https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9639

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E466 OF 2023** **IN THE MATTER OF THE ENFORCEMENT OF BILL OF RIGHTS AND OTHER RELEVANT PROVISIONS OF THE CONSTITUTION AND MORE SPECIFICALLY ARTICLES 1 (1), 2 (1), 3 (1), 10 (1), 20 (4), 22, 23 (3), 47, 48, 50 (1) and 259 (1).** **-AND-** **IN THE MATTER OF THE UNCLAIMED FINANCIAL ASSETS ACT NO. 40 OF 2011 SPECIFICALLY SECTIONS 2, 3, 5 (1), 20 (1), 22, 31, 33, 41 AND 52 (5).** **-AND-** **IN THE MATTER OF THE UNIVERSITIES ACT NO. 42 OF 2012 SECTION 5 AND SECTION 52.** **-AND-** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT, NO. 4 OF 2015.** **-AND-** **IN THE MATTER OF THE LAW OF CONTRACTS ACT CAP. 23 LAWS OF KENYA.** **-BETWEEN-** **DAYSTAR UNIVERSITY …..................................................... PETITIONER** **-VERSUS-** **UNCLAIMED FINANCIAL ASSETS AUTHORITY ……...RESPONDENT** **-AND-** **THE ATTORNEY GENERAL ……………………. INTERESTED PARTY** **JUDGMENT** 1. Before this Court for determination is the petition dated 3rd November 2023, supported by the grounds on the face thereof and the affidavit of **MUNEI NYOKABI KAHUMBURA**, the Petitioner’s Legal Manager sworn on even date. The Petitioner seeks the following reliefs: 2. ***An order of Certiorari to remove into the High Court and quash the demand letter by the Respondent to the Petitioner dated 17th April 2023, demanding payment of Kshs. 16,499,568/= being unclaimed financial assets and Kshs. 2,850,000/= being audit fees.*** 3. ***An order of Certiorari to remove into the High Court and quash the findings of the audit report prepared and published by Messrs. Beemkay and Company published in January 2023 in so far as it returned a finding that the Petitioner was holding identified unclaimed financial assets under section 5 of the Unclaimed Financial Assets Act whose value totalled Kshs. 16,499,568/=.*** 4. ***An order of Prohibition directed at the Respondent prohibiting and restraining the Respondent whether acting directly or through any of their agents, employees and/or officers from issuing, executing, enforcing, and/or implementing any or any further decisions, demands, notices as against the Petitioner based on Messrs. Beemkay and Company audit report published in January 2023.*** 5. ***A Declaration that sections 50, 51 (1) and 52 (5) of the Unclaimed Financial Assets Act are unconstitutional and hence null and void.*** 6. ***A declaration that the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.*** 7. ***A Declaration that the decision by the Board of Directors of the Unclaimed Financial Assets Authority to audit the Petitioner and to issue the demand letter dated 19th April 2033 is null and void since the Board of Directors of the Unclaimed Financial Assets Authority is constituted unconstitutionally as it does not meet the two-thirds gender rule.*** 8. ***A Declaration that the provisions of Section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Unrecognized Deposits".*** 9. ***A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as “Unclaimed Students Deposits”.*** 10. ***A Declaration that the provisions of section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs Beemkay and Company as “Unclaimed Trade Payable”.*** 11. ***A Declaration that the provisions of section 3 and section 5 of the Unclaimed Financial Assets Act do not apply to the assets described in the audit report by Messrs. Beemkay and Company as "Unclaimed Caution Fees".*** 12. ***A Declaration that there is no obligation under the provisions of section 20(1) of the Unclaimed Financial Assets Act for an entity/person which is not holding assets presumed abandoned and subject to the custody of the Authority to file a report with the Authority.*** 13. ***A Declaration that the Respondent's decision contained in the demand letter dated 17th April 2023 demanding Kshs. 16,499,568/= from the Petitioner, an amount which doesn't form part of unclaimed assets under sections 5 of the Unclaimed Financial Assets Act, is illegal, ultra vires, unjust and unreasonable.*** 14. The petitioner’s case is that the Respondent, the Unclaimed Financial Assets Authority (UFAA) has demanded an unlawful seizure of Kshs. 16,499,568/= on the petitioner university’s funds and demanding Kshs. 2,850,000/= in audit fees. The Petitioner argues that the funds are contractually its own and do not legally qualify as unclaimed financial assets under the Act. 15. The deponent swears that Daystar University is a private university chartered in 1994 by former President Daniel Arap Moi and regulated by the Commission for University Education under the Universities Act No. 42 of 2012. She states that the University operates on private funds drawn from non-refundable student fees, catering charges, endowments, gifts, trusts, income from the university auxiliary enterprises and investments. That as per its Charter, student fees are strictly non-refundable and that all generated funds belong solely to the university to pay staff salaries and fund scholarships. 16. It is deposed that the Respondent (UFAA) is a body corporate established to manage unclaimed assets and that its current Board of Directors consists of 6 men and 2 women, comprising only 25% female representation hence, the Respondent’s Board fails to meet the constitutionally mandated 1/3 or 33% female composition as required by the two-thirds gender rule. 17. It is stated that in January 2023, an audit firm Messrs. Beemkay & Company commissioned by the Respondent claimed the Petitioner held Kshs. 16,499,568/= in unclaimed assets upon conducting an audit, broken down as: - 18. ***Unclaimed unrecognized deposits: Kshs. 8,157,175/=*** 19. ***Unclaimed student deposits: Kshs. 6,020,080/=*** 20. ***Unclaimed trade payables: Kshs. 1,674,313/=*** 21. ***Unclaimed caution fees: Kshs. 648,000/=*** 22. The Petitioner argues that the auditor ignored the university’s non-refundable fee policies and Charter, by wrongly categorizing internal revenue as unclaimed assets. Further, that under **Sections 3 and 5 of the Unclaimed Financial Assets Act,** assets arising from private dealings subject to the privity of contract are exempt. 23. It is also asserted that **Section 3** of the Act provides that an asset is only ‘unclaimed’ if the owner’s identity and address are unknown. That the auditor’s own report explicitly identifies the depositors and their addresses, thereby disqualifying the funds from being classified as unclaimed. 24. The Petitioner avers that on 17th April 2023, the Respondent demanded the Kshs. 16,499,568 plus Kshs. 2,850,000 in audit fees within 14 days. That on 28th April 2023, the Petitioner responded in a letter denying that they owed any monies due to the UFAA. It is stated that between April and July 2023, the Petitioner through its lawyers formally responded multiple times and exchanged correspondences with the Respondent clarifying that they held no unclaimed assets under the law. Finally, that on 20th July 2023, vide letter annexed/marked “MNK-7”, the Respondent rejected Daystar’s explanations and issued a final 14-day notice threatening legal or administrative action. 25. It is the Petitioner’s case that the Respondent is acting *ultra vires* and in violation of the petitioner’s rights. The Petitioner seeks redress from this Court under Article 22 of the Constitution of Kenya to protect its rights and assets from unlawful enforcement by the respondent. **Responses** 1. In response to the Petition, the Respondent filed a Replying Affidavit sworn by GIDEON NZIOKI a Senior Auditor dated 12th March 2024, deposing that the Respondent herein is established as a State Corporation under the National Treasury pursuant to ***Section 39 of the Unclaimed Financial Assets Act 2011*** and the board composition is set out under ***Section 40 of the Act.*** 2. It is averred that the Board consists of seven members, including a Chairperson, Principal Secretary and Directors where two out of seven members are women, meeting the minimum gender representation requirement. It is asserted that the gender ratio aligns with the two-thirds gender rule and complies with ***Article 27 (8) of the Constitution***. 3. It is stated that the Respondent’s functions include enforcement and administration of the UFA Act. It is deposed that the Respondent commissioned a compliance audit on the Petitioner from 2011 to 2021 which identified unclaimed financial assets in the sum of Kshs. 16,499,568/= comprising unrecognized deposits, student deposits, trade payables and caution fees and that the Petitioner had not been filing returns as required under ***Section 20 of the Act***. 4. The deponent states that the audit confirmed that these assets are presumed abandoned under the UFA Act and that despite being formally requested to settle the said sum by issuing notices and demanding payment of unclaimed assets, the Petitioner protested the claims, citing legal guidance and requesting extensions. 5. It is deposed that the Respondent was within its statutory mandate in conducting the Petitioner’s compliance audit as per the provisions of ***Section 31 of the UFA*** Act. That further, the assertion that the Act does not apply to it is misleading since ***Section 2 of the UFA Act*** defines a holder to mean any entity who holds any assets to which the Act applies, a description that fits the Petitioner herein. 6. The Respondent asserts that it responded to the Petitioner’s protests and affirmed its lawful authority to claim the assets. It is deposed that the Petitioner admitted that it holds the financial assets for the benefits of the students and employees and it is argued that the UFA Act at ***Section 45*** provides for the payment of the unclaimed financial assets to the owner of the assets once it is satisfied that the person is the owner, meaning that the rightful owners will still benefit from them. 7. The Respondent reiterates its legal mandate and denies violating ***Articles 40, 43 or 157 of the Constitution***. It is also denied that ***Section 51 (1)) of the Act*** contravenes ***Article 32 of the Constitution*** and neither does ***Section 52 (5) of the Act*** contravene ***Article 50***. 8. It contends that the Petitioner has not met the threshold requirements for declaring a law unconstitutional and that it has not set out with certainty the way its rights have been infringed. 9. It is pleaded that the University Charter, University Regulations and the Universities Act have provisions that cannot be applied because they conflict with the UFA Act ***under Section 37*** which gives the UFA Act superiority over other laws that conflict with it on matters concerning unclaimed assets. 10. It is contended that the Petitioner has not shown how the Respondent’s actions are illegal, unjust and unreasonable and that the Petition should be dismissed for lacking merit. 11. **The Interested Party** also filed **Grounds of Opposition dated 19th March 2024** stating that: 12. ***the instant Petition is unwarranted, devoid of merit and therefore an abuse of the process of this Honourable Court as it was filed by the Petitioner prior to exhaustion of all remedies available to them.*** 13. ***the Petition herein is intended to impede and derail the Respondent’s primary statutory mandate of receiving unclaimed financial assets from holders of such assets, safeguard these unclaimed assets, and re-unite the assets with their rightful owners.