https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12582

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERICHO** **CIVIL CASE NO. E003 OF 2026** **BERNARD KIPCHIRCHIR…………………......................................... 1ST APPLICANT** **ALBINAH CHEPKIRUI NYOKOSEI…………......................................2ND APPLICANT** **SAMWEL SIONGOK................................................................................ 3RD APPLICANT** **MICHAEL CHELULE.............................................................................. 4TH APPLICANT** **=VERSUS=** **TEGAT TEA FACTORY LTD…………..……................................... 1ST RESPONDENT** **KENYA TEA DEVELOPMENT AGENCY…................................... 2ND RESPONDENT** **TEA BOARD OF KENYA………………............................................. 3RD RESPONDENT** **VINCENT ROP……………………...................................................... 4TH RESPONDENT** **RULING.** 1. **Introduction.** 2. The Applicants filed the Notice of Motion dated 10th June 2026, brought under Sections 3A and 63(c) of the Civil Procedure Act (Cap. 21), Order 40 Rules 1, 2(1), 3 and 4, and Order 51 Rule 1 of the Civil Procedure Rules 2010. 3. The Applicants seek orders restraining the Respondents from conducting the director’s election for the 1st Respondent’s Kapsuser Electoral Zone and from confirming, declaring or publishing the 4th Respondent as the sole or successful candidate for that position, pending the hearing and determination of the suit. 4. The application is supported by the affidavit of Albinah Chepkirui Nyokosei the 2nd Applicant. It is opposed by the 1st Respondent through the replying affidavit of Dickson Kirui, its company secretary and by the 4th Respondent through his own replying affidavit and written submissions filed in due course. 5. The 2nd and 3rd Respondents have neither entered appearance nor filed any response. Although an affidavit of service is on record, it does not demonstrate service of the application upon the 2nd and 3rd Respondents. **B. Background.** 1. The Applicants are shareholders and tea growers registered with the 1st Respondent, suing on their own behalf and on behalf of 60 other farmers within the Kapsuser Electoral Zone. 2. Their case, as pleaded in the Notice of Motion and the Supporting Affidavit, is that on or about 4th May 2026 the 1st Respondent caused to be prepared a notice of elections for among other zones, the Kapsuser Electoral Zone, but posted that notice at only one of what the Applicants say are six tea buying centres within the zone Kapchebwaber, omitting the other five. 3. The Applicants contend that this selective posting, compounded by a nomination window compressed to approximately 8 days rather than the 21 days required, resulted in the 4th Respondent becoming the sole candidate shortlisted for the Kapsuser directorship. 4. They further plead that the 1st Respondent purported to constitute itself, through its company secretary, as both the independent electoral management body and the election dispute resolution committee, without proper appointment of either by the 2nd and 3rd Respondents and that the company secretary, Dickson Kirui, functions simultaneously as Returning officer and as head of the committee that would hear any complaint against the process he himself administers. 5. The 1st Respondent’s response is that the applicable election guidelines for 2026 supersede the 2024 manual the Applicants rely upon and exclude the 2nd and 3rd Respondents from the management of the election. That the notice was in fact circulated to and posted at all coded tea buying centres, as evidenced by a bundle of affidavits from growers and from the officer who conducted the posting. That a candidate, Mary J. Bargesem, raised a complaint with the election dispute resolution committee and was heard and determined upon and that the Applicants have not exhausted the dispute resolution mechanism available to them under the election guidelines rendering the suit premature. The 4th Respondent associates himself with these submissions. **C. Issue for determination.** 1. Numerous issues are canvassed in the affidavits and submissions on both sides. The two issues that fall for determination and which are dispositive of this application are: 2. ***Whether this Court has jurisdiction and is properly seized of this application.*** 3. ***Whether the Applicants have met the threshold for grant of an order of injunction.*** **D. Analysis.** 11. The doctrine of exhaustion of remedies requires that where a dispute resolution mechanism exists outside the courts, the same must be exhausted before the jurisdiction of the courts is invoked. Its foundation is ***Speaker of the National Assembly v Njenga Karume [1992] eKLR*** and it was authoritatively restated by the Court of Appeal in ***Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others* [2015] eKLR**, where the Court held: ***“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”*** 1. The doctrine, properly understood, does not divest this Court of jurisdiction in the strict sense. It postpones the point at which that jurisdiction may be invoked. That said, it is not a technicality to be lightly brushed aside. 