https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9089

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI NAIROBI** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **PETITION NO. E522 OF 2025** **IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 27(1), 27(2), 28, 29, 31(b), 39, 40, 43(a), 47, 50, 159(2), AND 165 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED THREAT TO AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20, 21, 22,23, 27(1), 28, 29(a), 29(d)&(f), 39(1), 40(1)(a)&(b), 40(2)(a) AND 47 OF THE CONSTITUTION OF KENYA 2010** **BETWEEN** **HASMUKH LILADHAR DEDHIA.............................................................PETITIONER** **VERSUS** **TRUFOODS LIMITED....................................................................1ST RESPONDENT SHALINA HEALTHCARE KENYA LTD..............................................2ND RESPONDENT TWIGA STATIONERS & PRINTERS LTD...........................................3RD RESPONDENT AFRO CANDY LTD........................................................................4TH RESPONDENT KIWI SCORES LTD........................................................................5TH RESPONDENT** **RULING** **INTRODUCTION** 1. Before this Court is a Notice of Preliminary Objection dated 15th August 2025 filed by the 1st Respondent, Trufoods Limited. The 3rd Respondent, Twiga Stationers & Printers Ltd, has associated itself with the Preliminary Objection and filed separate submissions and a list of authorities in support thereof. The 2nd, 4th, and 5th Respondents have not filed separate responses but are named as parties to the Petition. The Objection challenges the jurisdiction of the Constitutional and Human Rights Division of the High Court to hear and determine Constitutional Petition No. E522 of 2025. The 1st Respondent contends that the dispute between the parties is purely commercial in nature, arising from a debtor-creditor relationship between the Respondents and a company called Sonu Wholesalers Ltd, and therefore falls within the exclusive jurisdiction of the Commercial Court rather than this Division. The 3rd Respondent has echoed these sentiments and added that the Petition is fatally defective for failing to meet the constitutional pleading threshold established in ***Anarita Karimi Njeru v Republic (1976-1980) KLR 1272****.* 2. The Petitioner has opposed the Preliminary Objection through written submissions dated 5th March 2026 filed by S.N Thuku & Associates Advocates. The Petitioner argues that the Preliminary Objection does not raise pure points of law but is instead intertwined with issues of fact that require evidentiary inquiry, and that in any event, threats to personal safety, psychological torture, and inhuman treatment arising from debt collection efforts constitute constitutional violations that fall within the jurisdiction of this Court. The Petitioner further relies on the principle that the mere fact that a matter could have been brought as an ordinary civil suit does not deprive the Constitutional Court of jurisdiction where constitutional rights are genuinely threatened. Reliance was placed on the decisions in ***Mokoosio & another v Vadera & 3 others (Petition 13 of 2020) [2021] KEHC 56 (KLR), Okello & another v Assembly & 2 others; Shop & Deliver Limited t/a Betika & 7 others (Interested Party) (Constitutional Petition E010 of 2021) [2021] KEHC 94 (KLR)*** andthe Supreme Court decision in ***Petition No. 8 of 2016 Kensalt Ltd vs water Resources Management Authority*** to buttress his arguments. 3. Having carefully considered the Notice of Preliminary Objection, the supporting submissions of the 1st and 3rd Respondents, the Petitioner’s submissions in opposition, the Petition itself, the various affidavits on record, and the authorities cited by all parties, this Court now proceeds to render its ruling on the single issue that emerges for determination: whether the Notice of Preliminary Objection is merited. **ANALYSIS AND DETERMINATION** 1. The sole issue for determination in this ruling is whether the Notice of Preliminary Objection dated 15th August 2025, challenging the jurisdiction of this Court to hear and determine Constitutional Petition No. E522 of 2025, is merited. 2. The Court begins by restating the fundamental principle that jurisdiction is the bedrock upon which all judicial authority rests. Without jurisdiction, a court of law has no power to take a single step, and any decision rendered without jurisdiction is a nullity ab initio. The locus classicus on this point is the decision of the Court of Appeal in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1***, where the court famously declared that jurisdiction is everything and that a court of law downs its tools the moment it holds the opinion that it is without jurisdiction. The Supreme Court in ***Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)*** added that a court’s jurisdiction flows from the Constitution, legislation, or both, and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred by law. These principles are uncontroversial and bind this Court. The question, however, is whether the 1st and 3rd Respondents have established that this Court lacks jurisdiction over the Petition as framed. 