Consumers Federation of Kenya (COFEK) Suing Through its officials Namely Stephen Mutoro, Ephraim Kanake & Henry Ochieng) v Radio Africa Events/Group & 5 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E203 OF 2023** **IN THE MATTER OF ARTICLES 1, 10, 22, 23, 24, 35, 46, 156, 258 AND 259 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF COMPLIANCE WITH ARTICLE 46 OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE CONSUMER PROTECTION ACT, 2012** **BETWEEN** **CONSUMERS FEDERATION OF KENYA (COFEK)** **Suing through its officials namely STEPHEN MUTORO,** **EPHRAIM KANAKE & HENRY OCHIENG) ……...….…...PETITIONER** **VERSUS** **RADIO AFRICA EVENTS/GROUP…………….……1ST RESPONDENT** **HOMEBOYZ ENTERTAINMENT PLC……….……2ND RESPONDENT** **STANBIC BANK KENYA LTD………………...…….3RD RESPONDENT** **THE ATTORNEY GENERAL……...………………….4TH RESPONDENT** **AND** **COMPETITION AUTHORITY OF KENYA…..1ST INTERESTED PARTY** **COUNTY GOVERNMENT OF** **NAIROBI CITY…………………………………2ND INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The petition dated 19th June 2023 is supported by the petitioner’s affidavit and the further affidavit dated 30th June 2025. 2. The petition challenges the manner in which **Stanbic Yetu Festival** was conducted by the respondents. The petitioners contend that the event substantially departed from what had been advertised and was instead marked by widespread disorganisation including chaotic seating arrangements, poor sound and visual quality, obstructed views, limited performance, congestion, poor crowd control and inadequate sanitary facilities. In addition, the petitioner pleaded that there was a complete absence of proper security measures which led to loss of revellers personal properties including mobile phones, national identity documents and ATMs. 1. According to the petitioners, these shortcomings taken cumulatively denied the revellers who were the consumers of the service the unique and unforgettable live music experience that the promoters had in their advertisements promised hence the petitioner avers constituted a violation of the consumer rights of the participants. 2. Consequently, the petitioner seeks the following reliefs: - 3. **That this suit be declared a public interest and a class action suit in the meaning of Section 4 of the Consumer Protection Act, 2012.** 4. **A declaration be and is hereby issued that the actions of the 1st, 2nd and 3rd respondents of failure to organize a concert of reasonable quality by failing to provide security, proper sanitation, quality audio, value for money and visual playback is a violation of Articles 46(1) of the Constitution and the Consumer Protection Act, 2012 at Sections 5 and 12.** 5. **A declaration be and is hereby issued that the actions of the 1st, 2nd and 3rd respondents in admitting their failure in providing a concert of reasonable quality to its consumers but failing to offer compensation for the loss suffered by its customers is a violation of Article 46(1) of the Constitution.** 6. **A declaration be and is hereby issued that the actions of the 1st, 2nd and 3rd respondents in failing to protect the health and safety of the members of the petitioner and other consumers during the Stanbic Yetu Festival is an infringement of Articles 46 of the Constitution.** 7. **That the court do and hereby issue an order directing the 1st, 2nd and 3rd respondents to issue compensation to their customers who purchased the VIP and regular tickets for loss suffered due to their failure to comply with Article 46 of the Constitution.** 8. **The 1st interested party be and is hereby ordered to formulate policies, regulatory framework and enforcement mechanisms in compliance with Article 46 of the Constitution that ensures organizers of public events and concerts have in place refund policies and measurable quality assurance mechanisms that protect consumers.** 9. **The 2nd interested party be ordered and is hereby ordered to formulate policies, regulatory framework and enforcement mechanisms in compliance with Article 46 of the Constitution that ensure the public health and safety of consumers is attained during public entertainment events.** 10. **That this Honourable Court be pleased to grant such further orders as it may deem just and appropriate.** 11. **That the cost of this petition be met by the 1st, 2nd and 3rd respondents.** 12. In opposition to the petition, the 1st, 2nd and 3rd respondents filed Replying Affidavits dated 11th February 2024, 23rd May 2025 and 13th February 2025 respectively. **The Petitioner’s Case** 1. The petitioner is registered as a society under the Societies Act, Cap 108 on 26th March 2010. It is an independent, self funded, multi sectorial, non political and apex non profit federation committed to ensure consumer protection, education, research, consultancy, litigation, anti-counterfeits campaign and business rating on consumerism and customer care issues. The petitioner filed the instant petition on its own behalf and on behalf of its members and in the interest of Kenyans who are discontented with the blatant disregard of consumer rights by private entities and in the public interest bearing its responsibility under **Articles 3, 10, 22, 46 and 258 of the Constitution** to respect, uphold and defend the Constitution. 1. On 20th April 2023, the 3rd respondent ran an advertisement dubbed “Second Edition of Stanbic Yetu Festival” which was to be held on 10th June 2023 at Uhuru Gardens Nairobi. The advertisement indicated that the event was to be run by the 3rd respondent in partnership with the 1st respondent. 2. In marketing the event, the 1st respondent was responsible through its events division **“RA (Radio Africa) Events”** where it boasted that RA Events had organized over two hundred and fifty events featuring local and international artists where they offer international and local artists booking, event management and events consultancy. The petitioner argues that with the said kind of experience, they were aware and ought to have been aware of what is required and expected in events organizing as well as public interest thereof. Further, the 3rd respondent went ahead to promise that it would give Kenyans a unique, unforgettable and authentic live music experience that would leave a lasting impression. 1. The petitioner avers that the 1st respondent ran advertisements on their various media houses and social media platforms selling tickets in three main categories namely; - the **main area ticket going for** **Kshs. 8,000/-, the VIP** **ticket going for Kshs. 15,000/-** and the **VVIP ticket going as a pair of Kshs. 30,000/- for Kshs. 60,000/-.** 2. The regular ticket allowed a person entry to the venue, the VIP ticket allowed *entry, a VIP dinner experience, separate lavatories and a separate designated seating area* and *the VVIP ticket allowed entry, VVIP dinner experience, a separate designated entrance and parking area, separate designated lavatories, a prepaid host bar and close proximity to the stage*. 3. The rigorous advertisements by the **1st and 2nd respondents** saw all tickets all the tickets were sold out, a fact confirmed by the 1st and 2nd Respondents. 4. On the day of the concert, ticket holders of the different categories who include petitioners’ members went for the **Stanbic Yetu festival**. However, to their shock and disappointment, things were not as promised. The petitioner discloses that it received numerous complaints from its members and other revellers about the event as having been chaotic, disorganized, disorderly, unsafe, health hazard and full of stress instead of the entertainment they had hoped for. 1. That contrary to the marketing materials by the 1st and 3rd respondents, the categorization of regulars, VIP and VVIP was non-existent due to lack of proper physical controls to ensure participants remained in the category they had paid for and partly due to unscrupulous security teams that were taking inducements from some of the revellers who wanted to be moved from regular to VIP and from VIP to VVIP during the event. 2. As a result, there was extreme congestion which made it difficult to access sanitary facilities, food or revellers having a clear view of the main stage or following up on the screen. Free movement within the venue became impossible as pathways were blocked. According to the petitioner, with only six washrooms available, many people who visited the washroom found themselves unable to find their way back to their seats. The event organisers, the 1st and 2nd respondents, completely lost control and could no longer manage the swelling crowd. Many other participants ended up standing for several hours while others lost their friends/kin in the chaotic event. 1. The petitioner avers that participants had legitimate expectations to watch **“Boys II Men”** directly as promised by the 1st, 2nd and 3rd respondents but were unable to do so as they could neither view the stage nor watch from the screens as the equally small screens went off for the entire first performance. Further, the screens and sound system provided were of extremely poor quality with the instruments overpowering the vocals. This resulted in a frustrating experience of revellers trying to guess the songs or only recognizing them once the crowd started singing along. In fact, according to the petitioner, the concert performance was cut short at the main arena when the small screens failed in the middle of the **Sauti sol** performance. 2. The petitioner further averred that revellers confirmed in writing that the media centre was mounted right in the middle of the venue which effectively obstructed the free view of the main performance stage. The petitioner states that the view of the stage was completely obstructed from all angles by elevated media stand. Compounding the problems, a communication tower was inconveniently placed in the middle of the viewing area, directly in front of the stage and which added to obstructing the view of those who had paid for regular tickets. Jostling for the view meant people standing and others standing on chairs or any higher ground including on trees. 1. The petitioner further reveals that a significant number of those who paid for the VIP ticket still failed to find a seat. Several VIPs were dismayed to discover that the front section of the same VIP area had been exclusively reserved for the staff of the 3rd respondent who was the main sponsor. The said discriminatory practice, contrary to Article 27(4) of the Constitution, not only compromised the farness of the event but also left affected revellers feeling marginalized and prejudiced against. Further, the 1st and 3rd respondents did not disclose to the revellers that purchasers of a VIP ticket would also be required **to “pre book”** seats hence those who arrived at the venue at 4pm could not seat on the available seats as they were informed the same had been reserved for other persons who were yet to arrive at the venue. 2. Additionally, the performance by “Boys II Men” was disappointing as they only performed very few songs, spending a considerable amount of time on cover songs, which is not what the revellers had paid for. 3. Moreover. the conditions of the toilets were appalling. Not only were they inadequate but also filled to capacity. In one instance a lady attempted to flush the toilet leading to an overflow of blue toilet liquid and tissue paper rushing towards others waiting on the long queue, an experience that was particularly inhumane and a public health hazard. 1. The petitioner states that was a complete absence of proper security measures which led to loss of personal properties including mobile phones, national identity documents and ATMs. The said incidences have been reported at Langata Police Station. 2. The petitioners contend that these issues left many revellers feeling deceived and cheated because the “Boys II Men” concert was a complete disaster and an unjustifiable waste of hard-earned monies from unsuspecting Kenyan consumers (revellers) who were duped by the 1st, 2nd and 3rd respondents. 3. The petitioner contended that under relentless public pressure, particularly from social media and print media, the 1st, 2nd and 3rd respondents issued a press conference on Monday, 12th June, 2023. In that statement, which they did not deny the numerous challenges that arose at the event, they unreservedly apologised for the failure to meet expectations. 4. The petitioner argues that pursuant to **Article 46(1)(d) of the Constitution**, an apology is not enough and compensation in such instances is an absolute right and entitlement to the victims by the aggressors. The petitioner further argues that the 1st, 2nd and 3rd respondents cannot dispute that they collected hundreds of millions of shillings from the revellers and sponsors and full refund of funds collected together with compensation for losses suffered will not be adverse as they still raised funds from sponsors of which they are not seeking any refunds. **The 1st Respondent’s Case** 1. Grace Wambui, the 1st respondent’s Group Head of Legal swore the 1st Respondent’s replying affidavit on 20th April 2023. 2. The 1st Respondent acknowledged that it announced a partnership for an event known as second edition of the “Stanbic Yetu Festival” which took place on Saturday 10th June 2023 in Uhuru Gardens, Nairobi. The advertisement with the sponsor provided that there would be three categories of tickets namely regular tickets for Kshs. 8,000/-, VIP tickets for Kshs. 15,000/- and VVIP tickets for Kshs. 30,000/- which would be purchased from [www.ticketyetu.com](http://www.ticketyetu.com) on the terms and conditions provided for therein. The event disclaimer categorically provided that: **“By purchasing tickets & attending the event, you agree to be bound by these terms and conditions for the ENTIRE duration of the event. For any queries, incident report please contact our events team RAL immediately.’’