https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7048

Murimi & 2 others v Kamuri & another; Ethics & Anti–Corruption Commission & 2 others (Interested Parties) (Constitutional Petition E562 of 2024) [2026] KEHC 7048 (KLR) (Constitutional and Human Rights) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7048 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E562 of 2024 B Mwamuye, J May 13, 2026 IN THE MATTER OF: AUDITOR GENERAL REPORT AND IN THE MATTER OF: ABUSE OF OFFICE AND IN THE MATTER OF: CONFLICT OF INTEREST AND IN THE MATTER OF: PROCUREMENT IRREGULARITIES AND IN THE MATTER OF: IRREGULAR AWARD OF TENDERS AND IN THE MATTER OF: ETHICS AND ANTI – CORRUPTION COMMISSION ACT AND IN THE MATTER OF: ANTI – CORRUPTION AND ECONOMIC CRIMES ACT AND IN THE MATTER OF: PUBLIC FINANCE MANAGEMENT ACT AND IN THE MATTER OF: THE ENFORCEMENT OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: ARTICLE 10 OF THE CONSTITUTION OF KENYA 2010 ON NATIONAL VALUES & PRINCIPLES OF GOVERNANCE AND IN THE MATTER OF: ARTICLE 232 OF THE CONSTITUTION OF KENYA 2010 ON THE PRINCIPLES OF PUBLIC SERVICE AND IN THE MATTER OF: CHAPTER 6 OF THE CONSTITUTION OF KENYA 2010 ON LEADERSHIP AND INTEGRITY AND IN THE MATTER OF: THE DOCTRINE OF LEGITIMATE EXPECTATIONS AND IN THE MATTER OF: THE PUBLIC FINANCE MANAGEMENT ACT, THE PUBLIC PROCUREMENT AND DISPOSAL ACT, THE ETHICS AND ANTI – CORRPUTION COMMISSION ACT AND THE ANTI CORRPUTION AND ECONOMIC CRIMES ACT Between Antony Murimi 1st Petitioner Mike Makarina 2nd Petitioner Public Interest Group 3rd Petitioner and Dr Evanson Kamuri 1st Respondent The Hon Attorney General 2nd Respondent and Ethics & Anti–Corruption Commission Interested Party Board of Directors, Kenyatta National Hospital Interested Party Auditor General Interested Party Judgment Introduction 1.This Petition arises from allegations of corruption, economic crimes, abuse of office, and violation of Chapter Six of the Constitution levelled against the 1st Respondent, the Chief Executive Officer of Kenyatta National Hospital. 2.The Petitioners commenced these proceedings through a Petition and Notice of Motion both dated 16th October 2024, seeking, inter alia, declaratory orders that the 1st Respondent had engaged in corruption and economic crimes contrary to Articles 10, 22, 232, 258 and Chapter Six of the Constitution of Kenya, 2010, conservatory orders restraining the 1st Respondent from undertaking fiduciary duties pending determination of the Petition, and orders compelling the Ethics and Anti-Corruption Commission to institute criminal and civil proceedings against the 1st Respondent. 3.The Petition and Application were supported by a Supporting Affidavit sworn on 16th October 2024, wherein the Petitioners relied on allegations that investigations were ongoing concerning the alleged loss and misappropriation of public funds amounting to approximately Kshs. 634,465,000 at Kenyatta National Hospital, and that preservation and freezing orders had been obtained against certain assets and bank accounts associated with the 1st Respondent. 4.In response to the Petition and Application, the 2nd Respondent, the Honourable Attorney-General, filed Grounds of Opposition dated 11th March 2025 and written submissions dated 25th April 2025 opposing the suit on grounds, inter alia, that the Petition was premature, offended the doctrines of constitutional avoidance and ripeness, violated the 1st Respondent’s right to fair hearing and presumption of innocence under Article 50(2)(a) of the Constitution, and was further res judicata and an abuse of the court process. 5.The 1st Interested Party, Ethics and Anti-Corruption Commission, filed a Replying Affidavit sworn by Shadrack Mwenda on 12th March 2025 together with written submissions opposing the Petition. The Commission maintained that it was independently carrying out investigations into allegations of corruption, abuse of office, unexplained wealth, conflict of interest and economic crimes involving the 1st Respondent pursuant to its constitutional and statutory mandate under Article 79 of the Constitution, the Ethics and Anti-Corruption Commission Act, and the Anti-Corruption and Economic Crimes Act. 6.The 1st Interested Party further contended that the Petition was res judicata in view of previous proceedings, namely Constitutional Petition No. E314 of 2023: Francis Awino v Evanson Kamuri, EACC & Kenyatta National Hospital and ELRC Petition No. E081 of 2024: George Tindi v Board of Directors, Kenyatta National Hospital & Dr. Evanson Kamuri Njoroge, and argued that the instant proceedings amounted to forum shopping and an abuse of the court process. 7.The 2nd Interested Party, the Board of Directors of Kenyatta National Hospital, also filed written submissions dated 12th March 2025 opposing the Petition. The 2nd Interested Party argued that the issues raised had already been litigated upon in previous proceedings and that the Petition failed to meet the constitutional threshold for constitutional litigation as established in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. 8.The matter therefore falls for determination on, among other issues, whether the Petition is res judicata, whether the Petitioners established constitutional violations against the 1st Respondent, whether the Petition is premature in light of ongoing investigations, and whether the Petitioners are entitled to the reliefs sought. The Petitioners Case 9.The Petitioners, who describe themselves as public spirited Kenyan citizens acting in defence of the Constitution, the rule of law, and public interest, instituted the present Petition together with a Notice of Motion against the Chief Executive Officer of Kenyatta National Hospital as the 1st Respondent and the Honourable Attorney General as the 2nd Respondent, with the Ethics and Anti-Corruption Commission, the Board of Directors of Kenyatta National Hospital, and the Auditor-General joined as Interested Parties. The Petition is supported by the affidavit of Antony Murimi sworn in support of both the Petition and the interlocutory application. 