*** 14. ***the issue of two-thirds gender rule raised by the Petitioner is not a fact in issue as to warrant the Honorable Court’s attention of its determination.*** 15. ***the financial audits and inspections carried out by the Respondent against the Petitioner were lawful, justifiable and tenable in the circumstances and were further done in the discharge of their statutory mandate.*** 16. ***the intent of the Petitioner through their assertions in the Petition is to evade incurring legal liability as well as compliance with the provisions of Unclaimed Financial Assets Act hence rendering the Petition devoid of merit.*** 17. ***the Petitioner failed to invoke the dispute resolution mechanisms available to them as is provided under the Unclaimed Financial Assets Act hence failing to exhaust all available remedies present to them prior to the filing of this instant Petition hence rendering the Petition premature before the Honorable Court.*** 18. ***the orders sought in the instant Petition are untenable in the circumstances of the case as the Petitioner is in grave breach of the provisions of the statute as a holder of unclaimed financial assets.*** 19. ***the instant Petition is baseless, implausible and totally devoid of merit, thus subsequently, it ought to be dismissed with costs to the Respondent****.* 20. The petition was canvassed by way of written submissions. **The petitioner’s Submissions** 1. The Petitioner’s Submissions are dated 3rd February 2025. It is submitted on behalf of the Petitioner that the Petition was competent because it meets the strict threshold of precision required for constitutional matters as prescribed by the case of ***Anarita Karimi Njeru v. Republic (1976) KLR*** as it explicitly details the infringement of rights and discrimination by the Respondent. It is argued that the Respondent demanded to attach Kshs. 16,499,568/= in the Petitioner’s possession as unclaimed assets yet they are private institutional funds hence, denying the petitioner the right to own property as guaranteed by ***Article 40 of the Constitution***. 2. It is submitted that the decision to seize their property was made by an unconstitutionally constituted board which does not meet the two-thirds gender rule and amounts to discrimination under ***Article 27 of the Constitution***. Counsel submits that the board at the time consisted of 6 men and 2 women which is 25% female. That even the Respondent’s counter-argument of a 7-member board still leaves it composition at 28.57% falling short of the constitutionally mandated minimum. Counsel cites the High Court’s decision in ***Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR*** in support ***and G’Oganyo v Independent Electoral Commission Selection Panel & 2 others; Independent Electoral and Boundaries Commission & 6 others (Interested Parties) (Constitutional Petition E345 of 2022) [2022] KEHC 10184 (KLR)*** for the proposition that while elective bodies may achieve gender parity progressively, appointive bodies must comply immediately. That as a consequence, all decisions emanating from the Board including the demand letter are null and void. 3. On whether the disputed funds are exempt from the Act, Counsel for the Petitioner argues that the Unclaimed Financial Assets Act explicitly exempts private institutional funds governed by privity of contract. Further, that the auditor’s own report identified the depositors, thereby directly disqualifying the funds under ***Section 3 of the Act*** which states that assets are only ‘unclaimed’ if the owner’s identity is completely unknown which was not so in the present case. 4. Counsel for the petitioner outlines the composition of the demanded amount and legally defends it as follows: - 5. ***Unclaimed Student Deposits in the sums of Kshs. 6,020,080/= is governed by the University policy which explicitly states fees are non-refundable. Counsel argues that excess balances are only returnable after graduation and clearance and that accordingly, these funds belong to inactive, deferred or withdrawn students, or graduates who owe the university money.*** 6. ***Unclaimed Caution Fees in the sum of Kshs. 648,000/= which Counsel explained is only refundable upon official clearance. It cannot be refunded if the student is active, has a debit balance, is on a scholarship where it reverts to the general fund, or has failed to clear.*** 7. ***Unclaimed Unrecognized Deposits in the sum of Kshs. 8,157,175/= which Counsel explains are internal revenues fully accounted for in university operations such as scholarship funds, orientation fees, application fees and library compensation.*** 8. ***Unclaimed Trade Payables in the sum of Kshs. 1,674,313/= which are private commercial transactions between the university and its suppliers. It is submitted that the Respondent is a stranger to these private payment plans and cannot interfere due to privity of contract.*** 9. On the unconstitutionality of ***Sections 50, 51(1), and 52(5)*** of the Unclaimed Financial Assets Act, Counsel submits that the High Court is vested with inherent powers under ***Article 165 of the Constitution*** to declare as unconstitutional and void, the above sections. They invoke the Supreme Court’s statutory testing guidelines in the case of ***The Cabinet Secretary of the Ministry of Treasury and Planning & Others v Okiya Omtata & Others (2024) eKLR***. 10. Counsel submits that ***Section 50 of the Unclaimed Financial Assets Act*** gives the Respondent the power to prosecute criminal matters, which directly usurps the exclusive constitutional powers of the Director of Public Prosecutions under ***Article 157 (6) of the Constitution***. 11. That ***Section 51(1)*** grants UFAA unlimited authority to enter and search any premises at any time, directly violating the constitutional right to privacy and protection against arbitrary searches under ***Article 31***. 12. Finally, that ***Section 52(5)*** criminalizes the refusal to hand over assets upon a mere written demand by the Respondent which Counsel argues bypasses a fair trial and deprives institutions of lawful, procedurally fair administrative action under ***Articles 47 & 50 of the Constitution***. Counsel urges the Court to allow the petition, invalidate the unconstitutional sections of the Act, and grant the structural reliefs sought to protect its private property. **The Respondent’s Submissions** 1. The respondent’s submissions are dated **6th January 2026.** Learned Counsel for the respondent submits that the Respondent’s actions are strictly grounded in its statutory mandate under the Unclaimed Financial Assets Act and are backed by the Beemkay & Company Final Audit Report of January 2023. They argue that the Petitioner’s own financial schedules and correspondence prove that their grievance is a standard statutory and administrative compliance issue, not a constitutional violation by the Authority/Respondent. The Authority submits that the Petition is non-justiciable, premature and a misuse of the Court’s constitutional jurisdiction. 2. Counsel isolates six issues for determination being: 3. ***whether the Petition presents a justiciable constitutional dispute;*** 4. ***whether the Petition is premature for failure to exhaust statutory remedies;*** 5. ***whether the Respondent lawfully exercised its statutory mandate,*** 6. ***whether the Petition meets the constitutional precision threshold;*** 7. ***whether the funds in question constitute unclaimed financial assets under the law; and*** 8. ***whether any constitutional rights of the Petitioner were violated.*** 9. It is argued that the dispute involves ordinary statutory reporting and regulatory audits, which the Petitioner has improperly elevated into a constitutional crisis. Citing the Supreme Court and High Court ecisions in ***Communications Commission of Kenya v. Royal Media Services Ltd & 5 Others [2014] eKLR*** and ***John Harun Mwau v. Peter Gastrow & 3 Others [2014] eKLR*** respectively, the Respondent submits that the Constitution should not be invoked if a remedy exists under regular legislative provisions. 10. Counsel submits that the Petitioner bypassed a mandatory, multi-step internal administrative process laid out in the Unclaimed Financial Assets Act before rushing to court. That ***Sections 33 to 36 of the Act*** requires holders to submit records, allow audits and provide explanations to the Authority which creates an ongoing regulatory dialogue meant for self-correction. 11. The respondent’s counsel points out that the claims mechanism under ***Sections 37 and 41 of the Act*** which stipulates that if a holder disputes whether funds are truly unclaimed, the Act provides a structured administrative forum to handle disputes over asset ownership and classification. That under ***Section 9 of the Fair Administrative Action Act*** and ***Article 159 (2) (c) of the Constitution*** which promotes alternative dispute resolution, parties must exhaust internal mechanisms first. Citing ***Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR,*** a submission was made thatcourts must be fora of last resort and that in this case, the Petitioner provided no evidence of attempting these internal remedies. 12. The respondent submits that it acted entirely within the bounds of the law. That once the independent Beemkay & Company audit and the Petitioner’s own dormant financial schedules established that the statutory thresholds for abandoned assets were met, the Respondent’s mandate to claim those funds became obligatory, not discretionary. Citing ***Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Ltd [2004] eKLR***, it is contended by Counsel that courts cannot interfere with a public body’s lawful statutory actions simply because the affected party views them as harsh. 13. On the fourth issue, Counsel reaffirms the strict pleading standard established in ***Anarita Karimi Njeru v. Republic (1976) eKLR*** and ***Mumo Matemu v. Trusted Society of Human Rights Alliance [2013] eKLR*** and notes that a Petitioner must outline their complaints and the specific manner of infringement with total precision. Counsel states that the principle in the **Anarita case** is not a mere technicality but a substantive requirement aimed at fair notice to the respondent. 14. That further, a reading of the Petition and the documents annexed thereto shows that the annexures speak to audits, compliance and statutory engagement, not unconstitutional conduct as stated in the Petitioner’s Supporting Affidavit and Annexures. That therefore, the Petitioner’s submissions cannot cure defective pleadings whose legal documents only talk about financial audits and statutory engagement and consequently, the Petition fails to establish clear, unconstitutional conduct or the requisite constitutional petition threshold. 15. On the fifth issue, it is submitted that the Petitioner’s funds legally constitute unclaimed assets since the disputed **Kshs. 16,499,568/=** fully fits the statutory definition of unclaimed assets. The respondent Authority emphasizes that this classification is strictly supported by the Beemkay audit report, the Respondent’s documentary evidence and corroborated by Petitioner’s own internal financial records, which show prolonged dormancy and an absence of active student or vendor claims over the required statutory period. It is further submitted that the Petitioner failed to present any expert evidence to challenge these audit findings. 