** 1. Further every ticket purchased had expressly stated particular terms and conditions binding on the ticket holder that: **“You voluntarily assume all risks whether occurring prior to, during and after this event. You agree to release the organization facility, participants, Ticket Yetu and their respective affiliates and representatives from responsibility and related claims.”** 1. The deponent further reveals that the terms and conditions governing the issuance of tickets was provided on the ticket yetu website on <https://www.ticketyetu.com/terms-and-condition> 2. The deponent asserts that pursuant to Clause 20 of the Terms and Conditions, which was binding between the ticket holder and the event organiser, it provided the appropriate dispute resolution mechanism commencing with amicable dispute resolution and culminating in arbitration in the event of no agreement being reached within 28 days. As such, she argues that the petition is fatally defective as it relates to a contractual dispute between the individual ticket holder and the 1st respondent. Furthermore, the court’s jurisdiction has been improperly invoked by the petitioner and therefore the court lacks jurisdiction to hear the instant petition. 1. The deponent asserts that prior to the events, the 1st respondent engaged various service providers to provide the required amenities including sound system, furniture, security scanning machines, mobile toilets, urinals and food vendors. 2. The 2nd respondent in conjunction with Professional Events & Décor, Homeland Itoya Events and Staarab Lounges Ltd provided the technical system including the technical visual, sound, lighting, power, technical support, transport and crew. The deponent avers that there were 70 washrooms available, tents that could accommodate 6,926 persons, seating areas that could accommodate 6,270 persons, bar areas that could accommodate 8,100 persons and different food vendors that could accommodate 11,100 persons. She further avers that the 1st respondent engaged Homeland Itoya Events, simply Sophisticated Events and Infinite Planners to provide tents and furniture. Additionally, Four winds Consultants provided the artist kit to ensure the success of the event. The 1st respondent further engaged the services of On the Mark Security Limited which provided different personnel to ensure that the venue of the event was fully secured. As regards food vendors, the deponent avers that the 1st respondent engaged the services of Kenchic Limited, Nababurger, Sultan Meat Packers t/a The Artisan Butcher & Deli and the Rockbern Coffee Group Limited who provided quality food and beverages at the event. The 1st respondent entered into a Service Level Agreement with the 2nd respondent which provided the equipment as per Schedule 1 of the Agreement and the 2nd respondent proceeded to set up the event as per the terms of the agreement. 1. The deponent avers that there is no evidence that the main area screens failed to project during Sauti Sol and Boys II Men performance as the screens that were mounted were new and of good quality. The screen and sound issues were immediately rectified. As per the technical rider issued by the 2nd respondent (mixer/music console mixer, speakers, screens) the organizers provided the state of art equipment and ensured that it matched Boyz II Men’s requirements. Further, regarding the events lay out and floor plan, the deponent states that the stage was not far and invisible to the revellers as alleged. She states that the 1st respondent provided pictures of how the venue looked like and the set up was properly done and there were proper demarcations in place to separate VVIP, VIP and the main arena with clear pathways in place to allow free movement of revellers. The deponent adds that the tent/doe provided was the largest and spacious dome in the country. Further, she states that there were extra tents behind the dome and on all sides of the dome to cater for any extra people. Regarding the seats, the seats were an added advantage and not a requirement as most events do not provide seats for the main arena areas. Nonetheless the organizers made adequate arrangement for the seats and delivered on a service that is not normally provided. On the issue of reserved seats, the deponent avers that the only seats that were reserved were for the County Governor and invited guests and all the other seats were free siting and were on first come first serve basis. Regarding the sanitary facilities, the deponent states that adequate measures were put in place to address the same as the organizer had an arrangement with the suppliers to ensure cleanliness of the toilets and ensure that they had adequate water. The sanitary facilities were far away to maintain cleanliness and ensure that the toilets were away from the food serving points to prevent any odour emanating from the toilets and maintain hygiene. Regarding food and drinks, the deponent states that there was a variety of food and alcohol vendors to serve different tastes of the revellers. Further regarding security and crowd control. the deponent states that the organisers provided adequate security as per the services offered by the service provider. She further avers that no evidence in form of an occurrence book has been tendered in terms of revellers having been robbed or P3 Form has been produced to prove the injuries or medical report. The deponent argues that in organizing such a massive event, some lapses may arise and the organizer may in one way or another fail to meet the expectations of each and every reveller. 1. The deponent states that the complaints have not been supported by any photos taken by the revellers to show the sorrow state of affairs. Further, the revellers have not produced their tickets paid for the event and were present during the event. Additionally, the deponent argues that the emails produced by the petitioner are inadmissible as they do not conform to the mandatory provisions of Section 106B of the Evidence Act as no certificate of electronic evidence has been accompanied the impugned emails and therefore devoid of any probative value. 1. The deponent argues that the petition offends the doctrine of exhaustion that demands that a case should not be resolved by deciding a constitutional petition if it can be resolved in some other fashion. Furthermore, the dispute arises from a contractual engagement between ticket holders and the event organisers. Additionally, the petition offends the doctrine of contractual avoidance as the petitioner cannot canvass constitutional issues in breach of contractual obligations that provide for dispute resolution resulting from any purported breaches of contract between the parties to the contract and in any event, the petitioner lacks locus standi as it was not a party to the said contract. The doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract and that accordingly a contract can be enforced amongst the parties. The deponent argues that the petitioner is not a consumer as defined by Section 2 of the Consumer Protection Act and therefore lacks locus standi to institute a class action suit in accordance with section 4 of the Consumer Protection Act. **The 2nd Respondent’s Case** 1. Michael Rabar, the Chief Executive Officer of the 2nd respondent swore the affidavit and depones that the 2nd respondent entered into a level service agreement with the 1st respondent whereby their obligations were clearly set out under clause 2 which was to provide the 1st respondent with electronic media devices and equipment that included an audio and visual component. The deponent asserts that the 2nd respondent was not involved in other logistical or planning that went into the festival. 2. The deponent reveals that the 2nd respondent provided a quote to the 1st respondent on 24th April 2023 on the equipment that it was meant to provide. The quote was based on the assumption that the maximum number attended would be in the range of 5000 people. The 1st respondent issued a purchase order confirmation on 30th May 2023 as per the quote the 2nd respondent had issued and the equipment which the 2nd respondent provided would cater for the range of concert goers as had been projected. He further avers that the equipment provided by the 2nd respondent performed as expected and it may have been the equipment of other sound providers who the 1st respondent engaged such as B2M sound engineers to operate their equipment that had issues. 3. Regarding the allegations of the screens being small and going off, the deponent avers that the equipment they provided complied with the specifications under the agreement; the screens were of sufficient size and placed at strategic locations to be viewed by the estimated range of people indicated in the agreement and as per the agreement there were 4 screens which were 4 metres by 3 metres each and were sufficient for the estimated range of attendees. For the sound quality being poor, the deponent avers that their equipment met the specifications under the agreement; the sound quality was up to the required standard and the placement of the media centre and the communication tower were done in consensus with the 1st respondent as all the layout plans were provided by the 1st respondent. 1. The deponent states that at the beginning of the Boyz II Men performance, there was a less than 5-minute delay as the sound engineer who had been engaged by Boyz II Men was not conversant with operating the equipment and after he was shown how, the issue of the sound was resolved and the concert progressed well. He further avers that the audio-visual equipment provided by the 2nd respondent was adequate to cater for the range of people who were expected to attend as per the agreement. **The 3rd Respondent’s Case** 1. Marion Karogo, a Senior Manager in the Brand & Marketing Department of the 3rd respondent swore the affidavit and depones that the 3rd respondent entered into a Sponsorship Agreement with the 1st respondent dated 10th April 2023 to facilitate the Stanbic Yetu Festival. As per paragraph 2.3.1 of the said agreement, the 3rd respondent was the concert’s title sponsor effectively granting the 3rd respondent the exclusive right to have its name featured in the title for the Yetu Festival and benefit from defined publicity and brand placement opportunities. The deponent avers that the 3rd respondent’s role as the title sponsor was limited to provision of finances alongside other sponsors for the purposes of organizing the event as captured in clause 2.3 and 2.4 of the Sponsorship Agreement that clearly states the scope of the contractual relationship and responsibilities of the 1st and 3rd respondents. 1. The deponent outlines that the 3rd respondent never participated in the planning and execution of the following activities complained of by the petitioner;- the sale and categorization of the tickets for the subject event; organization of the different zones at the grounds for the different ticket categories i.e Main arena, VIP, VVIP; organizing and setting up the pathways and the toilets for use by revellers at the event; the set up of sound equipment and big screens for use at the event; the stage set up i.e the main arena and media centre set up; the tents, seating arrangements and alleyways at the grounds; the crowd arrangement protocols and security arrangements for the subject event; the set up of the communication tower at the event and the sanitary management for the facilities i.e toilets in use at the grounds. The deponent reiterates that the 3rd respondent’s role did not extend to the logistical execution of the subject event and therefore it was not involved in the categorization and placement of the revellers in the different zones for regular, VIP and VVIP ticket holders and would therefore not be legally liable for the events that occurred on the said 10th June 2023. He further avers that it is not true that the revellers holding VIP tickets were barred from accessing the VIP areas due to the alleged claim that the VIP area was exclusively reserved for the 3rd respondent’s staff. 1. The deponent affirms that the 3rd respondent issued a statement dated 16th June 2023 affirming that it was the title sponsor and it indicated that it would engage the 1st respondent as the organizer of the concert to identify the root cause of the issues presented. He further avers that the 3rd respondent takes its corporate social responsibility seriously and re-assured the public of the said position through its statement dated 16th June 2023 by indicating that it remains committed to supporting the development of the creative industry, encouragement of partnerships and moulding a unique cultural identity through social interactions. 2. The deponent argues that save for the issues complained of which were beyond the 3rd respondent’s responsibility or expertise as title sponsor, the subject event achieved the test of reasonable quality as anticipated by Article 46 of the Constitution. 3. The petitioner filed a Further affidavit dated 30th June 2025 and states that the 1st respondent admits that the concert’s capacity was 6,926 with seats accommodating approximately 6,270 thus they deliberately planned to oversell the concert given that the 2nd respondent claimed that it provided audio/visual for an estimated 5,000 people. He further states that whilst the 1st respondent provides the expected numbers, they have failed to reveal the total number of tickets including the complimentary ones, issued for the concert which is intentional as it would indicate that the concert was oversold hence the terrible experience of the revellers. 