https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6827

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E206 OF 2022** **IN THE MATTER OF ARTICLES 21(1), 2(2), 3(1), 20(4), 22(1), 22(2), 28, 33, 34, 35, 46 AND 48 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE ALLEGED VIOLATION OF ARTICLES 28, 33, 34, 35(1) (b) AND ARTICLES 46(1) (a) & (d) OF THE CONSTITUTION OF KENYA,2010** **AND** **IN THE MATTER OF RULE 3, 23, AND 24 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **AND** **IN THE MATTER OF SECTIONS 4, 12, 13 AND 15 OF THE CONSUMER PROTECTION ACT** **AND** **IN THE MATTER OF DATA PROTECTION ACT, 2019** **AND** **IN THE MATTER OF SECTION 3 OF THE CONSUMER PROTECTION REGULATIONS, 2010** **AND** **IN THE MATTER OF SECTION 55 & 56 OF THE COMPETITION ACT** **AND** **IN THE MATTER OF SECTION 35 OF THE BETTING, LOTTERIES AND GAMING ACT** **BETWEEN** **LYDIAH WAIRURI MBAGAH.................................................................PETITIONER** **VERSUS** **ROYAL MEDIA SERVICES LIMITED T/A INOORO FM.......................1ST RESPONDENT MEDIAMAX NETWORK LIMITED T/A KAMEME FM......................2ND RESPONDENT COMMUNICATIONS AUTHORITY OF KENYA.................................3RD RESPONDENT BETTING CONTROL AND LICENSING BOARD................................4TH RESPONDENT MEDIA COUNCIL OF KENYA.........................................................5TH RESPONDENT SAFARICOM PLC.........................................................................6TH RESPONDENT CHOCHA INVESTMENT LIMITED..................................................7TH RESPONDENT VUVUZELA COMPANY LIMITED...................................................8TH RESPONDENT THE ATTORNEY GENERAL............................................................9TH RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, Lydiah Wairuri Mbagah, filed the Petition dated 6th May 2022 seeking several declaratory and coercive orders against the Respondents concerning the broadcasting of betting, lottery and prize competition advertisements on vernacular radio stations. The Petitioner contends that her constitutional rights to consumer protection, privacy, dignity, and access to information were violated by the 1st and 2nd Respondents when they aired advertisements for unlicensed and illegal betting promotions, and further that the 3rd, 4th, 5th and 6th Respondents failed in their regulatory duties to halt these alleged violations. 2. The 1st Respondent, Royal Media Services Limited trading as Inooro FM, is a licensed broadcaster. The 2nd Respondent, Mediamax Network Limited trading as Kameme FM, is similarly a licensed broadcaster. The 3rd Respondent, Communications Authority of Kenya (CAK), is the regulatory body established under the Kenya Information and Communications Act (KICA) with responsibility for licensing and regulating broadcasting services. The 4th Respondent, Betting Control and Licensing Board (BCLB), is the regulatory body established under the Betting, Lotteries and Gaming Act charged with licensing and supervising betting, lotteries and gaming activities in Kenya. 3. The 5th Respondent, Media Council of Kenya, is established under the Media Council Act, 2013 with responsibility for setting standards for journalists and media enterprises. The 6th Respondent, Safaricom PLC, is a telecommunications company providing mobile money transfer services through its M-PESA platform, including the issuance of Paybill numbers to businesses. The 7th and 8th Respondents, Chocha Investment Limited and Vuvuzela Company Limited, are entities alleged to have been involved in the betting promotions. The 9th Respondent, the Attorney General, is sued as the principal legal advisor of the government. **BACKGROUND** 1. The Petition was filed on 6th May 2022 together with a Notice of Motion seeking conservatory orders. On 11th May 2022, the duty court issued directions for service and fixed the matter for further directions on 24th May 2022. The record shows that on 24th May 2022, the court directed that the Notice of Motion be canvassed by way of written submissions. Subsequently, several Respondents filed preliminary objections and replying affidavits. 2. The 1st Respondent filed a preliminary objection dated 13th June 2023 challenging the jurisdiction of this Court on grounds that the Petitioner had failed to exhaust the statutory dispute resolution mechanisms under the Kenya Information and Communications Act. The 3rd Respondent similarly filed a preliminary objection dated 31st May 2023 seeking to strike out the Petition on grounds of prematurity and failure to plead constitutional issues with precision. 3. The Petitioner subsequently withdrew the Notice of Motion dated 6th May 2022 on 4th October 2023, and the Court proceeded to consider the main Petition on its merits. All pending interlocutory applications were determined, and the Court directed that the Petition be heard through written submissions. The Petitioner filed her submissions, and the 1st, 2nd, 3rd, and 6th Respondents filed their respective submissions in opposition. **THE PETITIONER’S CASE** 1. The Petitioner describes herself as an ordinary Kenyan who frequently listens to vernacular radio programs on Inooro FM and Kameme FM. She states that she was drawn to announcements on these radio stations urging listeners to send money to various Paybill numbers in order to win lump sum prizes that would change the lives of participants. She participated in these competitions on numerous occasions, adhering to the terms and conditions provided, but never won any award. This prompted her to conduct further research into the nature of the prize competitions. 2. The Petitioner contends that the 1st and 2nd Respondents have been airing shows during diverse hours of the day and night encouraging Kenyans to participate in prize competitions, lotteries and betting games that have not been authorized or licensed by the BCLB. She argues that by airing these advertisements and encouraging participation, the 1st and 2nd Respondents have aided and abetted the defrauding of millions of Kenyans of their hard-earned money. She asserts that the 1st and 2nd Respondents are the most popular media stations in the country and owe a greater duty to their listeners, particularly those in rural areas who are predominantly youth and older persons, to ensure that all information disseminated does not harm them economically, financially, socially or psychologically. 3. The Petitioner relies on several letters exchanged between the regulatory bodies. She refers to a letter dated 23rd September 2020 from the BCLB to the Media Owners Association of Kenya notifying it that several media stations were carrying on the business of prize competitions without authorization, and which letter was copied to Safaricom PLC with a direction to shut down the relevant short codes and Paybill numbers. She further refers to letters dated 12th November 2020 and 22nd December 2020 from the BCLB to the Communications Authority of Kenya raising concerns about illegal betting activities on radio stations and requesting the CAK to put a stop to them. Additionally, she refers to a letter dated 1st September 2021 from the BCLB to the Clerk of the National Assembly stating that the only media enterprise licensed to run prize competitions was Jambu TV, and releasing a list of all prize competition licenses issued. 4. The Petitioner contends that the 1st and 2nd Respondents do not have measures in place to ensure that persons under the legal age do not participate in these competitions, nor do they issue warning messages on the negative consequences of gambling or the legal age requirements. She argues that the competitions are conducted in an arbitrary manner without publication of the algorithm used to select winners, and that the Paybill numbers provided belong to third parties whose identities are withheld from listeners. The Petitioner further states that after participating in the competitions, she received prompted messages stating that funds had been sent to entities different from the 1st and 2nd Respondents, specifically the 7th and 8th Respondents. 5. The Petitioner also alleges that after participating in the prize competitions, she received messages from third parties urging her to participate in other competitions in the nature of scams and pyramid schemes, and that she was subscribed to promotional messages and services that prompted daily service charges without her knowledge. She attaches copies of text messages as evidence, including one message stating that Kshs.300,000/= had been credited to her account and that she needed to send Kshs.100/= to claim it. The Petitioner argues that this demonstrates a scheme by legitimate organizations like the 1st and 2nd Respondents to lure innocent persons into participating in illegitimate competitions to collect personal data for heinous purposes. 