16. On the last issue, the respondent submits that none of the Petitioner’s evidence demonstrates unlawful confiscation, discrimination or arbitrary deprivation of property. It cites the case of ***Human Rights Alliance v Attorney General & 2 Others [2012] eKLR***andreiterates that mere allegations are not enough. That since the Respondent acted fairly and lawfully under an Act of Parliament, it did not violate ***Articles 27*** on discrimination, ***Article 40*** on the right to property or ***Article 47*** on fair administrative action. Finally, that the Petition is entirely without merit and legally deficient and should be dismissed in its entirety with costs to the Respondent. **The Interested Party’s Submissions** 1. The Attorney General’s submissions **are dated 20th June 2025. She identifies** two issues for determination namely: 2. *Whether the Petition presents a justiciable issue* and 3. *Whether the Interested Party is a necessary party to the petition.* 4. On the first issue, it is submitted that the Petition and Notice of Motion seek orders which are speculative in nature and do not present a justiciable issue before this Court for its determination. Counsel references ***The Black’s Law Dictionary, 9th Edition, Thomson Reuters Publishers at page 943-944*** for the definition of justiciability which is, ***“proper to be examined in courts of justice or a question as may properly come before a tribunal for decision.”*** 5. Counsel further cites the case of ***Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR***, where the Court cited several foundational authorities for the proposition that it is not enough to make general, omnibus allegations of constitutional violations being, ***Matiba v Attorney General HC Misc Appl 666 of 1990, American Constitutional Law 2nd Edition by Lawrence Tribe at pg 67, Anarita Karimi Njeru V R (No 1) 1979 KLR 154*** and ***Cyprian Kubai V Stanley Kanyonga Mwenda – Nairobi HC Misc 612 (2002)***. That consequently, a Petitioner must explicitly state the exact provision infringed, the specific details of the infringement and the tangible, individualized harm suffered. 6. It is urged that that the Doctrine of Non-Justiciability dictates that courts should decline to hear disputes that are better suited for other branches of government or alternative dispute mechanisms. Specifically, the Attorney General Highlights the case of ***Kirungia v Ruto, Deputy Leader of Jubilee Party (Constitutional Petition 11 of 2022) [2022] KEHC 9940 (KLR)*** where the Court discussed the question of justiciability and stated that it comprises three doctrines being the ***Political Question Doctrine, the Constitutional-Avoidance Doctrine and thirdly, the Ripeness Doctrine.*** It is argued that under the Political Question Doctrine, courts should respect the separation of powers and avoid interfering with discretionary policy, statutory or executive functions, as established in ***Baker v Carr 369 U.S. 186*** and the Court of Appeal in ***Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others***. 7. It is argued that the Unclaimed Financial Assets Act applies universally and does not exempt private institutions. That under ***Section 51 of the Act***, the Authority has a lawful statutory mandate to audit, inspect and receive unclaimed assets from any entity and therefore, the Petitioner cannot use its status as a private university to escape the Authority’s jurisdiction or extricate itself from audit liabilities. 8. On the two-thirds gender rule and board composition argument, it is submitted that the Petitioner’s grievance regarding the gender composition of the Respondent’s Board is a distraction and a bad-faith attempt to evade financial liability and that neither the law nor the Constitution invalidates the statutory acts of a corporate body based on its gender composition. 9. Further submission is that every statute enjoys a rebuttable presumption of constitutionality as held in ***The Law Society of Kenya v National Assembly& 2 others; Association of Professional Societies In East Africa & another (Interested Parties) (Petition 215 of 2020) 2022/KEHC 10070 (KLR)***, and that the burden lies entirely on the Petitioner to prove otherwise by examining the purpose and effect of the Act as held in the case of ***Eunice Nganga & another v Law Society of Kenya & another (2019) eKLR*** and ***Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika (Interested Party) (Petition E016 of 2023) [2024] KEHC 2890 (KLR)***, which burden they have failed to discharge. 10. The Interested Party argues that she has been unnecessarily joined to the petition and that the Petitioner has failed to show how the Interested Party violated their rights and that notably, none of the formal court orders sought by the Petitioner at paragraph 65 of the Petition are directed against the Interested Party. She cites the case of ***High Court Anti-Corruption and Economic Crimes*** ***Petition E001 of 2024 James Ambuso v. State Law and Ethics and Anti-Corruption Commission and 1 Other*** *(Unreported)* in support of this argument. She urges this Court to find that the petition is meritless, an abuse of the court process designed to evade legal compliance and urges the Court to dismiss it with costs. **Analysis and Determination** 1. I have considered the petition, the responses thereto and submissions for and against. The main issue for determination is ***whether the Petition is merited and whether the reliefs sought ought to issue***. This mega issue has many facets and therefore this Court will further address determine questions of: 2. ***Whether the Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.*** 3. ***Whether the Interested Party is properly joined.*** 4. ***Whether the alleged violation of the two-thirds gender rule in the composition of the Respondent’s Board invalidates its statutory enforcement actions and the impugned demand notice.*** 5. ***Whether the Petition meets the precision threshold required under Anarita Karimi Njeru case.*** 6. ***Whether the Respondent’s demand to seize Kshs. 16,499,568/= violates of Articles 27, 31, 40, 47 and of the Constitution.*** 7. ***Whether Sections 50, 51(1) and 52(5) of the Unclaimed Financial Assets Act are unconstitutional.*** 8. **Whether this Court has jurisdiction over the matter i.e. whether the Petition is premature and non-justiciable due to failure to exhaust internal administrative dispute resolution mechanisms.** 9. In its submissions, the Respondent contends that the dispute involves ordinary statutory reporting and regulatory audits which the Petitioner has improperly elevated into a constitutional crisis, bypassing the mandatory, multi-step internal claims and administrative mechanisms provided under **Sections 33** to **41** of the Act. Citing ***Communications Commission of Kenya v. Royal Media Services Ltd (supra)*** and ***Geoffrey Muthinja Kabiru (supra)*** the Respondent asserts through Counsel that the Petition is premature and non-justiciable because the law requires parties to exhaust alternative dispute resolution and internal regulatory forums before invoking the court as a last resort. 10. The Interested Party supports this position taken by the respondent and adds that the dispute is non-justiciable and speculative, violating the Political Question Doctrine and the principle of separation of powers by inviting judicial interference into established executive and statutory functions. 11. **The doctrine of exhaustion** is a cornerstone of Kenyan administrative law anchored on ***Article 159 of the Constitution*** which provides for alternative dispute resolution mechanisms. 12. **Section 7 of the Fair Administrative Action Act** provides for the institution or proceedings where a person is aggrieved by the decision of an administrative body. The ection states: ***7 (1) Any person who is aggrieved by an administrative action or decision may apply for review of the*** ***administrative action or decision to*** 1. ***a court in accordance with section 8 or*** 2. ***(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.*** ***(2) A court or tribunal under subsection (1) may review an administrative action or decision, if*** ***(a) the person who made the decision*** ***i. was not authorized to do so by the empowering provision;*** ***ii. acted in excess of jurisdiction or power conferred under any written law;*** ***iii. acted pursuant to delegated power in contravention of any law prohibiting such delegation;*** ***(iv) was biased or may reasonably be suspected of bias; or*** ***(v) denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;*** ***(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;*** ***(c) the action or decision was procedurally unfair;*** ***(d) the action or decision was materially influenced by an error of law;*** ***(e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;*** ***(f) the administrator failed to take into account relevant considerations;*** ***(g) the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;*** ***(h) the administrative action or decision was made in bad faith;*** ***(i) the administrative action or decision is not rationally connected the purpose for which it was taken;*** ***(ii)the purpose of the empowering provision;*** ***(iii)the information before the administrator; or*** ***(iv) the reasons given for it by the administrator;*** ***there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;*** ***(k) the administrative action or decision is unreasonable;*** ***(l) the administrative action or decision is not proportionate to the interests or rights affected;*** ***(m) the administrative action or decision violates the legitimate expectations of the person to whom it relates;*** ***(n) the administrative action or decision is unfair; or*** ***(o) the administrative action or decision is taken or made in abuse of power.*** ***(3) The court or tribunal shall not consider an application for the review of an administrative action or*** ***decision premised on the ground of unreasonable delay unless the court is satisfied that*** ***(a) the administrator is under duty to act in relation to the matter in issue;*** ***(b) the action is required to be undertaken within a period specified under such law;*** ***(c) the administrator has refused, failed or neglected to take action within the prescribed period.*** 1. It is trite that, where statute provides a complete, specialized statutory mechanism for resolving disputes, parties must first utilize that forum before invoking the constitutional jurisdiction of the High Court. The Court of Appeal settled this in **Speaker of National Assembly v Karume [1992] KLR 21** in the following oft-repeated words: - ***“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”*** 1. This position was reaffirmed by the Court of Appeal in **Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR** 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 fora of last resort and not the first port of call the moment a storm brews…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 the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”*** (See also **Communications Commission of Kenya v. Royal Media Services Ltd [2014] eKLR**.) 