https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12891

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E395 OF 2024** **LIMURU OCEAN OIL & GARAGE LIMITED ………………….……………………. PETITIONER** **VERSUS** **INSURANCE REGULATORYAUTHORITY ………………………….…………. 1ST RESPONDENT** **FIDELITY SHIELD INSURANCE CO, LTD………………….…………………. 2ND RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. Before Court is the Petition dated 30th July 2024 and filed on 8th August 2024 by the Petitioner, a limited liability company, against the Insurance Regulatory Authority (the 1st Respondent) and Fidelity Shield Insurance Company Limited (the 2nd Respondent). 2. The Petition arises from a dispute relating to an insurance claim lodged by the Petitioner following a road traffic accident involving Motor Vehicle Registration Number KCC 902E (ZE7838), which was insured by the 2nd Respondent under Policy Numbers B.7173794 and B.7173795. 3. The Petitioner contends that its constitutional rights and fundamental freedoms were violated through the handling of its insurance claim and the manner in which the complaint lodged before the 1st Respondent was dealt with. The Petitioner seeks, inter alia, declaratory reliefs, constitutional damages, and an order directing settlement of the insurance claim. 4. The Petition is opposed by both Respondents. The 1st Respondent raises, among other matters, objections founded on jurisdiction, exhaustion of statutory dispute-resolution mechanisms, and the alleged failure by the Petition to meet the constitutional threshold. The 2nd Respondent similarly contests the Court's jurisdiction, contends that the dispute is contractual in nature, and further asserts that the claim is time-barred and was not pursued through the dispute-resolution mechanisms stipulated under the insurance policy. 5. The Petitioner raised an objection to the 2nd Respondent’s submissions in reply, contending that the same were filed without leave of the Court, together with a challenge to the 2nd Respondent’s Further Affidavit sworn by Sammy Kamau on 2nd October 2025, communicated to the Court by way of letter. 6. The Court reiterates that it is bound by the constitutional guarantee of a fair hearing under Article 50(1) of the Constitution of Kenya, 2010, which applies with equal force to all parties before it. At the time the Court retired to prepare this Judgment, all pleadings and rival submissions on record had been duly filed. In the circumstances, the Court shall take into account all material properly placed before it by the parties, as no prejudice is occasioned to any party thereby. **THE PETIIONER’S CASE** 1. The Petitioner, a limited liability company duly incorporated under the Companies Act, 2015, commenced the present proceedings supported by the Affidavit of John Macharia Chege sworn on 30th July 2024, and a Supplementary Affidavit sworn on 5th March 2025. 2. The substratum of the Petitioner’s case arises from a comprehensive motor vehicle insurance policy issued by the 2nd Respondent in respect of Motor Vehicle Registration Number KCC 902E (ZE7838) under Policy Numbers B.7173794 and B.7173795, with a sum insured of Kshs. 11,900,000/=, covering the period 17th April 2015 to 16th April 2016. 3. It is the Petitioner’s case that on the night of 24th November 2015, the insured motor vehicle was involved in a road traffic accident along the Nairobi-Mombasa Road, resulting in extensive damage. Following the accident, the Petitioner duly lodged a claim with the 2nd Respondent seeking indemnification under the policy. The Petitioner contends that, instead of settling the claim, the 2nd Respondent embarked on protracted investigations which ultimately culminated in the repudiation of liability on grounds which the Petitioner characterises as unsubstantiated and unjustified. 4. It is further the Petitioner’s case that investigations conducted by the Insurance Fraud Investigation Unit (IFIU), culminating in a report dated 31st July 2018, established that no fraud had been proved and that the claim was genuine and payable. The Petitioner further contends that the Consumer Protection function within the 1st Respondent’s regulatory framework similarly engaged the matter and recommended that the insurer settle the claim. 5. Despite the foregoing findings, the 2nd Respondent allegedly declined to settle the claim and instead persisted in its refusal to indemnify the Petitioner. The Petitioner further contends that the 1st Respondent, though seized of the dispute as the statutory regulator under the Insurance Act, failed to enforce compliance against the insurer and thereby abdicated its statutory and constitutional mandate. 6. The Petitioner avers that subsequent correspondence and engagement culminated in the existence of a regulatory communication dated 18th September 2023, allegedly directing the 2nd Respondent to settle the claim. However, the Petitioner contends that this communication was never formally supplied to it despite repeated demands, thereby depriving it of material information necessary to enforce its rights. 7. It is therefore the Petitioner’s position that the Respondents’ conduct, both individually and collectively, resulted in prolonged delay, non-disclosure of material information, and failure to enforce a legitimate insurance claim, thereby violating constitutional guarantees. 