6. The Petitioner contends that the 1st and 2nd Respondents transferred her personal data to third parties without her consent or authorization, thereby violating her right to privacy under Article 31 of the Constitution and the provisions of the Data Protection Act, 2019. She argues that she was never informed that her personal data would be collected or transferred, and that the Respondents failed to comply with the requirements of Sections 26, 27, 28 and 29 of the Data Protection Act which mandate data controllers to inform data subjects of the purpose of data collection and the third parties who may receive their data. 7. The Petitioner also argues that the Respondents’ actions constitute unjust enrichment as defined in the doctrine established in ***Chase International Investment Corporation and another v Laxman Keshra and others (1978) KLR 143***, where the Court held that a claim may be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. She contends that the three essentials of unjust enrichment are satisfied: the Respondents have been enriched by the receipt of benefits from the public, this enrichment has taken place at the expense of the Petitioner and other participants, and the enrichment is unjust because the competitions were unlicensed and therefore illegal. 8. The Petitioner further submitted that the 1st and 2nd Respondents failed to comply with Section 35 of the Betting, Lotteries and Gaming Act which provides that a lottery promoted or conducted otherwise than in accordance with the Act shall be deemed unauthorized and unlawful. She argues that the Respondents knowingly promoted and conducted unlicensed prize competitions, thereby aiding in the stealing of millions from innocent Kenyans and turning unauthorized promotions into cash cows for the stations. 9. Reliance was placed on several authorities including ***Ahmed Isaack Hassan v Auditor General [2015] eKLR*** on the right to dignity, ***Sonalla Investment Ltd v County Government of Nyeri & 2 others [2018] eKLR*** on the requirement for licensing under the Betting, Lotteries and Gaming Act, and ***Republic v Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996*** on the nature of mandamus orders. 10. The Court was thus urged to allow the Petition as prayed and award costs to the Petitioner. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent opposes the Petition through a replying affidavit sworn by Njenga Njehia on 19th June 2023. The 1st Respondent argues that the Petition is premature because the Petitioner has failed to exhaust the statutory dispute resolution mechanisms provided under the Kenya Information and Communications Act. It points to Section 46L of KICA which provides an elaborate complaint procedure requiring an aggrieved consumer to first lodge a complaint with the licensee, then appeal to the Communications Authority of Kenya, and thereafter to the Communications and Multimedia Appeals Tribunal established under Section 102A of the Act. 2. The 1st Respondent further argues that it is neither a promoter nor does it conduct lotteries, but merely advertises licensed promotions. It attaches a permit issued by the BCLB on 14th January 2022 authorizing Piga Kazi Limited to conduct and promote the Piga Kazi promotion under Section 59A of the Betting, Lotteries and Gaming Act, which regulates prize competitions. It also attaches a letter dated 30th March 2022 from the BCLB extending the validity of the permit to 1st May 2022. The 1st Respondent contends that once it satisfied itself that Piga Kazi Limited was duly licensed, it began advertising the promotion on Inooro FM in line with its role as a broadcaster. 3. On the issue of consumer rights, the 1st Respondent argues that the Petitioner has not substantiated any false or unconscionable representation made by the 1st Respondent. It notes that the letter dated 1st September 2021 from the BCLB to the Clerk of the National Assembly, which the Petitioner herself attached as an exhibit, confirms that the Piga Kazi promotion is duly licensed and registered. The 1st Respondent contends that it has not made any representation with regard to its affiliation, approval or sponsorship of the promotions, and has merely advertised them in line with its role as a broadcaster. Reliance was placed on the decision in ***James Kuria v Attorney General, Ministry of Information, Communication & Technology, Communication Authority of Kenya & Safaricom Limited [2018] KEHC 8962 (KLR)*** to buttress its arguments. 4. Regarding the right to privacy and data protection, the 1st Respondent argues that it did not collect or process the Petitioner’s personal data. It states that participants are simply required to channel money through the advertised Paybill numbers, and that upon doing so, they automatically receive an SMS confirmation from the promoter. The 1st Respondent relies on Section 32 of the Data Protection Act which allows a data subject to give express or implied consent to the processing of their data, arguing that the Petitioner voluntarily participated in the promotion and therefore impliedly consented to the necessary processing of her phone number to facilitate the service. 5. The 1st Respondent also raises the issue of admissibility of the electronic evidence presented by the Petitioner, citing the Court of Appeal decision in ***County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] eKLR*** where the court held that Section 106B of the Evidence Act requires certification of electronic evidence to confirm its authenticity. The 1st Respondent argues that the screenshots of text messages annexed by the Petitioner were not accompanied by any certificate of electronic evidence, rendering them inadmissible. 6. On the watershed period issue, the 1st Respondent relies on the letters dated 6th September 2021 and 13th September 2021 from the BCLB. It notes that the addendum banning airing of gaming content during the watershed period was withdrawn on 13th September 2021 to allow the Kenya Film Classification Board to undertake classification of gaming advertisement content. The 1st Respondent states that to date, neither the Communications Authority nor the Kenya Film Classification Board has rated gambling or lottery advertisements as content only suitable for adult consumption, and therefore the allegation that betting infomercials are illegally aired during the watershed period is false. 7. The Court was thus urged to dismiss the Petition with costs. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent opposes the Petition through an Answer to Petition dated 17th June 2022, a Replying Affidavit sworn by Ken Ngariuya, its Chief Executive Officer, on 23rd May 2022 and its written submissions dated 12th June, 2024. The 2nd Respondent similarly argues that the Petition is premature for failure to exhaust the dispute resolution mechanisms under KICA. It relied on the decision in ***Speaker of the National Assembly v James Njenga Karume [1992] eKLR*** for the proposition that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. 2. The 2nd Respondent states that it is a duly licensed broadcaster and that it has always ensured that it advertises only for licensed and compliant gaming operators. It attaches a letter dated 8th February 2022 from Mediamax to the BCLB requesting confirmation that its clients’ gaming operators are duly licensed, and the BCLB’s response dated 16th February 2022 providing a list of licensed operators and their Paybill numbers, including White Rhino Ventures Limited (Supa 5), Win Lotto Hub (Kuza Biz), Oxygen 8 Communication EA Limited (Tatua), Kuza Jamii Solution Limited (Kuza Jamii), and Chocha Investment Limited (Better SMS). The 2nd Respondent contends that it verified the licensing status of all its advertising clients before airing their promotions. 3. The 2nd Respondent also addresses the issue of the Petitioner’s participation and motive. It notes that the Petitioner admitted at paragraph 5 of her Supporting Affidavit that she participated in the prize competitions on numerous occasions but never won. The 2nd Respondent argues that this admission demonstrates that the Petitioner’s true intention in filing the suit is to settle scores or seek revenge for her failure to win, rather than to vindicate any genuine constitutional violation. It contends that had the Petitioner won any of the competitions, this Petition would not have been filed. 4. Regarding the watershed period, the 2nd Respondent notes that the addendum dated 6th September 2021 was withdrawn on 13th September 2021, and that it is not aware of any further communication from the BCLB or the KFCB regarding classification of gaming advertisement content. It argues that all participants in gaming activities aired by the 2nd Respondent are adult persons of sound mind with the requisite legal capacity to make sound judgments about their financial and moral affairs, and that the Petitioner has not provided any scientific or empirical data demonstrating how the advertisements have caused exploitation, financial manipulation or abuse among vulnerable groups. 