10.The Petitioners contend that the 1st Respondent is under active investigation by the 1st Interested Party over allegations of corruption and economic crimes involving approximately Kshs. 634,465,000 allegedly arising from irregular procurement, abuse of office, and conflict of interest at Kenyatta National Hospital. According to the Petitioners, the Ethics and Anti-Corruption Commission obtained court orders freezing substantial sums of money held in various bank accounts associated with the 1st Respondent, including Kshs. 28 million held in Housing Finance accounts and Kshs. 48.5 million held in several bank accounts at HFC Bank, National Bank, and Standard Chartered Bank. The Petitioners further aver that six parcels of land linked to the 1st Respondent were also frozen pending investigations into the alleged corruption scandal. 11.The Petitioners rely on findings contained in the audit report of the 3rd Interested Party for the financial year 2022/2023, which allegedly exposed weaknesses in the management of the hospital’s payment systems. It is averred that the audit revealed discrepancies between payment records and amounts disbursed through banks, irregular processing of vouchers in different systems with varying amounts, and possible fraudulent activities leading to loss of public funds. The audit is said to have identified overpayments amounting to Kshs. 2,778,689 and raised doubts concerning the effectiveness of internal controls in the processing of payments at the hospital. 12.The Petitioners assert that the actions attributed to the 1st Respondent amount to abuse of office, conflict of interest, irregular award of tenders, and gross violation of constitutional and statutory obligations governing leadership, integrity, public procurement, and management of public finances. They contend that the impugned conduct violates Articles 10, 73, 75, 232 and Chapter Six of the Constitution of Kenya, 2010, as well as the Public Officer Ethics Act, the Leadership and Integrity Act, the Public Finance Management Act, the Anti-Corruption and Economic Crimes Act, and the Ethics and Anti-Corruption Commission Act. 13.The Petitioners further state that the impugned actions have occasioned loss of public funds, undermined public confidence in public institutions, compromised the delivery of essential medical services, and threatened the national values and principles of governance. In the supporting affidavit, the deponent avers that the conduct of the Respondents threatens the rule of law, violates constitutional principles, and affronts public interest, thereby necessitating urgent intervention by the Court to forestall further prejudice to public interest and constitutional governance. 14.The Petitioners invoke the jurisdiction of this Honourable Court under Articles 22, 23, 159, 165 and 258 of the Constitution, contending that they possess the requisite locus standi to institute the proceedings in the public interest and in defence of the Constitution. They further maintain that the Court is vested with constitutional authority to determine questions relating to alleged violations of the Constitution, abuse of public office, and enforcement of principles of leadership and integrity. 15.Concurrently with the Petition, the Petitioners filed a Notice of Motion brought under Articles 10, 22, 23 and 159 of the Constitution, Order 51 Rule 1 of the Civil Procedure Rules, and Rules 3 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Through the application, the Petitioners seek, inter alia, certification of urgency, conservatory orders restraining the 1st Respondent from undertaking fiduciary functions pending the hearing and determination of the Petition, declarations that the 1st Respondent violated constitutional and statutory provisions governing integrity and public office, orders compelling the 1st Interested Party to institute criminal and civil proceedings against the 1st Respondent, directions for expedited hearing of the matter, and costs of the application. The Applicants further seek leave for the application to be heard ex parte in the first instance and for such further orders as the Court may deem fit in the interests of justice. 16.The reliefs sought in the Petition are pleaded as follows:a)That a declaration be and is hereby issued that the 1st Respondent has committed corruption and economic crimes, hence violating Articles 10, 22, 232, 258 and chapter 6 of the constitution of Kenya 2010, the Anti - Corruption and economic crimes act and the Ethics and Anti - Corruption Commission Act.b)That a declaration be and is hereby issued against the 1st Respondent that he has engaged in corrupt practices amounting to gross violation of the constitution and have been rendered incapable of discharging his mandates as required by the Constitution of Kenya 2010 and all the applicable provisions of the law.c)That this Honourable Court be pleased to issue a Conservatory Order to restrain the 1st Respondent by himself, officers, servants, agents or anyone acting on his behalf from undertaking any further fiduciary activities pending the hearing and final determination of this case.d)That a declaration be and hereby issued that the 1st Respondent has violated, infringed, threatened the Constitution of Kenya 2010, the public officer ethics act, the Anti – Corruption and economic crimes act, the EACC Act, Mwongozo (code of governance for state corporations), The national values and principles of governance, the principles of public service and all other applicable provisions of the law therefore unfit to hold public office.e)That an order be and hereby issued compelling the 1st Interested party to institute criminal and civil proceedings against the 1st respondent.f)That the Honourable Court do make any such other or further Orders as it may deem just and expedient in the circumstances to remedy the violation aforesaid. 2Nd Respondent’s Case 17.The 2nd Respondent, the Honourable Attorney-General, opposed both the Petition and the Notice of Motion through Grounds of Opposition dated 11th March 2025 and written submissions dated 25th April 2025. 