8. The Petitioner asserts that the 1st Respondent’s refusal and/or failure to direct the 2nd Respondent to remit payment to the Petitioner is unconstitutional, illegal, procedurally unfair, irrational, unreasonable, arbitrary, and actuated without any lawful justification. It is the Petitioner’s case that the impugned decision is inconsistent with, and in violation of, Articles 2(1), 3(1), 10, 19, 20, 21, 25, 27, 28, 35, 46, 47, 73 and 258 of the Constitution of Kenya, 2010, thereby rendering the same unconstitutional, invalid, and amenable to this Honourable Court’s intervention. 9. The Petitioner, in its written submissions, identifies the following as the issues for determination by this Honourable Court: whether the Respondents infringed the Petitioner’s rights under Articles 27, 28, 35 and 47 of the Constitution of Kenya, 2010 and whether the 1st Respondent failed to duly exercise and perform its statutory functions and obligations under the Insurance Act, Cap. 487 of the Laws of Kenya. On Article 27, the Petitioner submits that it was subjected to unequal and discriminatory treatment through regulatory inaction and failure to enforce compliance against the insurer. Reliance is placed on ***Anarita Karimi Njeru v Republic [1979] eKLR, Trusted Society of Human Rights Alliance v Attorney General & Another [2012] eKLR, Peter K. Waweru v Republic [2006] eKLR, National Gender and Equality Commission v IEBC & Another [2013] eKLR, CREAW & 7 Others v Attorney General [2011] eKLR,* and *Mohammed Abduba Dida v Debate Media Limited & Another.*** 10. On Article 28, the Petitioner contends that the prolonged delay, uncertainty, and failure to resolve the claim subjected it to indignity and hardship contrary to constitutional protections of human dignity. Reliance is placed on ***Koigi Wamwere v Attorney General [2004] eKLR*** and ***Linturi v Director of Public Prosecutions & 3 Others [2024] KEHC 569 (KLR).*** 11. On Article 35, the Petitioner contends that the failure and/or refusal by the 1st Respondent to disclose investigative reports, recommendations, and the alleged decision dated 18th September 2023 amounted to violation of its right of access to information. Reliance is placed on ***Commissioner of Police v Kenya Human Rights Commission & Another [2014] eKLR, Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others [2013] eKLR,*** and ***Philip Jalango v Mwangi Muthee & Another [2014] KEHC 7547 (KLR).*** 12. On Article 47, the Petitioner submits that the 1st Respondent failed to accord it expeditious, efficient, lawful and procedurally fair administrative action. Reliance is placed on ***Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR*** and ***Republic v Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd [2004] eKLR.*** 13. The Petitioner further invokes the doctrine of legitimate expectation, contending that having procured a valid insurance policy and having received favourable investigative findings, it reasonably expected that the claim would be settled and that the regulator would enforce compliance. Reliance is placed on ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR.*** 14. On statutory duty, the Petitioner contends that the 1st Respondent failed to discharge its mandate under the Insurance Act, Cap 487, particularly its duty to regulate and enforce compliance within the insurance sector. Reliance is placed on ***Commission on Administrative Justice v Insurance Regulatory Authority & Another [2017] eKLR, Kenindia Assurance Company Limited v First Community Bank Limited [2020] eKLR, Republic v Insurance Regulatory Authority Ex Parte Augustine Juma [2021] eKLR, Insurance Regulatory Authority v Jubilee Insurance Company Limited [2018] eKLR, Kenya National Highways Authority v Shalien Masood Mughal & 5 Others [2017] eKLR,*** and ***Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR.*** 15. As against the 2nd Respondent, the Petitioner submits that the insurer breached Section 203 of the Insurance Act, which requires prompt settlement of valid claims. Reliance is placed on ***Njagi v Occidental Insurance Company Limited [2024] KEHC 9633 (KLR).*** 16. The Petitioner therefore seeks the following reliefs: ***a) A Declaration that the Respondents have jointly violated Articles 2(1), 3(1), 10, 19, 20, 21, 25, 27, 28, 46, 47 and 73, as well as the provisions of Chapter Six of the Constitution of Kenya 2010.*** ***b) A Declaration that the 1st Respondent has violated the Provisions of Section3(1(a) & 204A of the Insurance Act by not ensuring effective administration, supervision, regulation and control of the 2nd Respondent as required.*** ***c) A declaration that the 2nd Respondent has violated the Provisions of S. 203 of the Insurance Act and as a consequence thereof a further declaration do issue that the 2nd respondent forthwith settles the petitioner's claim in the sum of Kshs 11, 900, 000/ - plus interest from 25th November, 2015 until date of payment in full*** ***d) Any other relief that the Honourable court may deem just and expedient in the Circumstances including payment of damages jointly and severally by the respondents for their violation of the petitioner's constitutional rights.*** ***e) That the costs of this petition be borne by the Respondents.*** 1. In sum, it is the Petitioner’s case is that despite investigative findings confirming the legitimacy of its claim, the 2nd Respondent unlawfully refused to settle it, while the 1st Respondent failed to enforce compliance, thereby occasioning violation of constitutional and statutory rights. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent, the Insurance Regulatory Authority (IRA), opposes the Petition through a Notice of Preliminary Objection dated 6th November 2024, a Replying Affidavit sworn by Godfrey Kiptum on 7th March 2025, and Written Submissions dated 7th May 2025. 