5. On the issue of unjust enrichment, the 2nd Respondent relies on the principles outlined in Chase International Investment Corporation (supra) and argues that the Petitioner has not demonstrated how the 2nd Respondent was enriched at her expense. It contends that as a mere broadcaster of advertisements, the 2nd Respondent received only its ordinary advertising fees and did not receive any portion of the funds paid by participants through the Paybill numbers. The 2nd Respondent also raises the issue of the ***Anarita Karimi Njeru*** principle, arguing that the Petition does not plead with reasonable precision the manner in which the alleged constitutional violations occurred. Therefore, the 2nd Respondent urged the court to find that the Petition lacks merit and should be dismissed with costs. **THE 3RD RESPONDENT’S CASE** 1. The 3rd Respondent opposes the Petition through a Replying Affidavit sworn by David Mugonyi, its Director General, on 4th March 2024, and written submissions dated 9th December 2024. The 3rd Respondent argues that the Petition proceeds on a misapprehension of its mandate in regulating broadcasting licensees over infomercials. It states that its mandate is set out in Section 46K of the Kenya Information and Communications Act and the Kenya Information and Communications (Broadcasting) Regulations, 2009, particularly Regulations 31, 33 and 34 which delineate the bounds and scope of how infomercials and advertisements should be conducted. 2. The 3rd Respondent notes that it works in conjunction with other government agencies, particularly the BCLB, on matters of concurrent jurisdiction. It refers to the directive it issued on 9th September 2021 directing that gaming and betting infomercials should not be aired during the watershed period, but notes that this was done in response to the BCLB’s addendum of 6th September 2021. When the BCLB withdrew that addendum on 13th September 2021 to allow the KFCB to undertake classification of gaming advertisement content, the 3rd Respondent’s position was that the matter of suitability of gaming content during the watershed period remained unresolved pending the KFCB’s classification. 3. The 3rd Respondent argues that it did not violate the Petitioner’s consumer rights because the Petitioner never lodged any complaint with it against the 1st and 2nd Respondents. It relies on Regulation 42 of the Broadcasting Regulations which provides that a party aggrieved by a broadcast must first lodge the complaint with the broadcasting service provider, and only appeal to the Authority if dissatisfied with the remedy. Even if the letters from the BCLB dated 12th November 2020 and 22nd December 2020 were construed as complaints, the 3rd Respondent argues that it was divested of jurisdiction because Regulation 42(2) provides that the Authority cannot deal with complaints lodged more than ninety days from the date when the material complained of was broadcast. 4. The 3rd Respondent further argues that the Petition does not disclose a reasonable cause of action against it and that it has been wrongly and improperly joined and relied on the decision in ***DT Dobie & Co (K) Ltd v Muchina [1982] KLR*** in support of its position. It states that the Petitioner has not sought any specific relief against the 3rd Respondent for violation of her consumer rights, despite alleging such violation in the Petition. The 3rd Respondent relied on the case of ***Gichuhi & 2 others v Data Protection Commissioner;Mathenge & another (Interested Parties) (Judicial Review E028 of 2023) [2023] KEHC 17321 (KLR)*** for the proposition that quasi-judicial bodies cannot flout timelines expressly provided for in law, and that jurisdiction can be lost by effluxion of time. **THE 6TH RESPONDENT’S CASE** 1. The 6th Respondent opposes the Petition through Grounds of Opposition dated 14th June 2023, a Replying Affidavit sworn by Daniel Ndaba, its Senior Manager for Litigation Management, on 23rd January, 2024 and its written submissions dated 31st January, 2025. The 6th Respondent argues that the Petition does not disclose any reasonable cause of action against it because the Petitioner has made no specific or particularized allegations of constitutional violations against it and placed reliance on the decision in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR*** in support of its arguments. The 6th Respondent notes that it is only mentioned in passing at paragraphs 7, 45, 46, 61, 62 and 64 of the Petition, and that the only prayer sought against it is an order to permanently suspend all Paybill numbers issued to unlicensed betting companies and lotteries. 2. The 6th Respondent states that it runs the M-PESA mobile payment system, within which there is a service called Lipa na M-PESA that allows customers to make payments for goods and services. To ensure the service remains safe and secure, the 6th Respondent has put in place Know Your Customer requirements and a robust onboarding process. It attaches copies of the Lipa na M-PESA KYC Requirements that were in place at the time the Petition was filed, as well as the special terms and conditions for betting and gaming clients, which require production of a valid BCLB license, fiduciary and cyber insurance cover, and a CR12 search report not older than thirty days. 3. Further, it is argued that the Petition does not list any specific Paybill numbers that the Petitioner alleges have been used for illegal purposes, and that the prayer for suspension of all Paybill numbers issued to unlicensed betting companies is too vague to be enforced. It notes that the only Paybill numbers mentioned were in the withdrawn Notice of Motion, and that those Paybill numbers did not belong to any party to this Petition except Paybill number 440322 which was registered to the 7th Respondent and had already been frozen. The 6th Respondent contends that to suspend Paybill numbers belonging to entities that are not parties to the suit would condemn those entities unheard, contrary to the principles of natural justice. 4. The 6th Respondent also raises the principle of exhaustion of remedies, arguing that the Petitioner had recourse under Section 102 of KICA to the Communications and Multimedia Appeals Tribunal, under the Betting, Lotteries and Gaming Act by submitting a complaint to the BCLB, and under the Data Protection Act by submitting a complaint to the Data Protection Commissioner. It relies on the decision of the Court of Appeal in ***Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR*** that courts ought to be fora of last resort, not the first port of call when a dispute arises. 5. The Court was thus urged to dismiss the Petition with costs **ANALYSIS AND DETERMINATION** 1. Having carefully considered the Petition, affidavits and annexures, the written submissions and the relevant legal authorities relied upon by the parties, I find that the following issues crystallize for determination: 2. *Whether the Petitioner has exhausted the available statutory dispute resolution mechanisms, and consequently whether this Court has jurisdiction to hear and determine the Petition.* 3. *Whether the Petition meets the constitutional threshold of reasonable precision in pleading the alleged violations of fundamental rights and freedoms.* 4. *Whether the 1st and 2nd Respondents have violated the Petitioner’s right to consumer protection under Article 46 of the Constitution and the Consumer Protection Act.* 5. *Whether the 1st and 2nd Respondents have violated the Petitioner’s right to privacy under Article 31 of the Constitution and the Data Protection Act.* 6. *Whether the 3rd, 4th, 5th, and 6th Respondents breached their statutory duties to the Petitioner by failing to regulate the betting advertisements.* 7. *Whether the Petitioner is entitled to the remedies sought, including the orders of mandamus, declaration, and restitution.* 8. *Who shall bear the costs of the Petition.