4. The petitioner reiterates that as a consumer rights advocacy organisation, they advocate for remedial action as where services provided do not meet the description, the appropriate remedy is monetary compensation. He further states that the 2nd respondent admits to providing sound and sound system failing but tries to minimize the role of the failure. That notwithstanding, the issue of sound failure and layout failure has already been admitted by the 1st respondent. Furthermore, the apologies of the 1st and 3rd respondents confirm that the audio visual and sound set up was a major failure accompanied by a promise to improve future concerts. The petitioner argues that the range of people for the equipment provided as 5,000. Considering the number of people estimated by the 1st respondent, there was a clear mismatch as the 1st respondent planned for 6,920 while procuring audio visual services for 5,000. The difference of nearly 2000 indicates a lack of goodwill regarding that critical aspect of the concert. 1. The petitioner states that the 3rd respondent in its apology dated 16th June 2023, stated that it was a partner in the event and that was the understanding by revellers and thus their attempts to avoid liability must not be accepted. Further, the 3rd respondent is aware it possesses goodwill and is a reputable bank targeting elite clients. it thus exploited the goodwill to become the title sponsor, appealing to a class of revellers considered premium as the ticket prices ranged from Kshs. 8,000/- to Kshs. 30,000/- clearly indicating the demographic it expected to attract. The petitioner further states that the apology given acknowledges that “Key Elements” of the event fell short proving that the 3rd respondent was aware which amounts to a fundamental breach but at the same time expect the revellers who had spent their hard earned money to accept the apology as sufficient. 2. The petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The petitioner identified three issues for determination as follows; *doctrine of constitutional avoidance*, *violation of consumer rights to quality, information and safety* and, *appropriate reliefs*. 2. On the doctrine of constitutional avoidance, the petitioner referred to the case of **Consumer Federation of Kenya (COFEK) (Suing through its officials namely Stephen Mutoro, Ephraim Kanake and Henry Ochieng) vs Radio Africa Events/Group & 3 Others, Competition Authority of Kenya & Another (Interested Parties) [2024] KEHC 8254 (KLR)** where the court held:- **The contractual procedure would only apply and bind parties to a contract. It has not been determined if the petitioner and the 1st respondent have that kind of relationship, it is subject to proof.** 1. The petitioner argued that the 1st respondent did not provide any evidence of a contractual relationship as they have never entered into a relationship with the 1st respondent. To buttress that point reliance was placed in the decision by Lenaola J (as he then was) in **Bernard Murage vs Fineserve Africa Limited & 3 Others (2015) eKLR** where he stated:- “**I am also aware of the principle established by the Court of Appeal of Trinidad and Tobago in the case of Damain Belfonte vs The Attorney General of Trinidad and Tobago CA 84 of 2004 that where there is a means of redressthat is inadequate, the Court should not exercise restraint.** 1. Further reliance was placed in the case of **CIS (Suing as parents and guardians of students minors currently schooling at Crawford International School) vs The Director, Crawford International School & 3 Others (2020) eKLR** where Justice Weldon Korir agreed with the decision of Lenaola J in Bernard Murage (supra) where he noted that the issue of consumer rights is one that can attract both statutory and constitutional remedies, noting that even though the issues placed before the court arose from contractual relationships, they also called for the interpretation of the constitution. 2. Similarly in **Mark Ndumia Ndung’u vs Nairobi Bottlers Ltd & Another [2018] eKLR** the court held that:- **It is trite law where there is an efficacious or alternative remedy a dispute ought to be resolved in accordance with the alternative procedure. See Charles Otieno Opiyo vs Orange Democratic Movement Party [2017] eKLR.** **Paragraph 9 of the CESCR General Comment No. 9: The Domestic Application of the Covenant requires that alternative remedies should be accessible, affordable, timely and effective. According to the decision of the African Commission on Human and Peoples’ Rights (ACmHPR) in Dawda K Jawara vs Gambia 147/95-149/96 concerning availability of effective alternative remedies, it was held that:-** **A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint….The** **government’s assertion of non exhaustion of local remedies will therefore be looked at in this light….a remedy is considered available only if the applicant can make use of it in the circumstances of his case.** **If the availability of a remedy is not evident, it cannot be invoked to the detriment of the petitioner. Thus, where a party argues that a petition is inadmissible before this court because alternative remedies have not been exhausted, that party bears the burden of demonstrating the existence of such remedies and that they have not been exhausted. The onus was on the 2nd respondent to demonstrate that the petitioner did not exhaust alternative remedies.** **In the case at bar, a close examination of the proposed alternative remedies indicates that the 2nd respondent’s assertions about the existence of efficacious or alternative remedies are misleading. How would prosecution by the Director of Public Prosecutions or withdrawal of a licence under the Standards Act be an answer to the constitutional questions raised by the petitioner about the interpretation of Articles 27 and 46 of the Constitution in relation to consumer rights?** 1. The petitioner argued that the instant case calls for the *interpretation of the constitution on the protection of consumers and only the High Court under Article 165(3)(d) has jurisdiction to determine such matters*. Furthermore, the respondents have not demonstrated that an alternative remedy is available. They have not demonstrated that the instant matter does not call for the enforcement of the consumer rights as provided for under Article 46. Reliance was placed in the case of **Nairobi Bottlers Ltd** (supra) where the Court of Appeal held:- **…..that as the learned Judge correctly observed the 1st respondent pleaded in his petition that he brought the petition in public interest. Although consumer rights affect only parties, their impacts and consequences are substantial, broad based, transcending the litigation interests of the parties, and bearing upon the public interest. Accordingly, consumer rights litigation is not a game of win or lose in which winners must be identified for reward, and losers for punishment and rebuke.** 1. On the second issue, the petitioner refers to **Article 46(1) of the Constitution** and submitted that when a service is defective or substandard and causes consumer loss (financial or otherwise), the consumer should be made whole. By selling tickets and advertising the concert, the respondents undertook a legal obligation to deliver a service that aligns with what was promised and meets reasonable standards of quality, safety and fairness. Failure to meet those obligations is not merely a breach of contract; it constitutes a violation of constitutional rights and statutory duties owed to consumers. 2. The petitioner submitted that the evidence shows a stark substantial departure from what had been advertised. Leading up to the event, the respondents portrayed the Stanbic Yetu Festival as a world class concert experience. Consumers were led to expect an evening of memorable entertainment with top notch sound systems, visual displays, VIP comfort for premium ticket holders, ample amenities and strict adherence to capacity for safety and comfort. The said representations created a legitimate expectation and amounted to warranties about the quality and characteristics of the service however on the material day, the service delivered was grossly deficient on multiple respects such as the sound quality, visual displays and inadequate facilities and planning- safety and economic interests. On the issue of sound quality, numerous attendees complained that the sound in the general admission area was so poor that they could barely hear the performers. Further videos circulating online and shared with COFEK show crowds chanting in frustration due to inaudible audio. Additionally, the 1st respondent’s own post concert public statement conceded that the sound was problematic and despicable in parts of the venue for which it apologized. 1. On the issue of visual display, the advertised experience presumably included large LED screens to relay on stage action to those far from the stage yet on the material night the screens were reportedly faulty and at times went blank, leaving many in the crowd unable to see the performers. Beyond the core performance issues, the petitioner submitted that the respondents failed to provide basic facilities and crowd management to a degree that endangered health and safety and undermined consumers’ economic interests. Complaints reported and evidence adduced show overcrowding and overbooking, insufficient amenities and lack of compliance with regulations. The VIP and VVIP sections, intended to provide exclusivity and comfort given their high ticket prices were overfilled far beyond capacity. One attendee recounted that the VVIP area was meant for about 180 people but ended up accommodation nearly 400 which is more than double the comfortable capacity. The petitioner argued that such congestion negates the economic value of the expensive ticket but also posed safety risks as overcrowding can lead to stampedes or render emergency medical access impossible. The attendee further observed that security guards were overwhelmed and worried that if someone had fainted, emergency responders would have struggled to reach them. The said safety concerns engage Article 46(1)(c) consumer’s rights to protection of health and safety was violated by the organisers’ greed in admitting far more VIP patrons than was prudent. 1. On the issue of insufficient amenities, the petitioner submitted that evidence from attendees indicates that there was lack of adequate toilets and food vendors for the large crowd present. Long queues and unsanitary conditions not only marred the experience but also raised concerns about health and safety standards. Further regular section ticket holders also lacked seating meaning they stood for hours. The petitioner argued that while that might be expected for some concerts in regular sections, the absence of seating is notable especially if it was promised or needed due to delays. The combination of standing in overcrowded pens, struggling to access washrooms or refreshments and straining to hear or see the performance clearly caused many consumers to feel cheated and physically distressed compromising consumers dignity, comfort and safety contrary to Article 46 of the Constitution. 1. The petitioner argued that the interested parties are responsible for overseeing consumer protection and event licensing and any evidence from them will indicate whether the respondents obtained the necessary approvals for crowd capacity and safety. If the respondents exceeded the licensed capacity or violated safety regulations, that would further highlight the infringement of Article 46(1)(c) of the Constitution. Further, in the absence of an explicit regulatory breach, the facts reveal a de facto disregard for consumer safety and interests. 2. The petitioner submitted that the principle of *res ipsa loquitur* applied as a concert does not ordinarily suffer complete sound failure or screen blackout without some negligence or poor planning; sections do not become overfull by accident but by choice and inadequate amenities reflect a failure to invest in proper infrastructure. The respondents had a duty to anticipate and plan for sufficient capacity and technical reliability. Hiring the 2nd respondent implies an expectation of expertise in sound engineering and events logistics which makes the gross deficiencies even more telling. As such, the consumers suffered economic injury as they paid a high price for a low quality service and non economic injury in terms of lost enjoyment and frustration for which they are entitled to compensation under Article 46(1)(d). Reliance was placed in the case of **Nairobi Bottlers Ltd & Another vs Mark Ndumia Ndung’u (2023) (Civil Appeal 99 of 2018)** where the Court of Appeal upheld a finding that a soda manufacturer violated article 46 by failing to provide uniform product information to consumers, affirming that Article 46 imposes obligations on private businesses and that omissions or deficiencies can offend Article 46 and the Consumer Protection Act. 1. The petitioner argued that the constitution establishes minimum standards if any significant segment of consumers, likely the majority in regular/VIP, did not receive a service of reasonable quality, their rights are infringed. Furthermore, a provider cannot evade liability by pointing to those fortunate enough not to be affected by the lapses as the emphasis should be on those who were impacted. On the assertion by the respondents that by attending the event, consumers assumed the risk of certain inconveniences, **Section 5(3) of the Consumer Protection Act** voids any contractual term purporting to waive the implied warranty of quality. Consumers never consented to substandard sound or dangerous overcrowding. The petitioner asserted that such concerts and public events are becoming increasingly common and without court intervention, a dangerous precedent would be set whereby organisers can flout consumer rights with impunity. **The 1st Respondent’s Submissions** 1. The 1st respondent identified five issues for determination as follows:- whether the petition raises constitutional issues for determination by the court; whether this court is barred from hearing and determining the suit under the doctrine of exhaustion of remedies; whether the respondents are to be held liable for the acts of an independent contractor; whether the petitioner has proved the claim to the required standards and whether the petitioner lacks locus standi to institute the petition. The 1st respondent submitted that the petition does not disclose any violation of constitutional rights as alleged. Reliance was placed in the case of **C.N.M vs W.M.G [2018] eKLR** where the South African case of **Fredricks & Others vs MEC for Education and Training, Eastern Cape & Others** was cited which provided:- **The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself. If regard is had to the provisions of the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…….the interpretation, application and upholding of the Constitution 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 the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine the constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.