18.The Attorney-General’s case is that the Petition and the interlocutory application are misconceived, premature, and constitute an abuse of the court process. The 2nd Respondent contends, firstly, that no reasonable cause of action has been disclosed against the office of the Attorney-General and that the Attorney-General was improperly joined in the proceedings. It is submitted that the substratum of the dispute concerns allegations of integrity and leadership against the 1st Respondent, matters in which the Attorney-General neither participated nor exercised any direct statutory or constitutional mandate. Reliance was placed on Rule 5(d)(i) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which empowers the Court to strike out improperly joined parties at any stage of the proceedings. 19.Secondly, the Attorney-General submits that the Petition offends the doctrines of constitutional avoidance, institutional restraint, ripeness, and exhaustion of statutory mechanisms. The 2nd Respondent argues that the allegations against the 1st Respondent are still at preliminary stages of investigations before constitutionally and statutorily mandated bodies, namely the Ethics and Anti-Corruption Commission, the Board of Kenyatta National Hospital, and other oversight agencies established under the Leadership and Integrity Act, the Public Officer Ethics Act, the Ethics and Anti-Corruption Commission Act, and the State Corporations Act. 20.The Attorney-General submits that Article 79 of the Constitution and section 11 of the Ethics and Anti-Corruption Commission Act vest the Ethics and Anti-Corruption Commission with the constitutional and statutory mandate to investigate alleged breaches of Chapter Six of the Constitution, recommend prosecution, oversee enforcement of ethical standards, and institute proceedings relating to corruption and recovery of public assets. It is further contended that the State Corporations Act establishes elaborate mechanisms for investigation, disciplinary control, and surcharge of officers within state corporations, while the Leadership and Integrity Act and the Public Officer Ethics Act provide comprehensive statutory procedures for enforcement of ethical and integrity standards against public officers. 21.The 2nd Respondent therefore argues that there exists a complete legislative and institutional framework for addressing the allegations raised by the Petitioners, and that the Court ought not to usurp the constitutional and statutory mandates of investigative and administrative bodies by prematurely determining questions that remain under investigation. 22.The Attorney-General further contends that the Petition violates the 1st Respondent’s constitutional right to a fair hearing, including the right under Article 50(2)(a) of the Constitution to be presumed innocent until proven guilty. It is submitted that the declaratory reliefs sought are founded upon pending investigations and forfeiture proceedings whose outcomes have not crystallised, and that the Court is being invited to make definitive findings of corruption and constitutional violation before the investigative and adjudicative processes established by law have been concluded. 23.The 2nd Respondent additionally argues that the issues raised in the Petition are substantially and directly in issue in Nairobi Constitutional Petition No. E314 of 2023, which remains pending, and ELRC Petition No. 081 of 2024, in which a determination has already been rendered. On that basis, it is contended that the present proceedings are duplicative and amount to an abuse of the process of the Court. 24.The 2nd Respondent further anchored its opposition on the constitutional doctrines of institutional restraint, ripeness, and constitutional avoidance. It was contended that the Constitution and the statutory framework governing integrity and anti-corruption matters expressly confer investigative and enforcement mandates upon specialised constitutional and statutory bodies, particularly the Ethics and Anti-Corruption Commission, the Director of Public Prosecutions, and the relevant oversight organs established under the State Corporations Act and the Leadership and Integrity Act. In that regard, the Attorney-General argued that this Court ought not to prematurely intrude into processes lawfully entrusted to those bodies before the completion of investigations and the exhaustion of the mechanisms established under statute. 25.In advancing that position, reliance was placed on the decision in Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017) eKLR, wherein the Supreme Court underscored the necessity of judicial restraint where the Constitution allocates specific functions to designated organs of State, cautioning that courts must avoid encumbering constitutionally mandated processes undertaken by other institutions. 26.The Attorney-General further invoked the authority of Pevans East Africa Limited & another v Chairman, Betting Control and Licensing Board and 7 Others (2018) eKLR for the proposition that courts ought to accord constitutional and statutory bodies sufficient latitude to discharge their mandates and should only intervene where there is demonstrable illegality, irrationality, or conduct plainly inconsistent with constitutional dictates. It was argued that the Petition invited the Court to substitute its own determination for that of the investigative and regulatory agencies before those agencies had concluded their lawful processes. 27.Comparative jurisprudence was equally relied upon through the decision of the South African Constitutional Court in International Trade Administration Commission v SCAW South Africa (Pty) Limited 2012 (4) SA 618 (CC), where it was emphasised that courts must refrain from usurping powers constitutionally vested in other branches or organs of government, the judicial role being confined to ensuring that such bodies act within constitutional bounds rather than assuming their functions. 28.The 2nd Respondent also submitted that the present proceedings offended the doctrines of ripeness and constitutional avoidance. Reliance was placed on KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR), where the Court affirmed that constitutional adjudication should only be invoked where alternative statutory procedures are unavailable or inadequate, and that constitutional questions ought not to be entertained prematurely where ordinary legal mechanisms remain active and capable of resolving the dispute. 