* ***Whether the Petitioner has exhausted the available statutory dispute resolution mechanisms, and consequently whether this Court has jurisdiction to hear and determine the Petition*** 1. The first and most fundamental issue for determination is whether this Court has jurisdiction to hear and determine the Petition in light of the statutory dispute resolution mechanisms available under the Kenya Information and Communications Act. The 1st, 2nd, 3rd, and 6th Respondents have all raised the doctrine of exhaustion as a jurisdictional bar, arguing that the Petitioner ought to have first lodged her complaint with the 1st and 2nd Respondents, then appealed to the Communications Authority of Kenya, and thereafter to the Communications and Multimedia Appeals Tribunal before approaching the High Court. The Court of Appeal in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR*** established the axiomatic principle that jurisdiction is everything and that without it, a court has no power to make one step. Where a court holds the opinion that it is without jurisdiction, it must down its tools. This principle applies with equal force to constitutional Petitions, as the jurisdiction of the High Court under Article 165(3) is not absolute but is subject to the Constitution and the law. 2. The doctrine of exhaustion of statutory remedies is deeply rooted in Kenya’s constitutional and administrative law jurisprudence. The Court of Appeal in ***Speaker of National Assembly v Karume [1992] eKLR*** held unequivocally that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. This is not merely a procedural technicality but a substantive principle that ensures that specialized bodies created by Parliament are given the first opportunity to address disputes falling within their competence. The Court of Appeal in ***Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others (supra)*** reinforced this position, stating that it is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked, and that courts ought to be the fora of last resort and not the first port of call. 3. However, this Court is also cognizant of the fact that the exhaustion doctrine is not absolute and admits of exceptions. In ***Republic v Independent Electoral and Boundaries Commission (IEBC; AL Ghurair Printing and Publishing LLC & 5 others (Interested Parties); The National Super Alliance Kenya (NASA****)* ***Kenya (Ex Parte Applicant) [2017] KEHC 4663 (KLR)*,** the court held that exceptions to the exhaustion requirement are not clearly delineated, but courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved including the level of public interest, and the polycentricity of the issue to determine whether an exception applies. The exception is particularly likely where a party pleads issues that verge on constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. This was also the position taken in ***Bernard Murage v Fineserve Africa Limited & 3 others [2015] eKLR***, where the court recognized that the Appeals Tribunal under KICA does not have jurisdiction to determine alleged violations of the Constitution. 4. The Kenya Information and Communications Act, 1998 provides an elaborate framework for consumer protection and dispute resolution in the communications sector. Part IVA of the Act, introduced by the Kenya Information and Communications (Amendment) Act, 2013, specifically addresses consumer protection and complaint handling. Section 46L of KICA provides that a consumer who is aggrieved by any act or omission of a licensee may lodge a complaint with the licensee, and if dissatisfied with the response, may appeal to the Authority within thirty days. The Kenya Information and Communications (Dispute Resolution) Regulations, 2010 provide further detail, including the filing of a Memorandum of Complaint, responses, submissions, oral hearings, and a decision of the Authority. Regulation 8(6) provides that any party dissatisfied by the decision of the Authority may appeal to the Communications and Multimedia Appeals Tribunal established under Section 102F of the Act within fifteen days. Appeals against decisions of the Tribunal lie to the High Court under Section 102G of the Act. 5. The Petitioner in this case did not lodge any complaint with the 1st or 2nd Respondents before filing this constitutional Petition. She did not appeal to the Communications Authority of Kenya, nor did she invoke the jurisdiction of the Communications and Multimedia Appeals Tribunal. The letters she relies upon from the BCLB to the CAK were communications between regulatory bodies, not complaints lodged by her as an aggrieved consumer. The Petitioner’s direct approach to the High Court without first utilizing these statutory mechanisms raises a serious jurisdictional question. The Court in ***Geoffrey Muthinja (supra)*** emphasized that the exhaustion doctrine 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, and that this accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution. 6. However, the nature of the claims raised by the Petitioner goes beyond ordinary consumer disputes about the quality of services or the correctness of billing. The Petitioner has alleged violations of her fundamental rights under the Bill of Rights, specifically her rights to consumer protection under Article 46, her right to privacy under Article 31, her right to dignity under Article 28, and her right to access information under Article 35. The question that arises is whether the statutory mechanisms under KICA are competent to adjudicate constitutional violations of this nature. The Communications and Multimedia Appeals Tribunal is established under Section 102 of KICA to hear appeals from decisions of the Authority. Its jurisdiction is primarily appellate and administrative, not constitutional. In ***Bernard Murage v Fineserve Africa Limited (supra****)*, the court held that the Petitions alleging violation of Articles 31 and 46 were properly before the High Court because the Appeals Tribunal under KICA did not have the jurisdiction to determine alleged constitutional violations. 7. The distinction is critical. While the dispute resolution mechanisms under KICA are well-suited to determine whether a broadcaster has complied with the technical provisions of the Act and the Broadcasting Regulations, such as whether an advertisement was misleading or whether content was appropriately classified, these mechanisms are not designed to adjudicate constitutional claims for violation of fundamental rights. The tribunal’s jurisdiction is statutory, not constitutional. A claim that a broadcaster has violated a consumer’s right to privacy by sharing personal data without consent, or that regulatory bodies have failed in their constitutional duties to protect consumers, raises constitutional questions that are properly justiciable before the High Court under Article 165(3)(b) and (d) of the Constitution. The right to access the High Court for enforcement of the Bill of Rights is itself a constitutional right that cannot be lightly circumscribed by statutory exhaustion requirements. 8. The Supreme Court in ***Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR*** addressed the doctrine of constitutional avoidance, holding that where it is possible to decide a case without reaching a constitutional issue, that should be done. In this case, however, the Petitioner has framed her grievance not merely as a complaint about the quality of advertising content, but as a violation of her fundamental rights as a consumer, her right to privacy, and her right to dignity. The Consumer Protection Act and the Data Protection Act are themselves legislative implementations of Articles 46 and 31 of the Constitution respectively. A claim that these rights have been violated is inherently constitutional in nature. To require the Petitioner to first exhaust the KICA complaint mechanism would be to relegate constitutional questions to a tribunal lacking constitutional jurisdiction, which would be an abdication of this Court’s constitutional mandate under Article 23(1) to enforce the Bill of Rights. 9. Moreover, the Petitioner’s claims extend beyond the actions of the 1st and 2nd Respondents as broadcasters to the alleged failure of the 4th Respondent (BCLB) to regulate betting activities and the alleged failure of the 6th Respondent (Safaricom) to suspend Paybill numbers used for illegal betting. These are not matters within the competence of the Communications and Multimedia Appeals Tribunal, whose jurisdiction is limited to appeals from decisions of the Communications Authority under KICA. The BCLB is regulated by the Betting, Lotteries and Gaming Act, not KICA, and the Tribunal has no jurisdiction over the BCLB. Similarly, Safaricom as a telecommunications provider is regulated by KICA, but the claim against it concerns the issuance of Paybill numbers, which may involve questions of contract and consumer protection that are not necessarily within the Tribunal’s purview. 10. I find that the doctrine of exhaustion cannot be applied mechanically to bar this Petition. While the Petitioner ought to have considered lodging a complaint with the 1st and 2nd Respondents and the Communications Authority, the failure to do so is not fatal, given the constitutional nature of the claims raised and the fact that the statutory mechanisms are not fully competent to adjudicate constitutional violations. The Court of Appeal in ***James Kuria v Attorney General & 3 Others [2018] eKLR*** observed that the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered effective if it offers a prospect of success and is sufficient if it is capable of redressing the complaint in its totality. In this case, the KICA mechanisms cannot redress the totality of the claims or address the alleged regulatory failures of the BCLB and the alleged complicity of Safaricom. I therefore decline to strike out the Petition for want of jurisdiction, and I shall proceed to consider the merits of the constitutional claims. ***Whether the Petition meets the constitutional threshold of reasonable precision in pleading the alleged violations of fundamental rights and freedoms*** 1. The Respondents have raised the issue that the Petition does not meet the constitutional threshold for pleading as established in ***Anarita Karimi Njeru v Republic [1979] eKLR*** and affirmed by the Court of Appeal in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra)****.