** 1. The good judge further stated:- **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.** 1. The 1st respondent asserted that the question before the court arises from a contractual relationship between the revellers and itself which the petitioner has attempted to clothe as a constitutional issue. It further argued that while there exists no contractual relationship between it and the petitioner, the question before the court arises from allegations of breach of contractual obligations and alleged failure by the 1st respondent to deliver on its promise to revellers who attended the event after purchasing the ticket. The 1st respondent further cited the case of **CIS (Suing as parents and guardians of students minors currently schooling at Crawford International School) vs The Director, Crawford International School and 3 others** **(2020) eKLR** relied upon by the petitioner and argued that it can be distinguished as follows:- 1. The court clarified that a party may only seek constitutional remedies for claims arising from contractual relationships where there are no alternative remedies available to the party; or if available, the said remedies are not effective enough to address the issue at stake. 2. The case involved a learning institution which is licensed by the government to offer education services to children. 3. In the instant matter, the 1st respondent asserted that there is an elaborate dispute resolution mechanism that an aggrieved reveller ought to have taken including negotiation and arbitration which is provided for under Article 159 of the Constitution and the Arbitration Act. 4. On the second issue, the 1st respondent submitted that as per clause 20 of the Terms and conditions which was binding between the ticket holder and the event organizer, it aptly provides for the appropriate dispute resolution mechanism. Suffice to further note that the petitioner does not deny the existence of the said terms and conditions. Reliance was placed in the Court of Appeal decision in **Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] eKLR** where the court held:- **It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanism in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.** 1. We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. 2. Further reliance was placed in the case of **Nyaoga vs Chairman Kisii County Assembly & 3 others [2023] eKLR** where the Court of Appeal held that:- **The doctrine of exhaustion of remedies was created by courts in order to promote efficient justice system and autonomous administrative state. It is a principle that requires parties to exhaust all available local administrative remedies before seeking redress in a court of law on a constitutional issue. An aggrieved party must first pursue all avenues of relief found within the administrative agency responsible for the issue at hand. The reason for this is to allow administrative agencies to address, and to potentially resolve the issue before escalating the same to the courts.** 1. The court further stated:- **We also take note of the sentiments expressed in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested parties) (2020) eKLR by this court that:** **The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.** 1. The 1st respondent asserted that **Section 10 of the Arbitration Act** and **Article 159 of the Constitution** preserve the exclusive jurisdiction of arbitration and alternative dispute resolution and oust the intervention of the court. Further clause 20 of the Terms and Conditions of the Agreement binds all parties and mandatorily obligates parties to first attempt negotiation and arbitration in the event negotiations fail before resorting to seek remedy in court. Thus the proceedings offend the doctrine of exhaustion of the remedies set out in clause 20 and any continuance of the instant proceedings is a nullity in law. Further, the 1st respondent submitted that the petitioner not being a party that purchased the ticket cannot invoke the dispute resolution mechanism provided for as it was not a party to it. Reliance was placed in the case of **Joseph Kamau Maina vs Kenya Commercial Bank Plc & Central** **Bank of Kenya Constitutional Petition E003 of 2023 [2024] eKLR** where the court opined the following on the jurisdiction of the Arbitration Tribunal:- **As mentioned earlier, the term “party” in the Act means parties to the arbitration agreement. Therefore, when the legislation provides that the court may refer the parties to arbitration, it means that the court may refer the parties to the arbitration agreement to arbitration. Thus, the court cannot invoke the provisions of the Act to refer a non party to an arbitration agreement to arbitration.** **As has been deponed by the petitioner, the Central bank of Kenya, sued as the 2nd respondent in this action, is not a party to the arbitration agreement between the petitioner and the 1st respondent. As such, the dispute between the 2nd respondent and the petitioner on the latter’s contract of service cannot be adjudicated upon by an arbitrator pursuant to the provisions of the Arbitration Act.** 1. Further reliance was placed in the case of **Martin Njuguna Ngugi vs Ahmed Noor Sheikh & Another (2018) eKLR** where the court stated:- **An arbitration agreement binds parties to the agreement, not non parties.** 1. The 1st respondent submitted that he foundation of the petition is the Stanbic Yetu festival wherein an attendee ought to have purchased a ticket to attend the event. It is the ticket that bound the organizers and the reveller and it is the said ticket that created a contractual relationship between the reveller and the organizers. Suffice to add, the 1st respondent submitted that there was material non disclosure of terms and conditions governing tickets as set out in the website <https://www.ticketyetu.com/terms-and-conditions> 1. The 1st respondent argued that it cannot be held liable for the harm allegedly suffered as a result of the negligent acts or omissions of the independent contractors. Reliance was placed on the decision in **Barclays Bank Plc vs Various Claimants [2020] UKSC 13** where the court stated:- **Significantly, Ward LJ, who gave the leading judgment, did not question the traditional distinction between an employee and an independent contractor. Rather, he asked himself what was the essence of each of those roles and then asked whether the relationship between the priest and the bishop was closer to that of an employee or to that of an independent contractor. He summed up the difference thus (para 70) :** **An employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.** 1. The court went further and stated as follows:- **Clearly, although Dr Bates was a part time employee of the health service, he was not at any time an employee of the Bank, Nor viewed objectively, was he anything close to an employee. He did, of course do work for the bank. The bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books.** **Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the bank.** **Until these recent developments, it was largely assumed that a person would be an employee for all purposes -employment law, tax, social security and vicarious liability. Recent developments have broken that link, which may be of benefit to people harmed by the torts of those working in the gig economy. It would be tempting to align the law of vicarious liability with employment law in a different way. Employment law now recognises two different types of “worker”: those who work under a contract of employment and** **those who work under a contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. (Employment Rights Act 1996, Section 230(3). Limb (b) workers enjoy some but by no means all the employment rights enjoyed by limb (a) workers. It would be tempting to say that limb (b) encapsulates the distinction between people whose relationship is akin to employment and true independent contractors; people such as the solicitor in Bates van Winkelhof vs Clyde and Co LLP [2014] UKSC 32; [2014] 1 WLR 2047, or the plumber in Pimlico Plumbers Ltd vs Smith [2018] UKSC 29; [2018] ICR 1511. Asking that question may be helpful in identifying true independent contractors. But it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of “worker” developed for a quite different set of reasons.** **I would allow this appeal and hold that the bank is not vicariously liable for any wrongdoing of Dr Bates in the course of the medical examinations he carried out for the bank.** 1. Further reliance was placed in the case of **Ng Huat Seng vs Mohammad [2017] SGCA 58** where the court held:- **Indeed, we do not see how vicarious liability, the normative foundation of which rests on the theory that it is fair, just and reasonable to hold a defendant liable for the acts of the tortfeasor on the ground that the tortfeasor is in fact engaged in the defendant’s enterprise, could possibly be extended to tortious acts committed by an independent contractor, who by definition is engaged in his own enterprise. There is simply nothing fair, just and reasonable about imposing secondary liability on a defendant in such a situation.** 1. Similar reliance was placed in the Court of Appeal case of (no case cited):- **What Selle and Another (supra) is saying is that a principal will be responsible for the acts of the servant where the servant is carrying out a task on behalf of the principal.** **That is not the same when the task involves employment of an independent contractor. The issue is well captured in Charlesworth on Negligence 4th Edition, Sweet and Maxwell. On the subject of independent contractors, the learned author declares that an employer is not liable for the negligence of an independent contractor or his servant in the execution of his contract. He says:** **Unquestioningly, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servant commits some casual act of wrong or negligence, he employer is not answerable.** **The author gives the example of a man who has his lorry repaired by competent lorry repairers, or his lift repaired by competent** **engineers or his premises rewired by experienced electrical contractors- in each of these cases the man is not liable for damage caused by their negligent work. Likewise a building owner who engages an architect whom he reasonably believes to be competent is not in general responsible for the architect’s negligence, since he has no control over the manner in which the architect does his work.** **So the general rule is that an employer who has employed an independent contractor to undertake services or work on his behalf is not responsible for any tort committed by the contract or in the course of his work. The employer is also not liable for the tortious act committed by the contractor’s employees.** 1. The 1st respondent submitted that it engaged various service providers to enable the success of the subject event and thus its relationship with the contractors was not sufficiently akin to employment to make it fair and just to hold it liable for any shortfall in the services of the said independent contractors. The 1st respondent further argued that the petitioner did not provide any evidence that the main arena screens failed to project during Sauti Sol and Boys II Men performance. Further, the screens were new and of good quality and the screen and sound issues were immediately rectified. Additionally, as per the 2nd respondent, the organizers provided the state of art equipment and ensured that it matched Boyz II Men’s requirements. As regards the events layout and floor plan, the 1st respondent asserted that the stage was not far and not visible to the revellers as alleged as it has provided photos of how the venue looked like; the set up was properly done and there were proper demarcations in place to separate VVIP, VIP and Main arena with clear pathways in place to allow free movement of revellers. Additionally the tent provided was the largest and most spacious in the country; there were also extra tents behind the dome and on all the sides of the dome to cater for any extra people; the seats were an added advantage and not a requirement; the only seats that were reserved were for the county governor and invited guests; the sanitary facilities were away to maintain cleanliness and away from the food serving points to prevent any odour emanating from the toilets; each ticket offered different amenities; there was variety of food and drinks and adequate security was provided. 