2. At the threshold, the 1st Respondent raises a jurisdictional objection, contending that this Court lacks jurisdiction to entertain the Petition on account of the doctrine of exhaustion of alternative dispute resolution mechanisms as provided under Sections 173(1) and 204A (3) of the Insurance Act, Cap. 487 and Section 9(2) of the Fair Administrative Action Act, 2015. It is the 1st Respondent’s position that the statutory framework governing insurance disputes establishes a structured dispute resolution mechanism which ought to be exhausted before resort to court proceedings. 3. In its Replying Affidavit, the 1st Respondent avers that it is a statutory regulator established under the Insurance Act mandated to supervise, regulate and promote the orderly development of the insurance industry in Kenya. It is deponed that the Petitioner lodged a complaint with the Authority on 19th April 2016 regarding delay in settlement of its insurance claim arising from a road traffic accident involving Motor Vehicle Registration Number KCC 902E (ZE7838). 4. The 1st Respondent states that upon receipt of the complaint, it engaged both parties and facilitated meetings aimed at resolving the dispute. It is averred that during meetings held in 2016, the 2nd Respondent was unable to substantiate allegations of fraud and was accordingly directed to provide proof thereof. 5. The Authority further depones that it referred the matter to the Insurance Fraud Investigation Unit (IFIU) on 24th February 2017 for independent investigation. The IFIU reports dated 31st July 2018 and 5th October 2018 allegedly confirmed that the accident occurred, that documentary evidence supported the claim, and that no fraud had been established against the Petitioner. 6. Following the said findings, the 1st Respondent states that it directed the 2nd Respondent to process the claim in accordance with policy terms. However, the 2nd Respondent declined to comply, citing issues including alleged multiple insurance covers, over-insurance, and premium-related concerns. 7. The 1st Respondent further avers that it undertook additional verification and established that the alleged competing insurance policies were either non-existent or had been cancelled. It is its case that issues raised by the insurer fell within its underwriting discretion and did not justify repudiation of liability. 8. According to the Authority, once it became apparent that the dispute had crystallised into a contest of liability between insurer and insured, it issued correspondence dated 6th March 2019 and 26th June 2019 advising the parties to pursue the matter before a court of competent jurisdiction. It therefore contends that it fully discharged its statutory mandate and that its role lawfully came to an end. 9. In its submissions, the 1st Respondent further contends that the Petition fails to meet the constitutional threshold of precision as required in constitutional litigation. Reliance is placed on ***Anarita Karimi Njeru v Republic (1979) KLR 154*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR,*** for the proposition that constitutional petitions must clearly disclose the rights allegedly violated and the manner of violation. 10. The 1st Respondent submits that the Petition does not demonstrate with specificity any constitutional violation attributable to it, and that what is presented is essentially a contractual dispute disguised as a constitutional claim. 11. It further submits that it acted lawfully, reasonably and within its statutory mandate at all material times, and that there is no demonstration of breach of statutory duty, illegality, irrationality or procedural impropriety on its part. Reliance is placed on ***Simba Africa Limited & Another v Rose Mutanu Musyoni [2022] eKLR.*** 12. The 1st Respondent additionally invokes the doctrine of finality of administrative action, contending that once it concluded its regulatory intervention and advised the parties to pursue judicial determination, the administrative process was lawfully concluded. 13. It therefore urges the Court to find that no constitutional or statutory violation has been established against it and to dismiss the Petition with costs. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent opposes the Petition through a Notice of Preliminary Objection dated 15th November 2024, a Replying Affidavit sworn by Sammy Kamau on 4th December 2024, a Further Affidavit, and Written Submissions dated 7th May 2025. 2. At the outset, the 2nd Respondent challenges the jurisdiction of this Court, contending that the Petition does not disclose any constitutional cause of action and is in substance a private contractual dispute arising from an insurance policy. It is its case that the dispute ought to have been ventilated either through arbitration under the policy or through a civil suit within the applicable statutory timelines. 3. The 2nd Respondent avers that the Petitioner lodged a claim arising from the accident involving Motor Vehicle Registration Number KCC 920E on 24th November 2015. Following investigations, the insurer allegedly established issues including over-insurance, existence of multiple policies, and irregular premium payments. 4. It is further deponed that although the IFIU report dated 31st July 2018 did not establish criminal fraud, it nonetheless left the commercial determination of liability to the insurer. Consequently, by correspondence dated 15th August 2018, the 2nd Respondent repudiated liability under the policy. 