https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12898

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E394 0F 2024** **ESTHER WANGUI MACHARIA…………………………………………………………. PETITIONER** **AND** **INSURANCE REGULATORY AUTHORITY ……………………………………. 1ST RESPONDENT** **FIDELITY SHIELD INSURANCE CO. LTD……………………………………… 2ND RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. Before the Court for determination is a constitutional Petition brought pursuant to Articles 22 and 258 of the Constitution of Kenya, 2010, arising from a dispute concerning an insurance claim lodged by the Petitioner following the destruction of her motor vehicle, Registration Number KAV 110V, in a road traffic accident that occurred on 1st December 2015. 1. The Petitioner contends that she had comprehensively insured the motor vehicle with the 2nd Respondent for an insured value of Kshs. 2,600,000/= and that upon lodging a claim following the accident, the 2nd Respondent unlawfully repudiated the claim despite investigations allegedly establishing that it was genuine and payable. She further contends that the 1st Respondent, as the statutory regulator of the insurance industry, failed to discharge its regulatory and supervisory mandate by declining to enforce settlement of the claim, failing to take appropriate action against the insurer and withholding information relating to the determination of her complaint. On that basis, she alleges violation of her constitutional rights and fundamental freedoms and seeks declaratory reliefs, damages and an order compelling settlement of the insurance claim. 2. The Petition is opposed by both Respondents. The 1st Respondent maintains that it fully discharged its statutory mandate by receiving and investigating the complaint, facilitating engagement between the parties and referring the matter to the Insurance Fraud Investigation Unit for investigations. It contends that once the dispute became the subject of judicial proceedings, the issue of liability under the insurance contract ceased to fall within its mandate and became a matter for determination by the courts. It further contends that the Petition fails to satisfy the threshold of a constitutional petition and offends the doctrine of exhaustion of alternative remedies. 3. For its part, the 2nd Respondent contends that the dispute arises purely from a contract of insurance and does not disclose any constitutional issue warranting the intervention of this Court. It maintains that the claim was lawfully repudiated following investigations which raised concerns regarding over-insurance and inconsistencies in the circumstances surrounding the alleged loss. The 2nd Respondent further contends that the Petition is statute-barred, that the Petitioner failed to invoke the dispute resolution mechanisms provided under the policy and that the present proceedings constitute an attempt to convert an ordinary contractual dispute into a constitutional claim. It is against that factual and legal backdrop that the Court is called upon to determine whether the Respondents violated the Petitioner's constitutional rights and fundamental freedoms, whether the 1st Respondent failed to discharge its statutory obligations under the Insurance Act and whether the Petitioner is entitled to the reliefs sought in the Petition. 4. 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 PETITIONER'S CASE** 1. The Petitioner, a Kenyan citizen, instituted the present Petition alleging violation of her constitutional rights and fundamental freedoms arising from the handling of her insurance claim by the Respondents. The Petitioner avers that she lawfully insured her motor vehicle, Registration Number KAV 110V, comprehensively with the 2nd Respondent for an insured value of Kshs. 2,600,000/= under a policy covering the period between 19th January 2015 and 22nd December 2015. She states that on 1st December 2015, the vehicle was involved in a road traffic accident along the Nairobi-Nakuru Road, resulting in extensive damage and thereby giving rise to a claim under the policy. 2. According to the Petitioner, upon lodging her claim, the 2nd Respondent declined to indemnify her on grounds devoid of factual or legal justification. She contends that the repudiation followed prolonged investigations undertaken by the insurer and was intended to avoid its contractual obligations under the policy. Aggrieved by the insurer's refusal to settle the claim, the Petitioner lodged a complaint with the 1st Respondent, the Insurance Regulatory Authority, pursuant to its statutory mandate under the Insurance Act. She avers that officers within the Consumer Protection Department evaluated the complaint and recommended that the claim be settled. She further states that investigations undertaken by the Insurance Fraud Investigation Unit similarly concluded that the claim was genuine and payable by the insurer. 