1. The 1st respondent further submitted that the complainants have not established by way of evidence of ticket that they each individually and collectively paid for tickets and were revellers during the event. As such, the evidence ought not to be admitted by the court. Further, the emails produced by the petitioner are inadmissible as they do not conform to the mandatory provisions of **Section 106B of the Evidence Act**. Reliance was placed in the case of **John Lokitare Lodinyo vs IEBC & 2 Others [2018] eKLR** where the Court of Appeal addressed the admissibility of electronic records under **Section 106B of the Evidence Act** and stated:- **Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal.** **Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the** **IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via a printer connected to the computer.** **It is at this juncture that the provisions of Section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do. This court in the case of County Assembly of Kisumu & 2 Others vs Kisumu County Assembly Service Board & 6 others [2015] eKLR stated that:** **Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document if the conditions mentioned in this section are satisfied in relation to the information and computer. In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub section 106B(2) of that Act to vouch safe the authenticity and integrity of the electronic record sought to be produced…** 1. Further reliance was placed in the case of **Richard Nyagaka Tong’i vs IEBC & 2 Others Election Petition No. 5 of 2013 [2013] eKLR** where the court found:- **In the present case the petitioner has not produced a certificate under section 106B(4) of the Evidence Act and the person who operated the computer and printer during the printing of the photographs was not called upon to testify as to the condition of the machines and the integrity of the process of the printing of the photographs. The person** **who testified was the photographer who although he stated that he was with the computer operator when the photographs were made cannot** **vouch for the due operation of the computer and printer and the integrity of the photographs having** **himself admitted that they would at times sit with the operator to choose colours in which the photographs would be printed. The court cannot rule out the possibility of doctored photographs and in accordance with Section 106B the photographs are inadmissible and shall not be considered.** 1. Similar reliance was placed in the case of **Rachael Njoki Kihara vs Gideon Migiro Nyambati [2020] eKLR** where the court held:- **It is clear that the screenshots were taken by some other person other than the plaintiff and later sent to the plaintiff whereupon she downloaded and saved the images. Through her device she was able to download, save the contents of the WhatsApp message on her computer and print out the document. It was thus necessary to file a certificate pertaining to the person who took the screenshot of the WhatsApp messages describing the particulars of any device involved in the production of the image.** 1. Thus, the 1st respondent argued that as the electronic evidence is not accompanied by the requisite electronic certificate, such evidence is devoid of any probative value. 2. In urging the court to dismiss the petition, the 1st respondent referred to the case of **Daniel Toroitich arap Moi vs Mwangi Stephen Muriithi & Another [2014] KECA 642 (KLR)**, the Court of Appeal allowed the appeal and set aside the High Court judgment as the respondent failed to prove his case by laying evidence to support his case. The court held:- **The next issue for determination is whether even if the appellant ought not have been sued in court by way of petition, and judgment delivered against him, the claims were proved. Proof in claims of a civil nature is by way of evidence. Section 3 of the Evidence Act defines evidence as denoting:** **The means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved, and without prejudice to the foregoing generally, includes statements by accused persons, admissions and observations by the court in its judicial capacity.** **In that regard to prove or disprove a matter of fact, a claimant bears the burden of proof as stated in Sections 107, 108 and 109 of the Evidence Act as follows:** **107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.** **The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.** **Therefore on this ground of proof regarding the fate of the properties of the three limited liability companies, the 1st respondent failed to discharge his burden and the trial court was in error to conclude in his favour…..We have already found that the 1st respondent failed to discharge his burden of proof** **of the existence of facts claimed of the companies, what they owned and whether property sales indeed took place, followed by transfers.** 1. Further reliance was placed in the case of **Leonard Otieno vs Airtel Kenya Limited [2018] eKLR** where Mativo J (as he then was) held:- **I have severally stated that although issues of consumer rights affect only the parties, their impacts and consequences are substantial, broad based, transcending the litigation interests of the parties, and bearing upon the public interest, hence the need for the parties to submit the necessary evidence to enable the court to analyse the issues and arrive at a formidable determination that transcends the case at hand. Consumer rights litigation is not a game of win or lose in which winners must be identified for reward and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the expanded Bill of Rights in our transformative and progressive constitution by establishing its meaning through contested cases.** **The general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. Differently put, the onus lies on the petitioner to prove every element** **constituting his cause of action. This includes sufficient facts to justify that his consumer rights were violated.** **If in contested proceedings, the consumer asserts that his rights have been violated, the court must make a finding whether the consumer’s allegations are true.** **A casual examination of the petition reveals that it does disclose a case at all against the respondent. In particular, no evidence has been presented to demonstrate that the respondent violated the constitutional and statutory provisions which protect consumer rights.** **Section 107(1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sub section (2) provides that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **I have severally stated that all cases are decided on the legal burden of proof being discharged (or not). Lord Brandon once remarked:** **No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.** **Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far Eat Ltd:** **The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.** 1. The 1st respondent reiterated that the event was massive and was successful as there were 70 washrooms, available tents that could accommodate 6,926 persons, seating areas that could accommodate 6,270 persons, bar areas that could accommodate 8,100 people and different food vendors that could accommodate 11,100 persons. 2. The 1st respondent submitted that the petitioner is not a consumer as defined by **Section 2 of the Consumer Protection Act** and lacks locus standi to institute a class action suit in accordance with **Section 4 of the Consumer Protection Act**. Further, the petitioner has no locus standi to institute any claim arising out of the contract on behalf of the ticket holders as the dispute is contractual in nature. Reliance was placed in the case of **Re Estate of Mungiria M’Runguchi (Deceased) [2022] eKLR** where the court held:- **It is important in this matter for the court to determine whether the applicants have locus standi. The term ‘locus standi’ connotes the right of a party to bring an action. It seeks to determine whether a party has properly brought an action or is properly before the court. There are many decisions on the subject from the court and to quote the decision of the case of Michael Osudwa Sakwa vs Chief Justice & President Supreme Court of Kenya & Another [2016] eKLR which referred to the matter of Ms Priscilla** **Nyokabi Kanyua vs Attorney General & IEBC Nairobi HC CP. No. 1/2010 stated that:** **In Kenya the court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that it would not be more affected than any other member of the population.** **Such interest must be vested legal interest giving the party a right to enforce the claim by way of a lawsuit. It follows that for a party to have locus standi he must have a vested interest in the subject matter before court. Locus standi is point of law that touches on the jurisdiction of the court. In Law Society of Kenya vs Commissioner of Land & Others Nakuru HCCC No. 464/2000 the court stated that locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in the court of law.** **The 2nd Respondent’s Submissions** 1. The 2nd respondent submitted that the petitioner did not provide any evidence that the screens were small as alleged or that the sound was poor. Further, the petitioner did not attend the Stanbic Yet Festival which took place on 10th June 2023. Thus the evidence adduced by the petitioner is hearsay evidence. Reliance was placed in the Court of Appeal decision in **Parkar & Another vs NQ & 2 Others (Civil Appeal 139 of 2020) [2023] KECA 908 (KLR) (24 July 2023) (Judgment)** where the court held:- **Much of the perceived complexity in this area of the law can be avoided if the rationales for the hearsay rule and the basic rationales, which underpin the exceptions to it, are kept in mind. As the following excerpt suggests:** **It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. ‘Per Dickson J in the Queen vs O’Brien (1977), 38 CR N.S 325 at p.327 CCC (2d) 209, at p 211(SC.C) and see the locus classicus Subramaniam vs Public Prosecutor, [19561 1 WLR 965 (PC).** **Undeniably, while direct evidence is always considered to be more reliable than hearsay evidence, there are some exceptional circumstances in which the courts could allow hearsay evidence under the Evidence Act. For example, under Part IV of the evidence Act, statements made by persons who cannot be called as witnesses are admissible in evidence. This is an exception to the hearsay rule. Specifically, Section 33 lays out what those statements might be. The section lists 8 examples of such statements which are all, in their own right exceptions to the hearsay rule.** 1. Further, the petitioner did not state in his affidavit that the persons who allegedly attended the concert are unable to swear the affidavits to support the allegations made. Further, no evidence has been adduced to prove that any of the persons who purchased tickets attended the concert or were aggrieved as alleged by the petitioner. Thus, the 2nd respondent argued that the petitioner is inviting the court to speculate as to what happened at the event as there is no evidence paced before the court. 1. The 2nd respondent whilst relying on the case of Communications **Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR**, submitted that the substratum of the dispute is purely contractual in nature and ought to be determined as per the terms of the contract. The court held:- **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 vs Mhlungu, 1995(3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority judgment as follows:-** **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.** 1. Regarding the issue of whether the petition can be declared a class action suit, the 2nd respondent argued that whereas Articles 22(2) and 258 of the Constitution allow individuals and entities to bring actions in the public interest, such petitions must demonstrate a clear and direct link between the petitioner and the alleged violations. Reliance was placed in the Supreme Court decision in **Export Processing Zone authority & 10 Others (Suing on their own behalf and on behalf of all residents of Owino Uhuru Village in Mikindani Changamwe Area Mombasa) vs National Environment Management Authority & 3 Others [2024] KESC 75 (KLR)** where the court held:- **The 11th appellant’s petition was in line with the provisions of Article 22(2)(b) of the Constitution. The 11th appellant was well within its right to bring the suit on behalf of the residents of Owino Uhuru Village.** **The court’s ability to grant a remedy, including compensation, was however limited by certain principles including the enforceability and appropriateness of the remedy, and it cannot also grant a remedy at large. The identity of the persons represented in the suit ought to be reasonably ascertainable otherwise who would then be compensated? Courts could not issue vague or unenforceable orders and the identities of the represented individuals were crucial in determining the scope and amount of compensation. Without clarity on who was represented, it would be difficult for the court to fashion an enforceable order. Compensation in class action and representative suits hinged on defining the class or group represented. Once the group was clearly identified, the court could tailor the remedy to** **ensure that it was appropriate, specific, effective and enforceable for the affected parties.** 1. The 2nd respondent asserted that the persons the petitioner purports to represent are not ascertainable or identifiable. Further the petitioner has not adduced evidence to support its averments that the persons who actually attended the event were dissatisfied as it is not sufficient to produce emails without any supporting evidence from the persons who purchased tickets and attended the event. 2. Regarding the assertions by the 1st respondent that it cannot be held liable for he alleged negligent acts or omissions of the independent contractors, the 2nd respondent submitted that no evidence to corroborate such claims. To buttress that point reliance was placed in the case of **Daniel Toroitich arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR** where the Court of Appeal held:- **Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties “marketing language” each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.