https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8551

Jkomu Investment Ltd & 2 others v Kenya Revenue Authority (Petition E467 of 2024) [2026] KEHC 8551 (KLR) (Constitutional and Human Rights) (15 June 2026) (Judgment) Neutral citation: [2026] KEHC 8551 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E467 of 2024 RE Aburili, J June 15, 2026 Between Jkomu Investment Limited 1st Petitioner Miruru Waweru 2nd Petitioner Samwel Kirika 3rd Petitioner and Kenya Revenue Authority Respondent Judgment 1.The 1st Petitioner is a limited liability company engaged in the petroleum retail business at Githunguri Kiambu Kenya. The 2nd Petitioner is a public spirited individual, a licensed Certified Public Accountant offering tax advisory service to the 1st Respondent and other businesses and individuals as a Certified Public Accountant for gain in Nairobi Kenya. The 3rd Petitioner is a Certified Public Accountant working for gain in Nairobi Kenya. 2.The Respondent is a statutory body established under the Kenya Revenue Authority Act, Cap 469, with the mandate to assess, collect and account for all revenues in accordance with the laws of Kenya. 3.The Petitioners filed the Petition dated 2nd September 2024 seeking the following orders: -A.A Declaration that Sections 63 of the Value Added Tax 2013 contravenes Articles 10 and 27 (4) the Constitution of Kenya 2010 and is therefore unconstitutional.B.A Declaration that Section 109 (3) (e) of the Tax Procedures Act 2015 contravenes Articles 47, 48 and 50 and is therefore unconstitutional.C.A Declaration that the penalties imposed by the Respondent on the Petitioner under the impugned sections are unlawful, arbitrary and in violation of the Petitioners’ constitutional rights under Articles 47, 48 and 50 of the Constitution.D.An Order compelling the Respondent to refund taxpayers the arbitrary amounts imposed since the enactment of Section 63 of the VAT Act.E.An Order directing the Respondent to vacate the penalty of Kshs. 500,000/= imposed on the 1st Petitioner and to refund any amounts paid pursuant to the said penalty.F.Any other relief that this Honourable Court may deem just and appropriate in the circumstances.G.Costs be provided for. 4.The Petition is premised on the grounds enlisted on its face and supported by the sworn affidavit of JULIUS NG’ANG’A, the director of the 1st Petitioner, dated evenly with the Petition. He avers that that the Respondent contravened the Constitution and relevant statutes through arbitrary and unlawful imposition of penalties and the denial of fundamental rights and freedoms. 5.It is averred that the provisions of Section 51 of the Tax Procedure Act mandate a tax payer who disputes a tax decision to first lodge an objection under the said section before pursuing legal remedies while Section 109 (3) (e) limits the right to appeal, creating a conflict within the TPA itself and further infringes on the constitutional protections under Article 10, 27 (4), 48 and 50 of the Constitution. 6.The Petitioners contend that there are no statutory provisions or regulations to guide the Respondent on the process of compounding offences under Sections 109 of the TPA and 63 of the VAT Act, which leads the Respondent to compound tax in a manner that is hasty and oppressive and denies the taxpayer the opportunity to consult with legal counsel or tax agents. That further, the same leads to unfair, non-transparent and inequitable penalties imposed upon taxpayers. 7.The Petitioners’ case is that on 17th July 2024, officers of the Respondent visited the 1st Petitioner’s business premises and purchased fuel worth Ksh. 500/= and alleged that no tax invoice was issued, leading to the immediate issuance of a Notice of Offence on the same day via EA-A (S-44) for the purported non-compliance with Section 42 of the VAT Act and requiring the directors of the 1st Petitioner to appear at the Respondent’s Thika offices on 25th July 2024. 8.It is averred that the 1st Petitioner’s representative appeared on the said date but was confronted by a Committee constituted by the Commissioner pursuant to Section 109 of the Tax Procedures Act and instructed to write mitigation grounds on a pre-printed Form EA-B(S-44) then make oral submissions which were neither recorded nor acknowledged. 9.The Petitioners depose that the Committee did not respond to the mitigation in writing as required by Article 47 of the Constitution or give written reasons, but instead compounded a penalty of Kshs. 500,000/= via Form EA-D(S-44) and required the representative to sign the form even with the procedural irregularities and unconstitutional acts. 10.It is further stated that on 9th August 2024, the Petitioners filed a Notice of Objection pursuant to Section 51 of the TPA, requesting the Commissioner to vacate the penalty on the grounds that it was unlawfully premised on Section 109 of the TPA instead of the Applicable Section 86 of the TPA. That from this, the Commissioner issued an Objection Decision dated 22nd August 2024 declining to vacate the unlawful penalty and thereby subjecting the 1st Petitioner to the risk of enforcement of the unjust penalty of Kshs. 500,000/=. 