5. The 2nd Respondent maintains that the Petitioner was expressly advised that any dispute arising from the repudiation was to be referred to arbitration in accordance with the insurance policy or pursued in court within statutory timelines. 6. On jurisdiction, the 2nd Respondent submits that the Petition is an attempt to constitutionalise a purely contractual dispute. Reliance is placed on ***Godfrey Paul Okutoyi v Habil Olaka & Another [2018] eKLR*** and ***Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154,*** for the principle that constitutional jurisdiction cannot be invoked where ordinary civil remedies are available and sufficient. 7. On limitation, the 2nd Respondent submits that the claim is statute-barred under Section 4(1)(a) of the Limitation of Actions Act, as the cause of action accrued on 24th November 2015, while the Petition was filed on 8th August 2024, well outside the six-year limitation period. 8. It further relies on the policy condition requiring arbitration to be commenced within twelve (12) months of repudiation. It is contended that failure to invoke arbitration within the stipulated time renders the claim contractually extinguished. 9. Reliance is placed on ***Deposit Protection Fund Board v Rosaline Njeri Macharia & Another [2016] eKLR*** and ***Gathoni v Kenya Co-operative Creameries Ltd [1982] eKLR.*** 10. The 2nd Respondent further submits that the Petitioner failed to exhaust the contractual dispute resolution mechanism of arbitration and therefore the Petition is premature and incompetent. 11. It is also contended that the Petition is an abuse of the court process, vexatious and frivolous. 12. On constitutional threshold, the 2nd Respondent submits that no specific constitutional violations have been pleaded against it. It argues that mere citation of constitutional provisions does not amount to a constitutional cause of action, relying again on ***Anarita Karimi Njeru*** and ***Godfrey Paul Okutoyi***. 13. It further submits that parties are bound by their pleadings and cannot introduce new issues through submissions, relying on ***IEBC v Stephen Mutinda Mule & 3 Others [2014] eKLR.*** 14. On remedies, the 2nd Respondent contends that there is no legal basis for awarding Kshs. 11,900,000/= as constitutional damages without first establishing contractual liability, which it argues is outside the scope of constitutional jurisdiction in the present circumstances. 15. It therefore prays that the Petition be dismissed with costs. **THE PETITIONER’S REBUTTAL** 1. In response to the 2nd Respondent’s submissions, the Petitioner identifies four issues: jurisdiction, limitation, exhaustion of contractual dispute mechanisms, and alleged abuse of court process. 2. On jurisdiction, the Petitioner submits that the Petition clearly sets out the constitutional provisions alleged to have been violated and that the violations arise from both Respondents’ conduct, which it contends is intertwined. 3. It argues that the dispute raises issues of administrative justice, fair hearing, property rights, and fair administrative action under Articles 40 and 47 of the Constitution, and therefore falls squarely within the jurisdiction of this Court under Article 165(3)(b).Reliance is placed ***on Anarita Karimi Njeru v Republic [1979] eKLR*** and ***Musili Mwendwa v Attorney General & 3 Others [2016] eKLR.*** 4. On limitation, the Petitioner submits that constitutional petitions are not subject to statutory limitation periods unless expressly provided by law, relying on ***Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others [2018] eKLR***. 5. It further contends that the matter remained under regulatory consideration until correspondence dated 18th September 2023, and that it would have been premature to institute proceedings earlier. 6. On arbitration, the Petitioner submits that arbitration cannot oust constitutional jurisdiction and relies on ***Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] eKLR, Stratogen Limited v County Government of Kisii [2023] KEHC 25071 (KLR), Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd [2006] ZWHHC 42,*** and ***VJ v VJ & Another [2024] ZASCA 92.*** 7. On remedies, the Petitioner submits that once constitutional violations are established, the Court has wide remedial discretion under Article 23(3), relying on ***Ofisi & 7 Others v Attorney General [2022] KEHC 11869 (KLR), CMM v Standard Media Group & Others [2023] KESC 68 (KLR),*** and ***Gitobu Imanyara & 2 Others v Attorney General [2022] KESC 78 (KLR).*** 8. The Petitioner therefore urges the Court to find that constitutional violations have been established and to grant the reliefs sought. **2ND RESPONDENT’S REJOINDER TO THE PETITIONER’S REPLY** 1. In further response to the Petitioner’s Reply to its submissions, the 2nd Respondent filed further submissions dated 2nd October 2025. 2. The 2nd Respondent maintains that the Petitioner’s assertion that it failed to invoke the contractual dispute resolution mechanism is misconceived. 3. It is the 2nd Respondent’s position that the Petitioner, by a letter dated 19th April 2016, lodged a complaint with the 1st Respondent alleging delay in processing its insurance claim. The 2nd Respondent responded to the said complaint by a letter dated 19th May 2016. Further, by an email dated 11th October 2016, the 2nd Respondent informed the 1st Respondent that it would commence the appeal process. 