https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12997

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CONSTITUTIONAL PETITION NO. E517 OF 2023** **IN THE MATTER OF THE CONSTITUTION OF KENYA ARTICLES 20, 21, 22(1), 25(C), 31(C), 28, 35, 47, 48, 50** **AND** **IN THE MATTER OF VIOLATION AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED UNDER ARTICLES 25(C), 31(C), 28, 35, 47, 48, 50 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE BANKING ACT, CHAPTER 488 LAWS OF KENYA** **AND** **IN THE MATTER OF CREDIT REFERENCE BUREAU REGULATIONS 2020** **AND** **IN THE MATTER OF CONTRAVENTION OF THE FAIR ADMINISTRATIVE ACTION ACT** **BETWEEN** **KEPHA MONGARE NYAKANGO…….….…..…………...PETITIONER** **VERSUS** **COOPERATIVE BANK OF KENYA LIMITED...........1ST RESPONDENT** **METROPOL CREDIT REFERENCE BUREAU..……2ND RESPONDENT** **CREDIT REFERENCE BUREAU** **AFRICA LTD T/A TRANSUNION PERSONAL** **CONSUMER REPORT……………………………...…3RD RESPONDENT** **JUDGMENT** **Introduction** 1. The Petition dated 15th December 2023 is supported by the Petitioner’s affidavit in support of even date, Supplementary Affidavit dated 30th May 2024 and Further Affidavit dated 15th June 2025. 2. The Petition challenges the listing of the Petitioner’s Credit information with Credit Reference Bureaus. 3. However, according to the 1st Respondent. the forwarding of the Petitioner’s credit information was on account of his failure to settle a loan he owed to the bank. The Petitioner insists that he does not have any existing loan with the Bank hence his listing is erroneous. 1. The Petitioner seeks the following reliefs: - 2. **Declarations to the effect that: -** 3. **The 1st Respondent was constitutionally and legally obliged to warn and/or inform the Petitioner of its intention to adversely list his name with the 2nd and 3rd Respondents;** 4. **The Respondents are in breach of the Petitioner’s constitutional rights to fair hearing under Article 25(c) and 50, fair administrative action under Article 47, access to information under Article 35(1)(b) and (2), privacy under Article 31(c) and dignity under Article 28;** 5. **The Respondents’ actions towards the Petitioner are a breach of the Fair Administrative Actions Act;** 6. **The Respondents are in breach of Regulations 37(1), (5), (7), (10), and (11) of the Credit Reference Bureau Regulations 2020;** 7. **The Petitioner be compensated by way of damages for defamation.** 8. **The 1st Respondent is barred by the Central Bank of Kenya from submitting credit information of its customers to the 2nd and 3rd Respondents or any other Bureau.** 9. **An order directing the respondents to immediately and unconditionally pay the Petitioner the sum of Kshs. 45million being damages or compensation for the estimated loss (including loss of income) harm and damage arising from the** **infringement of the Petitioner’s fundamental rights and freedoms;** 1. **An order of mandamus compelling the respondents to:** 2. **Immediately and unconditionally purge all adverse information in their records concerning the Petitioner;** 3. **Jointly issue an apology in a newspaper of country wide circulation, exonerating the Petitioner from any wrong doing and clarifying his name was provided to the Credit Reference Bureau erroneously, irregularly and unlawfully;** 4. **The costs of and incidental to these proceedings.** 5. **Interest on (g) above at court rates with effect from the date of filing the suit till the date of full and final settlement.** 6. **Such other, further, additional, incidental and/or alternative reliefs or remedies as the Honourable Court shall deem just and expedient.** 7. In opposition to the petition, the 1st respondent filed a Notice of preliminary Objection and Grounds of Opposition both dated 31st May and a Replying Affidavit dated 30th September 2024, the 2nd respondent filed a Replying Affidavit dated 18th April 2024 and 3rd Respondent filed Grounds of Opposition and Replying Affidavit both dated 31st May 2024. **The Petitioner’s Case** 1. On 18th May 2023, the Petitioner approached Kenya Commercial Bank Ltd (KCB) with a view of applying for a loan facility whereby the bank requested for his credit score from the Credit Refence Bureaus (CRB). Upon KCB receiving his credit score from the 2nd and 3rd Respondents, he was shocked to learn that he had been listed as a loan defaulter on account of information provided to the CRBs by the 1st Respondent. 