29.Similarly, the Attorney-General placed reliance on the Supreme Court decision in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others, Pet. 14A, 14B & 14C of 2014 [2014] eKLRto reinforce the principle that courts should avoid determining constitutional questions where the dispute may properly be resolved through other legal or statutory avenues. It was submitted that the Petitioners had bypassed the elaborate investigative and enforcement framework established under the Constitution and statute and had prematurely invited the Court to render findings on matters that remained under active investigation. 30.The 2nd Respondent, further placed reliance on Chilango & another v Independent Electoral and Boundaries Commission & 3 others (Constitutional Petition E005 of 2022) [2022] KEHC 10779 (KLR), wherein the Court elaborated on the doctrine of ripeness and held that judicial intervention ought not to be invoked in anticipation of speculative or uncrystallised violations. Drawing from that authority, the 2nd Respondent maintained that the allegations against the 1st Respondent remained at an investigative stage, no conclusive findings had been reached by the competent bodies, and consequently the Petition was premature, speculative, and not ripe for constitutional adjudication. 31.On the basis of the foregoing, the Attorney-General urges the Court to find that the Petition is premature, improperly before the Court, contrary to the doctrines of constitutional avoidance and ripeness, and an abuse of the court process. The 2nd Respondent consequently prays that the Petition and application be dismissed with costs. 1st Interested Party’s Case 32.The 1st Interested Party, the Ethics and Anti-Corruption Commission (EACC), opposed both the Petition and the Notice of Motion through the replying affidavit sworn by Shadrack Mwenda, an investigator attached to the Commission, on 12th March 2025, together with written submissions. 33.The Commission’s position is that it is constitutionally and statutorily vested with the mandate to investigate allegations of corruption, economic crimes, abuse of office, conflict of interest, unexplained wealth, and breaches of Chapter Six of the Constitution pursuant to Article 79 of the Constitution, the Ethics and Anti-Corruption Commission Act, the Anti-Corruption and Economic Crimes Act, and the Leadership and Integrity Act. It was contended that, by virtue of Article 249(2) of the Constitution and section 28 of the Ethics and Anti-Corruption Commission Act, the Commission exercises its mandate independently and is not subject to the direction or control of any person or authority in the discharge of its investigative and enforcement functions. 34.The Commission confirmed that it is presently undertaking investigations against the 1st Respondent, the Chief Executive Officer of Kenyatta National Hospital, in relation to allegations of corruption and economic crimes, embezzlement of public funds, abuse of office, conflict of interest, and unexplained wealth. It was averred that the investigations are ongoing and substantially advanced, and that upon conclusion thereof, the Commission may institute proceedings for unexplained wealth under sections 26 and 55(2) of the Anti-Corruption and Economic Crimes Act. 35.The 1st Interested Party further deponed that, in the exercise of its statutory mandate, it has already undertaken substantive investigative measures, including obtaining search warrants, securing warrants to investigate various bank and SACCO accounts, and instituting preservation proceedings under section 56 of the Anti-Corruption and Economic Crimes Act through High Court Miscellaneous Applications Nos. E028 and E035 of 2024. According to the Commission, these steps demonstrate that the allegations raised by the Petitioners are already under active investigation before the legally mandated constitutional and statutory bodies. 36.The Commission additionally asserted that under the State Corporations Act and Mwongozo, being the Code of Governance for State Corporations, the appointment, supervision, and disciplinary control of chief executive officers of state corporations vest primarily in the respective Boards of Directors and relevant oversight institutions established by law. Consequently, it was contended that any disciplinary or administrative action against the 1st Respondent properly falls within the jurisdiction of those statutory bodies and not within the province of premature judicial intervention. 37.The 1st Interested Party further raised the objection that the present proceedings are res judicata, sub judice, frivolous, vexatious, scandalous, and constitute an abuse of the process of the Court. It was submitted that the issues now raised by the Petitioners had either been conclusively litigated or substantially overlap with those in Constitutional Petition No. E314 of 2023, Francis Awino v Evanson Kamuri, EACC & Kenyatta Hospital, and ELRC Petition No. E081 of 2024, George Tindi v Board of Directors, Kenyatta National Hospital & another. The Commission argued that the present Petition substantially replicates the reliefs sought in those earlier proceedings, including declarations of constitutional violations, findings of corruption against the 1st Respondent, conservatory orders restraining him from office, and orders compelling investigation and prosecution. In the Commission’s view, the multiplicity of proceedings amounted to impermissible forum shopping and a misuse of judicial process. 38.In support of the foregoing proposition, reliance was placed on Kenya Commercial Bank Limited & another v Muiri Coffee Estate Limited & 3 others (Motion 42 & 43 of 2014 (Consolidated)) [2016] KESC 6 (KLR), where the Supreme Court affirmed the doctrine of res judicata as a substantive principle of law intended to bring litigation to finality, including in constitutional litigation, and to prevent parties from re-litigating matters already judicially determined. The Commission also relied on Unlimited (Africa) Ltd & 2 Others v Kenya Commercial Bank Ltd Civil Appeal No. 25 of 2002 [2009] KLR 229, wherein the Court of Appeal characterised abuse of court process as the improper invocation of judicial proceedings in a manner calculated to irritate opponents and undermine the orderly administration of justice. Further reliance was placed on Paul Makokha Okoiti v Kenya Revenue Authority [2021] eKLR, where the Court upheld the doctrines of res judicata and sub judice in dismissing proceedings found to amount to an abuse of the court process. 