https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8963

Kerich & another v Motigo Tea Factory Company PLC & another (Constitutional Petition E005 of 2026) [2026] KEHC 8963 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 8963 (KLR) Republic of Kenya In the High Court at Bomet Constitutional Petition E005 of 2026 JK Ng'arng'ar, J June 25, 2026 IN THE MATTER OF: ARTICLES 2(1), 2(3), 3(1), 10 (1A, 2A 2C), 20(1 AND 2), 21, 22, 23, 27 (1 AND 2), 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF VIOLATION OF ARTICLES 10 (1C, 2A AND 2C) 27(1 AND 2), 35(1B) AND 47(1 AND 2) OF THE CONSTITUTION OF KENYA, 2010 Between Jonah Kipkorir Kerich 1st Petitioner Willy Langat 2nd Petitioner and Motigo Tea Factory Company PLC 1st Respondent Tea Board Of KEnya 2nd Respondent Ruling 1.Through the Notice of Motion Application dated 5th June 2026, the Petitioners sought the following Orders that: -I.Spent.II.This Honourable Court be pleased to issue a conservatory injunction restraining the 1st Respondent from conducting the election of directors as per the Notice dated 11th May 2026 pending the hearing and determination of this Application.III.This Honourable Court be pleased to issue a conservatory injunction restraining the 1st Respondent from conducting the election of directors as per the Notice dated 11th May 2026 pending the hearing and determination of the Petition herein.IV.This Honourable Court be pleased to grant any other order and/or relief befitting the circumstances. The Petitioners’ case 2.Through the Supporting Affidavit sworn by Jonah Kipkorir Kerich on 5th June 2026, the Petitioners stated that through a Notice dated 29th April 2026, the 1st Respondent’s Factory Manager informed its shareholders of a public participation programme to discuss the boundary delineation which was to run from 5th May 2026 to 8th May 2026. That upon the completion of the exercise, the 2nd Respondent’s farmers had a legitimate expectation that a report would be availed but to their surprise, the 1st Respondent published the Notice dated 11th May 2026 for election of candidates of its directorship to be held on 29th June 2026. 3.It was the Petitioners’ case that the Notice excluded two active electoral areas known as Kiromwok and Tegat which formed part of the public participation discussions. That voters in the aforementioned areas faced the risk of being denied their rights to vote as envisioned under section 22 (3) of the Tea Act. It was the Petitioners’ further case that there was a lack of transparency and accountability as there were no public views incorporated in the aforementioned zones. 4.The Petitioners stated that they wrote a letter to the 1st Respondent seeking a comprehensive report on the public participation exercise but the same had been ignored. That no manual for election of directors had been released for the scheduled elections and as such, the electoral process had been marred by procedural impropriety contrary to section 5 (b) of the Fair Administrative Actions Act. 5.It was the Petitioners’ case that the 2nd Respondent had abdicated its supervisory role as per section 22 (3) of the Tea Act. Response 6.Through a Replying Affidavit dated and a Preliminary Objection both dated 15th June 2026. As a matter of precedence, the court will consider the Preliminary Objection first and the merit or demerit of the Preliminary Objection would guide the court as to whether it would consider the 1st Respondent’s Replying Affidavit. Preliminary Objection dated 15th June 2026. 7.The Respondents stated that the Petitioners’ Application was bad in law and relied on the following grounds: -i.It is manifest from the facts pleaded in the Petition and the accompanying Application that the dispute herein, in fact and in substance concern the conduct of elections of Board of Directors of Motigo Tea Factory PLC.ii.It is trite law that the conduct of the business of any company are subject to its Memorandum and Articles of Association and the Companies Act, 2015 which provide for the dispute resolution mechanisms to be invoked in the event a shareholder or any other interested party is aggrieved with any decision taken by the board or its majority shareholders.iii.Sections 238, 239, 240 and 241 of the Companies Act 2015 provide a leeway for minority shareholders to file a derivative suit where they are aggrieved by an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company or other recognized agent. Moreover section 279 of the Companies Act empowers members to call for meeting to discuss affairs of the company and accordingly pass appropriate resolutions. Where it is not possible for a member to exercise such power, section 280 of the Act authorizes such members to apply to the court to make an order for a general meeting to be convened.iv.Moreover, pursuant to Part II clause 4 of the 1st Respondent’s Election Guidelines stated that any election dispute must in the first instance be referred in the first instance to the Dispute Resolution Committee for hearing and determination.v.Noteworthy, the dispute herein has not been subjected to the Dispute Resolution Mechanisms stipulated under the 1st Respondent’s Elections Guidelines and the Companies Act. As such it was therefore not ripe for reference to this court and that this court lacked jurisdiction to determine the issues raised in the Petition.vi.The Petitioners have failed to exhaust all remedies available to them and also failed to demonstrate any exceptional circumstances upon which they could be exempt from pursuing mechanisms for redress in accordance to section 9(4) of the Fair Administrative Actions Act.vii.The Respondents contend that the Petition and the Application ought to be dismissed as they offend the doctrine of exhaustion. 8.On 23rd June 2026, this court directed that the Preliminary Objection be dispensed off way of written submissions. Respondents’ written submissions. 