3. The Petitioner contends that notwithstanding those findings and recommendations, the 1st Respondent failed, neglected and/or refused to exercise its regulatory and supervisory mandate by directing the 2nd Respondent to honour the claim or by taking the enforcement measures contemplated under the Insurance Act. 4. She further contends that despite repeated requests, correspondence and intervention by the Office of the Ombudsman, the 1st Respondent declined to disclose the final determination, recommendations or decisions relating to her complaint, thereby infringing her constitutional right of access to information. 5. The Petitioner further avers that she suffered substantial loss, damage and prejudice as a consequence of the 1st Respondent's alleged inaction and the 2nd Respondent's continued refusal to settle the claim despite the existence of investigative reports and recommendations affirming its validity. She disputes the allegations of over-insurance or impropriety in the valuation of the motor vehicle, contending that the insurer voluntarily assessed, accepted and insured the vehicle at the stated value and received the requisite premiums. She further challenges the report relied upon by the insurer, asserting that it was neither independent nor objective and that its conclusions were subsequently undermined by investigations conducted under the auspices of the 1st Respondent. 6. The Petitioner also contends that the 2nd Respondent disregarded directives issued by the 1st Respondent requiring settlement of the claim and instead pursued appeals and procedural processes intended to delay and frustrate resolution of the dispute. She avers that the 1st Respondent failed to communicate the outcome of those proceedings and withheld material correspondence, thereby denying her an opportunity to participate meaningfully in a process directly affecting her rights and interests. It is therefore the Petitioner's case that the cumulative acts and omissions of the Respondents violated her rights to equality and freedom from discrimination, human dignity, access to information, consumer protection and fair administrative action as guaranteed under Articles 27, 28, 35, 46 and 47 of the Constitution. 7. She further alleges that the Respondents acted in a manner inconsistent with the national values and principles of governance under Article 10 and contrary to the obligations imposed upon public bodies under Articles 2, 3, 19, 20, 21, 73, 232 and 258 of the Constitution. 8. In her submissions, the Petitioner reiterates that investigations undertaken by the Insurance Fraud Investigation Unit established that no criminal conduct had been committed and that the claim was genuine. She further submits that the Consumer Protection Department of the 1st Respondent recommended settlement of the claim and that the 1st Respondent subsequently directed the 2nd Respondent to settle it. According to the Petitioner, despite those findings and recommendations, the 2nd Respondent failed to honour the claim while the 1st Respondent failed to enforce its recommendation or furnish her with the decisions and correspondence relating to the matter, including the alleged letter dated 18th September 2023. 9. On the alleged violation of Article 27 of the Constitution, the Petitioner submits that she was subjected to discriminatory and unequal treatment through the 1st Respondent's failure to take effective regulatory action notwithstanding investigative findings allegedly confirming the validity of her claim. It is contended that despite receiving favourable recommendations from both the Consumer Protection Department and the Insurance Fraud Investigation Unit, she was denied the benefit of those findings and was treated differently from other consumers who legitimately expect regulatory intervention and protection under the Insurance Act. The Petitioner further argues that the withholding of information relating to the determination of her complaint compounded the unequal treatment and denied her the equal protection and benefit of the law. In support of those submissions, reliance is placed on ***Trusted Society of Human Rights Alliance v Attorney General & Another [2012] eKLR, Anarita Karimi Njeru v Republic [1979] eKLR, Peter K. Waweru v Republic [2006] eKLR, National Gender and Equality Commission v IEBC & Another [2013] eKLR, Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, Mohammed Abduba Dida v Debate Media Limited & Another [2018] eKLR*** and ***John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR.*** 10. With regard to Article 28 of the Constitution, the Petitioner submits that the prolonged failure to resolve the dispute, coupled with the Respondents' alleged inaction and refusal to communicate the outcome of the complaint process, subjected her to distress, anxiety and indignity. She contends that having suffered the loss of her motor vehicle and thereafter being denied the benefit of an insurance policy for which she had paid premiums, she was left in a state of uncertainty and frustration that undermined her inherent dignity as protected by the Constitution. 