** **Indeed, there are many cases decided without hearing submissions but based only on the evidence presented.** 1. Whilst relying on the case of **Leonard Otieno vs Airtel Kenya Limited [2018] eKLR** when dealing with the question of violation of consumer rights, Mativo J (as he then was) held:- **The general principle governing the determination of cases is that the party who alleges or as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus is on the petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. Differently put, the onus lies on the petitioner to prove every element constituting his cause of action. This includes sufficient facts to justify a finding that his consumer rights were violated.** **If, in contested proceedings, the consumer asserts that his rights have been violated, the court must make a finding whether, the consumer’s allegations are true…** 1. Further reliance was placed in the Supreme Court decision of **Gwer & 5 others vs Kenya Medical Research Institute & 3 Others (Petition 12 of 2019) [2020] KESC 66 (KLR)** where the court held that:- **In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the** **court, in discharge of the evidential burden establishing their treatment at the hands of the 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to the 1st respondent to prove the contrary. In the light of the turn of events at both the Superior Courts below it is clear to us that, by no means did the burden of proof shift to the 1st respondent.** 1. The 2nd respondent argued that it complied with its contractual obligations with the 1st respondent and that its audio visual equipment was fit and suitable under the circumstances. Further, the 2nd respondent submitted that the prayer by the petitioner that the court award a global sum as general damages for the rights violations was not pleaded in the petition but was stated in the submissions. Parties are bound by their pleadings and having failed to plead the same, the submissions should be disregarded. Further the 2nd respondent submitted that there is no sufficient evidence for the court to make a finding on damages or any compensation, as damages cannot be awarded to a class of persons which is not identifiable. **The 3rd Respondent’s Submissions** 1. The 3rd respondent identified five issues for determination as follows:- whether the 3rd respondent, as title sponsor, owed a legal duty to concert attendees under Article 46 of the Constitution or the Consumer Protection Act; whether the 3rd respondent can be held vicariously or jointly liable for the acts of the 1st respondent and its agents; whether the petition discloses a cause of action against the 3rd respondent; whether the 3rd respondent’s post event statement dated 16th June 2023 constitutes an admission of liability for alleged consumer rights violations and whether the petition constitutes a bona fide constitutional claim or an attempt to adjudicate a private dispute under the guise of a constitutional remedy. 1. On the first issue, the 3rd respondent submitted that pursuant to the sponsorship agreement dated 10th April 2023, it only offered the 1st respondent financial sponsorship for the event in consideration of visibility of its brand. It did not involve any operational, logistical or administrative participation in the planning, set up, ticketing or execution of the concert. Thus, it did not offer any service or product to consumers and there was no point of contact or transaction between it and the revellers. In essence, the 3rd respondent submitted that it had no commercial interaction with the consumers at the event to classify as a supplier under **Section 2 of the Consumer Protection Act**.As such, it cannot bear the responsibility of a supplier or provider. Reliance was placed in the case of **Nairobi Bottlers Ltd** **vs Mark Ndumia Ndung’u [2023] KECA 839** where the Court of Appeal emphasized that for a consumer rights claim to succeed, the respondent must bear direct responsibility for the supply or labelling of the goods in question. The court affirmed that consumers have a right to accurate and adequate information and that any disparity in the quality or completeness of product labelling can constitute a breach of consumer rights. 1. Similar reliance was placed in the case of **Commissioner of Domestic Taxes vs Coca Cola Central East and West Africa Ltd (Income Tax appeal E038 of 2020) [2023] KEHC 1407** where the court quoted **Coca Cola East and West Africa Ltd vs Commissioner of Domestic Taxes [2020] eKLR** and the court considered whether the Kenyan public as the target audience of coca cola’s promotional and marketing services, could be regarded as consumers of those services. The court clarified that consumption of the soft drink should not be conflated with consumption of the marketing or promotional services themselves, noting that such services do not necessarily result in direct sales or consumption by the public. The 3rd respondent argued that the said distinction underscores the principle that contractual or promotional arrangements focused on brand visibility do not by themselves impose obligations to the public unless there is clear evidence of control over the consumer experience. Accordingly, it asserted that it owed no duty of care under Article 46 or the Consumer Protection Act to concertgoers. 1. The 3rd respondent further submitted that clause 2.3.1. of the sponsorship agreement made it clear that the 1st respondent retained all the responsibilities for the concert’s set up, ticket categorization, crowd control, sanitation, sound system and security. Thus it neither designed or delivered the product whose quality is in question. Further, the core elements of product liability, that is, control, proximity and provision are absent. It argued that sponsorship does not by itself create a duty of care or attract liability for subsequent service failures, absent clear evidence of operational control or participation in execution. 1. On the second issue, the 3rd respondent argued that the principle of vicarious liability holds that one party may be legally responsible for the wrongful acts of another if there exists a legal relationship, most commonly that of employer employee or principal and agent, and if the wrongful act was committed in the course of that relationship. A central element of the doctrine is the question of control whereby the party alleged to be vicariously liable must have had the right or ability to direct, supervise, or oversee the conduct of the person who committed the wrongful act. The said principle was articulated in the case of **Kenya Bus Services Ltd vs Kawira [2003] eKLR**. The 3rd respondent submitted that the facts of the present case do not support the imposition of vicarious liability on it. Further, clauses 5.1 and 5.2 of the agreement contain mutual indemnity provisions, confirming that each party bore liability for its own actions and was not accountable for the acts or omissions of the other. Additionally, there is no factual or legal foundation for holding it vicariously liable as there is no relevant legal relationship, no operational control and no indication that it assumed responsibility for the actions of the 1st respondent. 1. On the third issue, whilst relying on the cases of **Anarita Karimi Njeru vs Republic [1979] KLR 154** and **Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR**, the 3rd respondent contended that the petition fails to set out with clarity any act or omission by it that could constitute a breach of Article 46. The entirety of the case against it rests on financial sponsorship of the event and its post event statement acknowledging public concern. No specific conduct is alleged against it that shows that it infringed on consumer’s rights and further there is no evidence that it provided services or facilities at the event that were allegedly substandard. 2. On the fourth issue, the 3rd respondent submitted that it issued a statement dated 16th June 2023 in response to public concerns and feedback emerging from the event with the primary purpose of expressing its continued support of the creative industry and reassuring stakeholders of their commitment to resolving the issues raised. Importantly, the statement communicated its intention to engage with the 1st respondent to investigate and identify the causes of the alleged disputes and logistical challenges reported during the event. Such an engagement signifies a proactive step towards addressing concerns rather than an acknowledgement of fault or wrongdoing. Thus, it submitted that the statement neither explicitly accepts responsibility for any logistical failings nor admits any breach of duty. 3. On the final issue, the 3rd respondent argued that the petition concerns private contractual grievances relating to dissatisfaction with the quality of services provided at a commercial entertainment event. Further the reliefs sought such as the refunds and perceived breach of consumer expectations are civil in nature and fall squarely within the domain of contract and tort law and not constitutional litigation. Reliance was placed in the case of **KKB vs SCM & 5 Others [2022] KEHC 289 (KLR)** where the court stated that a constitutional petition is not to be used as a substitute for ordinary civil claims especially where there exists alternative remedies. Similarly the said principle aligns with the doctrine of exhaustion which dictates that courts must not entertain constitutional claims where effective redress exists in other legal frameworks unless it is shown that the alternative is inadequate or ineffective. In the instant case, the 3rd respondent asserted that the petitioner has not pleaded or demonstrated that the standard mechanisms for seeking redress are unavailable, inaccessible or otherwise ineffective. 1. Although the petition has been brought in the public interest, the 3rd respondent argued that it is evident that the true nature of the grievance is not systemic or policy based but rather arises from a single incident involving a one off commercial transaction. The petitioner has not placed any evidence to demonstrate that the matter involves a widespread or continuing violation of consumer rights, nor has there been any engagement with regulatory failure or a question of law that requires constitutional interpretation or clarification. Further the petitioner has not invoked the safeguards or legal mechanisms necessary for the prosecution of a class action nor has it identified or disclosed the individuals on whose behalf it purports to act. Additionally, it is not clear who the proper recipients of any damages that may be awarded by the court. The petitioner neither purchased a ticket or suffered any personal harm and is therefore not privy to the contract between the respondents and the attendees. **Analysis and Determination** 1. Upon careful consideration of the deposition by the parties and the submissions herein, I find the following to be the issues for determination in this Petition: 2. Whether the petitioner has locus standi to institute the petition. 3. Whether petitioner violated the doctrine of constitutional avoidance. 4. Whether the petition offends the doctrine of exhaustion. 5. Whether consumers’ rights of petitioner member and the public under Article 46 were violated. 6. Whether the petitioner is entitled to the orders sought*.* **Whether the petitioner has locus standi to institute the petition** 1. Theissue of whether the petitioner possesses the requisite capacity to institute this petition can be answered by examining the relevant provisions of the Constitution in particular **Article 22 and 258 of the Constitution.** 2. **Article 22 (1)** provides as follows: **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.** 1. Article 22 (2) (*a to d*) provides that such court proceedings may be instituted by a person acting on behalf of another person who cannot act in their own name; by a person acting as a member of, or in the interest of a group or class of persons; a person acting in the public interest or an association acting in the interest of one or more of its members. 2. Article 258(1) of the Constitution provides:- **Every person has a right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention.** 1. Clause 258(2) is identical to Clause 22(2) as to the class of person who may institute court proceeding alleging a contravention of the Constitution. 2. In **Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR,** the Court articulated the two constitutional provisions on standing by holding as follows**:** **Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22(3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules 2013 which in view of its long title, we take the liberty to baptize the “Mutunga Rules” to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22(2) and 258 of the Constitution.** 1. Similarly in **Nairobi Bottlers Limited vs Ndung’u & Another (Civil Appeal 99 of 2018) [2023] KECA 839 (KLR) (7 July 2023) (Judgment),** the Court of Appeal held:- **Articles 22 and 258 of the Constitution seriously eroded the hitherto eminent common law principle of locus standi. Under both articles, proceedings may be instituted by the aggrieved party on its own interest, by a person acting on behalf of another person, on behalf of a class of** **people, in public interest or by an association acting on behalf of its member or members. In our view, the test is whether the person moving the curt falls under any of the categories enumerated in the said provisions. No argument was advanced before us to suggest otherwise. Under no circumstances can this court properly directing its mind accept an invitation to agree to a judicial standard for locus standi that inhibits the right to bring proceedings under Articles 22 and 258. Such an interpretation will be a direct affront to the letter and spirit of the Constitution. It will be a clear breach of Articles 48 and 50 of the Constitution except only when the litigation is hypothetical, abstract or is an abuse of the judicial process.