2. The Petitioner avers that he does not operate any bank account with the 1st Respondent yet the 1st Respondent had indicated that the Petitioner operates account number 01611007891700, 01631007891700 and 016F107891700 at Parliament Road Branch. The said accounts are reflected in the credit report by TransUnion dated 26th May 2023, Metropol Credit Report dated 18th May 2023 and Central Bank response letter dated 25th September 2023. The Petitioner further avers that the 1st Respondent, despite not having a bank account with him, forwarded his name to the 2nd and 3rd Respondents for listing as a loan defaulter without informing or notifying him in total breach of constitutional, statutory and regulatory requirements particularly **Article 25(c), 47, 50 of the Constitution, Section 26(1), (3), (9), (10) and 37(1), (7), (8), (10) of the Credit Reference Bureau Regulations 2020 and Section 4(3) of the Fair Administrative Action Act**. 1. The Petitioner asserts that he had a legitimate expectation to be notified of the adverse report and to be given a chance to be heard before being adversely listed as a loan defaulter. Further, the 2nd and 3rd Respondents have adversely listed his name in their records as a loan defaulter without hearing him on the issue, in their investigations if any at all and in breach of constitutional, statutory and regulatory requirements. The 2nd and 3rd Respondents had a duty to independently investigate his complaint and also take reasonable steps to verify the accuracy of the credit information provided by the 1st Respondent. 2. The Petitioner contends that the Respondents failed to supply him with the information and documents relied upon to list him as a loan defaulter as requested through his complaint which is in breach of **Article 35 of the Constitution** and **Regulation 37(1) of the** **Credit Reference Bureau Regulations 2020.** The violation of his rights has resulted in him being denied financial facilities from banks in view of the access made available by the CRBs to the adverse information provided by the 1st Respondent. Further upon the 1st respondent submitting erroneous and inaccurate information to the 2nd and 3rd Respondents, they did not inform or communicate to him that such information that had been forwarded to the bureaus as required under **Section 26(9) of the CRB Regulations 2020**. He averred that he lodged a formal complaint with the 1st Respondent to correct the erroneous and adverse information in line with Section 26(6) of the CRB Regulations 2020 to no avail, despite several reminders. He further lodged a complaint with the 2nd and 3rd Respondents to investigate and provide information relied upon to make the adverse listing as required under Regulation 37(1), (5), (7) and (10) of the CRB Regulations 2020, however no communication was made to him to inform him of the status and outcome of the investigation save for the 2nd respondent who merely reported that the 1st Respondent had maintained that the information provided is accurate. The 2nd and 3rd respondents did not conclude their independent investigations as required and therefore ought to have deleted the disputed information as required under Regulation 37(10) of the CRB Regulations 2020. 1. The Petitioner asserts that the Respondents actions complained of herein have adversely affected his personal, commercial and professional reputation. Due to the wrong listing, he was not able to secure a loan to finance a contract for a company where he is the sole director Kemo Import Supplies Ltd and the contract was terminated vide the letter dated 15th June 2023. Kemo Import Supplies ltd had secured a contract on 4th April 2023 to supply Aluminium Class worth Kshs. 21,912,750/-. His character was further defamed in view of the negative, adverse and erroneous information forwarded to the 2nd and 3rd respondents and which information was accessed by KCB. **The 1st Respondent’s Case** 1. The Replying affidavit was sworn by John A. Nono, a Legal Officer working in the Company Secretary’s division of the 1st Respondent. According to the 1st Respondent, Kencom Sacco Society, in which the Petitioner was a member of, had a Memorandum of Understanding (MOU) with the 1st Respondent that allowed members of the said Sacco to access loan facilities at a favourable interest rate from the 1st Respondent. 1. Through a loan Application dated 23rd December 2004, the Petitioner applied for a personal loan of Kshs. 350,000/- from the sacco for home improvement. The Petitioner stated that he was then working as a clerk with KCB Bank Maralal Branch and provided his payslips and copy of his national ID as supporting documents. The loan was then approved and an amount of Kshs. 355,704.30/- which included the loan and all attendant charges, was disbursed by the 1st Respondent to the Petitioner on 15th February 2005. The loan amount was payable within four (4) years. 