4. The 2nd Respondent contends that, at that stage, it could not institute arbitration proceedings, as the matter was undergoing the appellate mechanisms provided under the Insurance Act. It therefore argues that there is no basis for the Petitioner’s allegation that the 2nd Respondent failed to refer the matter to arbitration, or that it can be faulted for the Petitioner’s alleged failure to initiate arbitration. 5. On the issue of delay and regulatory engagement, the 2nd Respondent refers to an email dated 7th August 2018 from the 1st Respondent, which was copied to the Petitioner, directing that the claim be processed in accordance with policy terms and conditions and requiring confirmation by 14th August 2018. 6. The 2nd Respondent submits that the Petitioner has not demonstrated what steps, if any, it took between 14th August 2018 and July 2023 to follow up on the status of the matter. It further contends that the correspondence exhibited by the Petitioner was issued between July and September 2023, and does not explain the intervening period. 7. It is the 2nd Respondent’s position that the email of 7th August 2018 communicated the determination of the appeal process and that thereafter, the statutory and administrative dispute resolution mechanisms under the Insurance Act had been exhausted. 8. On that basis, the 2nd Respondent submits that the Petitioner was at all material times at liberty to institute proceedings for breach of contract within the applicable limitation period, and that it is therefore incorrect to contend that the earliest opportunity to file suit arose after 18th September 2023. 9. On the issue of jurisdiction over remedies, the 2nd Respondent clarifies that it did not contend that the arbitration clause ousts the constitutional jurisdiction of the Court. Rather, its position is that the Petitioner’s claim for Kshs. 11,900,000/= ought to have been pursued either through arbitration under the policy or through ordinary court proceedings within the statutory limitation period. 10. It maintains that having failed to pursue either avenue within time, the claim is time-barred. 11. With respect to remedies, the 2nd Respondent reiterates that the Petitioner has not established any legal basis for awarding Kshs. 11,900,000/= as constitutional damages. It contends that such an award would first require a determination of breach of contract and liability under the insurance policy, which would necessitate an evidential inquiry outside the scope of the present constitutional proceedings. 12. The 2nd Respondent therefore maintains its position that the Petition is frivolous, vexatious, an abuse of the court process, and should be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, evidence on record, and the rival submissions of the parties, the Court is of the considered view that the following sole issues arise for determination. 2. ***Whether the Petition is competently before this Court in light of the questions of jurisdiction and compliance with the constitutional threshold of precision in pleadings.*** 3. ***Who will bear costs of this Petition.*** **Issue i : Whether the Petition is competently before this Court in light of the questions of jurisdiction and compliance with the constitutional threshold of precision in pleadings** 1. It is a settled principle of constitutional adjudication that jurisdiction is the foundation upon which all judicial authority rests. Where jurisdiction is challenged, the Court is obligated to determine the issue for without jurisdiction a court must down its tools. Equally, a party invoking the Court's constitutional jurisdiction bears the burden of demonstrating that the dispute presented raises a genuine constitutional controversy falling within the ambit of Article 165(3)(b) of the Constitution. 2. The Petitioner's case is that the Respondents' conduct in relation to the insurance claim, the regulatory process, and the alleged non-disclosure of information resulted in violations of its rights under Articles 27, 28, 35 and 47 of the Constitution. It further contends that the dispute therefore falls within the jurisdiction of this Court under Article 165(3)(b) of the Constitution. 3. The Respondents, for their part, contend that the dispute is fundamentally rooted in the parties' contractual relationship under a policy of insurance and does not disclose any genuine constitutional cause of action. The 1st Respondent characterises the Petition as a contractual dispute clothed in constitutional language, while the 2nd Respondent maintains that any grievance arising from the repudiation of the insurance claim ought properly to have been pursued through the contractual and ordinary civil law mechanisms available to the Petitioner. 4. The Court is mindful that the mere existence of a contractual relationship does not, of itself, preclude the invocation of constitutional jurisdiction. Where facts disclose a demonstrable violation of rights and fundamental freedoms, a litigant is not barred from seeking constitutional redress merely because the dispute also possesses a contractual dimension. Equally, however, constitutional jurisdiction is not intended to supplant ordinary civil remedies nor to provide an alternative forum for the determination of private law disputes capable of resolution through established legal mechanisms. 