** 1. In the instant case, the petitioner contended that the petition is brought in public interest. Indeed, a reading of the petition shows that the prayers sought by the petitioner are not personal or self-serving, they are drawn widely for the benefit of the public. The petition is premised on factual matrix which the petitioner alleges violated a constitutional provision, namely Article 46 of the Constitution. In the circumstances, it is immaterial that the petitioner was not the one directly affected, if other persons rights were violated or threatened with violation or the constitution itself was violated, the petitioner in my considered view cannot be constitutionally gagged from filing a constitutional petition for the enforcement of the rights under Article 22 or for violation of Articled 258 of theConstitution. The claim that the petitioner lacks locus standi in the circumstances of this case therefore fails. **Whether the petitioner has violated the doctrine of constitutional avoidance.** 1. The main contention here is that the nature of this dispute is contractual in nature and may appropriately be decided without any recourse to the Constitution hence the respondents contended that the doctrine of Constitutional avoidance applies. 2. Discussing this principle in **KKB v SCM & 5 others [2022] KEHC 289 (KLR)**, the Court observed as follows: **“Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.16 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor in which Ebrahim JA said the following: -** **…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis,** **whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”** **The Constitutional Court of Zimbabwe in Chawira & Ors vs Minister of Justice Legal and Parliamentary Affairs & Ors held:** **“As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.”** **The court in S v Mhlungu laid out constitutional avoidance as a general principle in the following terms: -** **“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”** **The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”** 1. Correspondingly, the Supreme Court in **Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)** guided 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.”** **[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).”** 1. The constitutional question is a vital question in determining whether the petition is properly before this court. In the case of **CNM vs WMG [2018] eKLR,** the court weighed in on the constitutional question as follows:- **A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. 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.** 1. The question of what constitutes a constitutional question was ably illuminated in South African Case of **Fredricks & Others vs MEC for Education and Training, Eastern Cape & Others** in which Justice O’Regan recalling the constitutional court’s observation in **S vs Boesak** notes that:- **The constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the constitution itself: if regard is had to the provisions of the constitution, as well as issues concerning the status, powers and functions of an organ of state….the interpretation, application and upholding of the Constitution are also constitutional matters. So too….is the question whether the interpretation of any legislation of the development of the common law promotes the spirit, purport and objects of the Bill of Rights, and to the other detailed provisions of the Constitution, 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 concerned with the decisions on constitutional matters is clearly an extensive jurisdiction.** **Put simply, the following are examples of constituting constitutional issues; the constitutionality of provisions within an Act of Parliament; the interpretation of legislation; the application of legislation. At the heart of the cases within which 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 court.** 1. In the present case, the petitioner argued that no contractual relationship exists between him and the respondents as it did not buy a ticket to the festival. The petitioner argued that it initiated the petition on the grounds that consumer rights of ticket holders to the ‘***Boys 2 Men concert’*** were violated by being given a raw deal for a highly publicized event where costly rates were also charged. 1. Consumer rights are Constitutionally protected by Article 46, and further by statute, the Consumer Protection Act No. 46 of 2012 hence they are not mere contractual obligations that parties may freely define or limit under a contract. The Constitutional guarantee in the Bill of Rights makes their protection paramount. 2. Any contract in regard to consumer rights can thus only be complimentary, it can either expand or reinforce the protection but cannot take away or subtract what the Constitution or the Statute has provided and if it does, then such terms would be ineffectual, null and void. 3. The instant case is thus meant to examine whether or not the consumer rights of revellers were violated having regard to the Constitutional and legal standards, hence the suit is properly before the Court and this Court is empowered under Article 165 (3) (b) to inquire into the matter. 4. In any case, this Court ruled on this issue in its ruling on Preliminary Objection delivered on 11th July 2024 where it held as follows: **“It is clear the Petitioner who is convinced that consumer rights of ticket holders were violated by being given a raw deal from highly publicised public event can move this Court to determine if there was infringement of consumer rights under Article 46 by invoking Article 22, 48 and 258 of the Constitution to the appropriate Court. The Court cannot deny the Petitioner the opportunity to ventilate the grievance about the alleged violation of constitutional rights in public interest…Consumer rights are protected by the Constitution and the Statute over and above contractual obligations’** **Whether the petition offends the doctrine of exhaustion.** 1. The doctrine of exhaustion was discussed by the Court of Appeal in **Geoffrey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 Others [2015] eKLR** which stated thus:- **It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with** **Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.** 1. Similarly in **Kimani vs Mugan Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR)** where the court stated:- **The doctrine of exhaustion and its applicability has been elaborated upon in a number of decisions. In the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court stated as hereunder:** **Similarly the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.** **On appeal, the Court of Appeal dismissed the appeal stating that: “The appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established before moving to the High Court by way of constitutional petitions…..** **In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant** **persons, bodies, tribunals or any other quasi judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.** **Likewise, the necessity to exhaust existing statutory dispute resolution mechanisms before approaching the jurisdiction of the court was also highlighted in the case of Nicholus vs Attorney General & 7 Others; national Environmental Complaints Committee & 5 Others [2023] KESC 113 (KLR) 106. The restraint and effective remedy rule, which we find favour in, is what led the Supreme Court of India in United Bank of India vs Satyawati Tondon & 5 Others (2010) 8 SCC to state as follows:** **Flowing from the above findings and in that context, it is our view that where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case by case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.** **Finally, it is also important to reference the decision in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) where the Court of Appeal emphasized the need to comply with the doctrine of exhaustion. The court stated as hereunder:** **It is imperative that where a dispute resolution mechanism exists outside** **courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.** 1. The 1st respondent argued that the tickets provided for arbitration in the event of a dispute occurring. However, in raising this argument, the 1st Respondent fails to appreciate that what falls for determination herein is whether the services it offered met the prescribed Constitutional and statutory threshold for protecting consumer rights when evaluated against the factual matrix under consideration. The inquiry is thus independent of, and transcends, the contractual arrangement. A contract cannot oust constitutional and statutory benchmarks. The determination here is whether a right or fundamental freedom in the Bill of Rights, in particular, Article 46 of the Constitution was violated, which is within the jurisdiction of this Court by dint of Article 23 (1) as read together with 165 (3) (b) of the Constitution. 1. Further a contractual procedure would bind a party to a contract. The Petitioner is a non-party to the contract with the 1st Respondent and this case is brought under through the standing empowered by the Constitution to institute matters in public interest. As such, contractual procedures would not arise, this point was also addressed in the Ruling of 11th July, 2024 as follows: **“The contractual procedure would only apply and bind parties to a contract…Moreover, the Court is being invited to consider and determine if the consumer standards as defined by the Constitution were violated.”** **Whether consumers’ rights of petitioner members and those of public under Article 46 of the Constitution were violated.** 1. The Constitution specifically protects the rights of consumers by providing as follows: **Article 46-Consumer Rights** Consumers have the right- 1. **To goods and services of reasonable quality;** 2. **To the information necessary for them to gain full benefit from goods and services;** 3. **To the protection of their health, safety and economic interests; and** 4. **To compensation for loss or injury arising from defects in goods or services.** 5. The preamble to the Consumer Protection Act provides that it is “An Act of Parliament to provide for the protection of the consumer, prevent unfair trade practices in consumer transactions, and to provide for matters connected with and incidental thereto.” The Act provides in mandatory terms, the manner in which it ought to be construed. **Section 3** provides: - 6. **This Act must be interpreted in a manner that gives effect to the purposes set out in subsection (4).** 7. **When interpreting or applying this Act, a person, court or the Advisory Committee may consider-** 8. **Appropriate foreign and international law; and** 9. **Appropriate international conventions, declarations and protocols relating to consumer protection.** 10. **Section 4** provides that the purposes of the Act are to promote and advance the social and economic welfare of consumers in Kenya by- 11. **Establishing a framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefit of consumers generally;** 12. **Reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers;** 13. **Promoting fair and ethical business practices;** 14. **Protecting consumers from all forms and means of unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices including deceptive, misleading, unfair or fraudulent conduct;** 15. **Improving consumer awareness and information and encouraging responsible and informed consumer choice and behaviour;** 16. **Promoting consumer confidence, empowerment and the development of a culture of consumer responsibility, through individual and group education, vigilance, advocacy and activism;** 17. **Providing a consistent, accessible and efficient system of consensual resolution of disputes arising from consumer transactions; and** 18. **Providing for an accessible, consistent, harmonized, effective and efficient system of redress for consumers.** 19. Thus the Act must be interpreted keeping in mind that its focus is the protection of consumers. 20. The onus lies on the petitioner to establish violation of alleged consumer rights as enunciated in **Lyomoki & Others vs Attorney General (2005) EA 127** where the court stated:- 21. **The onus is on the petitioner to show a prima facie case for violation of their constitutional rights, thereafter the burden shifts to the respondent to justify that the limitations to the rights in the statute is justified by Article 43 of the Constitution;** 22. **The purpose and effect of an impugned legislation are relevant in the determination of its constitutionality;** 23. **The constitution ought to be looked at as a whole with no one particular provision destroying another but each supporting the other. All the provisions on an issue should be considered so as to give effect to the purpose of the instrument.** 24. **The constitution should be given a generous and purposive construction especially the part which protects the entrenched fundamental rights and freedoms; and** 25. **Where human rights provisions conflict with other provisions, human rights provisions take precedence and interpretation should favour enjoyment of human rights and freedoms.** 26. In ***Leonard Otieno vs Airtel Kenya Limited (2018)eKLR,*** the Court made the following observation regarding consumer rights: **…Consumer rights litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the expanded Bill of Rights in our transformative and progressive Constitution by establishing its meaning through contested cases.