2. According to the 1st Respondent’s records, the Petitioner only paid back an amount of Kshs. 191,364.75/; the last payment being made on 1st November 2006. Thereafter, the Petitioner ignored all requests for repayment of the outstanding loan amount. 3. Since payments were not forthcoming and the Petitioner was unreachable, in February 2008, the 1st Respondent hired an investigator to trace the whereabouts of the Petitioner. The private investigator provided an investigation report on the Petitioner’s whereabouts and financial status. 1. On 26th August 2010, in light of the mandatory **provisions of the Banking (CRB) Regulation, 2008,** the 1st Respondent proceeded to list the Petitioner with the 2nd and 3rd Respondents. At the time, the Petitioner owed the 1st Respondent Kshs. 299,306/-. On 27th December 2013, the loan was written down. 2. The Deponent maintains adverse effects alleged to have been suffered by the Petitioner on the basis of listing of Credit Information have not been proved at all, and if any, they are a direct consequence of his own failure to service the loan facility. 3. Further, the 1st Respondent asserts that the relationship between the Petitioner and the 1st Respondent is contractual in nature hence any dispute arising from the relationship lies in commercial or civil proceedings. Furthermore, the 1st Respondent contended that it was required by law to share credit information in the manner provided and thus compliance by the 1st respondent with the requirements of an applicable law cannot be said to be unconstitutional where the constitutionality of the laws has not been challenged at all. 1. Additionally, it was the 1st Respondent’s position that the Petitioner has not demonstrated or shown the administrative action alleged to be taken by the 1st Respondent and how compliance by the 1st Respondent with statutory obligations set out in the CRB regulations amounts to an administrative action envisaged under the Constitution and any other law to justify the Petitioner’s claim under the Petition. Nevertheless, there is a legitimate expectation under a loan contract that the Petitioner would have honoured his obligations to repay the loan he took and owed to the 1st Respondent as agreed under the terms of that loan. 2. The deponent further states that the Petitioner has not adduced any evidence to demonstrate that he applied for a loan with any financial institution and that such loan application was rejected for the specific reason that he was listed with the CRB. Further the alleged company named Kemo Import Supplies Ltd is a legal person that is not party to the instant proceedings and therefore all allegations purported to be made on account of the business of the said company are not relevant to the present proceedings. Additionally, the petitioner has not placed anything before the court to demonstrate that he borrowed a loan from KCB and that KCB had solely rejected the alleged loan application solely on account of his credit. 1. The 1st Respondent asserts that the Petition does not raise a proper constitutional issue for determination and thus the Court should decline to entertain the matter herein which is commercial and civil in nature. Further he argues that the Petition **seeks a retrospective application of the CRB Regulations 2020** which were declared unconstitutional by the High Court. Additionally, the petition lacks locus before the court as the same is brought before the court prematurely before invoking or exhausting the dispute resolution mechanisms under the provision of the Fair Administrative Action Act. The petition further seeks for orders that are in itself in violation of the law particularly the order directing the Central Bank of Kenya to act outside the law in barring the 1st Respondent from sharing its customers information to credit bureaus as required by law. **The 2nd Respondent’s Case** 1. The affidavit was sworn by Pahris Kiama, a Dispute Resolution Manager at the 2nd respondent and he avers that the 2nd respondent is licensed by the Central Bank of Kenya to operate as a credit reference bureau under the CRB Regulations 2020. It is licensed to obtain and receive customer information, store, manage, evaluate, update and disseminate customer information to subscribers in accordance to the Regulations and maintain database and generate reports from customer information database and credit scoring as per Regulation 15 of the Regulations. Under Regulation 18 of the Regulations, the 2nd respondent is obligated to share customer information including information on none performing loans and any other negative information. Further, under the Banking Act, the 2nd respondent as a licenced credit reference bureau is a medium through which institutions licensed under the Banking Act and the Microfinance Act exchange customer credit information. 