3. The nature of a preliminary objection is well settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696****,* the court held that a preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit. The court further emphasized that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The Court of Appeal in ***Nitin Properties Ltd v Singh Kalsi & another* [1995] eKLR**also pellucidly captured the legal principle when it stated as follows: *-* *“...A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”* 1. In ***Oraro v Mbaja [2005] 1 KLR 141*** the court reiterated that a preliminary objection must be confined to points of law that are apparent from the face of the pleadings and do not require the court to weigh conflicting evidence or exercise discretion. In arriving at that position, the Court expressed itself as follows: - *“…the principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”* 1. In ***Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others [2014] eKLR*** the Supreme Court stated that: - “*.... a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”.*[emphasis added] 1. Applying this threshold to the Notice of Preliminary Objection before this Court, the Court is satisfied that the Objection raises a pure point of law: whether the Constitutional and Human Rights Division has jurisdiction to entertain a dispute that, on the face of the pleadings and the undisputed facts disclosed by the affidavits, is a commercial dispute between a debtor and creditors. This question does not require the Court to determine any contested fact. The Court is entitled to examine the Petition, the supporting affidavit, and the replying affidavits to ascertain the true nature of the dispute. Where the pleadings themselves, including the documents annexed by the Respondents which are not challenged by the Petitioner as being false, reveal that the dispute is commercial, the Court can determine the jurisdictional question without conducting a trial. 2. The Petitioner has invoked Articles 19, 20, 21, 22, 23, 27, 28, 29, 31, 39, 40, 43, 47, 50, 159, and 165 of the Constitution. However, the mere citation of constitutional provisions does not automatically transform any dispute into a constitutional question. In ***County Government of Mombasa v Kenya Railways Corporation & another [2025] KEELC 5639 (KLR)****,* the court underscored that not all claims that cite constitutional provisions necessarily amount to constitutional claims to qualify for filing a constitutional petition. The court stated that where a dispute can be determined under another area of law other than under the Constitution, it is best that it be so determined, and pure constitutional issues left to be determined as such. The court further observed that parties should not be encouraged to dress up ordinary civil disputes in constitutional garb. 3. In the present case, a careful examination of the Petition, the supporting affidavit, and the replying affidavits filed by the 1st and 3rd Respondents reveals that the genesis of the dispute is purely commercial. The 1st Respondent’s Replying Affidavit sworn by Simon Njuguna, its Finance Manager, deponed that the Petitioner is a director of Sonu Wholesalers Ltd, a company that took goods on credit from the 1st Respondent with an agreement to pay immediately, and that the company has defaulted since 27th December 2024. The 3rd Respondent’s Replying Affidavit sworn by Ashish Goyal provides detailed documentary evidence, including invoices and debit note vouchers collectively marked TWI-1, showing that between January 2025 and February 2025, Sonu Wholesalers Ltd placed orders for goods, that the 3rd Respondent supplied the goods, that the company issued post-dated cheques which were dishonoured due to insufficient funds, and that the company owes the 3rd Respondent a total sum of Kes. 4,347,995.05. The Petitioner has not, in any of his pleadings, denied the existence of these commercial transactions. He has not denied that Sonu Wholesalers Ltd received goods from the Respondents. He has not denied that cheques issued by the company were dishonoured. He has not denied that the company owes the amounts claimed by the Respondents. Instead, the Petitioner’s entire case rests on the assertion that the Respondents have been “tormenting” him and “insistently demanding” the debts owed by the business he carries on. 4. The critical fact that emerges from the 3rd Respondent’s affidavit, and which is not controverted by the Petitioner, is that the goods were supplied to Sonu Wholesalers Ltd, not to the Petitioner personally. The invoices and debit note vouchers are all addressed to Sonu Wholesalers Ltd. The cheques that were dishonoured were cheques drawn on the account of Sonu Wholesalers Ltd. The demands for payment, as evidenced by the documents, were made to Sonu Wholesalers Ltd. The 3rd Respondent’s affidavit specifically states at paragraph 3 (d) that “the Company has on several instances issued post-dated cheques in favour of the 3rd Respondent, which said cheques have all bounced and become dishonoured due to insufficiency of funds in the Company’s account.” The language is clear: the cheques were issued by the Company, the account was the Company’s account, and the funds were the Company’s funds. The 3rd Respondent further states at paragraph 3 that “the Company has deliberately refused to settle the invoices and owes the 3rd Respondent a total sum of Kes. 4,347,995.05.” Again, the debtor is the Company, not the Petitioner. 