1. Thus, as a constitutional court, this court must remain a forum of last resort. I have considered the crux of this dispute which is centred on funds that were said to be unclaimed by the Respondent because of prolonged dormancy and absence of active student or vendor claims. The Petitioner on its part states that these funds cannot be unclaimed assets because they were premised on contractual obligations between the Petitioner and third parties, including their students, and could be accounted for. They also assert that they have exchanged several correspondences with the Respondent but the Respondent has remained adamant that they must release the funds to them. 2. The Respondent also submitted that although the Act does not create a separate tribunal, **Sections 33-36** contemplate ongoing engagement, review and reassessment based on further information provided by the holder, which reflects the administrative principle that a Regulator must be given an opportunity to correct itself before judicial review is invoked. That further, where a party has exhausted the available alternative remedies, they can approach the High Court for redress but not through a constitutional petition at the first instance. 3. I have intensely read the provisions of the Unclaimed Financial Assets Act and found that there is no establishment of a specialized tribunal to hear and determine complaints or disputes between the Authority and any party that is aggrieved by the decisions of the Authority. **Sections 28 to 29 of the UFA Act** explicitly provides for the manner in which members of the public can make claims on the assets that are held by the Authority. While this Court cannot act as an auditor of first instance when statutory avenues for self-correction and administrative review have not been triggered, I note that the Act does not explicitly provide for any structured forum for asset holders to challenge ownership classifications and raise objections. That leaves the Authority with absolute power to enforce the audit. In contrast and comparing this to Kenya Revenue Authority, the statutes such as the Tax Procedures Act provide for avenues for objections to assessment of tax including objections to the Commissioner, appeals to the Tax Appeals Tribunal and to the High Court all the way to the Court of Appeal, under Part VIII of the Tax Procedures Act. 4. The administrative process explained by the Respondents in its submissions which entails ongoing engagement and review and reassessment is the only available internal mechanism or alternative remedy that is available to the Petitioner under the Act, particularly under **Sections 33 to 41**. 5. On the material placed before this court, it can summarily be concluded from the audit report and the various correspondences exchanged by the parties that, the classification and dormancy of student fees, unrecognized deposits and trade payables are purely technical auditing issues. However, a deeper consideration of the pleadings, particularly from the Petitioner, reveals that there are allegations of constitutional violations which require this Court to retain jurisdiction under **Article 165 of the Constitution**. 6. To support this proposition, the case of **Fredricks & other vs. MEC for Education and Training, Eastern Cape & others (2002) 23 ILJ 81 (CC)** is instructive where the Court held thus: ***“Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object 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 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 connected with decisions on constitutional matters is clearly on extensive jurisdiction.”*** 1. Similarly, Langa J. in in **Minister of Safety & Security vs. Luiters, (2007) 28 ILJ 133 (CC)** held: - ***“… 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 and values…”*** 1. Additionally, because the ongoing engagements, review and reassessment processed contemplated by **Sections 33 to 36 of the Act** have so far not yielded any results to unlock the impasse between the parties, it is only proper that the said dispute be adjudicated over by the Court. This precipitates into the exceptions to the doctrine of exhaustion as outlined by the High Court in **R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA)** **Kenya and others [2017] eKLR** where the Court stated thus: - ***“59. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. (See also Moffat Kamau and 9 Others v Aelous (K) Ltd and 9 Others.)*** ***60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.*** ***61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.*** ***62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.*** 1. It is therefore this Court’s finding that the dispute falls within the exceptions of the doctrine of exhaustion since there is no clear dispute resolution mechanism set out by the Act to require the Petitioner to first discharge the duty of exhausting internal or alternative dispute resolution mechanisms. It is also interesting that unlike most bodies and Authorities, the Respondent herein does not even have a Tribunal to adjudicate over any disputed assets that it may identify for seizure. 2. Accordingly, I find and hold that the Petition identifies not only a gap in the Act but also alleged constitutional violations and questions competently before this Court and is therefore justiciable. 3. **Whether the Interested Party is properly joined** 4. It is submitted by the Interested Party that, because the Petition provides no specific particulars of rights violations by the Interested Party and seeks no formal remedies against them under paragraph 65, their joinder is unnecessary and legally untenable. They cited the High Court case of **High Court Anti-Corruption and Economic Crimes** **Petition E001 of 2024 James Ambuso v. State Law and Ethics and Anti-Corruption Commission and 1 Other** (***Unreported***) where Gikonyo J. held that prayers in a constitutional petition ought not to be speculative but instead should be pegged on the manner in which a party has infringed the alleged rights. 5. I have considered the constitutional role of the Interested Party under **Article 156 of the Constitution** which establishes the Attorney General as the principal legal adviser to the Government. The Constitution provides as follows: - ***156. Attorney-General*** 1. ***There is established the office of Attorney-General.*** 2. ***The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.*** 3. ***The qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice.*** 4. ***The Attorney-General—*** 5. ***is the principal legal adviser to the Government;*** 6. ***shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and*** 7. ***shall perform any other functions conferred on the office by an Act of Parliament or by the President.*** 8. ***The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.*** 9. ***The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.*** 10. ***The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.*** 11. The Attorney General therefore represents the national government in civil proceedings and is mandated to defend the constitutionality of actions undertaken by the Executive. The present Petition directly challenges the constitutionality of ***Sections 3, 5, 20 (1), 50, 51 (1), and 52 (5) of the Unclaimed Financial Assets Act*** and the audit report by Messrs. Beemkay & Company. Since the Respondent is the Act’s implementing authority and is charged with enforcement, it can very well defend the statute under which it operates and can justify its statutory framework and procedures. I note also that there are no direct reliefs that can be awarded to the Petitioner against the Attorney General personally or in her official capacity. 12. However, the Attorney General is mandated to promote, protect and uphold the rule of law and defend the public interest. The AG as the principal legal advisor to the Government is under a duty to examine and advise the national government on the constitutionality of legislation and even propose amendments to align the statutes with the Constitution. The Authority-the respondent herein is a national government entity. 13. Article 156 of the Constitution acknowledges that the Attorney General can be a friend of the Court. The Ag was enjoined as an interested party. A statutory body like the respondent is expected to seek legal advisory from the office of Attorney General and therefore despite there being no relief sought against the AG, its presence to the petition is necessary. 14. This court is satisfied that the AG is a necessary interested party in this petition because she has a stake to defend the rule of law and act in the public interest. Rule 7 of the Mutunga Rules permits this Court on its own motion to enjoin a party as an interested party. The AG is already joined and has provided useful contribution by enriching the arguments in this petition on points of law. 15. Accordingly, I find and hold that the AG is a necessary party to this petition which is instituted against a public authority. 16. Furthermore, Rule 5(b)of the Mutunga Rules provides that ***a petition shall not be defeated by reason of the misjoinder or* *non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.*** 17. Additionally, while this Court recognizes that the Respondent is fully competent to defend the constitutionality of its decisions, the validity of its demand letter and the propriety of its audit processes, the remedies sought in this Petition go beyond the Petitioner’s individual grievance. These remedies if allowed would include declarations striking down statutory provisions and invalidating the constitution of a public Authority’s board, which would have far‑reaching implications for the regulatory framework governing unclaimed financial assets nationwide. Therefore, by excluding the Attorney General’s participation, I find that this would impede the representation of the broader public interest. Accordingly, I find that there were no adverse consequences suffered by any of the parties in enjoining the Interested Party in these proceedings. Further the AG’s joinder or lack of it does not defeat the Petitioner’s cause of action and the issues at hand. 18. **Whether the alleged violation of the two-thirds gender rule in the composition of the Respondent’s Board invalidates its statutory enforcement actions and the impugned demand notice.** 19. The Petitioner argues that the enforcement decision is null and void because it emanated from an unconstitutionally constituted board that violates the two-thirds gender rule, since it consists of 25% or 28.57% women. Placing heavy reliance on the case of **G’Oganyo v Independent Electoral Commission Selection Panel & 2 others; Independent Electoral and Boundaries Commission & 6 others (Interested Parties) (Constitutional Petition E345 of 2022) [2022] KEHC 10184 (KLR),** the Petitioner is pointing out that appointive bodies must comply with gender parity immediately as also held in the case of **Centre for Rights Education and Awareness (CREAW) [2017] eKLR**. 20. In the Replying Affidavit, The Respondent denies that their Board was improperly constituted and averred that it consists of seven members, including a Chairperson, Principal Secretary and Directors where two out of seven members are female which fulfils the minimum gender representation requirement. The deponent asserts that the gender ratio aligns with the two-thirds gender rule and complies with ***Article 27 (8) of the Constitution***. 