5. It is the duty of this Court to satisfy itself that it is properly possessed of jurisdiction before embarking upon the determination of any matter. Jurisdiction is not assumed, it must be properly invoked. The jurisdiction of the Constitutional Court is engaged only where a petition complies with the constitutional and legal requirements governing constitutional litigation. Consequently, the Court must decline any invitation to entertain proceedings that fall short of the established parameters of a constitutional petition. It is important to distinguish between the existence of constitutional jurisdiction and the proper invocation of that jurisdiction. This Court undoubtedly possesses jurisdiction under Article 165(3)(b) of the Constitution to determine questions concerning the denial, violation, infringement or threat to rights and fundamental freedoms. The question in the present matter is not whether such jurisdiction exists, but whether the Petition before the Court discloses a constitutional controversy capable of properly engaging that jurisdiction. 6. The Court must therefore interrogate the substance of the Petition rather than the form in which it is presented. The decisive question is whether the Petition discloses a genuine constitutional controversy requiring constitutional adjudication, or whether it merely repackages a private law dispute in constitutional language. 7. Upon a careful consideration of the pleadings, affidavits and submissions on record, the Court finds that the gravamen of the Petition is the 2nd Respondent's refusal to settle the Petitioner's insurance claim arising from the accident involving Motor Vehicle Registration Number KCC 902E (ZE7838), together with the Petitioner's dissatisfaction with the manner in which the 1st Respondent handled the ensuing complaint. 8. The factual foundation of the dispute concerns the existence of an insurance contract, the occurrence of the insured risk, the processing of the claim, the investigations undertaken, the repudiation of liability by the insurer, and the regulatory engagement that followed. At its core, therefore, the dispute concerns the enforceability of contractual rights and obligations arising under a policy of insurance. 9. The Supreme Court in ***Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others*** ***[2014] eKLR*** had the following to say on Constitutional Petitions: ***“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154 the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of the Contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”*** 1. The Court has consistently warned against the tendency to transform ordinary civil disputes into constitutional causes. In ***Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited [2013] eKLR,*** Lenaola J. (as he then was) stated: ***“...Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions...”*** 1. Further, in ***John Harun Mwau v Peter Gastrow & 3 others [2014] eKLR*** the Court held: ***“...Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if the remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether in addition to breach of the other declaration of rights… it is established practice where a matter can be deposed without recourse of the Constitution, Constitution should not be invoked at all...”*** 1. The same position was reiterated in ***Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot [2021] eKLR*** where Mutungi J. held: ***“... there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.”*** 1. The Court must emphasise that constitutional pleadings are not validated merely by listing Articles of the Constitution and asserting that they have been violated. Constitutional litigation demands more than the recital of constitutional provisions. A petitioner must demonstrate, with reasonable precision, the specific act or omission complained of, identify the particular constitutional norm allegedly infringed, and establish a clear nexus between the impugned conduct and the constitutional violation alleged. Absent such particularisation, a petition amounts to no more than a disagreement dressed in constitutional terminology. 2. The ***Anarita Karimi Njeru*** principle was developed precisely to prevent litigants from transforming ordinary contractual, statutory, commercial, employment, land or tort disputes into constitutional petitions through the simple expedient of citing provisions of the Bill of Rights. Constitutional jurisdiction is engaged by demonstrated constitutional violations, not by the invocation of constitutional language 3. The rationale underlying the ***Anarita*** principle is self-evident. Constitutional litigation is concerned with the vindication of constitutional rights and freedoms and not the mere invocation of constitutional provisions. Were it sufficient for a litigant simply to recite Articles of the Constitution and allege infringement, the constitutional threshold would be rendered meaningless and every ordinary dispute would be capable of transformation into a constitutional petition through artful drafting. That is precisely the mischief against which the decisions in ***Anarita Karimi Njeru*** and **Mumo Matemu** were directed. 4. In the present case, while the Petitioner invokes Articles 27, 28, 35 and 47 of the Constitution, the Petition does not set out with the requisite precision the manner in which the alleged infringements occurred. In respect of Article 27, no factual basis is pleaded demonstrating unequal treatment, differential treatment, or discrimination by either Respondent. In relation to Article 28, the Petition attributes hardship, inconvenience and uncertainty to the unresolved insurance claim but does not particularise any conduct amounting to a constitutional violation of human dignity. 