5. The principle of separate legal personality is fundamental to company law. A limited liability company is a legal entity distinct from its directors and shareholders. The directors are not personally liable for the debts of the company unless they have given personal guarantees or have acted fraudulently or ultra vires. The Petitioner has not alleged that he gave any personal guarantee. He has not alleged that the Respondents have sued him personally on the company’s debts. He has not exhibited any demand letter addressed to him personally. The entirety of the Petitioner’s complaint is that the Respondents have been demanding “their dues owed by the business being carried out by the Applicant/Petitioner herein.” The phrase “business being carried out by the Applicant/Petitioner” is ambiguous. If the business is conducted through a limited liability company, as the Respondents’ affidavits suggest, then the business is not the Petitioner’s personal business. The company is the separate legal entity that carries on the business. 6. The Petitioner, as a director, may manage the business, but the debts are the company’s debts, not his personal debts. The Respondents are entitled to demand payment from the company. The fact that such demands may be communicated to the Petitioner in his capacity as a director does not convert the company’s debt into the Petitioner’s personal debt, nor does it transform a commercial debt collection dispute into a constitutional petition alleging violation of personal rights. 7. The Supreme Court in ***Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR*** articulated the principle of constitutional avoidance, holding that where a matter can be properly determined on statutory grounds without reaching a constitutional issue, that is the course that should be followed. Applying that principle to this case, the dispute is primarily about the enforcement of commercial debts owed by a limited liability company. The Respondents are seeking to recover their money. The Petitioner, as a director of the debtor company, is resisting those efforts by alleging harassment. Even assuming the allegations of harassment are true, the proper remedy may lie in tort for harassment or intimidation, or in an application for protective orders before the Commercial Court or the Magistrates’ Court, not in a constitutional petition claiming violation of Articles 28 and 29(d). The constitutional threshold for psychological torture is high. Not every instance of persistent demand for payment amounts to psychological torture. The Petitioner has provided no medical evidence, no expert report, and no corroborating witness statements to support his claim that his health deteriorated to the extent of requiring surgery as a result of the Respondents’ conduct. 8. The 3rd Respondent has also raised the issue of locus standi, arguing that the Petitioner lacks standing to bring the Petition because the goods were delivered to the company and the demand for payment were made to the company, which is a separate entity. This argument has merit. Under Article 22 of the Constitution, every person has the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, or infringed. However, the right claimed must be the person’s own right. The Petitioner cannot claim that the Respondents violated his personal rights by demanding payment from a company of which he is a director. The company’s rights are separate from his rights. If the Respondents harassed the company, the company may have a cause of action, but the Petitioner cannot bring that claim in his personal capacity. 9. The Petitioner has not demonstrated that the Respondents made demands on him personally. The invoices and debit note vouchers exhibited by the 3rd Respondent are addressed to Sonu Wholesalers Ltd, not to the Petitioner. The bank statements show transactions involving the company’s account. The cheques that were dishonoured were cheques drawn by the company. On the face of these documents, which the Petitioner has not challenged, the commercial relationship is between the Respondents and Sonu Wholesalers Ltd. The Petitioner is not a party to that relationship in his personal capacity. His attempt to bring a constitutional petition in his personal name is therefore an attempt to litigate a dispute that belongs to the company, and he lacks the locus standi to do so. 10. The High Court in ***Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court [2012] eKLR***, a decision relied upon by the 3rd Respondent, held that costs follow the event and that a successful litigant is entitled to costs unless the court orders otherwise for good reason. That case is cited here not for costs but for the broader proposition that courts should not allow litigants to abuse the process by filing proceedings that have no proper foundation. The present Petition, on the materials before the Court, appears to be an abuse of process. The Petitioner is attempting