https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11236

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 268 OF 2025** **IN THE MATTER OF ARTICLES 1, 2, 3, 19, 20, 21, 22, 23, 35, 46, 258 AND 259 OF THE CONSTITUTION OF KENYA** AND **IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS & FUNDAMENTAL FREEDOMS IN ARTICLE 46 OF THE CONSTITUTION** AND **IN THE MATTER OF ARTICLE 23 (1), 159(2) AND 258 OF THE CONSTITUTION OF KENYA** AND **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURES RULES, 2013)** AND **IN THE MATTER OF THE CONSUMER PROTECTION ACT NO. 46 OF 2012** AND **IN THE MATTER OF THE COMPETITION ACT OF KENYA** BETWEEN **MOREPLEX TELEVISION KENYA LIMITED………………PETITIONER** VERSUS **MULTI CHOICE KENYA LIMITED………………….…..1STRESPONDENT** **COMMUNICATIONS AUTHORITY OF KENYA……...2NDRESPONDENT** **COMPETITION AUTHORITY OF KENYA………….....3RDRESPONDENT** **RULING** **INTRODUCTION** 1. By Petition dated 5th May 2025 the Petitioner herein contends that the combined actions of the respondents have occasioned a violation of rights and therefore seeks the following reliefs- 1. A declaration be and is hereby issued that the actions by the respondents to award exclusive sports broadcasting content to the 1st respondent only is a violation of articles 10, 27 and 46 of the Constitution. 2. An Order be and is hereby issued against the Respondent to discontinue any conduct which amounts to abuse of a dominant position, or which substantially prevents, restricts and/or distorts competition in the broadcast industry. 3. A declaration that the continued failure/refusal of the 1st Respondent to offer sport and news programs to the Petitioner MDL is anticompetitive, discriminatory and a flagrant breach of Consumer Protection laws. 4. A declaration that the continued failure of the 1stand 2nd respondent as a regulator to issue directives and/or impose sanction on Multichoice in regard is a breach of duty. 5. An Order of mandatory injunction be and is hereby issued restricting the respondent from refusing to issue the petitioner with sports content broadcasting rights. 6. An Order of mandamus be and is hereby issued directing the 1st respondent to issue the petitioner with sports broadcasting rights. 7. An Order of mandamus be and is hereby issued directing the respondents to allow for/resell sports content through a compulsory license to the petitioner. 8. Costs of this Petition. 9. Such other, further, additional, incidental and/or alternative reliefs or remedies as the Honorable Court may deem just and expedient. 2. The 1st and 2nd respondents have filed preliminary objection to the Petition. The 1st respondent’s preliminary objection is dated 18th August 2025 and is framed as hereunder- 1. The Petition and the Notice of Motion are premature as the issues raised therein are presently before the Competition Authority of Kenya which is mandated to investigate and determine allegations of anti-competitive conduct under the Competition Act Cap 504, Laws of Kenya. 2. The Petition and the Notice of Motion are an abuse of the court process and offends the doctrine of exhaustion of remedies, as the very same issues have been presented before the Competition Authority. It is currently considering them and is yet to return with a determination. 3. The Petition and Notice of Motion improperly seeks to by-pass the 4. jurisdiction of the Competition Authority and the Competition Tribunal as established under Sections 7 and 71 of the Competition Act. This undermines the statutory scheme designed for addressing competition-related grievances and consumer protection violations. 5. The Petition and Notice of Motion offends the doctrine of constitutional avoidance, as there are adequate and effective remedies addressing the subject issues under existing statutory laws. 3. The 2nd Respondent’s preliminary Objection is incorporated within affidavit sworn on 17th September 2025 and is framed as follows- 1. THAT therefore, I have been advised by my advocates on record, which advice I verily believe to be the position in law, that the Petitioner has not demonstrated any pursuit, diligent or otherwise, of all available and alternative means of redress before turning to this Honourable Court for redress. Consequently, this Petition offends the doctrine of exhaustion. 2. THAT given the above, I am advised by my advocates, whose advice I verily believe to be the position in law, that this Petition offends the doctrine of constitutional avoidance, which requires that where a dispute can be determined through another forum without necessarily raising a constitutional issue, this alternative forum ought to be pursued. 3. THAT anchored on the foregoing, I am duly advised by my advocates on record that the Petition dated 5th May, 2025 fails the test of justiciability. Accordingly, this Honourable Court lacks the original jurisdiction to hear and determine the commercial dispute between the Petitioner and the 1st Respondent at the first instance. 