* The principle requires that a constitutional petition must set out with a reasonable degree of precision the provisions of the Constitution alleged to have been violated, the facts demonstrating the violation, and the manner in which the violation occurred. This principle serves the critical function of defining the dispute to be decided by the court and giving fair notice to the Respondents of the case they are required to meet. 2. The Petition in this case cites numerous constitutional provisions, including Articles 2(1), 2(2), 3(1), 20(4), 22(1), 22(2), 28, 33, 34, 35, 46, 48, 55, and 57. The Petitioner has pleaded these provisions in her Petition and supporting affidavit with reasonable particularity. She has stated that her rights under Article 46 (consumer protection) were violated because the 1st and 2nd Respondents aired advertisements for unlicensed betting competitions that misled her into participating and losing money. She has stated that her right under Article 31 (privacy) was violated because her personal data was transferred to third parties without her consent, leading to unsolicited promotional messages. She has stated that her right under Article 28 (dignity) was violated because the Respondents’ actions subjected her to economic exploitation. She has provided specific dates, attached screenshots of text messages, and referenced specific letters from regulatory bodies to support her claims. 3. The Court of Appeal in ***Mumo Matemu (supra)*** emphasized that precision is not coterminous with exactitude, and that 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. The whole function of pleadings is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point. In this case, while the Petition could have been more elegantly drafted, it sufficiently sets out the nature of the Petitioner’s complaints and the constitutional provisions invoked. The Respondents have been able to respond substantively, as demonstrated by their detailed replying affidavits and submissions. The 1st and 2nd Respondents have addressed the allegations about licensing, watershed periods, data privacy, and consumer protection, indicating that they had fair notice of the claims against them. 4. The 6th Respondent’s argument that the Petition does not allege any specific violation against it is more substantial. The Petition mentions Safaricom primarily in relation to the letters from the BCLB copying it on correspondence about illegal betting, and the prayer seeking an order to suspend all Paybill numbers issued to unlicensed betting companies. The Petitioner does not allege that Safaricom directly violated any of her constitutional rights, nor does she specify which Paybill numbers should be suspended or provide evidence that the Paybill numbers she used belong to unlicensed operators. The only mention of Safaricom in the prayer is for an order to permanently suspend all Paybill numbers issued to unlicensed betting companies and for restitution of funds paid via Paybill numbers with the 6th Respondent’s facilitation. These are general prayers that do not specifically address any conduct by Safaricom that violated the Petitioner’s rights. The Court in ***Bernard Murage v Fineserve Africa Limited (supra)*** held that the burden lies on the Petitioner to prove every element constituting the cause of action, including sufficient facts to justify a finding that her rights were violated. In the absence of any specific allegations of wrongdoing by the 6th Respondent, the Petition against Safaricom does not meet the constitutional threshold for pleading. 5. However, for the other Respondents, particularly the 1st, 2nd, 3rd, and 4th Respondents, the Petition sufficiently identifies the constitutional provisions alleged to have been violated and the manner of the alleged violations. The Respondents have responded substantively, and this Court has a sufficient basis to proceed to determine the merits. Whether the Petition meets the constitutional threshold of reasonable precision in pleading the alleged violations of fundamental rights and freedoms. ***Whether the 1st and 2nd Respondents have violated the Petitioner’s right to consumer protection under Article 46 of the Constitution and the Consumer Protection Act*** 1. Article 46 of the Constitution of Kenya, 2010 provides that consumers have the right to goods and services of reasonable quality, to the information necessary for them to gain full benefit from goods and services, to the protection of their health, safety, and economic interests, and to compensation for loss or injury arising from defects in goods or services. The Article further mandates Parliament to enact legislation providing for consumer protection and for fair, honest and decent advertising. Parliament has fulfilled this constitutional mandate through the enactment of the Consumer Protection Act, No. 46 of 2012, and the Competition Act, No. 12 of 2010. The Consumer Protection Act defines a consumer broadly to include any person to whom goods or services are marketed in the ordinary course of a supplier’s business, or who has entered into a transaction with a supplier in the ordinary course of business. 2. The Petitioner contends that the 1st and 2nd Respondents violated her consumer rights by airing advertisements for betting and prize competitions that were unlicensed, misleading, and exploitative. She argues that she participated in these competitions under the impression that they were legal, only to discover later that many of them were not authorized by the BCLB. The 1st and 2nd Respondents respond that they only advertised licensed promotions, and that they verified the licensing status of the promoters before airing the advertisements. The 2nd Respondent attached a letter from the BCLB dated 16th February 2022 confirming that the operators it advertised, including White Rhino Ventures Limited, Win Lotto Hub Limited, and Oxygen 8 Communication EA Limited, were duly licensed as at that date. 3. The critical question is whether the 1st and 2nd Respondents, as broadcasters, assumed any responsibility to verify the licensing status of the promotions they advertised, and whether failure to do so constitutes a violation of consumer rights. Advertising allows the manufacturer, importer and other trader to impart information concerning its product, and enables the consumer to receive such information and make consequent informed choices. Freedom of commercial expression entails not only the right to impart information but also the right to receive it. However, this freedom is not absolute and must be balanced against the consumer’s right to be protected from misleading or deceptive advertising. 4. The standard for determining whether an advertisement is false or misleading was comprehensively articulated by Justice John Mativo (as he then was) in ***James Kuria v Attorney General & 3 Others [2018] eKLR*** where the court held as follows: *“The question that calls for an answer is whether the advertisement was misleading and or omitted relevant material or particulars which were pertinent in influencing the Petitioner to make an informed choice. The test for determining a misleading advertisement was ably laid down by the Canadian Court in Maritime Travel Inc. vs. Go Travel Direct.com Inc.[37] Madam Justice Hood undertook a fairly detailed review of the comparative advertising jurisprudence in Canada, from which she distilled eight principles, as follows:-* 1. *The general impression of the advertisement must be determined, and to do so, one has to consider the portion of the public to whom the advertisement is directed.* 2. *The literal meaning of the advertisement is to be considered as well as the general impression.* 3. *To try to determine whether the advertisement is false or misleading in a material respect, outside evidence may be considered, but not for the purpose of altering the general impression created by the advertisements.* 4. *The question is whether the advertisement is misleading in a material respect; that is, it must be something that would have an effect on the purchase decision.* 5. *Aggressive advertising is permitted, unless it is untruthful disparagement.* 6. *The Court should not interfere with advertising unless the advertising is “clearly unfair.”* 7. *Even advertisements that “push the bounds of what is fair” may not be misleading in a material respect.* 8. *In the civil context, the burden of proof on the plaintiff is a balance of probabilities; but it is a heavier burden. In the Court’s words there must be “substantial proof of activity that is a very serious public crime.”