** **The general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the Petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. Differently put, the onus lies on the Petitioner to prove every element constituting his cause of action. This includes sufficient facts to justify a finding that his consumer rights were violated.** **If, in contested proceedings, the consumer asserts that his rights have been violated, the court must make a finding whether, the consumer’s allegations are true…”** 1. The question thus becomes, has the Petitioner established by evidence on a balance of probabilities that consumer rights of the revellers who attended the 10th June, 2023 ‘Boys to Men Concert were violated? 2. The petitioners contended the event was a radical departure from what had been advertised as it witnessed widespread disorganisation characterised by inadequate and chaotic seating arrangements, poor sound and visual quality, obstructed views, limited performance, congestion, poor crowd control and inadequate sanitary facilities. In addition, the petitioner pleaded that there was a complete absence of proper security measures which led to loss of revellers personal properties including mobile phones, national identity documents and ATM. The Petitioners thus argued that these shortcomings cumulatively denied revellers who were the consumers of the service the unique and unforgettable live music experience that had been promoted in the advertisements by the respondents hence was a violation consumer rights of the participants. 3. In the replying affidavit of the 1st Respondent, it acknowledged it was its responsibility to source for and engage service providers for the concert. It stated thus: **“9. Prior to the events, the 1st Respondent engaged various service providers to provide the required amenities including sound systems, furniture, security scanning machines, mobile toilets and urinals and food vendors.** **10. The 2nd Respondent, in conjunction with Professional Events & Décor, Homeland Itoya Events and Staarab Lounges Ltd provided the technical system including technical visual, sound, lighting, power, technical support, transport and crew (copies of quotation and invoices are exhibited on pgs 17 to 20).** **11. For avoidance of doubt, there were 70 washrooms, available tents that could accommodate 6,926 persons, seating areas that could accommodate 6,270 persons, bar areas that could accommodate 8,100 persons and different food vendors that could accommodate 11,100 persons (copies of the quotation are exhibited at pgs 17 (a) –(e ).** **12. The 1st Respondent further engaged Homeland Itoya Events, Simply Sophisticated Events and Infinite Planners to provide tents and furniture (copies of quotation and invoices are exhibited at pgs. 21 to 24.)** **14. In addition, Four Winds Consultants provided the artist kit to ensure the success of the event. (A copy of the artist kit is exhibited at pgs 25 to 28).** **16. The 1st Respondent engaged the services of On the Mark Security Limited which provided different personnel to ensure the venue of the event is fully secured. (A copy of the award of tender to the On Mark Security is exhibited at pgs 30-33.** **17. As regards food vendors, the 1st Respondent engaged the services of Kenchic Limited, Nebaburger, Sultan Meat Packers T/A Artisan Meat Butcher & Deli, and Rockbern Coffee Group Limited who provided quality** **food and beverages at the event (copies of contracts with the food vendors are exhibited at pgs 34 to 46.** **18. Finally, the 1st Respondent entered into Service Level Agreement with the 2nd Respondent which provided equipment as per Schedule 1 of the Agreement. The 2nd Respondent proceeded to set up the event as per the terms of the agreement. (A copy of the agreement is exhibited from pgs 47 to 58 while event set up photos are exhibited at pgs 59 to 90.”** 1. The 1st Respondent thus asserted that it put in place all the modalities to ensure the event was successful and contended that the petitioner has not provided any evidence that the main area screens failed to project during Sauti Sol and Boys II Men performances and insisted that the 2nd Respondent provided state of art equipment which included mixers/music console mixer, speakers and screens. That the seats were an added advantage and not a requirement and, in any case, the only seats that were reserved were only those of the County Governor and invited guests, all other seats were free sitting and were on first come first serve basis. The sanitary facilities were adequate but placed some distance away from serving points to maintain cleanliness. The 1st respondent contended that crowd control and security was adequately done and there no documented report in form of O.B showing reports made of theft or P.3 form or medical report of any persons hence there is absolutely no evidence to back the allegation made by the Petitioners including evidence of any photographs taken by the petitioners showing the sorry state of affairs as alleged. 1. The 1st Respondent argued that the emails produced by the Petitioner do not meet the admissibility requirement under Section 106B of the Evidence Act. 2. In rebuttal, the petitioner in the affidavit dated 30th June, 2026 by Stephen Mutoro pointed out that whereas the 1st Respondent had indeed admitted in its reply that the Concert Capacity was 6,926; the 2nd Respondent’s affidavit was to the effect that it was contracted to provide audio equipment that would serve an estimated 5000 people. Further, while the 1st Respondent was quick to state the number that was expected, it intentionally failed to disclose the total number of tickets sold (including complimentary tickets) and thus their overall conduct shows the 1st Respondent deliberately oversold the tickets hence the terrible experience for the revellers. The petitioner pointed that the apology offered by the 1st and 2nd Respondent was in actual fact an admission that the organisers failed the concert goers. 3. Upon carefully assessing the Petitioner’s case vis-à-vis the respondents reply and rebuttal offered by the Petitioner, one thing becomes clear to me. The Petitioner affidavit evidence is backed up by various signed witness statement of the revellers which were filed together with the Petition. These include- full signed witness statements with identity card details given of the following persons: - IVY OKEYO dated 19/6/2023; undated signed statement of CAROLYNE MALENYA; undated signed statement of LILIAN NZONGI and SHARON CHAKAVA. These witnesses describe their first-hand account of the disappointment that met them at the festival. The statements are not in affidavit form hence are not sworn and further, they are not even mentioned as annexures to the affidavit in support of the petition. Further, they generally describe how their authors attended the concert which they had paid for but the details of payment or ticket numbers are not even indicated in any of the statements. 1. Despite being aware that there were witnesses who had recorded statements, the petitioner did not seek to introduce that evidence in support of this Petition. These statements were thus nothing but unreliable hearsay evidence. 2. There were also numerous emails provided by the petitioner. The same were not properly authenticated for production under the relevant certificate of electronic evidence. 1. The Evidence Act at 106 B (4) provides: **106B. Admissibility of electronic records.** 1. **Notwithstanding anything contained in this Act**, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible. (2) The conditions mentioned in subsection (1), in respect of a computer output, are the following— (a)the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether— (a) by combination of computers operating in succession over that period; or (b) by different computers operating in succession over that period; or (c) in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any matters to which conditions mentioned in subsection (2) relate; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate),shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it. (5) For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities. 1. Section 106B is the primary and the overriding provision when it comes to admissibility of the electronic evidence such as emails, CCTV footage, call records, electronic texts or chats, digital photos and so on. It supersedes any other provision in the Act in regard to admissibility of electronic evidence given its introductory and/or opening statement which states ***‘notwithstanding anything contained in the Act.’*** The production of a formal certificate of electronic evidence pursuant to Section 106 B (4) by a responsible person in charge of operating the device used in the generation of the electronic record confirming technical threshold conditions is mandatory pre-condition for admission of electronic evidence as a guarantee of its integrity given the high risk that exists due to the ease of tampering and the difficult of detection. The certificate by the party relying on such evidence is thus an obligation fixed by law requiring the Party to ascertain on oath, the electronic evidence he/she tenders has not been interfered with as a guarantee for its integrity before its admission. 2. In the instant case, the Petitioners failed to comply with the requirements of the Section 106 B (4) for they did not file the certificate of electronic evidence. As such, they avoided the legal obligation of ascertaining the genuiness and the integrity of the electronic record they offered before the Court as their evidence. 3. As such, the electronic evidence relied upon in this Petition does not meet the legal threshold of admissibility hence is inadmissible. 4. In the end, I find that although the Petitioner came out very strongly and forcefully on allegations contained in the pleadings, did not make meaningful effort to substantiate the allegations with cogent, credible and admissible evidence on a balance of probabilities. None of the positive allegations advanced by the petitioners has been proved by evidence, they remain bald allegations resting on hearsay evidence or inadmissible electronic material of zero probative value. The Petitioner’s case was well pleaded, but it must fall for failure to discharge the burden of proof. It appears to me the pleading took the centre stage while production of admissible evidence was relegated to the back seat. Upon review of the Petitioner’s submissions, one discerns a relative degree of casualness in which the Petitioner approached and addressed the question of proof as I will shortly demonstrate in the following succeeding paragraphs. 5. On the issue of **sound quality**, the petitioner submits to the Court as follows: “**Sound quality**: Numerous attendees complained that the sound in the general admission area was so poor that they could barely hear the performers. **Video circulating online (and shared with COFEK) show crowds chanting in frustration due to inaudible audio**.” 1. No such video was availed to the Court for examination; it is not clear how the petitioner wanted the Court to take note of evidence it had not availed. 1. Further, on the issue of **visual displays**, the Petitioner submitted to the Court as follows: “**Visual Displays**: The advertised experience **presumably** included large LED screens to relay on stage action far from the stage (a standard for big concerts) Yet on the night, the screens **were reportedly** faulty and at times went blank, leaving many in the crowd unable to see the performers. **A viral video** showed concertgoers shouting when the screen they relied on failed. Again, this indicates service was defective and substandard, contrary to what ticket buyers were entitled to expect.” 1. The alleged viral video, a factual circumstance that the Petitioner relies on through submissions to persuade the Court was never presented before this Court as evidence. 2. The Petitioner made heavy weather about the public apology issued by the 1st and 3rd Respondents. The petitioner attempts to interpret this public apology that generally acknowledged there were some inconveniences experienced during the concert as the conclusive proof of the specific allegations that the petitioner asserts. My reading of the apology is that it was an expression of general regret for inconveniences experienced. It does not amount to a clear, unequivocal admission of the specific facts pleaded in the Petition nor does it acknowledge legal wrongdoing. It was offered to assuage the feelings of dissatisfaction but not as an admission of legal liability. The petitioner is thus not relieved the burden of proving the specific factual and legal allegations made in the Petition on a balance of probabilities merely because the 1st and 3rd Respondents issued this public apology. While the Court, may in an appropriate case, draw adverse inference from the existence of an apology, reliance of an apology alone is insufficient to discharge the burden placed on the Petitioner in proving the particular allegations pleaded in the instant Petition. 1. Clearly, while the Petitioner was able to draft a good pleading that articulated the grievances of the concert goers, it on the contrary invested minimal effort and skill in gathering credible evidence to establish those allegations. The effect is that the underlying facts remain unsubstantiated by sufficient and reliable evidence. The upshot is that this Petition fails and is hereby dismissed. 1. Considering it is public interest litigation; I make no orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF SEPTEMBER, 2026.*** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **L.N MUGAMBI** **JUDGE**