4. In **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)** authoritatively pronounced- **[30] ….I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:** **By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.** 1. Jurisdiction therefore is a threshold issue and once the jurisdiction of the Court is challenged the Court must of necessity make a determination on that issue. The Court cannot “reach for the merits before first assuring itself that it stands on firm jurisdictional ground.” It is for this reason that directions were given that parties canvass the preliminary objection at the outset. **SUMMARY OF THE 1ST RESPONDENT’S SUBMISSIONS** 1. The 1st Respondent’s submissions are dated 24th November 2025 and is premised on two grounds. That the Petition runs afoul of both the doctrine of constitutional avoidance and exhaustion. It is submitted that the Petition is in reality a commercial dispute clothed as a constitutional petition. Reference is made to the decision in **Muema Mativo vs Director of Criminal Investigation & 2 Others [2021]** in urging that it is an abuse of Court process and therefore ought to be struck out. 2. It is submitted that the remedy for the Petitioner lies with the Competition Authority, Competition Appeals Tribunal, Communications Authority and Communication and Multimedia Appeals tribunal. Reliance is based on the Supreme Court decision in **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR** in support of the 2nd respondent’s plea that the court’s jurisdiction is ousted by the doctrine of constitutional avoidance. **SUMMARY OF 2ND RESPONDENT’S SUBMISSIONS** 1. The submissions of the 2nd respondent are dated 11th December 2025 and like the 1st respondent they challenge the justiciability of the Petition on account of the twin doctrines of exhaustion and constitutional avoidance. Refernce is made to the decision in **NGO’s coordination Board v EG & 4Others; Katiba Institute (Amicus Curiae] [2023] eKLR** to fault the petitioner for by passing the existing statutory mechanisms as established under the Kenya Information and Communications Act, Sections 84S and 84 T, Section 102A and 102F as well as Section 31 and 40 of the Competition Act. 2. On ouster on account of constitutional avoidance the 2nd respondent makes reference to the decisions in **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] KESC 53 KLR; Bernard Murage v Fine Serve Africa Limited & 3 Others [2015] KEHC 7330(KLR)** and **COD & Another vs Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR).** It is submitted that the remedies sought in the Petition are available under the Kenya Information and Communications Act and the 2nd and 3rd Respondents are vested with power to issue those remedies. 3. On the final issue, it is submitted that the Petition does not pass the preicison test as articulate din **Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272** 4. On costs, it is submitted on the authority of **Rai & 3 Others v Rai & 4 Others [2014] KESC 31 (KLR)** that the Petitioner should meet the costs of the Petition. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The Petitioner’s submissions are dated 11th March 2026, it is submitted that both the preliminary objections are without merit and that the court is vested with jurisdiction to determine the Petition. 2. It is submitted that the preliminary objections have not met the legal threshold as enunciated I **Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Lts (1969) EA 696** affirmed by the Supreme Court in **Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3Others [2015] eKLR.** The Petitioner also relies on the decisions in **Oraro vs Mbaja [2005] 1KLR 141, John Musakali vs Speaker County of Bungoma & 4Others [2015] eKLR** **and Omondi vs National Bank of Kenya Limited & 4 Others [2001] KLR; [2001] 1EA 177** **579** 3. On the 2nd issue it is submitted that the Petition falls within the recognised exceptions to the doctrine of exhaustion and reference made to the decisions in **Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [2019] KESC 83 (KLR)** and Indian Supreme Court decision **Godrej Sara Lee Ltd v the Excise and Taxation officer- cum Assessing Authority & Others ( Civil appeal no 5391 of 20210) (February 1, 2023)** parties filed submissions in compliance with court directions. It is urged that the rule which requires an alternative remedy provided by statute is a rule of policy, convenience and discretion rather than a rule of law. 4. Reference is made to the decision in **R V Independent Electoral and Boundaries Commission ( I.E.B.C) & Others Ex- parte The Nationals Super Alliance ( NASA) Kenya & 6 Others [2017] eKLR** to urge that the doctrines cannot be relied upon to oust the jurisdiction of the court that is donated by Article 165 (3) of the Constitution. **ANALYSIS AND SUBMISSIONS** 1. Having considered the pleadings and the rival submissions, I discern that the constitutional issues for determination are- 1. Is the preliminary objection, as framed, competent? 