* 9. Applying these principles to the facts of this case, I find that the Petitioner has not met the burden of proving that the advertisements aired by the 1st and 2nd Respondents were materially false or misleading. The Petitioner admits that she participated in the competitions numerous times, which suggests that she understood the nature of the promotions. Her disappointment at not winning does not transform a lawful advertisement into an unfair trade practice. The 1st and 2nd Respondents produced evidence that the Piga Kazi promotion was licensed by the BCLB through a permit issued on 14th January 2022, and that the license was extended to 1st May 2022. The Petitioner herself attached the BCLB letter dated 1st September 2021 which listed licensed prize competitions, and that list did not name Inooro FM or Kameme FM as promoters, which is consistent with the Respondents’ position that they are broadcasters, not promoters. 10. However, the more troubling aspect of the Petitioner’s consumer protection claim is the allegation that the 1st and 2nd Respondents aired betting advertisements during the watershed period without any warnings or age restrictions. The watershed period is defined in Regulation 2 of the Kenya Information and Communications (Broadcasting) Regulations, 2009 as the time between 5.00 am and 10.00 pm. Regulation 34 prohibits the airing of content intended for adult audiences during this period. The BCLB issued an addendum on 6th September 2021 banning the airing of gaming advertisements during the watershed period, but this addendum was withdrawn on 13th September 2021 to allow the KFCB to classify gaming advertisement content. The 1st and 2nd Respondents correctly note that as at the date the Petitioner participated in the competitions in May 2020, there was no prohibition in force against airing betting advertisements during the watershed period. The KFCB has not to date classified gaming advertisements as adult content. Therefore, the allegation that the 1st and 2nd Respondents illegally aired betting content during restricted hours is not supported by the regulatory framework as it stood at the material time. 11. The Court of Appeal in ***Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR)*** established the doctrine of unjust enrichment as a distinct basis for restitution, independent of contract or tort. The principle presupposes three things: that the defendant has been enriched by the receipt of a benefit, that the enrichment has taken place at the expense of the plaintiff, and that it would be unjust to allow the defendant to retain the benefit. The Petitioner argues that the 1st and 2nd Respondents were unjustly enriched by the proceeds of the unlicensed betting competitions. However, the evidence shows that the Paybill numbers used for the competitions belonged to the promoters such as Chocha Investment Limited and Piga Kazi Limited, not to the 1st or 2nd Respondents. The 1st and 2nd Respondents earned only their standard advertising fees from airing the promotions. There is no evidence before this Court that the 1st or 2nd Respondents received any portion of the funds paid by participants through the Paybill numbers. The funds were transferred from the participants’ M-PESA accounts to the promoters’ accounts, and the 6th Respondent merely facilitated the transfer as a mobile money service provider. 12. The European Court of Justice in ***Case C-210/96 Gut Springenheide and Tusky******[1998] EUECJ C-210/96***held that in order to determine whether a particular description or promotional statement is misleading, it is necessary to take into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect. The Petitioner in this case is a consumer who participated in the competitions voluntarily, having heard the radio advertisements and observed that other participants were being called on air to receive their rewards. An average consumer in her position would be expected to understand that participating in a prize competition involves risk, that not every participant wins, and that the radio station airing the advertisement is not necessarily the promoter of the competition. I find that the Petitioner has not demonstrated that the 1st and 2nd Respondents made any false representations about their affiliation with the promotions or that they engaged in unfair trade practices within the meaning of Section 12 of the Consumer Protection Act. ***Whether the 1st and 2nd Respondents have violated the Petitioner’s right to privacy under Article 31 of the Constitution and the Data Protection Act*** 1. Article 31 of the Constitution provides that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed, and the right not to have the privacy of their communications infringed. This right has been given legislative effect through the Data Protection Act, No. 24 of 2019, which regulates the processing of personal data and establishes the Office of the Data Protection Commissioner. Section 26 of the Data Protection Act provides that a data subject has the right to be informed of the use to which their personal data is to be put, and Section 29 requires a data controller or processor to inform the data subject of the purpose for which the personal data is being collected and any third parties to whom the data may be transferred. 2. The Petitioner alleges that after participating in the prize competitions, she received unsolicited text messages from third parties urging her to participate in other competitions and that her personal data was transferred without her consent. She attaches screenshots of these messages, which include a message from “PIGAJEKI” confirming that she had been entered into a draw, and several other messages from what appear to be different senders inviting her to participate in other promotions. The 1st and 2nd Respondents deny that they collected, processed, or shared the Petitioner’s data. They state that participants’ phone numbers are automatically availed to the promoters when they send money to the Paybill number, because the promoter needs the phone number to send confirmation messages and to contact winners. 3. The 1st Respondent raises a preliminary evidential objection to the admissibility of the screenshots annexed by the Petitioner. It cites the Court of Appeal decision in ***County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (supra)*** where the court held that Section 106B of the Evidence Act requires a certificate of electronic evidence to confirm the authenticity and integrity of electronic records. Section 106B(2) of the Evidence Act, Cap 80 Laws of Kenya provides that for electronic evidence to be admissible, a certificate signed by a person in charge of the computer or device that generated the evidence must be produced, stating that the computer was operating properly, that the information was derived from data supplied to the computer in the ordinary course of business, and other specified matters. The Petitioner did not produce any certificate of electronic evidence for the screenshots she attached as exhibits. In the absence of such certification, the screenshots are of dubious probative value as it is impossible to verify their source, the integrity of the process used to capture them, or whether they have been manipulated. 4. However, even if the screenshots were admissible, the Petitioner faces a more fundamental difficulty: she has not established a causal link between the 1st and 2nd Respondents and the unsolicited messages she received. The screenshots show that the initial confirmation message came from “PIGAJEKI”, which is the Piga Kazi promotion operated by Piga Kazi Limited. The subsequent promotional messages do not identify the 1st or 2nd Respondents as the source. The Petitioner received messages offering insurance, loans, and other services, but there is nothing on the face of those messages indicating that the 1st or 2nd Respondents were involved in their transmission. The Petitioner’s assumption that because she participated in a promotion advertised by the 1st and 2nd Respondents, any subsequent messages must have been facilitated by them, is speculative and unsupported by evidence. 5. The 1st Respondent relies on Section 32 of the Data Protection Act which allows processing of personal data where the data subject has given consent. The Petitioner voluntarily participated in the Piga Kazi promotion by sending money to the advertised Paybill number. In doing so, she must have understood that her phone number would be used to confirm her participation and to notify her if she won. This constitutes implied consent for the processing of her phone number for the purpose of administering the promotion. The Data Protection (General) Regulations, 2021 provide that consent must be unambiguous and may be given by an affirmative action. By sending money to the Paybill number, the Petitioner took an affirmative action that signified her agreement to participate and to be contacted in connection with the promotion. 