21. On her part, the Interested Party submitted that the Petitioner’s grievance regarding the Respondent’s Board’s compliance with the two-thirds gender rule is a bad-faith distraction that has no legal bearing on the validity of the corporate body’s statutory actions. They urge the Court to dismiss this argument. 22. I have considered the provisions of **Article 27 of the Constitution** which provides as follows: - ***27. Equality and freedom from discrimination*** 1. ***Every person is equal before the law and has the right to equal protection and equal benefit of the law.*** 2. ***Equality includes the full and equal enjoyment of all rights and fundamental freedoms.*** 3. ***Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.*** 4. ***The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.*** 5. ***A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).*** 6. ***To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.*** 7. ***Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.*** 8. ***In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.*** 9. In the Supreme **Court’s Advisory Opinion No. 2 of 2012; In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR [2012] KESC 5 (KLR)** the apex court recognized the need to comply with the two-thirds gender principle progressively and held that:- ***“77. We see as the requisite manner to develop the principle in Article 81(b) of the Constitution into an enforceable right, setting it on a path of maturation through progressive, phased-out realization. We are, in this regard, in agreement with the concept urged by learned amicus Mr. Kanjama, that hard gender quotas such as may be prescribed, are immediately realizable, whereas soft gender quotas, as represented in Article 81(b) with regard to the National Assembly and Senate, are for progressive realization.*** ***78……*** ***79. Bearing in mind the terms of Article 100 on promotion of representation of marginalised groups and of the Fifth Schedule prescribing time-frames for the enactment of required legislation, we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.”*** 1. Having promulgated the Constitution over ten years ago, it is expected that each institution, especially public institutions such as the Respondent herein, will be cognizant of the need to implement the provisions of **Article 27** in constituting its administrative bodies. From the current composition of the Board, it is evident that they have not met the two-thirds gender rule. 2. That notwithstanding, while this Court maintains a steadfast commitment to the immediate enforcement of the two-thirds gender rule in appointive public bodies, a clear distinction must be drawn between the constitutional deficiency of an institution’s composition and the validity of the statutory public duties it executes. 3. **Section 40 of the Unclaimed Financial Assets Act** establishes the Board and creates the corporate body. From the facts of this case, it is clear that there is compositional deficiency but the question this Court must answer is how that affects functional validity. 4. I am persuaded by the decision of Mwamuye J. in **Suyianka v Attorney General & 2 others; Mutua & 20 others (Interested Parties) (Constitutional Petition E312 of 2025) [2026] KEHC 1364 (KLR) (Constitutional and Human Rights) (22 January 2026) (Judgment),** where he alluded to ‘**the de facto officer doctrine’** and held thus: - ***“73. Since the Interested Parties executed their duties in good faith based on a presumed law, they cannot be compelled to repay the salaries and benefits they earned during their period of employment. Requiring restitution would unfairly benefit the government while penalizing innocent individuals who completed legitimate work that the state fully reaped rewards from. The de facto officer doctrine, which protects the actions of individuals acting under the appearance of law to ensure stability in public service, further supports this position. Imposing this loss on the employees would create a significant chilling effect, deterring capable individuals from pursuing public service due to fears of personal financial liability. Consequently, the employer, being the State, that created the flawed*** ***office holds complete legal and financial accountability for the constitutional issue.”*** 1. The above decision posits and correctly so, that the official actions undertaken by a public officer under the authority of that office are valid as to the public even if their appointment was invalidated by illegality. In other words, public policy mandates that the administrative acts of an active statutory authority cannot be invalidated retrospectively based solely on composition imbalances. This is because, the Board’s execution of its duties including the impugned actions in this case, were in alignment with what the Act envisioned and in essence, there can be no substantive harm caused upon the public since the defect is purely structural not substantive to entail abuse of power against the public. Thus, to hold otherwise would be to paralyze public administration and cause structural chaos over the functions undertaken so far by the Respondent. 2. Besides, while compliance with constitutional provisions is constitutionally required, the Petitioner has not shown how the alleged board irregularities invalidate their statutory enforcement duties. Accordingly, I find that the Petitioner’s challenge on this front is an impermissible attempt to use a broad constitutional ideal to evade an independent audit liability, if that liability is properly founded and established. It is also a fishing expedition aimed at steering the Court away from the main issues at hand. 3. **Whether the Petition meets the precision threshold required under Anarita Karimi Njeru case** 4. The overarching principle in Constitutional Petitions is well established. In the case of **Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979) [1979] KEHC 30 (KLR) (Crim) (29 January 1979) (Judgment)** the court held that: - ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”*** 1. The Petitioner asserts that the Petition meets the strict constitutional precision threshold established in ***Anarita Karimi Njeru v. Republic*** by explicitly detailing how the Respondent’s demand to seize Kshs. 16,499,568/= violates their right to property under **Article 40** and how the Board propagates discrimination under **Article 27 of the Constitution**. 2. Counsel for the Respondent on the other hand submits that the Petition fails the strict constitutional precision threshold established in *Anarita Karimi Njeru (supra)* because its supporting documents speak exclusively to standard administrative compliance rather than clear unconstitutional conduct, meaning, the Petitioner has failed to prove any violations of their rights to non-discrimination, property, or fair administrative action, thereby rendering the case entirely meritless and eligible for dismissal with costs. 3. The Interested Party in her submissions also cites the foundational jurisprudence of ***Anarita Karimi Njeru (supra****)* and argues that the Petition is a meritless abuse of the court process designed to evade legal compliance because the Petitioner failed to plead their constitutional claims with the strict precision required to show concrete, individualized harm. 4. The principle set out in **Anarita Karimi Njeru v. Republic [1979] KLR 154** and affirmed in **Matemu v. Trusted Society of Human Rights Alliance [2014] eKLR** dictates that a party seeking constitutional redress must plead their case with a reasonable degree of precision and particularity. The Petitioner has to clearly state the provisions of the Constitution that are infringed and the specific manner of that infringement. 5. From my consideration of the record, I note that the Petitioner’s evidence adduced through the supporting affidavit and annexed documents speak exclusively to the impugned statutory audit, financial accounting and regulatory correspondence exchanged between the parties. I also note that the Petitioner has not adduced any expert or counter-audit evidence to displace the independent findings of the Beemkay report. That said, there is a likelihood of misapprehending the law by characterizing a statutory asset audit as an arbitrary deprivation of property without showing how the public authority stepped outside its lawful bounds. If this shall be the finding of the Court, the obvious conclusion will be that the Petitioner has not met the Anarita Karimi Njeru threshold. 6. This Court emphasises that regulatory oversight under an Act of Parliament does not necessarily constitute a violation of **Articles 27 or 40 of the Constitution**. However, from the pleadings, the Petitioner has identified rights allegedly violated by the Respondent. Although most of the supporting evidence relates to statutory compliance, I find that the Petition partially meets the threshold albeit, weakly substantiated. I state so because there is a thin line between administrative grievances and constitutional claims. 7. In this case, the Petition states that its right to property under **Article 40** is threatened by the Respondent because of the demand to release funds based on the impugned audit. The Petitioner is assertive on the fact that it can fully justify the amounts claimed by the Respondent and reiterates that identities of the owners of the said funds and their addresses are known or are capable of being identified and are governed by privity of contract. 8. Evidently from the facts, there is a threat of legal action being taken against the Petitioner if they do not concede and adhere to the demand letter by the Respondent to release the impugned funds. Although their claim may have some overlap with statutory compliance, I find that the Petitioner has raised valid constitutional questions which are arguable and ripe for determination by this Court. The facts and the pleadings as they stand raise arguable constitutional questions and therefore, the Petition being a substantive constitutional claim has sufficiently met the **Anarita** threshold. 9. **Whether the Respondent’s demand to seize Kshs. 16,499,568/= violates of Articles 27, 31, 40, 47 and of the Constitution** 10. The Petitioner argues that its property rights under **Article 40** have been violated by the demand to attach private university funds. It is the Petitioner’s contention that the disputed funds comprise non-refundable student deposits, caution fees contingent on clearance, internal unrecognized operational revenues and trade payables protected by privity of contract. As such, they are private institutional funds explicitly exempt under **Section 3 of the Unclaimed Financial Assets Act** because the identities of the depositors are known. 