11.The Petitioners allege that the Respondents contravened their right to access to justice under Article 48, fair trial under Article 50, fair administrative action under Article 47 of the Constitution and asked the Court to determine the unconstitutionality of Section 63 of the VAT Act. 12.Concurrently with the Petition, the Petitioners filed a Notice of Motion dated 2nd September 2024 seeking the following prayers: -1.Spent2.Spent3.That there be and is hereby issued a conservatory order restraining the Respondent from enforcing the impugned penalties levied against Jkomu Investment Limited on 25th July 2024 under Section 63 of the Value Added Tax Act 2013 and Section 109 of the Tax Procedures Act 2015 pending the hearing and determination of the Petition.4.That costs be provided for. 13.The Application is premised on the grounds on the face of it and supported by the same affidavit supporting the Petition sworn by JULIUS NG’ANG’A, the director of the 1st Petitioner. The grounds are inter alia that the Petition raises substantial questions of law regarding the constitutionality of Sections 63 of the Value Added Tax, 2013 and 109 (3) (e) of the Tax Procedures Act 2015 and that the conservatory orders sought are necessary for the interests of justice to preserve the subject matter of the Petition. 14.In response to the Petition, the Respondent filed a Replying Affidavit sworn by BOAZ LANGAT, an officer of the Respondent dated 10th February 2025. He deposes that on 17th July 2024, while performing its enforcement duties, the Respondent visited the Petitioners’ premises and established that it did not comply with the provisions of Section 42 of the VAT Act 2013. So they summoned the 1st Petitioner and asked them to provide monthly reports, fuel meter and M-Pesa and bank statements for the business from January 2023 to July 2024. 15.The deponent averred that from this, the Respondent issued the 1st Petitioner with a Penalty Order for the sum of Kshs. 500,000/= pursuant to Section 63 of the VAT Act, which precipitated the filing of an Objection to the Penalty Order by the 1st Petitioner on 9th August 2024 and issuance of an Objection decision on 22nd August 2024 where the Respondent disallowed the Objection. 16.It is deposed that through its accountant and representative Ms. Ann Wambui Ng’ang’a, the 1st Petitioner voluntarily requested in writing and consented to the compounding process which entailed that the offence of selective issuance or failure to issue a proper tax invoice to all customers be settled under the provisions of Section 109 of the Tax Procedures Act, 2015. That consequently, they executed the necessary compounding forms after receiving explanations of the process and the resulting penalty. 17.The Respondent argues that the settlement order is a legally binding agreement that cannot be set aside unless fraud, collusion, or coercion is proven, which they claim the Petitioners failed to do. 18.The Respondent maintains that under Section 109 of the TPA, any order made is final and not subject to appeal, and the 1st Petitioner was informed of this before consenting. It is their position that the Petition is an abuse of the court’s process because the Petitioners did not exhaust available remedies at the Tax Appeals Tribunal before moving to the High Court and that the Petitioner is guilty of material non-disclosure for failing to state that they have also filed TATC/E996/2024: JKOMU INVESTMENT LTD v KRA, which amounts to forum shopping. 19.Parties took directions before Mwita J (as he then was) to canvass the Application and the Petition by way of written submissions. Only the Petitioners have filed submissions in this Petition. Submissions 20.Counsel for the Petitioners submitted on the constitutionality of Section 109(3)(e) of the Tax Procedures Act (TPA), 2015 and stated that the Petitioner challenges the validity of this section, which stipulates that orders made by the Commissioner under compounding are final and not subject to appeal. Counsel submits that the Court should determine whether the penalty should be governed by Section 109 of the TPA and Section 63 of the VAT Act on general penalties or by Section 86 of the TPA, which specifically addresses failures regarding electronic tax invoices. 