https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6736

Law Society of Kenya v County Government of Nairobi & 9 others (Constitutional Petition E449 of 2024) [2026] KEHC 6736 (KLR) (Constitutional and Human Rights) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6736 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E449 of 2024 LN Mugambi, J May 14, 2026 Between Law Society Of Kenya Petitioner and County Government Of Nairobi 1st Respondent Governor County Government Of Nairobi 2nd Respondent Acting County Secretary & Head of Public Service, County Government Of Nairobi 3rd Respondent County Executive Committee Member Health, County Government Of Nairobi 4th Respondent County Chief Officer Health, County Government Of Nairobi 5th Respondent Nairobi City Mortury 6th Respondent Cabinet Secretary Ministry Of Health 7th Respondent Inspector General Of Police 8th Respondent Directorate Of Criminal Investigations 9th Respondent Attorney General 10th Respondent Ruling Introduction 1.The Petition dated 27th August 2024 was prompted by a public notice that was placed in the Standard Newspaper of 21st August 2024. The notice informed members of the general public that 120 unidentified and unclaimed bodies lying at the Nairobi City Mortuary Home (also known as City Mortuary) were to be disposed of within 7 days if they were to remain unclaimed. 2.The Petitioner alleged that many young people who had participated in the protests that took place in June that year against the Finance Bill for the financial year 2023/2024 were beaten, abducted, arbitrarily arrested and even shot dead and families were still going on with the search of their loved ones, while others continued to make reports of missing persons when the Respondents surprisingly published the Public Notice. 3.The Petitioners thus averred that the Respondents act of the publishing the notice was to dispose of the unclaimed bodies without giving people adequate notice to identify the unclaimed bodies and was actuated with sheer malice, ill will and intent to conceal the atrocities meted on the young protestors by State agencies like the Police. Preliminary Objection 4.The Attorney General objected to the Petition by filing a Preliminary Objection dated 15/10/2024 on behalf of the 7th to 10th Respondents. The grounds of the objection are:a.The preservation and disposal of the dead is a devolved function and lies with the 47 county governments under the Fourth Schedule to the Constitution (Part 2, paragraph 2(f)).b.There is no cause of action framed against the 7th to 10th Respondents. There is not demonstrated any infraction of the Constitution and/or the fundamental rights of members of the public by the 7th to 10th Respondents. There is no demonstrable linkage (principle of causation) between the recent protest over the Finance Bill, 2024 and the disposal of unclaimed bodies the subject matter of the Petition, herein.c.In sum, the Petition and the Application amount to an abuse of the process of this Honourable Court to the extent that the Petitioner/Applicant is seeking to manoeuvre, in utter disregard of the law, the Court’s jurisdiction in a manner incompatible with the goals of justice. Submissions by The 7th, 8th, 9th and 10th Respondents 5.Mr. Kaumba S.O, Principal State Counsel filed submissions in support of the Preliminary Objection. 6.The Attorney-General submitted that the joinder of the 7th, 8th , 9th and 10th Respondents is improper and bad in law because the subject matter of the Petition is a county government function and that no cause of action is stated or accrues against them. 7.Counsel argued the Petition, in the main attacks the legal standing of the public notice published in the Standard Newspaper dated 21st August, 2024 notifying members of the general public of the intention to dispose of 120 unclaimed bodies from Nairobi City Funeral Home within seven days should the bodies remain unidentified. 8.The challenge is premised on the time frame for the Notice which it was said to be short particularly in the background of recent protest over the Finance Bill, 2024 leading to allegations of deaths of several people. 9.The Attorney-General submits that the preservation and disposal of the dead is a devolved function and lies with the 47 county governments under the Fourth Schedule to the Constitution (Part 2, paragraph 2(f)), in which cemeteries, funeral parlours and crematoria are stated to be devolved functions exercised by county governments. 10.Article 186(1) of the Constitution provides:(1)Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, areas set out in the Fourth Schedule. 11.The Attorney-General submits that the exercise of sovereign power of the people has to comply with the constitutional principles contained in articles 1(4) 2, 6 and 189 of the Constitution, to the effect that the sovereign power of the people is exercised, both at the national and county levels; that the Constitution as the supreme law, binds all persons and all State organs at both levels of government; that no person may claim or exercise State authority except as authorised under the Constitution; that the territory of Kenya is divided into 47 counties specified in the First Schedule; that the government at either level will perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level; and finally that, though the two levels of government are distinct and inter-dependent, they conduct their mutual relations on the basis of consultation and cooperation. To achieve that purpose, they are enjoined to set up joint committees and joint authorities. 