39.The Commission additionally placed reliance on George Tindi v Board of Directors, Kenyatta National Hospital; Kamuri (Interested Party) (Petition E081 of 2024) [2024] KEELRC 13249, where the Court held that it would be unreasonable to commence disciplinary proceedings against a public officer solely on the basis of allegations contained in an EACC press statement before the investigative process had been concluded. According to the Commission, that decision reinforces the principle that investigative processes must be permitted to run their lawful course before judicial or administrative sanctions may properly issue. 40.The 1st Interested Party further cited Francis Curukia v Peter Gatirau Munya & 2 others [2017] eKLR in support of the proposition that allegations of corruption, financial impropriety, and breaches of integrity against state or public officers ought, in the first instance, to be reported to and investigated by the EACC as the constitutionally mandated body charged with that responsibility. 41.Ultimately, the Commission maintained that the Petitioners had failed to demonstrate any illegality, irrationality, procedural impropriety, malice, or abuse of power on the part of the Commission in the exercise of its constitutional mandate. It was argued that the Commission has acted strictly within the confines of the law and has already activated the appropriate investigative and preservatory mechanisms contemplated under the Constitution and statute. On that basis, the 1st Interested Party urges the Court to dismiss both the Petition and the Notice of Motion with costs on grounds that the proceedings are premature, duplicative, frivolous, vexatious, and constitute an abuse of the process of the Court. 2Nd Interested Party’s Case 42.The 2nd Interested Party, being the Board of Directors of Kenyatta National Hospital, opposed the Petition on the grounds that the same is res judicata, premature, unsupported by evidence, and constitutes an abuse of the process of the Court. It was contended that the Petition seeks, inter alia, declarations that the 1st Respondent committed corruption and economic crimes, violated Chapter Six of the Constitution together with various integrity statutes, and ought to be restrained from discharging fiduciary functions pending the determination of the proceedings. According to the 2nd Interested Party, those issues had already been the subject of litigation in ELRC Petition No. E081 of 2024 and Constitutional Petition No. E314 of 2023. 43.The 2nd Interested Party particularly places reliance on George Tindi v Board of Directors, Kenyatta National Hospital & Dr. Evanson Kamuri Njoroge (Petition E081 of 2024) [2024] KEELRC 13249, where the Court declined to compel disciplinary action against the 1st Respondent on the basis of allegations contained in an EACC press statement prior to the conclusion of investigations. It was submitted that the said decision affirmed the principle that disciplinary or administrative sanctions ought not to be undertaken solely on the basis of unproven allegations before the investigative process has run its lawful course. 44.In advancing the plea of res judicata, the 2nd Interested Party invoked section 7 of the Civil Procedure Act and places reliance on Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] KESC 6 (KLR), where the Supreme Court affirmed that the doctrine of res judicata is a substantive principle intended to bring litigation to finality and applies with equal force to constitutional litigation. The 2nd Interested Party further relied on the classical exposition in Henderson v Henderson (1843) 67 ER 313, for the proposition that parties are required to bring forward their entire case in one proceeding and are precluded from re-litigating matters which properly belonged to the earlier litigation and which, through reasonable diligence, ought to have been advanced therein. 45.Further reliance was placed on John Florence Maritime Services Limited & another v Cabinet Secretary for Transport & Infrastructure & 3 others [2015] eKLR, wherein the Court articulated the constituent elements of res judicata, namely identity of issues, sameness of parties or title, concurrence of jurisdiction, and finality of the previous determination. The 2nd Interested Party further places reliance on Njangu v Wambugu & another [1991] eKLR, where the Court cautioned against permitting litigants to perpetually reintroduce disputes previously determined merely by repackaging them in different form, as such conduct undermines the finality of litigation and the integrity of the judicial process. 46.On the substantive merits of the Petition, the 2nd Interested Party argued that the Petitioners had failed to discharge the requisite burden of proof. Reliance was placed on Mununga Tea Factory Limited & another v Karani [2006] eKLR, where the Court reaffirmed the elementary principle that he who alleges must prove. It was submitted that the Petitioners had not tendered any cogent evidence demonstrating that the 1st Respondent had committed the alleged constitutional or statutory violations. 47.The 2nd Interested Party further contended that the Petition failed to attain the constitutional threshold of precision required in constitutional litigation. In that regard, reliance was placed on Anarita Karimi Njeru v Republic [1979] eKLR, where the Court established the principle that a litigant alleging constitutional violations must plead with reasonable precision the provisions infringed and the manner of their infringement. The same position was reinforced through reliance on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court of Appeal emphasised that pleadings are indispensable in defining the issues in controversy and ensuring substantive justice between parties. 48.The 2nd Interested Party additionally relied on Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, wherein the Supreme Court reiterated that a party invoking constitutional jurisdiction must demonstrate with clarity the rights allegedly violated and the factual basis underpinning the grievance complained of. It was submitted that the Petitioners merely cited constitutional provisions in general terms without demonstrating the specific conduct attributable to the 1st Respondent constituting the alleged violations. 