21.Counsel set out four issues for determination being; whether the Tribunal erred in law by declining to determine the legality of the Respondent’s penalty decision under the guise of lacking jurisdiction; whether the Respondent’s penalty decision dated 25th July was based on the wrong statutory provision and is therefore null and void; whether the Respondent violated the Applicant’s right to fair administrative action under Article 47 of the Constitution; and whether the Respondent failed to render a valid Objection Decision under Section 51 (11) of the TPA. 22.On the first issue, Counsel submitted that the questions raised by the Petitioners on application of the wrong law were issues that fell within the Tribunal’s jurisdiction under Sections 12 and 13 of the Tax Appeals Tribunal Act so that the blanket invocation of Section 109 (3) (e) to evade this inquiry was an outright abdication of its adjudicatory mandate. 23.Counsel argued that the Tribunal was duty-bound to pronounce itself on whether the Respondent had acted ultra vires by by-passing the procedural safeguards under Section 86 and asserted that the issue raised was not a discretionary one but a question of legality and jurisdictional propriety of the Commissioner’s decision. That consequently, by failing to address it, the Tribunal shielded an unlawful administrative act from judicial scrutiny and disregarded the command under Section 51 (11) of the TPA which allows an objection by operation of the law, that has not been addressed by the Commissioner within 60 days. 24.On the second issue, it was submitted that Section 86 of the TPA is the specific law for electronic invoice offences. They argue that using Section 109 and Section 63 of the VAT Act to impose a Kshs 500,000 penalty was void ab initio because a specific penalty already exists in Section 86 which stipulates a written notification of non-compliance and an opportunity to respond or explain prior to imposition of a penalty that was not followed in this case. They cited the case of Macfooy vs. United Africa Co. Ltd (1961) 3 All ER 1169 in support of the nullity of the decision. 25.On the third issue, Counsel for the Petitioners contends that the compounding process and subsequent penalty order violated the 1st Petitioner’s rights to fair administrative action under Article 47, access to justice under Article 48 and a fair hearing under Article 50 of the Constitution. The Petitioners claim their representative was ambushed and forced to sign a pre-filled compounding form without adequate time to consult or record full mitigating factors. 26.They also cite issues of procedural unfairness and lack of justification in the decision of the Respondent. Counsel argues that Respondent, the Kenya Revenue Authority, failed to provide written reasons for the specific penalty amount or respond in writing to their mitigating factors, violating transparency requirements and due process. 27.On the fourth issue, Counsel submits that the Objection Decision was silent on the issue of misapplication of the law by the Respondent. It is stated that the Respondent imposed excessive penalty in the sum of Kshs. 500,000 /= which was arbitrary and punitive. Analysis and Determination 28.From my consideration of the material before this Court, the attendant submissions and the applicable law, the issues for my determination are: -i.Whether the court has jurisdiction to adjudicate over the matter.ii.Whether the Petition is merited if this Court finds that it has jurisdiction. Whether this court has jurisdiction to adjudicate over the matter 29.At the core of this Petition is the issue of the constitutionality of the tax compounding process and the appropriate law applicable to penalties for non-issuance of electronic tax invoices. The Petitioners question the validity of the Objection decision amidst other issues regarding the applicable laws that were to be employed in imposing the tax penalties. 30.I observe that in the Replying Affidavit, the Respondent contests the jurisdiction of this Court and asserts that the Petitioners have not exhausted the available remedies at the Tax Appeals Tribunal before approaching this Court and that the petitioners are also guilty of material non-disclosure for failing to disclose to this Court that they have also filed TATC/E996/2024: JKOMU INVESTMENT LTD v KRA. The respondent contends that the Petitioners are ‘forum shopping’. 31.In the oft-cited case of Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling), the Supreme Court at paragraph 68 stated as follows regarding jurisdiction: -“ 68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 32.This Court draws its jurisdiction from Article 165 of the Constitution which provides in part as follows: -165.High Court(3)Subject to clause (5), the High Court shall have—a.unlimited original jurisdiction in criminal and civil matters;b.jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c.jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d.jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—i.the question whether any law is inconsistent with or in contravention of this Constitution;ii.the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;iii.any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv.a question relating to conflict of laws under Article 191; ande.any other jurisdiction, original or appellate, conferred on it by legislation.