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 the right of access to information under Article 35, the Petitioner submits that the 1st Respondent unlawfully withheld material information relating to the investigations, recommendations and final determination of her complaint, including the alleged letter dated 18th September 2023. It is her case that despite being the complainant and the person directly affected by the outcome of the regulatory process, she was denied access to information necessary to understand, challenge or enforce the decisions made in relation to her claim. In support of that argument, reliance is placed on ***Commissioner of Police & Another 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. Regarding Article 47 of the Constitution, the Petitioner submits that the 1st Respondent failed to accord her administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. She contends that the Authority delayed in resolving the complaint, failed to communicate its final determination and did not provide reasons for its actions despite the significant impact of its decisions on her rights and interests. 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 submits that the 1st Respondent failed to discharge its statutory mandate under Sections 3(1)(a) and 204A of the Insurance Act. She argues that having investigated the complaint and obtained findings allegedly supporting settlement of the claim, the Authority was under a duty to effectively supervise, regulate and ensure compliance by the 2nd Respondent. 14. According to the Petitioner, the Authority abdicated its regulatory responsibilities by failing to take enforcement measures against the insurer or otherwise ensure compliance with its recommendations. In support of that contention, reliance is placed on ***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 Co. Ltd [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 acted in breach of Section 203 of the Insurance Act by refusing to settle a claim whose validity had allegedly been confirmed through investigations undertaken by the Insurance Fraud Investigation Unit and reviewed by the 1st Respondent. It is contended that the continued repudiation of the claim, notwithstanding those findings, amounted to a failure to honour its obligations under both the insurance policy and the governing statutory framework. Reliance is placed on ***Njagi v Occidental Insurance Company Limited [2024] KEHC 9633 (KLR).*** 16. The Petitioner consequently 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 Section 3(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. 2,600,000/- plus interest from 1st December 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.** **THE 1ST RESPONDENT'S CASE** 1. The 1st Respondent, the Insurance Regulatory Authority, opposed the Petition and raised a Preliminary Objection challenging the jurisdiction of the Court. It contended that the Petition offended the doctrine of exhaustion of alternative dispute resolution mechanisms as contemplated under Sections 173(1) and 204A(3) of the Insurance Act and Section 9(2) of the Fair Administrative Action Act. 2. In the Replying Affidavit sworn by Godfrey Kiptum, the Commissioner of Insurance and Chief Executive Officer of the Insurance Regulatory Authority, the 1st Respondent deponed that it is mandated to supervise, regulate and promote the development of the insurance industry and to receive and determine complaints lodged by insurance consumers against regulated entities. 3. The 1st Respondent averred that upon receiving the Petitioner's complaint concerning the 2nd Respondent's refusal to settle the claim, it commenced investigations and engaged the insurer, which maintained that liability had been declined on grounds including alleged over-insurance and suspicions of fraud. The Authority convened meetings between the parties in July 2016 to facilitate resolution of the dispute and, upon the insurer maintaining its position, recommended referral of the matter to the Insurance Fraud Investigation Unit. 4. According to the 1st Respondent, investigations undertaken by the IFIU culminated in reports dated 31st July 2018 and 5th October 2018, which established that the accident had occurred, that it had been reported at Mtito Andei Police Station, that there was evidence showing the vehicle had been towed from the scene and that no fraud complaint had been reported against the Petitioner by any insurer. 5. The 1st Respondent stated that despite those findings, the 2nd Respondent maintained its refusal to settle the claim and expressed its intention to pursue the matter through the courts. Consequently, the Authority closed its file on the basis that the dispute had become one for judicial determination. 6. It further averred that the Petitioner subsequently instituted **Nairobi CMCC No. 3555 of 2016, Esther Macharia v Fidelity Shield Insurance Company Limited**, thereby placing the issue of liability before a court of competent jurisdiction. The 1st Respondent maintained that once the dispute became the subject of judicial proceedings, it no longer retained the mandate to determine the matter. It asserted that it had fully discharged its statutory obligations by receiving and considering the complaint, engaging the parties, facilitating investigations and making recommendations before the parties elected to pursue litigation. 