49.The 2nd Interested Party maintains that the Petition is speculative, unsupported by evidence, premature, and inconsistent with the principles of justice, due process, and the rule of law. Consequently, it urged the Court to dismiss the Petition with costs on grounds that it is misconceived and amounts to an abuse of the process of the Court. Analysis And Determination 50.Having carefully considered the pleadings, submissions filed by the Parties, together with the authorities cited by counsel, the Court is of the considered view that the following issues commend themselves for determination:i.Whether the Petition is res judicata and/or an abuse of the court process.ii.Whether the Petition meets the constitutional threshold for pleading and proof and whether the Petition is premature.iii.Whether the Petitioners are entitled to the reliefs sought. Whether the Petition is res judicata and/or an abuse of the court process. 51.The doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, constitutes one of the foundational pillars of adjudicative finality within our legal system. Its animating purpose is to preserve the conclusiveness of judicial determinations, shield parties from repetitive and vexatious litigation, and safeguard the orderly administration of justice from the burden of needless multiplicity of suits. The doctrine is firmly grounded in public policy, informed by the principle that litigation must, at some point, come to an end. 52.The Supreme Court in Kenya Commercial Bank Limited & another v Muiri Coffee Estate Limited & 3 others (Motion 42 & 43 of 2014 (Consolidated)) [2016] KESC 6 (KLR) affirmed that res judicata is a doctrine of substantive law whose essence lies in the final and binding determination of legal rights by a court of competent jurisdiction. Equally instructive is the decision in John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure & 3 others (2015) eKLR, where the Court distilled the constituent elements necessary for the invocation of the doctrine, namely identity of subject matter, sameness of parties or parties litigating under the same title, concurrence of jurisdiction, and finality of the prior determination. 53.It is not disputed that substantially similar grievances touching on allegations of corruption, integrity concerns, abuse of office, and the propriety of administrative or disciplinary action against the 1st Respondent have previously arisen in Constitutional Petition No. E314 of 2023 and ELRC Petition No. E081 of 2024. In particular, reliance has been placed on George Tindi v Board of Directors Kenyatta National Hospital & Dr. Evanson Kamuri Njoroge (Petition E081 of 2024) [2024] KEELRC 13249 (KLR), where the Court expressed the view that disciplinary action ought not to be prematurely predicated upon ongoing investigations or unverified allegations where no formal investigative findings had been rendered, emphasizing the necessity of allowing the investigative process to run its lawful course before consequential administrative action is undertaken. 54.This Court is nevertheless not persuaded that the strict and technical threshold for the application of res judicata has been fully satisfied in the peculiar circumstances of the present case. Whereas the present proceedings bear substantial similarity to the earlier suits in both factual foundation and reliefs sought, the Court is not satisfied that the issues now raised have been conclusively and finally determined in the precise factual and procedural posture presently before Court. The substratum of the dispute remains intertwined with ongoing investigative processes whose outcomes have yet to crystallize into definitive findings, recommendations, or prosecutorial action. In those circumstances, it cannot be said, with the degree of finality contemplated under Section 7 of the Civil Procedure Act, that the matters presently in issue have been finally adjudicated upon. 55.That notwithstanding, the Court is equally alive to the broader and more elastic doctrine prohibiting abuse of the court process, a doctrine which transcends the narrow technical confines of strict res judicata. Abuse of process derives from the inherent jurisdiction of the Court to protect the integrity of judicial proceedings against misuse, manipulation, oppression, and procedural duplicity. In Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR 229, the Court of Appeal described abuse of process as the improper use of judicial machinery in a manner calculated to harass, irritate, oppress, or interfere with the efficient administration of justice. The doctrine encompasses, inter alia, situations where litigants institute multiplicity of proceedings over substantially similar subject matter, pursue parallel litigation in different fora, or seek to repackage previously ventilated grievances under the guise of fresh constitutional causes of action. 56.In the Court’s considered view, the present Petition, though perhaps not barred by the strict procedural operation of res judicata, unmistakably falls within the mischief that the doctrine against abuse of process seeks to prevent. 57.The Petitioners have repeatedly invited courts of concurrent jurisdiction to pronounce themselves upon substantially similar allegations concerning the integrity, suitability, and continued tenure of the 1st Respondent notwithstanding the existence of ongoing investigations and pending statutory processes. The reliefs sought herein substantially mirror those pursued in the earlier proceedings, including declarations of constitutional and statutory violations, findings of corruption and unfitness for office, conservatory orders restraining the 1st Respondent from discharging his functions, and orders compelling investigative and prosecutorial action. 