11. The Respondent on its part justifies their actions on the fact that the Beemkay & Company Audit Report and the Petitioner’s own internal financial schedules showed prolonged dormancy and lack of active student or vendor claims over the statutory period. The Respondent submits that once the independent audit and the Petitioner’s own dormant records confirmed that the disputed Kshs. 16,499,568/= met the statutory threshold for abandoned assets, the collection of these funds became an obligatory public duty that cannot be interfered with by the courts or deemed an unconstitutional deprivation of property. Furthermore, they contend that the University Charter, University Regulations and the Universities Act have provisions that cannot be applied because they conflict with the UFA Act at **Section 37** which gives the UFA Act superiority over other laws that conflict with it on matters concerning unclaimed assets. 12. The Interested Party also asserts that the Unclaimed Financial Assets Act applies universally, meaning the Petitioner cannot use its status as a private university to escape lawful audit liabilities under **Section 51**. 13. As preliminary issue, it is important to briefly state what the cited provisions of the Constitution stipulate. **Article 27** addresses equality and non-discrimination and relevant to this Petition is **sub-Article 3** which speaks to the two-thirds gender rule. **Article 31** addresses the right to privacy; **Article 40** addresses the right to property and protection from arbitrary deprivation of property; and **Article 47** is on fair administrative action. 14. I have considered what **Section 3 of the Unclaimed Financial Assets Act** stipulates as follows: - ***3. Unclaimed assets general requirements*** ***Unless otherwise provided in this Act or by any other law, assets shall be subject to the custody of the Authority as unclaimed assets, if the conditions raising a presumption of abandonment under sections 4 to 18 are satisfied and one or more of the following requirements are met—*** 1. ***the records of the holder do not reflect the identity of the person entitled to the assets;*** 2. ***the holder has not previously paid or delivered the assets to the apparent owner or other person entitled to the assets;*** 3. ***the last known address, as shown on the records of the holder, of the apparent owner is in a country that does not provide by law for the escheat or custodial taking of the assets or its escheat or unclaimed assets law is not applicable to the assets and the holder is domiciled in Kenya.*** 4. It is evident that, since the dispute is before this Court, the Respondent has rejected the Petitioner’s protest to release the seized amount on the basis that they do not constitute unclaimed assets. The Petitioner contends that the funds in question include identifiable student deposits and caution fees which according to them do not fall within the definition of “unclaimed assets” under Section 3, because the depositors’ identities and addresses are known. 5. The Act at **Section 2** provides for the definition of unclaimed assets as follows: - **"*Unclaimed assets" means assets that—*** 1. ***have been presumed abandoned and have become unclaimed assets under the provisions of this Act;*** 2. ***have been transferred to the Authority as unclaimed assets under this Act;*** 3. ***have been deemed under any other law to be unclaimed assets and payable to the Authority, and includes all income, dividend or interest thereon but excludes any lawful charges thereon; and*** 4. ***…*** 5. According to the explanations provided by the Petitioner herein, I note that the impugned Kshs. 16,499,568/= according to the audit report comprises the following: - ***(a) Unclaimed unrecognized deposits: Kshs. 8,157,175/=*** ***(b) Unclaimed student deposits: Kshs. 6,020,080/=*** ***(c) Unclaimed trade payables: Kshs. 1,674,313/=*** ***(d) Unclaimed caution fees: Kshs. 648,000/=*** 1. The Petitioner’s argument is that the auditor, without perusing the Daystar University Charter, the University Regulations, and their Policy regarding school fees and its non-refundable nature once paid together with the Universities Act No. 42 of 2012 unlawfully and unjustifiably categorized the above as unclaimed financial assets yet they were financial assets legally in the possession and at the disposal of the Petitioner to carry out its various objectives and functions including but not limited to scholarships for needy students and improvement of its infrastructure. 2. **Section 2** of the Act defines **"owner"** to mean **a person having a legal or equitable interest in assets subject to this Act and includes the legal representative of the owner;" unclaimed assets"** means assets that***—(a)have been presumed abandoned and have become unclaimed assets under the provisions of this Act;*** ***(b)have been transferred to the Authority as unclaimed assets under this Act;*** ***(c)have been deemed under any other law to be unclaimed assets and payable to the Authority, and includes all income, dividend or interest thereon but excludes any lawful charges thereon.*** 1. From my reading of the provisions of **Sections 2 and 3 of the Act**, I find that there is no evidence that the categories provided in the audit report constitute unclaimed assets. This is because the audit report by Messrs. Beemkay & Company clearly shows the identity of the persons who made the deposits and their last known addresses. The Petitioner’s deponent has also sufficiently explained on oath that the monies are governed by privity of contract where the depositors are either service providers or entities to which the Petitioner has rendered services and all those details are supplied to the respondent. I do not find any evidence of abandonment or that those financial assets as categorised were or could be deemed to be abandoned and available for surrender to the respondent Authority. 2. A further reading of paragraph 28 of the Daystar University Charter states that: - ***“The funds of the university shall be derived from:*** 1. ***Academic fees;*** 2. ***Boarding and catering charges;*** 3. ***Endowment, gifts and trusts;*** 4. ***Income from university auxiliary enterprises and investments; and*** 5. ***Such other sources as the university may from time to time identify.”*** 6. The Respondent contends that the University Charter which also provides that fees once paid are not refundable is contradictory to **Section 37 (2) of the Act** which places the Act higher in ranking to the Universities Act and the Daystar Charter. **Section 37** provides: - ***37. Responsibility of regulatory authorities*** ***(2) Subject to section 3, where there is conflict between the provisions of this Act and the provisions of any other law on any matter concerning unclaimed assets, the provisions of this Act shall prevail.*** 1. Although the Respondent alleges conflict, my understanding of this provision is that this section of the Act is subject to Section 3 and Section 3 already categorizes exceptions of assets which will not be considered unclaimed assets. In this case, the audited sum of Kshs. 16,499,568/= which is comprised of monies whose disbursement, collection, purpose and mode of reimbursement are well set out with details of the owners and their addresses well known. 2. The Respondent’s claim over the same on the basis that they had remained dormant over the period under review is not tenable because the Act does not contemplate the seizure of solely dormant accounts but stipulates that such dormant accounts must have been presumed abandoned and have thus become unclaimed assets under the provisions of this Act or at the very least, the addresses or records of the holder (the Petitioner) do not reflect the identity of the person entitled to the assets or any other requirement under Section 3. 3. Further, from the nature of the Petitioner’s business, it is clear that they receive funds from the students in the nature of school fees, caution monies, utilities and other sources of income as set out in their affidavit in support of the Petition. These monies are utilized in the running of the institution as well as provision of services for which the consumers have paid. The Respondent has also not rebutted the use or employ of those funds as elucidated by the Petitioner particularly, that those assets are private property lawfully vested on the Petitioner and used for the daily running of the institution. 4. Accordingly, the Respondent has not made out a case to allow the surrender of those funds. Neither is there evidence that the University’s charter and policies including the policy on non-refundability of fees, are inconsistent with or conflict with the UFA Act. To allow seizure of these funds would amount to an unconstitutional deprivation of property under **Article 40** particularly where the Petitioner has adequately explained the presence of those funds, their acquisition, use and to whom they are payable. 5. I highlight that the respondent is neither described by the Act as a tax collector nor is it a debt collector per se and in the case of the latter, collection of the debt is only subject to section 47 of the Act . 6. Section 47 of the Act on Penalties payable to the Fund provides that: (***1) The Court before whom any person is convicted of an offence under this Act may, without prejudice to any civil remedy, order such person to pay to the Fund the amount of any other sum, together with any interest or penalty thereon, found to be due from such person to the Fund, and any sum so ordered shall be recoverable as a fine and paid into the Fund.*** ***(2) All sums due to the Fund shall be recoverable as debts due to the Authority and without prejudice to any other remedy shall be a civil debt recoverable summarily.*** 1. It appears that in this case, the respondent misinterpreted its mandate under the Act in respect of the business of the petitioner as there is no evidence that any of the policies of the University including its charter are violative of the law that gives the respondent the mandate to audit and collect unclaimed assets to preserve for their owners. 2. I have considered the other rights under the cited Articles of the Constitution which the Petitioner claims the Respondent has infringed. I find that the Petitioner has not demonstrated discrimination under Article 27 or violation of Article 47 on the right to fair administrative action. 3. On the issue of violation of right to privacy under **Article 31** the Petitioner claims that the Act permits arbitrary searches which goes contrary to the institution’s right to privacy. 4. It is undeniable that the Respondent is vested with the mandate to regulate, supervise and enforce compliance with the provisions of the Act, including the requirement of self-reporting under **Section 20 of the Act**. Where no report is filed, as in the present case, of holders who have abandoned their assets, the Authority must act in accordance with **Section 31** to verify compliance independently. 5. In this regard, the Court must give deference to the Respondent’s statutory duty and exercise judicial restraint to avoid unjustifiably curtailing the mandate of the Respondent under **Section 31 of the Act** and undermine its statutory oversight role. This Section provides for the requirement of persons or institutions to report unclaimed assets and file a report as required in **Section 20**. Failure to do so is what triggers the action of the Respondent to inspect through means such as an audit and render a decision. The Act protects depositors, consumers and the public by ensuring abandoned assets are identified and safeguarded. If entities could avoid scrutiny simply by failing to file reports, the regulatory framework would collapse, defeating the purpose of the Act, and hence the need for the Court not to interfere with the Respondent’s administrative functions. 