2. The Court of Appeal in Muthinja at paragraph 39 held and I respectfully adopt that the doctrine applies even where what is impugned is the very authority or impartiality of the internal body before which the dispute would ordinarily be placed when there are sufficient safeguards and the opportunity to approach court thereafter. 3. I have considered the Applicants reliance on the 2024 Manual and the 1st Respondent’s reliance on its 2026 Election Guidelines. The Applicants position is viewed against Article 24(4) of the 1st Respondent’s articles of association, which provides that the tea factory shall develop election guidelines for the nomination of candidates for directorships. 4. The 2024 manual relied upon by the Applicants states on its face that it applied to elections scheduled for June 2024 at paragraphs 2 and 3. The Articles therefore provide a prima facie basis upon which the 1st Respondent could formulate guidelines for a subsequent election. 5. Nothing on the face of the application or the Supporting Affidavit suggests that any of the Applicants lodged a complaint on the issues they raise with the 1st Respondent’s election dispute resolution committee before instituting this suit on 10th June 2026. 6. What the record does show, from the Applicants’ own pleadings, is that a member of their group did engage that Committee. This is corroborated by the 1st Respondent’s own annexures *DK6(a)* and *DK6(b).* 7. Two consequences follow. Firstly, it demonstrates that the internal mechanism was not merely a paper provision but was in fact operative and accessible during the very period material to this dispute and secondly that by the time the Applicants approached this Court, they already possessed direct, first-hand knowledge that the Committee existed and that it convened. 8. I have considered the concern by the Applicants on the composition of the Committee. The documentary evidence does not support the Applicant’s allegation that Dickson Kirui simultaneously acted as the returning officer and as chairperson or member of the election dispute resolution committee. 9. The Committee’s determination identifies people other than Dickson Kirui as its chairperson Ezekiel Kurgat, secretary-Daisy Chepkirui and member-Kimutai Vincent. His role in communicating the outcome of the complaint does not, without more, establish that he participated in determining it. 10. The Court of Appeal rejected a similar argument in the Muthinja, where the Appellants contended that the organ to which they were required to refer their dispute was itself composed of the very persons whose election was under challenge. The Court held in terms that **“the exhaustion doctrine applies even where what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed”** (paragraph 39). 11. Whatever concerns the Applicants may have about the independence of the committee is a matter to be raised with the Committee in the first instance and if unresolved, brought before Court thereafter. It does not entitle them to bypass the mechanism altogether. 12. I have also considered whether this suit might fall within the narrower class of cases in which exhaustion has been held not to bar suit because the pleadings are properly framed as a constitutional petition. 13. In ***Usikimye CBO & 4 others v Chebochok & 4 others [2024] KEHC 10121,*** this Court (Sergon J) declined to strike out a petition concerning a different Tegat/Toror zone election on exhaustion grounds, precisely because the petition pleaded specific violations of the bill of rights with the particularity required of constitutional petitions. The instant t application is distinguishable from the said petition as it is an ordinary dispute over the internal conduct of a company election. 14. I have found it necessary to consider ***Chepkwony v Tegat Tea Factory Ltd & 5 others [2024] KEHC 11361 (KLR)***, a decision by Hon Justice Sergon delivered on 26th September 2024, in which a shareholder’s suit challenging the conduct of a director’s election at this same 1st Respondent. This Court there held: ***“The election of directors is part of the internal affairs of a company and whereas Article 165 of the Constitution vests this court with unlimited original jurisdiction in criminal and civil matters this court would be hesitant to interfere with such elections more so where, as in this case, the company itself has provided a mechanism for resolution of election disputes and the same has not been exhausted.”*** Hon Justice Sergon was faced with a similar issues as in this case, see no proper basis to depart from that reasoning here. 1. For the foregoing reasons, I find that the Applicants have not exhausted the internal dispute resolution mechanism. This application is accordingly premature. 2. Having found that the court is not properly seized of the application at this stage, it would be inappropriate to consider the merits of the Applicants' prayer for an injunction. **E. Orders.** 1. The Notice of Motion dated 10th June 2026 is struck out .The orders dated 17th June 2026 are accordingly discharged. 2. Further mention on 27.1.27 3. Costs of this application to the respondent **T. A. ODERA** **JUDGE** **30.7.26** **DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 30TH DAY OF JULY 2026** **IN THE PRESENCE OF: MORATA FOR THE APPLICANT** **LANGAT FOR 4TH RESPONDENT** **COURT ASSISTANT: BUSIENEI**