7. In its submissions, the 1st Respondent argued that the Petition failed to meet the threshold of a constitutional petition as prescribed under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Reliance is placed in ***Anarita Karimi Njeru v Attorney General (1979) KLR 154/(1976–1980) KLR 1272*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR.*** 8. The 1st Respondent further submitted that the Petition failed to establish any violation of constitutional rights or breach of statutory duty on its part. It contended that constitutional provisions ought not to be interpreted in a narrow or artificial manner and that the Court must examine the substance of the complaint to determine whether a genuine constitutional question has been disclosed. In support of that proposition, reliance was placed on ***Republic v Communications Authority of Kenya; Safaricom Limited & 2 Others (Interested Parties); Ex Parte Omikko Electronics Kenya Ltd [2019] eKLR.*** The 1st Respondent further argued that a party alleging breach of a statutory duty must demonstrate that the statutory obligation in question was owed to the claimant, that the duty was breached and that the alleged breach occasioned the loss complained of. 9. It submitted that the Petitioner had failed to establish any breach of the duties imposed upon the Authority under the Insurance Act or any causal connection between its conduct and the loss alleged. In support of that submission, reliance was placed on ***Simba Africa Limited & Another v Rose Mutanu Musyoni (Suing as the Legal Representative of the Estate of Joseph Mulila (Deceased)) [2022] eKLR.*** The 1st Respondent also relied on ***Gilbert Kipyegon & Others v Insurance Regulatory Authority & Others, Nyamira Constitutional Petition No. E004 of 2024,*** for the proposition that a claim against the Insurance Regulatory Authority cannot succeed in the absence of evidence demonstrating a failure to discharge its statutory mandate. It was submitted that, having received and considered the complaint, engaged the parties, facilitated investigations and made recommendations before the dispute proceeded to court, the Authority had fully discharged its statutory obligations. 10. The 1st Respondent consequently urged the Court to find that it properly exercised its statutory mandate and that no constitutional violation had been established against it. **THE 2ND RESPONDENT'S CASE** 1. The 2nd Respondent opposed the Petition through a Notice of Preliminary Objection dated 15th November 2024, a Replying Affidavit sworn by Sammy Kamau on 4th December 2024 and written submissions. The 2nd Respondent contended that the Petition discloses no constitutional issue capable of invoking the jurisdiction of the Court and that the dispute arises purely from a contract of insurance. It maintained that the Petitioner's grievance ought to have been pursued through the legal framework governing contractual disputes rather than by way of a constitutional petition. 2. The 2nd Respondent further contended that following communication of its decision to repudiate the claim on 14th August 2018, the Petitioner's recourse lay in pursuing remedies available under the insurance contract. It maintained that the Petitioner had not demonstrated that the matter falls within any recognised exception to the doctrines of constitutional avoidance and exhaustion of alternative remedies. 3. The 2nd Respondent also contended that the claim is statute-barred. It argued that Clause 9 of the Private Motor Insurance Policy required disputes arising under the policy to be referred to arbitration within twelve months from the date of loss, failing which the claim would be deemed abandoned. It further relied on Section 4(1)(a) of the Limitation of Actions Act and maintained that any contractual claim arising from the accident of 1st December 2015 is time-barred. The 2nd Respondent further asserted that the Petition constitutes an abuse of the court process, averring that the Petitioner had previously instituted **Milimani CMCC No. 3555 of 2016** seeking indemnity in respect of the same motor vehicle and the same loss and that the suit was dismissed for want of prosecution. 4. The 2nd Respondent averred that upon scrutiny of the claim documents, it established that the motor vehicle had previously been insured by Jubilee Insurance Company Limited for Kshs. 1,800,000/= before being insured with the 2nd Respondent for Kshs. 2,600,000/=, thereby raising concerns regarding possible over-insurance. It further relied on an investigation report prepared by Safety Surveyors dated 27th May 2016, which allegedly concluded that the accident as narrated by the Petitioner was inconsistent with the evidence obtained from the wreckage and supporting documentation. It was on the basis of those findings that the claim was repudiated. The 2nd Respondent acknowledged that the IFIU concluded that no criminal offence had been committed by the Petitioner and advised the insurer to utilise its procedures and regulations to resolve the matter by making a