(4)…(5)…(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)… 33.It follows that, the High Court is vested with the authority to determine constitutional issues and at the same time hear and determine appeals arising from Tribunals. The above provisions further stipulate that the High Court exercises supervisory jurisdiction over bodies or authorities that exercise quasi-judicial functions and these bodies or authorities include tribunals established under specific Acts of Parliament and vested with jurisdiction to hear and determine disputes in specific areas. 34.In this case, the facts of this case are that the 1st Petitioner was issued with a Notice of Offence on 17th July 2024 and summoned to the Respondent’s offices in Thika on 25th July 2024 to answer to the said charges. The 1st Petitioner contends that its representative was ambushed with a pre-filled compounding form and not granted adequate time to consult or record full mitigating factors. They then lodged a Notice of Objection before the Commissioner requesting that the penalty imposed be vacated, which request was subsequently declined in a Decision dated 22nd August 2024. 35.This background forms the basis of the Petitioners’ case before this Court, where they are particularly questioning the validity of the Respondent’s Objection decision for allegedly employing the wrong legal provisions, while at the same time, the petitioners now challenge the constitutionality of sections 63 of the VAT Act and 109 (3) ( e) of the Tax Procedures Act contravenes the Constitution at Articles 10, 27(4) and 47,48 and 60 respectively and that in addition, penalties imposed on the petitioners under the impugned sections of the law are arbitrary, in violation of the constitutional rights under Articles 46,48 and 50 hence the penalty imposed and paid should be refunded. 36.I have considered the provisions of Section 51 of the Tax Procedures Act, Cap 469B which sets out the procedure for objecting to a tax decision. In particular, section 51 (12) stipulates that:(12)A person who is dissatisfied with the decision of the Commissioner under subsection (11) may appeal to the Tribunal within thirty days after being notified of the decision. 37.Thereafter, the Act provides a further mechanism for redress where a party is not satisfied with the decision of the Tribunal. This is set out in Sections 53 and 54 of the Act which states:53.Appeals to High CourtA party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the High Court may allow, appeal the decision to the High Court in accordance with the provisions of the Tax Appeals Tribunal Act (Cap. 469A).54.Appeals to Court of AppealA party to proceedings before the High Court who is dissatisfied with the decision of the High Court in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the Court of Appeal may allow, appeal the decision to the Court of Appeal. 38.Based on the foregoing, it is clear that the first avenue for redress where a party is dissatisfied with the Commissioner’s decision is the Tax Appeals Tribunal (TAT). I note that the 1st Petitioner herein did not inform this Court that they had lodged an appeal before the TAT. This information was revealed to the Court by the Respondent in their replying affidavit and the same was never controverted. 39.This Court however appreciates that a tribunal does not have jurisdiction to determine the constitutionality of a legal provision or constitutional violations. In this case, the Tax Appeals Tribunal’s jurisdiction is well set out in Section 12 of the Tax Appeals Tribunal Act, Cap 469A as follows:12.Appeals to the TribunalA person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal,Provided that such person shall before appealing, pay a non-refundable fee of twenty thousand shillings. 40.Thus, the Tribunal is only empowered to determine appeals on the decisions of the Commissioner and in relation to tax laws and tax decisions. No law empowers the Tribunal to determine constitutional questions or violations. 41.Having set this out, I now consider whether the Petitioners are rightfully before this Court to seek constitutional remedies for alleged constitutional violations or they have merely disguised their appeal as a constitutional issue challenging the sections of the law to obtain a determination from this Court. 42.In considering this, I note that the Petitioners are seeking a declaration that Sections 63 of the Value Added Tax 2013 contravenes Articles 10 and 27 (4) of the Constitution and that Section 109 (3) (e) of the Tax Procedures Act 2015 contravenes Articles 47, 48 and 50 of the Constitution and should therefore be declared unconstitutional. At the core of their argument is the fact that they question the Respondent’s reliance on the aforementioned provisions of the relevant statutes and claim that the correct provision that should have been applied to their case was Section 86 of the Tax Procedures Act. 43.This Court’s view of the above approach is that by determining the constitutionality of these sections, if this Court’s findings favour the arguments of the Petitioners, the same is likely to determine the matter that is before the Tax Appeals Tribunal. In my most considered opinion, this is a carefully crafted method by the Petitioners to subtly or covertly force the Tribunal’s hand to determine the issues raised therein in their favour. 