6. From the facts of this case, it is my view that the Petitioner has not demonstrated that the Respondent acted arbitrarily in carrying out its statutory duty to inspect their records since inspections are a regulatory function. In fact, the Respondent stated that it was the Petitioner who failed to file returns as required under **Section 20** of the Act, which the Petitioner did not rebut. The Petitioner has not demonstrated discriminatory treatment or unconstitutional deprivation and the Respondent’s examination powers remain valid and indispensable to the effective enforcement of the Act. 7. Consequently, I dismiss the Petitioner’s claims that the Respondent’s inspection authority is unconstitutional. I however find that the Petitioner has adequately established the arbitrary deprivation of their right to property under **Article 40**. 8. **Whether Sections 50, 51 (1) and 52 (5) of the Unclaimed Financial Assets Act are unconstitutional.** 9. Finally, invoking the statutory testing guidelines in the case of **The Cabinet Secretary of the Ministry of Treasury and Planning & Others v Okiya Omtata & Others (2024) eKLR,** the Petitioner urges the High Court to use its powers under **Article 165** to declare ***Sections 50, 51(1), and 52(5) of the Act*** unconstitutional, arguing that these provisions unlawfully usurp the Director of Public Prosecutions’ exclusive mandate and criminalize non-compliance without a fair trial or due process under **Articles 47 and 50** of the Constitution. The Petitioner once again argues that ***Section 51 (1)*** violates privacy under ***Article 31***. 10. The Respondent on their part asserts that their actions are strictly grounded in their statutory mandate under the Unclaimed Financial Assets Act and backed by the January 2023 Beemkay & Company Final Audit Report. 11. The Interested Party argues that given that the Act enjoys a rebuttable presumption of constitutionality, the Petitioner has failed to demonstrate or prove how it is unconstitutional. The Interested Party asserts the claim on unconstitutionality is unmerited. 12. **Article 2 of the Constitution** sets the Constitution as the supreme law of the land and subjects all other statutes to its authority as follows: - ***2. Supremacy of this Constitution*** ***(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.*** ***(2) \_\_\_\_\_*** ***(3) \_\_\_\_\_*** ***(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.*** 1. Courts have held that the presumption of constitutionality attaches to all legislation but because this entails a rebuttable presumption, the burden of proof rests entirely on the party asserting invalidity to demonstrate that either the purpose or effect of the legislation violates the Constitution (See **Ndynabo v Attorney General of Tanzania [2001] EA 495).** In this case, the burden lies on the Petitioner. 2. The Court of Appeal in **Independent Electoral and Boundaries Commission v Kiai & 5 others (Civil Appeal 105 of 2017) [2017] KECA 477 (KLR) (23 June 2017) (Judgment)** aptly explained this rebuttable presumption of constitutionality as follows: - ***“117. ….. As such the power to question the constitutionality of a statute is circumscribed by many conditions. For example, it was stated in the Canadian case of The Queen v. Big M. Drugmart Ltd (1986) LRC (Const.) 332, which has been applied in many decisions in this country that:-*** ***"Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. The object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in ascertaining the legislation’s object and thus validity.”*** ***118. Similarly, the oft-cited judgment of the Constitutional Court of Uganda in Olum & Another v. The Attorney-General (supra) restated this principle thus;*** ***"To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional.”*** ***(See also Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v. County of Nairobi Government & 3 Others, CA. No. 42 of 2014 [2014] eKLR.”*** 1. Similarly, in **Nganga & another v Law Society of Kenya & another [2019] KEHC 11096 (KLR),** the court clearly established the principles to be considered in determining the constitutionality of an Act of Parliament or its provisions as follows: - ***“32. Second, to determine constitutional validity, the court has to examine the purpose or effect of the impugned statute or provision. The purpose of enacting a legislation or the effect of implementing it may lead to nullification of the statute or its provision if found to be inconsistent with the constitution. In Olum and another v Attorney General [2002] EA, the court stated;*** ***“To determine the constitutionality of a section of a statute or Act of parliament, the Court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the Court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional.”*** ***33. In The Queen v Big M. Drug mart Ltd, 1986 LRC (Const.) 332, the Supreme Court of Canada also stated that;*** ***“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. The object is realized through impact produced by the operation and applications of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and ultimate impact, are clearly limited, but indivisible. Intended and achieved effect have been looked to for guidance in ascertaining the legislation’s object and thus validity.”*** ***34. And in the case of Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others[ 2012] eKLR, the court opined that in determining whether or not a statute is constitutional, the court must determine the object and purpose of the impugned Act which should be discerned from the intention expressed in the Act itself.*** 1. **Section 50 of the UFA Act** states that:- **50. Authority may institute proceedings in court** ***All criminal and civil proceedings under this Act may, without prejudice to any other power in that behalf, be instituted by Authority and, where the proceedings are instituted or brought in a court, an officer of the Authority authorised by the Board in that behalf may prosecute or conduct the proceedings.*** 1. The Petitioner argues that **Section 50** usurps the powers of the Director of Public Prosecutions (DPP) under **Article 157 of the Constitution**. **Article 157** provides that the DPP is the only body vested with prosecutorial authority as follows: - ***157. Director of Public Prosecutions*** ***(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—*** ***(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;*** ***(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and*** ***(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).*** ***(9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.*** 1. **Article 157(6)** vests the exclusive authority to institute and undertake criminal proceedings in the Director of Public Prosecutions. It succinctly states that the DPP alone may commence, take over, continue, or discontinue criminal proceedings before any court other than a court‑martial. **Section 50 of the Unclaimed Financial Assets Act** on the other hand purports to empower officers of the UFAA to prosecute offences under the Act. This is a clear usurpation of the DPP’s constitutional mandate. 2. Secondly, the Constitution clearly separates investigative, prosecutorial and adjudicative functions. The Respondent herein is a regulatory and administrative body. However, **Section 50** converts it into a prosecutorial agency. By stipulating that its officers may prosecute criminal matters under the Act, Section 50 blurs the well-set out mode of separation and creates a conflict of interest, where the same body that investigates compliance would also prosecute alleged offenders. Such duality undermines impartiality and fair trial guarantees under **Articles 47 and 50(1) of the Constitution**. 3. Thirdly, **Article 157 (9)** allows the DPP to delegate prosecutorial powers to other persons or authorities, but only under written authority and subject to its control and direction. The effect of **Section 50** of the UFA Act is that it grants prosecutorial powers to UFAA officers without any requirement of delegation or oversight by the DPP. This is *prima facie* unconstitutional as it creates a parallel prosecutorial authority, contrary to the Constitution’s intent that all criminal prosecutions be centralized under the DPP. 4. To buttress this argument, the case of Okiya **Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] KEHC 9175 (KLR)** where a three-judge bench in Nairobi (GV Odunga, EC Mwita, JM Mativo JJ *[as they then were]*)is instructive that: ***“The EACC lacks prosecutorial powers and has to forward all cases it has investigated to the Director of Public Prosecutions (DPP) for prosecution. There is no doubt that the State’s prosecutorial powers are vested in the DPP under Article 157 of the Constitution. The relevant part provides at clause (6) thereof as follows:-*** ***"The Director of Public Prosecutions shall exercise State powers of prosecution and may—*** 1. ***institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;*** 2. ***take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and*** 3. ***subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b)."*** 4. In the premises, I find that Section 50 is not only unconstitutional but also exposes regulated entities to arbitrary enforcement and denies them the procedural protections inherent in prosecutions conducted under the DPP’s supervision and undermines the constitutional checks designed to prevent abuse of prosecutorial power. 5. Turning to **Section 51 of the UFA Act**, it provides: - **51. *Powers of the Authority to enter, etc.*** ***(1) The Authority shall, for the purpose of ascertaining whether this Act is being or has been complied with by any person, have power to enter any premises or place at all reasonable times.*** 1. The Petitioner contends that the section permits warrantless searches that infringe **Article 31** on the right to privacy. It asserts that the Respondent wields unlimited authority to enter and search any premises at any time, directly violating the constitutional right to privacy and protection against arbitrary searches under **Article 31.** The Interested Party counters this by stating that under **Section 51 of the Act,** the Respondent has a lawful statutory mandate to audit, inspect and receive unclaimed assets from any entity and therefore, the Petitioner cannot use its status as a private university to escape the Authority’s jurisdiction or extricate itself from audit liabilities. 2. **Article 31** provides as follows: - ***31. Privacy*** ***Every person has the right to privacy, which includes the right not to have—*** 1. ***their person, home or property searched;*** 2. ***their possessions seized;*** 3. ***information relating to their family or private affairs unnecessarily required or revealed; or*** 4. ***the privacy of their communications infringed.*** 5. This Court has already stated elsewhere in this judgment that judicial restraint is necessary where there is a likelihood of going against the doctrine of separation of powers or where the court’s orders may curtail the proper statutory functions of an administrative body. A cursory reading of **Section 51 (1)** of the Act creates the impression that it entails merely a statutory reporting mechanism and serves a legitimate regulatory purpose, thereby being lawful and constitutional. 