6. The Petitioner also alleges that the 1st and 2nd Respondents violated her right to privacy by failing to disclose that her data would be transferred to third parties. The 1st Respondent states that participants are informed through the radio announcements that they will receive an SMS confirmation and that the promoter will contact them. However, the Petitioner argues that this was insufficient because she was not told that her data might be used for other promotional messages from third parties. This raises an important question about the scope of consent in the context of prize competitions. Did the Petitioner’s participation authorize the promoter to share her phone number with other businesses? The evidence before this Court does not establish that the promoter did share her number. The unsolicited messages may have come from entirely different sources, such as data breaches from other platforms, or the Petitioner may have shared her number elsewhere. Without evidence specifically linking the 1st or 2nd Respondents to the transmission of those messages, this Court cannot make a finding that the Respondents violated the Data Protection Act. 7. Right to privacy is not absolute and must be balanced against other legitimate interests, including the commercial interests of businesses in communicating with consumers who have voluntarily engaged with them. The touchstone is whether the consumer had a reasonable expectation that their data would not be used for purposes unrelated to the transaction. In this case, the Petitioner could reasonably expect that her phone number would be used to administer the competition, but she had no reasonable expectation that she would receive no further communications at all from any source after participating. The messages she complains of include a message from “Safaricom” about data expiry, which is clearly not attributable to the 1st or 2nd Respondents. The other messages appear to be from various sources, and the Petitioner has not traced any of them back to the promoters of the Piga Kazi competition. 8. I find that the Petitioner has failed to prove on a balance of probabilities that the 1st and 2nd Respondents collected, processed, or shared her personal data in violation of the Data Protection Act or Article 31 of the Constitution. The evidence is insufficient to establish a causal link between the Respondents’ actions and the unsolicited messages she received. Moreover, the Petitioner did not lodge any complaint with the Data Protection Commissioner before filing this suit, as provided under Section 56 of the Data Protection Act, which establishes an accessible mechanism for investigating complaints about data processing. The failure to exhaust that statutory avenue further weakens her claim of data protection violation. ***Whether the 3rd, 4th, 5th, and 6th Respondents breached their statutory duties to the Petitioner by failing to regulate the betting advertisements****.* 1. The Petitioner contends that the 3rd Respondent (Communications Authority of Kenya), the 4th Respondent (Betting Control and Licensing Board), and the 5th Respondent (Media Council of Kenya) failed in their statutory duties to regulate betting advertisements and to protect consumers. She argues that despite being notified of illegal betting activities by letters dated 23rd September 2020, 12th November 2020, and 22nd December 2020, these regulatory bodies took no action, thereby enabling the 1st and 2nd Respondents to continue airing the impugned advertisements. The Petitioner seeks orders of mandamus to compel these bodies to discharge their statutory mandates. 2. The principles governing the issuance of mandamus are well established. In ***Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR),*** the Court of Appeal cited Halsbury’s Laws of England, 4th Edition, for the proposition that an order of mandamus is of a most extensive remedial nature and is a command directed to any person, corporation or inferior tribunal requiring them to do some particular thing which appertains to their office and is in the nature of a public duty. The court had the following to say; *"The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.* 1. The purpose of mandamus is to remedy defects of justice and will issue in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, or where although there is an alternative legal remedy, that mode of redress is less convenient, beneficial and effectual. 2. The 3rd Respondent’s mandate is set out in the Kenya Information and Communications Act, 1998. Section 46K of KICA requires the Cabinet Secretary in charge of telecommunications and the Authority to make regulations with respect to broadcasting services, mandating the carrying of content in keeping with public interest obligations. The Kenya Information and Communications (Broadcasting) Regulations, 2009 were enacted pursuant to this mandate. Regulation 42 of the Broadcasting Regulations provides a specific mechanism for handling complaints: a party aggrieved by a broadcast must first lodge the complaint with the broadcasting service provider for remedial action; if dissatisfied, the party may appeal to the Authority; and the Authority cannot deal with complaints lodged more than ninety days from the date when the material complained of was broadcast. 3. The letters from the BCLB to the CAK dated 12th November 2020 and 22nd December 2020 were complaints about the activities of broadcasters, not complaints filed by the Petitioner. The CAK received these letters in a regulatory capacity, but the letters did not constitute an appeal from a decision of the broadcasters as required by Regulation 42(1). Moreover, the Petitioner herself did not lodge any complaint with the 1st and 2nd Respondents before approaching the CAK. The BCLB’s letters were filed in November and December 2020, but the Petitioner’s participation in the competitions occurred in May 2020, as shown by the screenshots attached as Exhibit ABC-5 which bear dates in May 2020. By the time the BCLB wrote to the CAK in November 2020, the ninety-day period for the CAK to act under Regulation 42(2) had already expired. The High Court in ***Gichuhi & 2 others v Data Protection Commissioner; Mathenge & another (Interested Parties) [2023] KEHC 17321 (KLR)*** held that courts and quasi-judicial bodies cannot flout the timelines expressly provided for in law, and when the statutory period ends, jurisdiction comes to an end by effluxion of time. 4. The 3rd Respondent acted appropriately on 9th September 2021 by issuing a directive to all broadcasting stations prohibiting the airing of gaming activities and advertisements during the watershed period, based on the BCLB’s addendum of 6th September 2021. When the BCLB withdrew that addendum on 13th September 2021 to allow the KFCB to classify gaming content, the CAK was left in a position where there was no clear regulatory prohibition on watershed airing of such content. The CAK cannot be faulted for failing to take action when the primary regulator, the BCLB, withdrew its own directive. The regulation of betting content is a shared responsibility, and the CAK’s role is secondary to the BCLB’s primary mandate to license and regulate gaming operators under the Betting, Lotteries and Gaming Act. 5. The 4th Respondent, BCLB, has the primary mandate under the Betting, Lotteries and Gaming Act, Cap 131, to issue licenses and permits, to regulate and supervise betting and gaming activities, and to inquire into complaints against licensees or permit holders. The letters exchanged between the BCLB and the CAK in 2020 show that the BCLB was actively monitoring the activities of broadcasters and raising concerns about unauthorized betting competitions. The BCLB wrote to the Media Owners Association, to the CAK, and even to the National Assembly. The Petitioner’s complaint is that the BCLB did not take sufficient action to stop the 1st and 2nd Respondents from airing the advertisements. However, the record shows that the BCLB was engaged in a consultative process with other regulatory bodies, including the CAK and the KFCB, to determine the appropriate regulatory response. The withdrawal of the watershed addendum on 13th September 2021 indicates that the BCLB was proceeding cautiously, allowing the KFCB to first determine whether gaming content should be classified as adult content. There is no evidence that the BCLB acted arbitrarily, capriciously, or in bad faith. The decision-making process was ongoing, and the regulatory framework was in a state of evolution. 6. The 5th Respondent, Media Council of Kenya, is established under the Media Council Act, 2013. Its functions include setting standards for journalists and media enterprises, handling complaints against the media, and promoting ethical and professional standards. The Petitioner alleges that the 5th Respondent ignored its duty to enhance ethical and professional standards amongst journalists and media enterprises. However, the Petitioner did not lodge any complaint with the Media Council against the 1st or 2nd Respondents. The Council cannot be expected to initiate enforcement action sua sponte without any complaint from an affected member of the public. In the absence of any evidence that a complaint was lodged and the Media Council failed to act, this Court cannot find that the 5th Respondent breached any duty owed to the Petitioner personally. 