to use the Constitutional Court to evade legitimate debt recovery efforts by a creditor. The 1st Respondent’s averred that the Petition raises no triable issues, is fatally defective and bad in law. The 3rd Respondent similarly averred that the Application and the Petition are incompetent and have been filed by the Petitioner aiming to scuttle the 3rd Respondent’s efforts to recover a debt arising out of delivery of its goods in the ordinary course of business. The pattern of conduct evidenced by the debit note vouchers shows that Sonu Wholesalers Ltd repeatedly issued post-dated cheques that were subsequently returned unpaid due to insufficient funds. This is not a case of a debtor genuinely unable to pay who is being harassed by aggressive creditors. This is a case of a debtor that has, on multiple occasions over several months, issued cheques that were dishonoured, suggesting a pattern of bad faith. The Petitioner, rather than addressing the company’s indebtedness, has filed a constitutional petition seeking to restrain the Respondents from pursuing their lawful claims. 11. The Petitioner has cited the decision in ***Mokoosio & another v Vadera & 3 others [2021] KEHC 56 (KLR)*** for the proposition that the mere fact that a matter that ought to have been brought as an ordinary civil suit is framed as a constitutional petition does not thereby deprive the court of jurisdiction. While that proposition is correct as a general statement of law, it does not assist the Petitioner in this case. In ***Mokoosio & another v Vadera & 3 others (supra),*** the court was considering a situation where the constitutional petition raised genuine constitutional issues that could not be adequately addressed through ordinary civil remedies. In the present case, the Petition does not raise any genuine constitutional issue that cannot be addressed through ordinary civil remedies. 12. The claim that the Respondents harassed and intimidated the Petitioner is a claim in tort. The claim that the Respondents caused his health to deteriorate is a claim for damages for personal injury. The claim that the Respondents are demanding debts owed by a company is a matter of company law and contract law. None of these claims require the interpretation of the Constitution or the enforcement of the Bill of Rights in any novel or transformative way. The Petitioner could have filed a civil suit for harassment and intimidation in the Magistrates’ Court or the Commercial Court. He chose instead to file a constitutional petition, presumably to access the procedural advantages of constitutional litigation, including the broad standing rules and the expansive remedial powers of the Constitutional Court. That is an abuse of the constitutional process. 13. The Court in ***Muli v Kenya Water Institute & 2 others [2023] KEELRC 942 (KLR)*** warned against the use of constitutional litigation as a substitute for ordinary civil remedies. The court stated had the following to say; *“Whilst I will not strike out the Petition for want of jurisdiction as prayed by the Respondents, I hereby decline the invitation to hear the matter as currently presented. I decline the invite by the Petitioner to pronounce myself on the dispute as a Constitutional Petition in the face of the robust statutory framework on labour relations in Kenya. In my view, this framework, prima facie, provides the Petitioner with sufficient alternative avenues to litigate his claim.”* 1. The Court also took a similar position in [***Murayi alias Jamal v Nation Media Group Limited & 6 others [2025] KEHC 12289 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12289/eng%402025-08-12) when it declined to adjudicate a defamation suit framed as a constitutional petition. The court had the following to say; *“53.In the premise, to the extent that the Petition seeks to vindicate the Petitioner’s alleged defamation, it is misconceived. The jurisdiction of this court was improperly invoked and therefore this court declines the invitation to deal with the petition further.* *54.Moreover, the Petitioners have not adduced evidence to show how the Respondents publications violated*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*and has also not shown how the information published was false and how the same was in violation of his constitutional rights as guaranteed in the Articles of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*as cited.* *55.Guided by the above principles, this court is satisfied that the grievances raised in this petition are ordinary civil disputes that the Petitioner is masking as constitutional grievances. Applying the doctrine of constitutional avoidance, this court finds that it cannot consider the same as a constitutional petition. Accordingly, the petition is found to be devoid of merit. The orders sought in the Petition being declarations as well as damages and costs are declined and dismissed.”