12.Specifically, the Constitution at Article 6 (2) commands that:“The governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.’ 13.In this case, Counsel submitted there is no demonstration of the involvement of the national government through consultation or cooperation in the process leading to the issuance of the impugned public notice. Counsel relied on the Court of Appeal case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, it held as follows on separation of powers:“It is not in doubt that the doctrine of separation of powers is a feature of our Constitutional design and pre-commitment in our Constitutional edifice. However, separation of powers does not only proscribe organs of Government from interfering with the other’s function. It also entails empowering each organ of Government with countervailing powers which provide checks and balances on actions taken by other organs of Government. Such powers are however not a licence to take over functions vested elsewhere.” 14.Counsel argued that there is no cause of action framed against the 7th to 10th Respondents. That there was no demonstrated any infraction of the Constitution and/or the fundamental rights of members of the public by the 7th to 10th Respondents and no demonstrable linkage between the protest over the Finance Bill, 2024 and the disposal of unclaimed bodies which was the subject matter of the Petition. 15.The Attorney-General submits that in consequence, the Petitions do not meet the standard for specificity that is required of a constitutional petition as set by the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the Court of Appeal held thus:“(41)We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.(42)However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 16.Counsel further relied on the case of Wamwere v Attorney General [2004] eKLR to emphasize this position. 17.In any event, Counsel argued that there is an avenue of reporting, investigations and prosecution of alleged crime under the National Police Service Act, which should have been exhausted by the Petitioner regarding the criminality on reported deaths. Cousel relied on Section 9(2) of the Fair Administrative Action Act which states:“Section 9 (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.’ 18.Counsel cited the Court Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others (2015) eKLR to support this position. In the said case, it was held thus:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be 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.” 19.In sum, Counsel termed the Petition is so far as it relates to 7th -10th Respondents to be an abuse of the process of this Honourable Court stating that it has not been resorted to fairly, properly, and honestly. Petitioner’s Written Submissions 20.In reply, the Petitioner filed written submissions dated 10th July, 2025 through G.M Orina and Company Advocates. 21.Counsel began by restating the threshold for a preliminary objection as set out by the Court of Appeal in Mukisa Biscuit Manufacturing Company vs West End Distributors Ltd (1969) EA 696 as follows:“…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 preliminary objection, may dispose of the suit… “a preliminary objection is in the nature of what used to be a demurrer. It 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. The improper raising of preliminary objections does nothing but unnecessarily increase costs, and on occasion, confuse the issues, and this improper practice should stop. “ 22.Counsel then proceeded to point out and submit on the two main grounds raised in the 7th -10th Respondents Preliminary Objection dated 15th October, 2024 as follows: 23.Concerning the contention that the preservation and disposal of the dead is a devolved function that is vested with the 47 county governments under the Fourth Schedule to the Constitution (Part 2, paragraph 2(f); Counsel argued that the Respondents are trying to hoodwink this Honourable Court into thinking that they have been improperly joined as parties to the Petition. Further that the 7-10th Respondents fail to appreciate that the instant Petition is not a challenge to the functions of the national government vis-à-vis those of the County Government and does not in any way allege that the national government overstepped in its mandate and performed a function intended to be performed by a county government. The Petitioner thus wondered how this particular assertion is a point of law warranting determination through a preliminary objection citing the Court of Appeal case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (supra). The Petitioner submitted that the 7-10th Respondents’ contention does not qualify as a Preliminary Objection. 