's authority under Part 2 of the Fourth Schedule to the Constitution entitles it to establish internal dispute resolution structures is not disputed. What is disputed is whether such structures, when not grounded in statute, can create a mandatory bar to court access. The answer must be no. Constitutional authority to regulate markets does not, without more, convert a ministerial guide into a legally enforceable instrument capable of ousting the jurisdiction of the courts. 35.Over and above the statutory analysis, this case presents a further, independent reason why the doctrine of exhaustion could not properly apply. The Appellant's central complaint is that the 1st Respondent — the very body mandated under the Guide to superintend market governance — was the party that allegedly interfered with the election outcome and issued the letter revoking his lawful appointment. The principle of natural justice expressed in the maxim nemo judex in causa sua — no person should be a judge in their own cause — is a foundational restraint in all adjudicative proceedings. In Leina Konchellah & Others v Chief Justice and President of the Supreme Court of Kenya & Others [2021] KEHC 12609 (KLR), the High Court affirmed that this maxim underlies the doctrine of reasonable apprehension of bias and that no adjudicative process tainted by such apprehension can be permitted in law. If the Dispute Resolution Settlement Committee under the Guide was answerable to or administered under the authority of the very CECM against whom the Appellant sought relief, then any appearance before that committee would have been a futile exercise attended by a reasonable apprehension of bias. Requiring the Appellant to submit to such a process before approaching the court would be an injustice. 36.Additionally, Section 9(4) of the FAAA expressly provides that notwithstanding the requirement to exhaust internal remedies, the court may in exceptional circumstances exempt a party from that obligation if it considers the exemption to be in the interest of justice. Even accepting for argument's sake that the Guide established a cognisable mechanism, the circumstances narrated above — an Appellant challenging an action taken by the very supervisory authority of the alleged mechanism, in relation to a position he held that had been revoked by that same authority — plainly constituted exceptional circumstances within the meaning of Section 9(4). 37.This Court accordingly finds that the doctrine of exhaustion of remedies was misapplied in the circumstances of this case. The Learned Magistrate erred in striking out the suit on that basis. This issue is resolved in favour of the Appellant. Issue 4: What orders should issue 38.This Court has resolved all three substantive issues in favour of the Appellant. The PO was not a valid preliminary objection. The ruling of the Learned Magistrate was internally contradictory and constituted a misdirection in law. The doctrine of exhaustion of remedies was misapplied in circumstances where the alternative mechanism lacked statutory basis and where the very body mandated to administer that mechanism was the respondent against whom the Appellant sought relief. 39.The appropriate order is to allow the appeal and set aside the ruling of the subordinate court delivered on 9th January 2025 in its entirety. The matter should be remitted to the Chief Magistrate's Court at Kisumu for hearing and determination on its merits before a different magistrate. The original Notice of Motion dated 5th November 2024 shall be placed before the trial court for hearing and determination inter partes. 40.On costs, the general rule is that costs follow the event. The Appellant has succeeded in this appeal. The 1st Respondent, whose PO precipitated the striking out of the Appellant's suit, shall bear the costs of this appeal. As for the 2nd Respondent, while he filed and argued submissions in opposition to the appeal, the PO that caused the suit to be struck out was filed by the 1st Respondent alone. The 2nd Respondent was entitled to protect his interests by participating in the appeal. In the circumstances, the Court makes no order as to costs against the 2nd Respondent.H. DispositionIn the premises, this Court makes the following orders:(i)The appeal is hereby allowed.(ii)The Ruling of the Chief Magistrate's Court at Kisumu (Hon. G.C. Serem, Resident Magistrate) delivered on 9th January 2025 in Civil Case No. E400 of 2024 is hereby set aside in its entirety.(iii)The matter is hereby remitted to the Chief Magistrate's Court at Kisumu for hearing and determination on its merits before a different magistrate.(iv)The Notice of Motion dated 5th November 2024 shall be placed before the trial court for hearing and determination inter partes.(v)The 1st Respondent shall bear the costs of this appeal.(vi)There shall be no order as to costs against the 2nd Respondent.It is so ordered. DATED, SIGNED AND DELIVERED AT KISUMU THIS 26TH DAY OF JUNE 2026...................................................HON ALEX K. ITHUKUJUDGEJudgment read in the presence of:Mr. .......................... for the AppellantMr. .......................... for the 1st RespondentMr. .......................... for the 2nd RespondentCourt Assistant: - Annastacia