5. As regards Articles 35 and 47, the Court accepts that complaints concerning access to information and administrative conduct are, in principle, capable of raising constitutional questions. However, even assuming that the Petitioner's complaints regarding disclosure of information and administrative action potentially implicate Articles 35 and 47, the Petition still fails to meet the constitutional threshold of precision. The Petitioner does not identify with specificity the particular information allegedly withheld, when and in what form such information was requested, the statutory framework under which disclosure was sought, the decision allegedly made by the 1st Respondent, or the manner in which the impugned conduct violated the requirements of Article 47 and the provisions of the Fair Administrative Action Act. The pleadings consequently fail to disclose, with the requisite degree of particularity, a cognisable violation of either Article 35 or Article 47 of the Constitution, and instead reveal dissatisfaction with the outcome of the regulatory process rather than a properly pleaded constitutional injury. 6. The Court further observes that not every complaint concerning access to information or administrative conduct necessarily matures into a constitutional cause of action. Where the alleged infringement of Articles 35 or 47 is merely ancillary to, or derivative of, an underlying private law dispute, a petitioner must still demonstrate a distinct constitutional injury independent of the substantive dispute itself. Constitutional rights cannot be invoked as jurisdictional gateways through which ordinary commercial disagreements are transformed into constitutional litigation. 7. The Court of Appeal in ***James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution [2019] eKLR*** stated: ***“...As we have stated above, the remedy for the appellant was to institute a suit for malicious prosecution. He has failed to do so and a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. It is not open to the appellant to urge that there can be no wrong without a remedy. Indeed, this legal principle is correct; the appellant had a remedy in the tort of malicious prosecution or an action for defamation, he has chosen not to pursue the causes of action within the legal timeframe...”*** 1. The thread running through the foregoing authorities is that constitutional adjudication occupies a distinct sphere within the administration of justice. It is not intended to displace ordinary private law remedies, nor to provide an alternative forum for the resolution of contractual disputes merely because constitutional language has been employed. The constitutional jurisdiction of the Court is reserved for genuine constitutional controversies and not for disputes whose essential character remains contractual, statutory or commercial. The Petition before this Court, when measured against that standard, is fundamentally anchored on the repudiation and non-payment of an insurance claim, and does not disclose a distinct constitutional cause of action capable of sustaining the present proceedings. The foregoing position is further reinforced by the principle that where an alternative remedy exists under statute or otherwise, such remedy ought ordinarily to be pursued in preference to constitutional litigation. In ***Patrick Mbau Karanja v Kenyatta University [2012] eKLR,*** Lenaola J. (as he then was) observed: ***“I should only say this as I conclude; in Francis Waithaka vs Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the constitutional imperative mandate of this court should not be invoked where other remedies lie.”*** 1. A similar position was expressed in ***Godfrey Paul Okutoyi & Others v Habil Olaka & Another [2018] eKLR*** where Chacha J. stated: ***“65. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights, and therefore a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”*** 1. The principle emerging from the foregoing authorities is that constitutional litigation is not available as a substitute for ordinary civil proceedings, nor can it be invoked to enforce contractual or statutory rights absent a distinct constitutional violation. The Bill of Rights is not a parallel dispute resolution mechanism for private law grievances. 2. Applying the foregoing principles to the present matter, the Court is unable to discern from the Petition any distinct constitutional controversy separate and apart from the underlying insurance dispute. The Petitioner's grievance remains the repudiation and non-payment of an insurance claim and the consequences said to have flowed therefrom. The constitutional provisions cited are invoked as a means of challenging that outcome rather than as the foundation of independent constitutional causes of action. Significantly, the determination of the Petitioner's claim would necessarily require the Court to interrogate matters such as the terms of the insurance policy, the validity of the insurer's repudiation, compliance with policy conditions, the effect of investigative findings, and the parties' respective contractual obligations. Those are quintessentially matters of private law requiring adjudication within the ordinary civil jurisdiction of the Court and not through constitutional proceedings. 