24.On the assertion by the Respondents that there is no cause of action framed against the 7th to 10th Respondents as there was no demonstrable infraction of the Constitution and/or fundamental rights of members of the public by the 7th to 10th Respondents in reference to the protest over the Finance Bill, 2024 and the disposal of bodies the subject of the Petition, Counsel for the Petitioner countered that this is a factual assertion, camouflaged as a point of law, as it calls for proof hence cannot amount to a preliminary objection. In support of this submission, Counsel cited the case Oraro vs Mbaja (2005) eKLR where the Court held as follows:“… A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the 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, and 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. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.” Analysis and Determination 25.It is the considered view of this Court that the only issue that arises for determination in this Petition is whether the Preliminary Objection is merited. 26.The threshold of a preliminary objection was laid out in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69. Subsequently, the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR adopted these principles as follows:“(31)To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:“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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….a preliminary objection is in the nature of what used to be a demurrer. It 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”. 27.Regarding the value of preliminary objections, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained:“21.The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...” 28.By way of a summary therefore, proper attributes of a preliminary objection are as follows:a.If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits- meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.b.It is argued on the assumption that all the facts pleaded by the other side are correct- this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.c.It cannot be raised if any fact has to be ascertained by evidence- a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.d.It cannot be raised if what is being sought is the exercise of judicial discretion – if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection. 29.One of the fundamental characteristics of Preliminary Objection is that it cannot be raised if any fact has to be ascertained by evidence. The question therefore becomes, are the facts upon which the Preliminary Objection is founded uncontested. 30.The Petitioner averred in paragraph 8 of the Petition as follows:“As a result of the protests, many young people were roughed up by agencies like police, abducted, arbitrary arrested and even shot to death whilst exercising their constitutionally protected rights and fundamental freedoms.” 31.Further in the Supporting Affidavit to the Petition, the Petitioner depones at paragraph 13 of the Affidavit of Florence W. Muturi sworn on 27th August, 2024:“The Respondents, in publishing the notice of intention to dispose of the unclaimed bodies without giving people adequate time to identify the unclaimed bodies are actuated by sheer malice, ill will with intent to conceal the atrocities meted on unclaimed bodies” 32.The Respondents main ground in raising the Preliminary Objection is that the function of running cemeteries, funeral palours and crematoria is a County Government function including publication of the notice of disposal, not the National Government hence there is no cause of action against the 7th to 10th Respondent and should thus be struck out for misjoinder. 33.However, a careful perusal of the Petition reveals that it delves deeper than the mere publication of the notice of unidentified and unclaimed bodies. The Petitioner alleges the notice is not sincere by using the following words to describe it. The Petitioner states:“the notice of intention to dispose of unclaimed bodies without giving people adequate time to identify the unclaimed bodies is actuated by sheer malice, ill-will with intent to conceal atrocities meted on the unclaimed bodies’ during the protests by agencies of the State such as the Police. 34.Determining allegation that the notice was driven by malice, ill-will and cover up to conceal atrocities committed against the bodies is an evidential question that needs to be established by proof. The nature of the allegation made removes the Petition from being a consideration of whose mandate the function falls. It is not a claim concerning who has the mandate over the management and operations of mortuaries (including the publication of notices). The Petition raises serious factual contestation that cannot be determined on a preliminary basis. 35.The 7th -10th Respondents cannot therefore urge that they be struck out from this suit on the basis that they are non-suited when such factual allegations are made against them. 36.I therefore find that the Preliminary Objection lacks merit and must fail. 37.The file is thus transmitted to Milimani Constitutional and Human Rights Division for directions to be taken on the hearing of the main Petition. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 14TH DAY OF MAY, 2026.………………………………L. N. MUGAMBIJUDGE