44.It can easily be deduced that the issues raised before the TAT on appeal, though not disclosed to this Court by the petitioners, the same are centered on the Petitioner’s dissatisfaction with the Commissioner’s decision on the Objection filed by the petitioners, which decision is dated 22nd August 2024, and the fact of the validity of the penalty which according to the petitioners, was premised on wrong provisions of the statute. 45.To make a determination on these alleged constitutional violations without delving into the realm of the substantive issues pending and being determined on appeal before the Tax Appeals Tribunal would be to ask this Court to overlook the doctrines of exhaustion and constitutional avoidance and to impose its authority in an unwarranted manner over the Tribunal which is subordinate to this Court. 46.I have considered what the doctrine of exhaustion entails. The Court of Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR stated as follows concerning the doctrine of exhaustion:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 47.On the other hand, the doctrine of constitutional avoidance was discussed in the case of Sports and Recreation Commission v Sagittarius Wrestling Club and Anor [2001] (2) ZLR 501 (S), as follows: -“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.” 48.Similarly, in Chawira & Ors v Minister of Justice Legal and Parliamentary Affairs & Ors CCZ 3/17, the Constitutional Court of Zimbabwe held that: -“As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.” 49.The Supreme Court of Kenya in Communications Commission of Kenya and 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, succinctly explained the doctrine as follows:“(105) We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional -Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”(106) The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.” 50.Additionally, in Mutanga Tea v Shikara and Municipal Council of Mombasa, the Court of Appeal stated as follows regarding exhaustion of statutory remedies:The real question then becomes whether an aggrieved party can ignore these elaborate provisions in both the PPA and the EMCA and resort to the High Court, not in an appeal as provided, but in the first instance.This Court has in the past emphasized the need for aggrieved parities to strictly follow any procedures that are specifically prescribed for resolution of particular disputes. Speaker Of The National Assembly V. Karume (supra), was a 5(2)(b) application for stay of execution of an order of the High Court issued in judicial review proceedings rather than in a petition as required by the Constitution. In granting the order, the Court made the often-quoted statement that:“[W]here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”(See also Kones V. Republic & Another Ex Parte Kimani Wa Nyoike & 4 Others (2008) 3 KLR (ER) 296).It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner. In Rich Productions Ltd. V. Kenya Pipeline Company & Another, Petition No. 173 OF 2014, the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”On the same reasoning, this Court, in REpublic V. The National Environmental Management Authority, Ca No 84 OF 2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environment Tribunal. The Court reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure, it is only in exceptional circumstances that an order of judicial review will be granted. More recently in Vania Investment Pool Ltd. V. Capital Markets Authority & 8 Others, Ca No 92 OF 2014 this Court also upheld a decision of the High Court in which the court declined to entertain a judicial review application by an applicant who had failed to first refer its dispute to the Capital Markets Appeals Tribunal established by the Capital Markets Act.We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts”. 51.Taking queue from the above cases, it is manifest that the doctrines of exhaustion and constitutional avoidance are not mere technicalities but substantive safeguards of institutional integrity, judicial economy and fairness. They cannot be overlooked in the name of advancing constitutional rights. 52.I find that the grievances of the Petitioners herein were capable of being addressed in the Tax Appeals Tribunal which is vested with the jurisdiction to hear and determine the tax issues that arose from the Respondent’s Notice of Offence and the subsequent penalty imposed and the Objection Decision. Furthermore, the petitioners were already before the said Tribunal albeit they failed to disclose that material fact to this Court. 