58.Courts must remain vigilant against the emergence of serial constitutional litigation where litigants, dissatisfied with existing or pending statutory processes, engage in forum shopping through repeated invocation of constitutional jurisdiction in the hope of securing favourable relief. Such conduct not only undermines the principles of finality and orderly adjudication, but also risks bringing the judicial process into disrepute by transforming courts into parallel supervisory forums over matters already committed by the Constitution and statute to specialized investigative and administrative bodies. The judicial process cannot be deployed as an instrument for circumventing, pre-empting, or micromanaging constitutionally established mechanisms whose mandates remain active and unexhausted. 59.In the premises, while this Court stops short of holding that the present Petition is strictly res judicata, it is satisfied that the repetitive and overlapping nature of the proceedings, viewed against the backdrop of earlier litigation and ongoing statutory investigations, amounts to an abuse of the process of the Court. The Court must therefore proceed to interrogate whether the Petition otherwise satisfies the constitutional threshold required of constitutional litigation. Whether the Petition meets the constitutional threshold for pleading and proof and whether it is premature 60.Whether the Petition meets the constitutional threshold for pleading and proof and whether it is premature in light of ongoing investigations and alternative statutory mechanisms is an issue that goes to the very competence of the Petition as framed. 61.The jurisprudential starting point is now firmly settled. In Anarita Karimi Njeru v Republic [1979] eKLR, the Court articulated the foundational requirement that a constitutional petitioner must plead with reasonable precision the constitutional provisions alleged to have been infringed and the manner in which such infringement is said to have occurred. This principle, far from being a technicality, was elevated into a substantive safeguard of fair notice and adjudicative discipline. It was later reaffirmed and refined in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court of Appeal underscored that constitutional litigation must not be reduced to broad, nebulous grievances or speculative assertions devoid of concrete factual anchorage. The Court emphasised that precision in pleading is indispensable to enable both the Respondents and the Court to distil the true controversy for determination. 62.Against that settled legal backdrop, the present Petition, though couched in expansive constitutional language invoking Articles 10, 22, 23, 232, 258 and Chapter Six of the Constitution, does not, upon close scrutiny, descend into the required level of factual specificity. The gravamen of the complaint is framed in generalised terms of corruption, abuse of office and alleged unfitness to hold public office. However, the Petitioners have not, with sufficient particularity, delineated the specific acts or omissions attributable to the 1st Respondent that would, if proved, constitute identifiable breaches of the cited constitutional provisions. What emerges instead is a narrative largely constructed upon ongoing investigations and untested allegations, rather than adjudicated facts or established findings of wrongdoing. Constitutional jurisdiction cannot properly be invoked on the basis of suspicion, inference or anticipation of adverse outcomes in pending investigative processes. 63.The Court is further persuaded that the Petition is premature when viewed through the prism of the doctrines of ripeness and constitutional avoidance. Ripeness, as a doctrine of justiciability, serves to prevent the Courts from engaging in abstract or hypothetical disputes where the factual and legal matrix has not fully crystallised. KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) and Chilango & another v Independent Electoral and Boundaries Commission & 3 Others (2022) KEHC 10779 are instructive in this regard, in that they caution against judicial intervention where the dispute remains in a formative stage and where administrative or statutory processes are still underway. 64.Closely allied to this is the doctrine of constitutional avoidance, as authoritatively articulated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR. That doctrine enjoins courts, as a matter of institutional comity and constitutional discipline, to decline the invitation to determine constitutional questions where the dispute can be resolved through an existing statutory or administrative framework. It is not merely a procedural preference but a substantive recognition of the constitutional design that distributes functions among various organs of State. 65.In the present case, it is not disputed on the evidentiary record that the Ethics and Anti-Corruption Commission is seized of ongoing investigations into the allegations forming the substratum of the Petition. Those investigations are yet to be concluded and have not culminated in any final report, recommendation, prosecutorial decision or disciplinary determination. In that context, to invite this Court to pronounce itself on the culpability or otherwise of the 1st Respondent would be to ask the Court to operate in a factual and procedural vacuum, and to substitute itself for constitutionally mandated investigative and prosecutorial bodies. 66.Such an approach would not only be premature but would also run counter to the established constitutional architecture which deliberately vests investigative and prosecutorial discretion in specialised institutions. The Court must be slow to interfere with processes that are actively underway unless there is clear evidence of illegality, irrationality, procedural impropriety or bad faith, none of which has been demonstrated to the requisite standard in the present proceedings. 67.Accordingly, viewed holistically within the constitutional and statutory framework governing the subject matter, the Court is not persuaded that the present Petition is ripe for constitutional determination. The gravamen of the Petition is founded upon allegations which are the subject of ongoing investigations by the Ethics and Anti-Corruption Commission, a constitutionally mandated body whose processes have not been concluded or translated into any final investigative report, prosecutorial decision, or disciplinary determination. In those circumstances, the Court would be called upon to determine matters that are still in a state of factual and institutional flux, thereby risking the impermissible pre-emption of constitutionally assigned functions. 