2. Should the preliminary objection be upheld? 3. Arising from (a) or (b) above, what are the consequential orders? ***Is the Preliminary Objection as framed competent?*** 1. The legal threshold for a preliminary objection is well settled. The Supreme Court in **Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR)** cited the precedent- setting decision on Preliminary Objections; Mukisa **Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696,** where the Court held as follows: **a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.** 1. Further the Supreme Court in **Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR** pronounced on the efficacy of preliminary objections as follows: **…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.** 1. The preliminary objection challenges the jurisdiction of this Court. The Supreme Court in **Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)** conclusively stated- [**68.]A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.** . 1. The preliminary objection as framed is therefore competent as it raises a pure point of law viz whether the Court is vested with jurisdiction to determine the Petition. ***Should the Preliminary Objection be upheld?*** 1. The 1st and 2nd respondent’s urge that the jurisdiction of the Court is ousted by the doctrines of constitutional avoidance and exhaustion of alternative remedies. The doctrine of exhaustion was soundly articulated by the Court of appeal **in Speaker of National Assembly v Karume [1992] KLR 21** in the following words: **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. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.** 1. The doctrine of constitutional avoidance was clearly articulated by the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)** when it cited with approval the decision of the Constitutional Court of South Africa **in S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867 ; 1995 (7) BCLR 793 (CC) (8 June 1995)** thus- **Where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.** 1. Therefore, whereas the Petitioner argues that the Court should not yield its mandate as donated under Article 165 (3) (d), the doctrines of exhaustion and constitutional avoidance demand that the High Court must honour the architecture of the law and yield jurisdiction to statutory mechanisms established to deal with the issues. 2. It is upon the Petitioner to demonstrate that the petition and the circumstances of the case are within the recognised exceptions as set out in **William Odhiambo Ramogi & 3 others v AG & 4 others; Muslim Human Rights & 2 others [2020] eKLR**, which emphasised that the Court intervenes only where the statutory remedy is unavailable, ineffective, or incapable of addressing the full spectrum of alleged violations. As the Supreme Court observed in **Nicholus v Attorney General & 7 others [2023] KESC 113 (KLR**), exhaustion is not a rigid barrier; it is a principle of judicial restraint that yields where the alternative mechanism is inadequate. 3. In **Kahora v Ng’ang’a [2025] KEHC 11888 (KLR)** the Court reiterated the well-established principle that parties are bound by their pleadings and referred to the decision by the Supreme Court of Kenya in **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR** which stated as follows: - **[5] In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…..** 1. On reviewing the orders sought by the Petitioner and juxtaposing them against the provisions of Section 84S, 84T and 102 E of the Kenya Information and Communications Act, it is evident that the orders sought are within the statutory mandate of the 3rd Respondent and the Communications and Multimedia Appeals Tribunal. The petitioner has not brought himself within any of the recognised exceptions to the doctrines of exhaustion and constitutional avoidance. 2. Having found that the Petition is not justiciable and that jurisdiction is absent, I am obligated to down my tools and refrain from addressing any further issues. I therefore do not delve into the remaining questions identified for determination. 3. Consequently, these are the final orders- 1. The Petition is struck out for not being justiciable having run afoul of the doctrines of exhaustion and constitutional avoidance 2. The Petitioner shall bear the costs of the Petition. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 23RD JULY 2026.** **P.M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Mulongo Harun holding brief Dr. Okubasu for Petitioner Ms. Muteti holding brief for Omondi for 1st Respondent Wanjiru Ngubi for Mr. Wahikwe for 2nd Respondent