business decision. It further acknowledged receiving communication from the 1st Respondent directing it to process settlement of the claim in accordance with the policy terms and conditions. Notwithstanding those findings, it maintained that it had valid grounds for declining liability and had processed the claim in accordance with the policy terms. In support of its position, the 2nd Respondent relied on ***Godfrey Paul Okutoyi v Habil Olaka & Another [2018] eKLR, Deposit Protection Fund Board v Rosaline Njeri Macharia & Another [2016] eKLR, Gathoni v Kenya Co-operative Creameries Ltd [1982] eKLR, Bernard Murage v Fineserve Africa Limited & 3 Others [2015] eKLR, Anarita Karimi Njeru v Republic (No.1) [1976-80] 1 KLR 1275, Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] KECA 890 (KLR)*** and ***Hon. Gideon Mbuvi Kioko alias Sonko v The Hon Attorney General & 6 Others [2012] eKLR.*** 5. The 2nd Respondent maintained that no constitutional violation had been pleaded or established against it and that any challenge to its decision to repudiate the claim ought to have been pursued through arbitration or ordinary civil proceedings. It consequently urged the Court to dismiss the Petition with costs. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, affidavits, and rival submissions of the parties, the Court is of the view that the central questions for determination are: 2. ***Whether this Court is properly seized of constitutional jurisdiction, or whether the dispute is, in substance, an ordinary contractual and insurance dispute dressed in constitutional language.*** 3. ***Who will bear costs of this Petition.*** 4. 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 at the earliest opportunity, 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. 5. 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 constitutional rights under Articles 27, 28, 35 and 47 of the Constitution. 6. The Respondents, however, contend that the dispute is fundamentally contractual and that no constitutional question arises. The 1st Respondent asserts that it discharged its statutory mandate, while the 2nd Respondent maintains that the claim arises purely from an insurance contract and is governed by private law and statutory mechanisms. 7. The Court is mindful that the existence of a contractual relationship does not, in itself, oust constitutional jurisdiction where a proper constitutional violation is demonstrated. However, it is equally well settled that constitutional jurisdiction is not a substitute for private law remedies. 8. The Court must therefore interrogate whether the Petition meets the threshold of constitutional pleading and whether it discloses a real constitutional controversy or merely dresses a contractual grievance in constitutional garb. The Court emphasises that a finding that a petition does not disclose a constitutional question is a jurisdictional determination. It is not a determination on the merits of whether a contractual breach or statutory lapse occurred. 9. In that regard, the Supreme ***Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR*** stated as follows: ***“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 foregoing authority underscores that it is not sufficient to merely cite constitutional provisions. There must be a demonstrated nexus between the facts complained of, the specific constitutional right, and the manner of alleged violation. 2. This Court is further guided by the principle that not every wrong, even where it causes hardship or loss, constitutes a constitutional violation. In ***Uhuru Muigai Kenyatta v Nairobi Star Publication Limited [2013] eKLR,*** the Court held: ***“...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. Similarly, in ***John Harun Mwau v Peter Gastrow & 3 Others [2014] eKLR***, the Court stated: ***“...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 disposed without recourse to the Constitution, the Constitution should not be invoked at all...”*** 1. The same position was reiterated in ***Grace Jepkemoi Kiplagat v Zakayo Cheruiyot [2021] eKLR,*** where the Court 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 a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.”*** 1. Further, in ***James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution [2019] eKLR***, the Court 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. In ***Patrick Mbau Karanja v Kenyatta University [2012] eKLR***, the Court 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. In ***Godfrey Paul Okutoyi & Others v Habil Olaka & Another [2018] eKLR,*** the Court 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 clear and consistent. The Constitution is not a universal remedy for all grievances, and constitutional jurisdiction is not triggered by the mere invocation of rights or drafting of prayers framed in constitutional terms. 2. The Court must therefore examine the substance of the Petition. On doing so, it is evident that the dispute arises from: 3. repudiation of an insurance claim under a contract of insurance; and 4. dissatisfaction with the regulatory handling of that dispute by the 1st Respondent. 