68.The Constitution deliberately establishes a sequenced framework for the handling of allegations of corruption and integrity breaches, vesting investigative functions in the Ethics and Anti-Corruption Commission under Article 79 and the relevant statutes, prosecutorial discretion in the Director of Public Prosecutions under Article 157, and disciplinary governance within State corporations in the respective Boards and statutory oversight structures under the State Corporations Act and Mwongozo. These mechanisms constitute the first-instance fora for the interrogation and resolution of such complaints. 69.Consistent with the principle of constitutional avoidance as articulated in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR and the institutional restraint underscored in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR, this Court is enjoined to decline jurisdiction where there exists an active, competent, and constitutionally designated process capable of resolving the dispute in the first instance. No basis has been demonstrated to justify bypassing that framework. 70.In the absence of completed investigations or any demonstrable failure of the statutory mechanisms to discharge their mandate, the Court finds that the Petition is premature and improperly before this Court. Whether the Petitioners are entitled to the reliefs sought 71.The final issue for determination is whether, in light of the Court’s findings on res judicata and abuse of process, as well as the conclusions reached on the constitutional threshold of pleading and the prematurity of the proceedings, the Petitioners are entitled to the reliefs sought. 72.The reliefs sought are expansive and consequential in nature. They include declarations imputing constitutional and statutory violations against the 1st Respondent, a finding that he is unfit to hold public office, conservatory orders restraining him from discharging fiduciary functions, and orders directing the initiation of criminal and civil proceedings. The Court is therefore being invited to make determinations that would have the practical effect of conclusively pronouncing on matters touching on integrity, suitability for office, and alleged criminal conduct, at a stage where the relevant constitutional and statutory processes remain incomplete. 73.It is a settled principle that judicial remedies, particularly those of a declaratory or conservatory nature, are discretionary and are only available where a petitioner demonstrates a proper basis for the Court’s intervention within the constitutional framework. Such discretion is exercised judiciously and with due regard to the broader constitutional structure, including the allocation of functions among different organs of State. Courts do not act in vain, nor do they issue orders in circumstances where doing so would amount to pre-empting processes that are lawfully underway before constitutionally mandated institutions. 74.In the present matter, the Court has already found that the issues raised are substantially similar to those previously litigated or pending before courts of competent jurisdiction, thereby engaging the principles underlying res judicata and abuse of process. The Court has further found that the Petition is premature, given that the Ethics and Anti-Corruption Commission is actively seized of ongoing investigations which have not yet culminated in final determinations. In that context, the reliefs sought would necessarily require the Court to anticipate and pre-empt the outcome of constitutionally sanctioned investigative and prosecutorial processes. 75.The conservatory orders sought, in particular, would have the effect of restraining the 1st Respondent from discharging his public functions on the basis of untested allegations. Such relief is extraordinary in nature and is only justified in clear circumstances where a prima facie constitutional violation is established and where intervention is necessary to prevent imminent and irreparable constitutional harm. In the absence of such exceptional circumstances, and bearing in mind the existence of ongoing statutory processes designed to interrogate the very allegations raised, the Court is not persuaded that the threshold for such intervention has been met. 76.Equally, the prayers seeking declaratory findings of corruption, constitutional violation, and unfitness to hold office would amount, in substance, to a determination of liability and suitability before the constitutionally mandated investigative and prosecutorial mechanisms have completed their respective roles. This would be inconsistent with the principle of institutional comity and the constitutional design that vests primary responsibility for such determinations in specialised bodies operating under clear statutory frameworks. 77.Accordingly, in view of the Court’s findings on the procedural posture of this matter and the constitutional limitations on premature adjudication, the Petitioners have not established a basis upon which the Court can properly exercise its discretion in their favour. The reliefs sought would, in effect, require this Court to bypass established constitutional and statutory processes, a course which is not tenable in law. 78.In the premises, and for the reasons set out in this judgment, the Court finds that the Petitioners have not established a basis upon which the reliefs sought can be granted. Accordingly, the Petition and the accompanying Notice of Motion both dated 16th October 2024 are hereby dismissed. The final orders of this Court shall therefore be as follows:i.The Petition dated 16th October 2024 is dismissed.ii.The Notice of Motion of even date is dismissed.iii.Each party to bear its own costs. Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2026.………………………………….BAHATI MWAMUYE MBSJUDGE.In the Presence of:Counsel for the Petitioner – AbsentCounsel for the 1st Respondent – AbsentCounsel for the 2ndRespondent – Mr. KaumbaCounsel for the 1st Interested Party – AbsentCounsel for the 2nd Interested Party – Mr. Osodo h/b Mrs. KuonaCounsel for the 3rd Interested Party - AbsentCourt Assistant – Mr. Martin