7. The 6th Respondent, Safaricom PLC, is a private telecommunications company, not a public body. The orders of mandamus sought against it are inappropriate because mandamus lies only against public bodies or persons performing public duties. The 6th Respondent’s role in issuing Paybill numbers is a commercial function, not a public duty. Furthermore, the Petitioner did not specify which Paybill numbers should be suspended or provide evidence that the Paybill numbers she used were issued to unlicensed operators. The 2nd Respondent produced a letter from the BCLB dated 16th February 2022 listing licensed operators and their Paybill numbers, which included the Paybill numbers for the promotions advertised by Mediamax. The Petitioner has not shown that the 6th Respondent issued Paybill numbers to any unlicensed operator or that it failed to act on any lawful request to suspend a Paybill number. The prayer against Safaricom PLC is vague, unsupported by evidence, and fails to establish any violation of the Petitioner’s rights. ***Whether the Petitioner is entitled to the remedies sought, including the orders of mandamus, declaration, and restitution*** 1. The Petitioner has failed to discharge the burden of proof on key elements of her case. The general principle governing the burden of proof in civil cases, as stated in***Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A)*** is that the party who makes the positive allegation must prove it. In constitutional litigation, the standard of proof is on a balance of probabilities, but decisions on violation of constitutional rights cannot be made in a factual vacuum. 2. The Petitioner claimed that the 1st and 2nd Respondents aired advertisements for unlicensed betting competitions. However, the evidence shows that the promotions were licensed. The 2nd Respondent obtained a letter from the BCLB dated 16th February 2022 confirming the licensing status of the operators it advertised. The BCLB itself listed the Piga Kazi promotion as licensed in its letter to the National Assembly dated 1st September 2021. The Petitioner’s own annexures undermine her argument that the promotions were unlicensed. 3. The Petitioner claimed that her personal data was transferred to third parties without her consent, leading to unsolicited promotional messages. The screenshots she attached do not establish a causal link between the 1st and 2nd Respondents and those messages. The Court of Appeal in ***County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others (supra)*** held that electronic evidence must be authenticated under Section 106B of the Evidence Act to ensure its integrity. The Petitioner did not comply with this requirement. Even if the screenshots were admitted, they show messages from a variety of sources, including Safaricom itself, and there is no evidence that the promoters of the Piga Kazi competition shared her number with those sources. 4. The Petitioner claimed that the 3rd, 4th, and 5th Respondents failed in their regulatory duties. However, the record shows that these bodies were actively engaged in addressing the issue of betting advertisements. The BCLB issued multiple letters, the CAK issued a directive, and the KFCB was consulted. The fact that the regulatory process did not produce the outcome the Petitioner desired does not mean that the bodies failed in their duties. The doctrine of separation of powers, as articulated in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra)****,* requires courts to show deference to the independence of other arms of government. This Court cannot substitute its judgment for the regulatory decisions of the BCLB and the CAK, absent evidence of illegality, irrationality, or procedural impropriety. No such evidence was presented. 5. The Petitioner also raised the issue of tax evasion, arguing that because the promotions were unlicensed, the 1st and 2nd Respondents evaded taxes. This allegation is not supported by any evidence. The Kenya Revenue Authority is mandated to collect taxes, and there is no evidence that the KRA has demanded any taxes from the 1st or 2nd Respondents in respect of betting advertisements. The Petitioner’s speculation about tax evasion is not a proper basis for a constitutional Petition. 6. Regarding the Petitioner’s participation in the competitions, she admitted that she participated voluntarily and on numerous occasions. The fact that she never won does not make the competitions illegal or the advertisements misleading. The test is that of an average consumer who is reasonably well-informed and reasonably observant and circumspect. An average consumer would understand that participating in a prize competition involves risk and that the vast majority of participants will not win. The radio stations advertised the competitions, the Petitioner chose to participate, and she did so repeatedly. Her disappointment at not winning cannot be transformed into a constitutional violation. 7. It is also significant that the Petitioner did not file any complaint with the Data Protection Commissioner, did not file any complaint with the Media Council, did not file any complaint with the Communications Authority under Regulation 42, and did not file any complaint with the Betting Control and Licensing Board under Rule 15C of the Betting, Lotteries and Gaming Regulations. The existence of these statutory mechanisms, which the Petitioner bypassed entirely, suggests that she was seeking a constitutional remedy for what is essentially a dispute about the fairness of prize competitions. The Court in ***Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR*** emphasized that constitutional litigation is not open for every claim which may properly be dealt with under alternative existing mechanisms for redress in civil or criminal law. While I have declined to strike out the Petition for non-exhaustion, the Petitioner’s failure to utilize the available statutory mechanisms undermines her credibility and weakens her claim that the regulatory bodies failed in their duties. **CONCLUSION** 1. The Petitioner has not proved on a balance of probabilities that the 1st and 2nd Respondents violated her constitutional rights to consumer protection, privacy, dignity, or access to information. The evidence shows that the promotions were licensed, that the Respondents acted as broadcasters rather than promoters, that the Petitioner participated voluntarily, and that the unsolicited messages she received cannot be traced to the Respondents. The 3rd, 4th, and 5th Respondents were engaged in ongoing regulatory processes, and there is no evidence that they acted arbitrarily or failed in their duties. The 6th Respondent is improperly joined as there are no specific allegations of constitutional violations against it. 2. The Petition lacks merit and is dismissed in its entirety. The orders of mandamus sought against the 3rd, 4th, and 5th Respondents are denied because the Petitioner has not demonstrated that any of these bodies failed to perform a specific public duty owed to her personally. The declarations that the 1st and 2nd Respondents violated the Petitioner’s rights are refused because the violations have not been established. The orders of restitution and suspension of Paybill numbers are refused because the Petitioner has not identified any specific Paybill numbers that were illegally used or provided any evidence of the amounts she claims to have lost. 3. While ordinarily costs follow the outcome, in the present case I am satisfied that it would be unjust to condemn the Petitioner to pay costs to the Respondents. A strict application of the ordinary rule of costs following the event, if applied to constitutional litigation, would likely have a chilling effect on would-be petitioners. 4. I am further satisfied that while the present Petition was not within the confines of public interest litigation, it was not one which was frivolous, vexatious, or an outright abuse of court process. When one also considers the nature and financial capabilities of the Respondents as compared with that of the Petitioner, it is just that while the Petition cannot succeed it should fail with each party bearing its own costs. 5. For the reasons set out above, I make the following final orders: 6. The Petition dated 6th May 2022 is hereby dismissed. 7. Each party shall bear its own costs. Orders accordingly. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the Petitioner – Ms. Mayiega h/b Mr. Maina Ngaruiya Counsel for the 1st Respondent – Mr. Chege h/b Mr. Issa Mansur Counsel for the 2nd Respondent- Ms. Kariuki Counsel for the 6th Respondent- Mr. James Tugee Court Assistant – Mr. Martin