5. These issues, however framed, remain anchored in private law obligations and statutory regulatory functions. They do not, on the facts pleaded, disclose an independent constitutional question capable of invoking Article 165(3)(b). 1. The invocation of Articles 27, 28, 35 and 47, without detailed factual demonstration of discrimination, violation of dignity, denial of access to information, or procedural unfairness beyond dissatisfaction with the outcome, does not meet the constitutional threshold set in ***Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others.*** 2. The Court further finds that even where Article 47 of the Constitution is invoked in respect of the 1st Respondent as a statutory regulator performing administrative functions, the Petition does not disclose with reasonable precision the manner in which the process complained of fell short of the requirements of lawfulness, reasonableness or procedural fairness. Beyond dissatisfaction with the outcome of the regulatory process and the non-compulsion of settlement, no specific procedural impropriety, denial of hearing, failure to give reasons, or breach of procedural safeguards has been demonstrated so as to elevate the dispute into a constitutional violation under Article 47. The mere fact that the 1st Respondent is a statutory regulator does not, without more, convert every dissatisfaction with its regulatory stance into a constitutional violation under Article 47. The Court must still be satisfied that the minimum elements of procedural unfairness are pleaded and demonstrated. A claim under Article 47 must demonstrate identifiable procedural unfairness, including denial of hearing, failure to give reasons, or departure from lawful procedure. None of these elements have been demonstrated on the facts presented. 3. With respect to Article 35 of the Constitution, the Petitioner alleges non-disclosure of information relating to the investigation and determination of her complaint, including correspondence and reports said to be held by the 1st Respondent. However, the right of access to information is not absolute and is circumscribed by Article 35(1) and (3), and the applicable statutory framework governing disclosure of information held by public bodies. In the present case, the Court is not satisfied that a specific request meeting the constitutional threshold was demonstrated, nor has it been shown that any refusal to disclose information was arbitrary or unlawful so as to constitute a violation of Article 35. The mere assertion of non-disclosure, without demonstration of a specific request and refusal within the meaning of Article 35, is insufficient to ground a constitutional claim. The Petitioner has not satisfied the constitutional threshold for access to information claims, namely identification of the information sought with sufficient clarity, demonstration of request or constructive refusal, and proof that any limitation was unjustified under Article 24. 4. In light of the foregoing analysis on Articles 27, 28, 35 and 47, the Court is not persuaded that the Petition discloses a prima facie constitutional question capable of invoking the jurisdiction of this Court. 5. In the present case, the Petitioner has not demonstrated that the dispute cannot be adequately addressed through ordinary civil litigation for breach of contract, statutory dispute resolution mechanisms under the Insurance Act, or any other lawful forum provided under the applicable regulatory framework. 6. Accordingly, the Court finds that the Petition does not meet the constitutional threshold required to properly invoke the jurisdiction of this Court under Article 165(3)(b) of the Constitution. 7. The Court’s finding is confined to jurisdictional competence at the threshold stage and does not amount to a determination on the substantive merits of any contractual or statutory dispute. **Issue ii: Who will bear costs** 1. The issue of costs is a consequential matter following the determination of the Petition. It is trite that costs ordinarily follow the event, although the Court retains discretion to depart from this principle depending on the circumstances of each case. Costs serve not only to compensate the successful party but also to discourage improper invocation of constitutional jurisdiction where ordinary legal remedies are available. 2. In constitutional litigation, courts may in appropriate cases decline to award costs where public interest considerations so demand. However, that discretion is not exercised in favour of a litigant who has improperly invoked constitutional jurisdiction in a matter that is fundamentally contractual in nature. 3. In the present case, the Court has found that the Petition does not disclose any violation of constitutional rights and is otherwise an improper invocation of constitutional jurisdiction in respect of a private insurance dispute. There is therefore no basis for departing from the general rule. 4. Accordingly, the Petitioner shall bear the costs of the Petition, such costs 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