3. The Court finds that the Petitioner has done little more than identify constitutional provisions which it considers applicable to the dispute, without demonstrating, with the precision demanded in constitutional litigation, the manner in which the Respondents' conduct occasioned the alleged infringements. The Petition does not establish any factual basis for discrimination under Article 27. It does not disclose conduct amounting to a violation of human dignity under Article 28. It does not particularise the alleged denial of information under Article 35 by identifying the specific information sought, the requests made for such information, or the legal basis upon which disclosure was demanded. Similarly, it does not demonstrate any identifiable administrative action or decision that offended Article 47, nor does it show how the requirements of procedural fairness under the Fair Administrative Action Act were breached. What emerges from the pleadings is not a constitutional controversy but a disagreement concerning the repudiation and settlement of an insurance claim. 4. The Court therefore finds that the present Petition represents an attempt to elevate a fundamentally commercial and contractual dispute into a constitutional controversy. The constitutional threshold is not satisfied by the mere citation of provisions of the Bill of Rights, nor by the bare assertion that those provisions have been infringed. A petitioner must demonstrate, through clear, cogent and particularised pleadings, the nexus between the impugned conduct, the constitutional provision invoked, and the violation alleged. That burden has not been discharged in the present case. Constitutional jurisdiction is engaged by demonstrated constitutional violations and not by the invocation of constitutional language. 5. Accordingly, the Court finds that the Petition neither discloses a distinct constitutional controversy nor satisfies the pleading threshold prescribed in ***Anarita Karimi Njeru v Republic*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others***. The Petition seeks, in substance, the enforcement of contractual rights under an insurance policy through the vehicle of constitutional litigation. Such a course is impermissible. The Petition is therefore incompetent and is hereby dismissed. **Issue no ii: Who will bear costs of this Petition.** 1. This issue concerns the reliefs sought by the Petitioner and the consequential order as to costs. It is trite that the question of remedies in constitutional litigation is contingent upon a prior finding that a constitutional violation has been established. In the absence of such a finding, the Court cannot invoke the remedial jurisdiction under Article 23(3) of the Constitution. 2. It is now well settled that constitutional remedies are neither automatic nor punitive. They are designed to vindicate infringed rights, to restore an aggrieved party, as far as possible, to the position they would have occupied absent the violation, and, where appropriate, to serve a deterrent purpose. In ***Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR,*** the Court affirmed that constitutional damages are not awarded as a matter of course, but only upon proof of an established violation of a constitutional right. The Court further emphasised that constitutional relief must be grounded in a proven infringement and cannot be deployed as a surrogate for private law remedies arising from contractual disputes. 3. Similarly, in ***Mwaniki v Kenya Airports Authority [2019] eKLR***, the Court reiterated that the jurisdiction under Article 23 is purely remedial and cannot be invoked in a vacuum. It is only properly exercised where a violation of a right or fundamental freedom has been demonstrated. The guiding principle remains that remedy is consequential upon violation, and not a substitute for it. 4. In the present case, having found that the Petition does not disclose any violation of Articles 27, 28, 35 and 47 of the Constitution and is otherwise incompetent for want of a constitutional cause of action, there exists no legal or factual foundation upon which this Court may grant the declaratory or compensatory reliefs sought. The prayers for payment of Kshs. 11,900,000/=, general damages, and related reliefs are in substance anchored on a contested insurance claim, and their grant would improperly convert this Court into a forum for the enforcement of private contractual obligations. 5. Accordingly, all the substantive prayers in the Petition fail. 6. On costs, the general rule is that costs follow the event, although the Court retains discretion to depart therefrom depending on the circumstances of the case. In constitutional litigation, courts have in appropriate cases refrained from awarding costs where public interest considerations so demand. However, that discretion is not exercised in favour of a party whose claim is found to be unmeritorious and who has improperly invoked constitutional jurisdiction in a matter that is essentially contractual in nature. 7. In the circumstances of this Petition, and in view of the finding that the Petition is incompetent and otherwise devoid of merit, there is no basis for departing from the general rule. Accordingly, the Respondents are entitled to costs. 8. The Petitioner shall bear the costs of the Petition, the same to be awarded to the 1st and 2nd Respondents. Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** **In the presence of:** Counsel for the Petitioner- Ms. Wachanga h/b Mr. Jeremy Njenga Counsel for the 1st Respondent- Ms. Kihima Counsel for the 2nd Respondent- Ms. Saina Court Assistant – Mr. Martin