9.Through their written submissions dated 24th June 2026, the Respondents submitted that as far as the zoning of the 1st Respondent ought to be subjected to further discussions by the shareholders through the dispute resolution mechanisms provided under sections 238, 239, 240, 241, 279 and 280 of the Companies Act. That the 1st Respondent’s shareholders already approved the impugned electoral zoning through the Resolution dated 11th May 2026. The Respondents further submitted that the Petitioners failed to exhaust all remedies available to them and that this court lacked jurisdiction to determine the issues raised in the Petition. They relied on Geoffrey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others (2015) eKLR et.al. 10.It was the Respondents’ submission that the Petition did not raise any constitutional issue but otherwise wanted to usurp the provisions of the Companies Act. They relied on Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR) (19 August 2022) (Ruling). That the elections of a company’s directors, interpretation, operation and/or implementation of a company’s board resolutions could not be a constitutional issue. 11.The Respondents submitted that their Preliminary Objection had met the threshold set out in Mukhisa Biscuit manufacturing Co. Ltd vs West End Distributors Company Limited (1969) E.A 696. Petitioners’ written submissions 12.Through their written submissions dated 23rd June 2026, the Petitioners submitted that the Preliminary Objection was founded on matters of fact and not law. That it would require this court to peruse the 1st Respondent’s Elections Guidelines and the Companies Act. The Petitioners further submitted that the procedure used to come up with the electoral zones was contested. They relied on Munene vs Njagi and another [2022] KEHC 12051 (KLR) et.al. 13.It was the Petitioners’ submission that the Preliminary Objection was misconceived, devoid of merit and ought to be dismissed. 14.I have gone through and considered the Petition and Notice of Motion Application both dated 5th June 2026, the Petitioners’ written submissions dated 23rd June 2026 and the Respondents’ written submissions dated 24th June 2026. The only issue I have sieved for my determination was whether this court had the jurisdiction to determine the Petition and Application at this stage. 15.In regards to jurisdiction, the Supreme Court of Kenya in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held: -“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.” 16.It was the Respondents’ case that this court did not have jurisdiction to determine the Petition and the Notice of Motion Application both dated 5th June 2026 as the Petitioners had offended the doctrine of exhaustion by not availing themselves to the remedies available to them under the Companies Act and more specifically the 1st Respondent’s Elections Guidelines. On the other hand, the Petitioners stated that the Preliminary Objection did not raise any point of law but raised contested facts which made the Preliminary Objection a nullity ab initio. 17.The Doctrine of Exhaustion is defined in Black’s Law Dictionary 10th Edition as follows: -The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary. 18.The main prayer for the Petitioners was an order to stop the election of the 1st Respondent’s directors that is scheduled for 29th June 2026. The grounds that the Applicants relied on have been captured aptly earlier on in this Ruling. As stated above, the Respondents were of the view that the Applicants had not exhausted their means of redress and were premature in seeking this court’s intervention. They relied on the 1st Respondent’s Elections Guidelines and the Companies Act. 19.I have looked at the 1st Respondent’s Elections Guidelines, 2026 and Clause 4a establishes the Election Dispute Resolution Committee. The same clause elaborated the Committee’s mandate which was to resolve any dispute arising from the electoral process. Clause 4e stated that the Committee would regulate its own procedures and would consider and determine any electoral dispute. 20.The Petitioners have described themselves as farmer representatives of small-scale tea farmers in the 1st Respondent. In my view, the Petitioners were members of the 1st Respondent and were subject to the provisions of 1st Respondent’s Elections Guidelines, 2026. 21.From the above, it was clear that the 1st Respondent’s Elections Guidelines, 2026 provided a dispute resolution mechanism at the first instance and it was applicable to all its members including the Petitioners. It has often been held in various authorities that where there exists an alternative mode of dispute resolution, a party should exhaust such processes before approaching a court of law. In the case of Joseph C. Kiptoo & Another vs Kericho Water and Sewerage Company (2016) eKLR, Mumbi J. (as she then was) held: -“It has been stated time and again that where an Act of Parliament provides for a mechanism for resolution of disputes, that mechanism must be strictly followed.” 22.Similarly, in the case of The Speaker of the National Assembly vs Karume (2008) 1KLR (E.P) 425, the Court of Appeal held that: -“In our view there is considerable merit that where there is a clear procedure for the redress of any particular grievance prescribed in the Constitution or an Act of Parliament, the procedure should be strictly followed.” 23.Further, the Court of Appeal in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) held: -“………….It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the 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.” 24.However, there are exceptions to the doctrine of exhaustion. Section 9 of the Fair Administrative Action Act provides: -(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. 25.I have keenly gone through the pleadings and it is my finding that the Petitioners failed to demonstrate the exceptional circumstance that would be an exception to the doctrine of exhaustion. 26.In the final analysis, the 1st Respondent’s Elections Guidelines, 2026 provided the Election Dispute Resolution Committee which was responsible for hearing and determining any electoral disputes within the 1st Respondent. The issue and reasons why the Petitioners want the 1st Respondent’s elections halted would be addressed by the Election Dispute Resolution Committee in line with the provisions of the law. In my view, this court’s jurisdiction was invoked prematurely. With respect to the Petitioners, the above position touched directly on this court’s jurisdiction to hear and determine the Application and Petition at this stage and this court’s lack of jurisdiction is a matter of law and not fact. 27.In the end, it is my finding that the Preliminary Objection dated 15th June 2026 has merit. The Petition and Notice of Motion Application both 5th June 2026 are hereby struck out. Each party will bear its own costs. File is closed. RULING DELIVERED VIA CTS THIS 25TH DAY OF JUNE, 2026.……………………………………J.K.NG’ARNG’ARJUDGE