* 1. In this case, there are several alternative remedies available to the Petitioner. He could report the alleged harassment to the police under the Penal Code provisions on assault, criminal intimidation, or creating a disturbance. He could file a civil suit for damages for harassment, intimidation, and infliction of emotional distress. He could apply for protective orders under the Protection Against Domestic Violence Act if the alleged harassment constitutes domestic violence. He could, as a director of the company, negotiate a repayment plan with the Respondents. He could, if he disputes the debts, file a commercial dispute before the Commercial Court challenging the validity or quantum of the debts. The fact that the Petitioner has not pursued any of these remedies and has instead filed a constitutional petition suggests that his true intention is not to vindicate his constitutional rights but to obtain a tactical advantage by invoking the urgency procedures and injunctive powers of the Constitutional Court to forestall legitimate debt recovery efforts. 2. The 3rd Respondent has placed heavy reliance on the decision in ***Husus Mugiri v Music Copy Right Society of Kenya & another [2018] eKLR***, where the court held that in order for a petition to qualify as a constitutional petition that seeks to enforce or protect fundamental rights and freedoms under the Bill of Rights, it must meet the test set in ***Anarita Karimi Njeru v Republic (supra)****.* The applicant must specify which specific provisions of the Constitution declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated, and the manner in which the respondent has infringed the subject rights. This Court has carefully examined the Petition and the supporting affidavit. The Petition cites numerous constitutional provisions but does not specify how each of those provisions has been violated. The Petition states that the Respondents have been tormenting the Petitioner, but it does not describe the specific acts of torment. It states that the Petitioner underwent surgery, but it does not provide any medical evidence linking the surgery to the alleged torment. It states that the Respondents have been treating him in an inhuman and cruel manner, but it does not describe any specific incident of inhuman or cruel treatment. The supporting affidavit is a verbatim repetition of the grounds in the Petition, adding no further particulars. The witness statement attached to the Petition similarly adds nothing. The verifying affidavit simply states that the contents of the Petition are true. On the face of these pleadings, the Petition falls woefully short of the *Anarita Karimi* threshold. The Respondents cannot reasonably be expected to respond to such vague and general allegations. They do not know which specific acts are complained of, when those acts occurred, where they occurred, or who committed them. The Petition therefore fails to meet the constitutional pleading threshold, and on this ground alone, it is incurably defective and liable to be struck out. 3. The 1st Respondent’s reliance on the principle that jurisdiction must be determined at the earliest opportunity is well-founded. In ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra)***, the Court of Appeal emphasized that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. The Court has done so in this ruling. Having examined the Petition and the affidavits, the Court is satisfied that this matter does not fall within the constitutional jurisdiction of the High Court. The dispute is commercial in nature. The parties are in a debtor-creditor relationship arising from the supply of goods in the ordinary course of business. The Petitioner is not a party to that relationship in his personal capacity; his company is the debtor. The allegations of harassment, even if true, do not rise to the level of constitutional violations that cannot be adequately redressed through ordinary civil remedies. The Petition is a classic example of an attempt to constitutionalize a commercial dispute, a practice that this Court must discourage. 4. In the final analysis, this Court finds that the Notice of Preliminary Objection is merited. The Constitutional and Human Rights Division does not have jurisdiction to hear and determine the instant Petition because the dispute is purely commercial and does not raise any genuine constitutional issue. The Petition is also fatally defective for failing to meet the constitutional pleading threshold set in ***Anarita Karimi Njeru v Republic (supra)*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR***. The proper forum for the resolution of this dispute is the Commercial Court or the ordinary civil courts, where the parties can litigate their claims, including any claims for harassment or intimidation, through the ordinary procedures of civil litigation. The Court accordingly upholds the Preliminary Objection and dismisses the Petition in its entirety. **CONCLUSION** 1. For all the foregoing reasons, this Court makes the following orders: 2. The Notice of Preliminary Objection dated 15th August 2025 has merit and is hereby allowed. 3. Constitutional Petition No. E522 of 2025 is hereby struck out and dismissed for lack of jurisdiction and for failing to meet the constitutional pleading threshold. 4. Each party shall bear their own costs. Orders accordingly. File closed accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the 1st Respondent – Ms. Akola h/b Ms. Kioko Counsel for the 2nd Respondent – Ms. Kendi Court Assistant – Mr. Martin