https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11184

Mungui v Independent Electoral and Boundaries Commission (IEBC) & 3 others (Petition E697 of 2025) [2026] KEHC 11184 (KLR) (Constitutional and Human Rights) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11184 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E697 of 2025 PM Nyaundi, J July 23, 2026 Between Bernard Mwanzia Mungui Petitioner and The Independent Electoral and Boundaries Commission (IEBC) 1st Respondent The Attorney General 2nd Respondent The Speaker of the National Assembly 3rd Respondent The Speaker of the Senate 4th Respondent Ruling 1.The petitioner moved this court through petition dated 27th October 2025 and supported by his affidavit of even date. The petition seeks the postponement of the 2027 General Elections and a reconsideration of the constitutional framework governing governance, elections and devolution in Kenya. It is contended that the Constitution of Kenya, 2010 while progressive has several shortcomings that threaten national unity, economic stability and orderly governance. Therefore, the 2027 Elections, if conducted without addressing these defects, will plunge the nation into deeper economic and political instability. 2.The petitioner contends that some of the grievances include, lack of coherent sequencing of constitutional and electoral processes leading to economic strain; term limits which encourage corruption and fragmentation of national unity through provisions of allowing county assemblies conduct proceedings in vernacular, thereby undermining cohesion. There are also issues of cultural erosion, economic strain from overrepresentation and the right to picket and demonstrate. 3.The petitioner has sought the following relief:a.A declaration that the 2027 General Elections should not be held until the constitutional issues raised herein are addressed through an inclusive national constitutional review process.b.A declaration that the current constitutional framework on elections, devolution and representation is defective and requires urgent amendment.c.An order directing the Respondents to initiate and facilitate a constitutional review process aimed at: Reconsidering term limits; Rationalizing representation and devolution; Establishing a constitutional Office of the Leader of Opposition with executive oversight powers; Centralizing tax collection under the Ministry of Local Government or other suitable body; Recognizing and entrenching Kenyan cultural values. d.An order suspending preparations for the 2027 General Elections pending the conclusion of the said review.e.Any other order that this Honourable Court may deem just and expedient in the circumstances.f.Costs of the Petition. 4.In response the 1st respondent filed a Preliminary objection dated 26th January 2026 and Replying affidavit sworn by CS Chrispine Owiye, OGW on 25th February 2026. 5.The replying affidavit in a nutshell claims that there are no constitutional issues raised to be determined by this court and particularly against it and its constitutional function in preparing for and conducting the 2027 general elections; the petition does not meet the threshold for constitutional petition; articles 255, 256 and 257 of the Constitution provide for the framework of amending the Constitution; the petition is flawed, frivolous and an abuse of the court process and there is no occasion or basis for grant of the orders sought. Preliminary objection 6.The preliminary objection contends that this court lacks jurisdiction on two grounds. First, that the petition has been instituted in total disregard of the provisions of articles 255, 256 and 257 of the Constitution which provide for the mandatory framework of amending the Constitution and second, that the petition is premature and offends the Doctrine of Exhaustion for skipping the mandatory stages set out in article 257 of the Constitution of Kenya. Petitioner’s case 7.The petitioner has not filed formal response to the preliminary objection. 2nd, 3rd and 4th respondents’ response 8.The 2nd, 3rd and 4th respondents did not file formal responses to the preliminary objection 1st respondent’s submissions 9.The 1st respondent submits that the Constitution of Kenya, 2010 provides for a deliberate, participatory and sequential process for amendment of the Constitution wherein the same can only be enacted through referendum, parliamentary initiative or a popular initiate as enshrined under article 255 of the Constitution. 10.It is argued that the petitioner seeks to amend the Constitution on matters such as the structure of devolved government, bill of rights and a reconsideration of the term limits for leaders, which matters ought to be approved through a referendum.as enshrined under article 255 (1) and (2) of the Constitution. 11.The 1st respondent contends that the petitioner’s other proposed matters include revenue collection and accountability and the alleged lack of coherent sequencing of elections which he equally ought to have proposed through a parliamentary initiative or a popular initiative as stipulated under Article 255 (3) of the Constitution. It is urged that articles 256 and 257 of the Constitution provide for procedures governing parliamentary initiative and popular initiative which processes are mandatory. In the absence of demonstration of the same, the petition is premature and an abuse of the court process. Reliance is placed on the decisions in Attorney General, Independent Electoral and Boundaries Commission and Morara Omoke V David Ndii & 79 Others; 8 Amici Curiae Petition No. 12 of 2021 consolidated with 11&13 of 2021 and Patrick Musimba vs. National Commission & 4 Others [2016] eKLR. 12.The 1st respondent cites article 159(2) (c) of the Constitution and the decisions in Rawich & 39 others v Public Service Commission & 6 Others KEELRC 1082 [2026]; Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others (2015) eKLR; National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Parties) [2022] KESC 6 (KLR) and Willian Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslim for Human Rights & 2 Others (Interested Parties) (2020) eKLR for the contention that the petition offends the doctrine of exhaustion for the aforesaid reasons. 13.On jurisdiction, it is asserted that this court lacks jurisdiction on three grounds. First, the process for amendment of the Constitution is not a judicial process but a legislative and civil process. As a civil process, it is the duty of the citizens, including the petitioner, to draft the intended proposals and proceed as provided under Article 257, or demonstrate otherwise that the constitutional review process was initiated as per the Constitution. To that extent, the court’s jurisdiction can only be invoked where there is challenge on the legality of the process, public participation or the validity of the proposed constitutional amendment, none of which has been raised in the petition. 