53.Although the Petitioners cited constitutional violations of their right to fair hearing, fair administrative action and access to justice, it is my finding that the proper mechanism for redress of the dispute would have been to first exhaust the avenues provided through the Tax Appeals Tribunal before raising constitutional questions. 54.I further note that there exists a potential danger of this Court and the Tribunal rendering conflicting decisions in this regard, or this Court rendering a decision that will impede on the authority of the tribunal and force its hand to make a determination following a specific trajectory. That is something that this Court must not permit or countenance especially in light of its inherent powers and superior authority compared to the Tax Appeals Tribunal. 55.Equally, I note that the essence of the above-mentioned doctrines is to guard against potential institutional embarrassment which would arise if the Tax Appeals Tribunal continues to hear the matter while this Court has already pronounced itself on the alleged constitutional violations. It is evident that such an eventuality would render the Tribunal undermined thereby eroding its authority and competence. 56.Secondly, to allow the parties to seek redress from this court concurrently with the appeal sought before the Tribunal, under the guise of challenging constitutionality of sections of the law yet the intention is to challenge the outcome of an objection decision which is still pending before the TAX Appeals Tribunal would be to prejudice the Respondent who will evidently be disadvantaged if the Tribunal feels constrained or compelled by this Court’s decision, particularly where the Tribunal is yet to complete its fact‑finding or apply its specialized expertise. The obvious result is that the Petitioners herein will be placed at an unfair tactical advantage before the Tribunal against the Respondent. 57.Thirdly, such an exercise will lead to a fragmentation of justice and an abuse of the court process. Courts remain the bastions of justice. In such a scenario, conflicting outcomes may arise where the Tribunal may reach a conclusion inconsistent with this Court’s pronouncement thereby creating uncertainty and undermining the coherence of the administration of justice. 58.Lastly, the Petitioners are asking this Court to determine their Petition while there is a potential of this decision rendering the Tribunal’s proceedings otiose where this Court’s constitutional determination may effectively predetermine the outcome before the Tribunal, yet the petitioners deliberately failed to disclose that they had appealed the objection decision to the Tax Appeals Tribunal and are saying nothing about it. In the view of this Court, the petitioners are forum shopping in the name of seeking justice. 59.The studious silence concerning the appeal filed by the petitioner before the Tax Appeals Tribunal, which appeal is still pending hearing and determination, over the same subject matter now before this Court, in my view, was intended to steal a match on the Respondent in these proceedings. 60.This Court’s overall view is that it was improper for the Petitioners to invoke this Court’s constitutional jurisdiction which appears to be a circumvention of the appellate process and is likely to short circuit the Tribunal’s specialized jurisdiction over the matter. 61.In the premises, I find that the invocation of this court’s jurisdiction to declare sections of the two statutes was not made with the intention of achieving justice and that the petitioners are guilty of forum shopping. This court does not accept the argument that applying wrong sections of the law to levy penalties renders the decision to be unconstitutional, where there is an appeal mechanism that has been invoked challenging that decision, and where the TAT has jurisdiction to find whether the correct provisions of the law were applied in levying the penalties. A law cannot be rendered unconstitutional merely because it was misapplied. It has not been demonstrated to the satisfaction of this Court how the impugned provisions violate the Constitution or the petitioners’ constitutionally guaranteed rights. 62.Accordingly, the second issue is moot and none of the prayers sought are merited. They are declined. 63.Therefore, for want of exhaustion of remedies and invoking the doctrine of constitutional avoidance and exhaustion, I find the petition dated 2/9/2024 to be devoid of substance and the same is hereby dismissed with no orders as to costs. 64.The conservatory order issued on 13th September 2024 and extended from time to time are hereby discharged. 65.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2026R.E. ABURILIJUDGE