6. However, I note that the wording of the said provisions does not provide for the manner in which the Respondent will enter the premises for purposes of inspection. There is no issuance of notice. Which means that, at any given time, the Respondent reserves the right to proceed to the Petitioner’s premises and access the same wantonly in the name of carrying out its statutory obligations. This to my mind is unconstitutional to the extent that it authorizes arbitrary entry without judicial oversight or adequate notice. The power to enter and inspect premises at reasonable times for compliance verification is a standard regulatory feature globally. However, it does not constitute arbitrary or unconditional violation of privacy when it comes to inspections for auditing purposes. 7. In the Constitutional Court of South Africa in **Mogajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (10) BCLR 1133 (CC); 2006 (5) SA 250; 2006 (2) SACR 447 (8 June 2006) the** Court was faced with the questions of whether, consistent with the constitutional right to privacy, legislation may authorise warrantless inspections of unlicensed premises for the purpose of obtaining evidence for criminal prosecution. It was held thus: ***“[64] The Court in Mistry also quoted the words of Jackson J, referring to the Fourth Amendment of the United States Constitution protecting against unreasonable searches and seizures, written not long after he acted as a prosecutor at Nuremberg:*** ***“These, I protest, are not mere second-class rights but belong in the catalogue of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”*** ***[69]. Whether the inspection involves a search for criminal evidence is an important measure of the extent of the limitation. A warrantless search aimed at criminal prosecution will constitute a greater intrusion and an owner has a greater expectation of privacy regarding the risk of criminal prosecution, even in the context of commercial private property.*** ***….*** ***[77] Legislation authorising warrantless regulatory inspections must provide a constitutionally adequate substitute for a warrant. This would create certainty and regularity in the application of the inspections sufficient to inform the commercial property owner of the legality and properly defined scope of the inspection and to limit the discretion of the inspectors. The legislation should be sufficiently comprehensive and defined so that the property owner must be taken to be aware that the property will be subject to periodic inspections undertaken for a specific purpose. The discretion of the inspectors should be limited as to time, place and scope.*** ***………*** ***[79] Following my earlier finding that all regulatory inspections constitute “searches” for the purposes of the threshold question of whether the inspection infringes upon the right to privacy, the inspection of Las Vegas Gold in accordance with section 65 was a search as referred to in section 14 of the Constitution. The question therefore is whether the limitation of the right to privacy by section 65 is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom in terms of section 36 of the Constitution.*** ***[88] In the context of warrantless searches aimed at obtaining evidence for criminal prosecution, the overbreadth creates an impermissible threat to the right to privacy. Section 65 does not narrowly target only those premises whose owners possess a low reasonable expectation of privacy; the statute permits inspectors to reach into a person’s inner sanctum. The section fails to guide inspectors as to how to conduct searches within legal limits, and it leaves property owners unaware of the proper limits to the invasion of their privacy. The boundaries of a permissible search of unlicensed premises could be delineated and protected by a warrant, but section 65 permits warrantless searches of unlicensed premises.*** ***[94] Taking into account all relevant factors, the provisions in section 65 governing searches of unlicensed premises cannot be deemed reasonable and justifiable. These provisions serve the worthy goal of ensuring enforcement of the statute’s regulation of the gambling industry. However, while the owner or occupier of a gambling business generally will have a low reasonable expectation of privacy in the gambling premises, the provisions relating to unlicensed premises aim at collecting evidence for criminal prosecution and thus constitute significant intrusions. The breadth of the provisions extends the scope of permissible searches beyond situations in which the expectation of privacy is low, potentially reaching to innocent activity in private homes. The breadth of the provisions also gives inspectors too much discretion in their searches, endangering the privacy of property owners and occupiers who are not adequately informed of the limits of the inspection. Finally, section 65 could achieve its purpose of promoting enforcement of the Act, while more appropriately protecting the privacy rights of the subjects of searches. Section 65 should require inspectors to obtain warrants before searching unlicensed premises. A warrant would mitigate to some extent the effects of the statute’s broad scope, as a neutral officer would weigh the state’s justifications for the inspection and would stipulate the time, place and scope of the search. Inspectors and police officers would not be prevented from conducting investigations by a warrant requirement. Like any member of the public, inspectors and police officers may enter gambling premises and engage in gambling activities as part of an investigation. Such activity would not amount to a search.”*** 1. Based on the above, the issue of adequate notice over arbitrary searches/inspections cannot be over emphasized. The fact that officers of the Respondent are empowered to enter offices or institutions without warning or even a court warrant of search and seizure is potential for disrupting the expectation of confidentiality in daily business operations of those institutions which includes personal data handling. In the present case, the said inspection would include a review of financial records which contain personal identifiers, transaction histories and confidential agreements. The arbitrary inspections without notice risk exposing this data without adequate safeguards. It also denies the inspected party, such as the Petitioner herein an opportunity to prepare for and protect its rights under the law for instance to have legal representation present or to redact privileged information. 2. This also impedes the right to fair administrative action because the party is not granted a fair notice. I reiterate the principes in **Njoroge & 2 others v Ministry of Interior and National Administration Kenya & 2 others (Judicial Review Application 2 of 2024) [2025] KEHC 4587 (KLR) (Judicial Review) (7 April 2025) (Judgment)** where the Court held that: - ***“38. The constitutional protections enshrined in Article 47 of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***, which guarantees the right to fair administrative action, are central to this case. The actions of the Cabinet Secretary fall short of these constitutional standards by failing to provide notice or engage in proper administrative procedures, such as public participation and consultation.*** 1. The whole concept of Section 51 (1) allows for limitless and excessive intrusion, because of lack of clear limits or oversight. Accordingly, I find that **Section 51 (1)** violates privacy under **Article 31** for lack of issuance of notice and is therefore unconstitutional. 2. On the final issue of **Section 52(5),** the Petitioner argues that it criminalizes non-compliance without a fair trial contrary to **Articles 47 and 50 of the Constitution**. **Section 52 (5)** provides as follows: - ***52. Offences and penalty*** ***(5) A person who wilfully refuses after written demand by the Authority to pay or deliver assets to the Authority as required under this Act commits an offence.*** 1. It is argued that the above provisions automatically penalize a failure to comply with a statutory notice without embedding the attendant safeguards of a fair trial, thereby conflicting with **Article 47** of the Constitution of Kenyathat protects fair administrative action and **Article 50** onfair hearing. 2. Further, that the impugned section imposes criminal sanctions for failure to comply and does not expressly require that the alleged non‑compliance be tested through a fair administrative or judicial process before liability attaches. **Article 47** requires that administrative actions be lawful, reasonable and procedurally fair. In my view, ccriminalizing non‑compliance does not require notice. Many statutes provide for offences for noncompliance and this in itself does not undermine the right to fair administrative action, if that were to be the case, there would be no penal statutes in the country. 3. I am not persuaded that Section **52 (5)** connotes that a party who fails to comply with the said demand is already guilty of an offence meaning WITHOUT TRIAL or that it goes against the presumption of innocence and shifts the burden of proof onto the offending party, contrary to **Article 50 (2) (a)**, which guarantees the presumption of innocence. 4. There are other established legal mechanisms for dealing with offences including prosecution and due process and section 47 of the Act makes it clear. Accordingly, I am unable to find that by the section making it an offence to comply with the provisions of the Act, then it is unconstitutional. 5. In the end, I find that the Petition is partially merited and is therefore allowed to the following extent: 6. ***The Petition dated 3rd February 2025 meets the constitutional threshold and is justiciable.*** 7. ***The doctrine of exhaustion and constitutional avoidance are inapplicable to the circumstances of this petition*** 8. ***The Petition meets the precision threshold required under Anarita Karimi Njeru case.*** 9. ***The Interested Party is properly joined.*** 10. ***The Respondent’s board is unconstitutionally constituted in breach of the two‑thirds gender rule. However, this is a structural defect that does not affect the substantive statutory obligations.*** 11. ***The Respondent’s demand to seize Kshs. 16,499,568/=, in so far as it includes identifiable owners which includes student deposits and caution fees, as well as non-refundable fees paid and utilised for scholarships is unlawful and violates Article 40 of the Constitution on the right to property.*** 12. ***The challenge to the constitutionality of Sections 50, 51(1), is merited. Accordingly, Sections 50, 51(1) of UFA Act is declared unconstitutional, null and void to the extent that it authorizes UFAA officers to institute or conduct criminal prosecutions which is a preserve of the Director of Public prosecutions.*** 13. ***Section 52(5) of the Act is found not to be unconstitutional*** 14. ***Each party to bear their own costs of the petition.*** 15. ***This file is closed.*** **Dated, Signed and Delivered virtually at Nairobi this 26th Day of June, 2026** **R.E. ABURILI** **JUDGE**