14.Second, the 1st respondent is an independent commission established under Article 249 of the Constitution with the mandate to conduct elections as provided under Article 88 of the Constitution and this court can only interfere with this mandate where it has violated the Constitution in carrying out that mandate. This has not been demonstrated. Reliance is placed on the decision in Samson Owimba Ojiayo v Independent Electoral and Boundaries Commission (IEBC) & another [2013] eKLR. 15.Third while relying on the decision in David Ndii & others v Attorney General & others [2021] KEHC 12605 (KLR), it is urged that the court’s jurisdiction under Article 165 of the Constitution is limited to interpreting the Constitution, pointing out gaps and omissions and procedural inconsistencies. It is further submitted that this court cannot therefore direct the 1st respondent in the manner of carrying out its constitutional mandate because doing so violates the doctrine of separation of powers. Reliance is placed on the cases of Mungai v Attorney General (Petition E416 of 2023) [2025] KEHC 8544 (KLR) (Constitutional and Human Rights) (19 June 2025); Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Macharia & Another v Kenya Commercial Bank Ltd & 2 others [2012] (KLR). 16.The 1st respondent cites the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, for the contention that the Notice of Preliminary Objection meets the threshold and should be allowed. 17.Having considered the pleadings and submissions on record, I discern the following as the issues for determination-a.Whether the preliminary objection meets the basic test signalled in the Mukisa Biscuit case.b.Whether this court lacks jurisdiction to entertain this suit owing to the doctrines of exhaustion and constitutional avoidance.c.Whether the petition offends the doctrine of separation of powers. SUBDIVISION - Whether the preliminary objection meets the basic test signalled in the Mukisa Biscuit case 18.The Supreme Court in the decision in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) addressed its mind on a preliminary objection thus;31.To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 19.In Oraro v Mbaja [2005] KEHC 3182(KLR) the court held;I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed... 20.In light of the cited precedents, I have no hesitation in finding that the preliminary objection as framed meets the legal threshold and therefore can be considered on its meritsWhether this court lacks jurisdiction to entertain this suit owing to the doctrines of exhaustion and constitutional avoidanceThe Petitioner submits that the Court’s jurisdiction is ousted by the twin doctrines of exhaustion and constitutional avoidance. It is well established by judicial precedent that jurisdiction is foundational and once a court determines that it has no jurisdiction the only action left is to down its tools 21.The apex court in Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, reiterated its holding on a court’s jurisdiction In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(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 itself jurisdiction exceeding that which is conferred upon it by law. 22.The Supreme Court in Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR, defined the doctrine of exhaustion thus:“ 63.Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complainant the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed: “It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.” 23.In the seminal decision of Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:52.The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. 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 the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated 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.43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated 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. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution. 24.The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -59.However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement 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. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court. 25.On appeal, the Court of Appeal in upholding this decision in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted. 26.There is a clear procedure for amending the Constitution, the Petitioner has not demonstrated that these procedures have been utilised, neither has the Petitioner brought himself within the exceptions of the doctrine of exhaustion. 27.The twin doctrine of constitutional avoidance was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. The court held as follows: -“(256)The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” ….(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.” 28.The court in the case of Council of County Governors v Attorney General & 12 others [2018] eKLR expressed itself as follows:“ 59.The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (supra) (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. 60.In the South African case of S v Mhlungu, [1995] (3) SA 867 (CC), Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. And in Ashwander v Tennessee Valley Authority, 297 U.S. 288, 347 (1936)), the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of.” 29.Having considered the record and the governing constitutional framework, I am satisfied that the jurisdiction of this Court has not been properly invoked. The Constitution prescribes a clear, exclusive, and self‑executing pathway for its amendment, and that pathway must be respected. The Petitioner has approached the Court prematurely, in a manner that runs afoul of the doctrine of exhaustion, which requires litigants to first pursue and conclude the processes specifically designated by the Constitution or statute before seeking judicial intervention. This is reinforced by the principle of constitutional avoidance, under which a court must decline to pronounce on constitutional questions where a matter can be resolved through alternative, constitutionally‑mandated mechanisms. In these circumstances, the Court is devoid of jurisdiction and, consistent with the precedent setting decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, must down its tools. The Petition is accordingly dismissed for want of jurisdiction. 30.This being a public interest litigation each party will meet their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 23RD JULY 2026.P.M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMs. Kiage for 1st Respondent