2. The deponent asserts that the 2nd respondent as a credit reference bureau only receives and does not generate customer information; such credit information is generated from the information providers which among others include financial institutions such as the 1st Respondent. Further, the customer information and reports on customers generated by the 2nd respondent is only shared with subscribers mandated to do so by the Regulations. An institution such as the 1st Respondent under the Regulations is under an obligation to submit and provide accurate customer information to the CRBs and in addition to update the said information in accordance to the Regulations. Furthermore, the information published by the 2nd Respondent is information that is provided to all licensed CRBs in Kenya and is not localized to the 2nd Respondent and the 3rd respondent therefore is accessible from any bureau in Kenya. 1. The deponent states that the 2nd respondent only listed account number 01631007891700 which was reported by the 1st Respondent as a performing account without default history with its status as write off with no default. On 2nd June 2023, the 2nd Respondent received a duly filled dispute form from the Petitioner disputing the account status. On the same day, the 2nd Respondent issued a notice of dispute to the 1st Respondent and further instructed the 1st Respondent to conduct an in depth investigation of the account and revert the findings. They then conducted their investigation in light of the CRB Regulations 2020 which defines investigation as a formal inquiry to an institution or a third-party credit information provider on the authenticity of credit information submitted to the bureau. On 13th June 2023, the 1st Respondent wrote back to the 2nd Respondent indicating that it had concluded its investigations and further confirmed that the disputed information was indeed accurate and thus should be maintained as is. The 2nd Respondent wrote to the Petitioner on the same day informing him of the bank’s response and further advised him of the next steps to follow if dissatisfied with the response. 1. The deponent states that by listing the Petitioner in the CRB, the 2nd Respondent was lawfully exercising its statutory duty of publishing the Petitioner’s credit information as shared by the 1st Respondent as per Regulation 15 of the CRB Regulations. Further under Section 31(5) of the Banking Act and Regulation 20 of the CRB Regulations 2020 a suit against the 2nd respondent is barred where such as in this case the 2nd respondent has disseminated information under its statutory obligation to do so in good faith. Additionally, the only person or entity who can correct or amend information regarding a customer such as the Petitioner is the institution from which the information emanates from, in this case, the 1st Respondent and the 2nd respondent cannot purport to correct or amend information by itself. 1. The deponent asserts that the 2nd Respondent denies vehemently any infringement on the rights and freedoms of the Petitioner under the Constitution since its actions in relation to the Petitioner’s credit affairs were statutory obligations and were done within and in conformity to the law governing listing of credit defaulters and it has not in any way infringed the petitioner’s constitutional rights. 1. In rejoinder to the 2nd respondent’s replying affidavit, the Petitioner filed a Supplementary Affidavit dated 30th May 2024 and states that his case against the 2nd and 3rd respondents is that they both failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 2nd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2nd respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1st Respondent and that would have included requesting for certain key documents from the 1st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 2nd respondent has infringed on his right to access to information under Article 35 of the Constitution. **The 3rd Respondent’s Case** 1. The affidavit was sworn by Esther Wanja Mungai an Associate Counsel, Group risk with the 3rd respondent. She avers that the 3rd Respondent is a credit reference bureau licensed under the Banking CRB Regulations 2013 and Section 31(4) of the Banking Act. She further avers that credit referencing provide for licenced CRBs to maintain a database through which institutions licensed under the Banking Act share amongst themselves prescribed credit information relating to their customers pursuant to Section 31(3) of the Banking Act. Regulation 23 of the Regulations 2013 allow CRBs to obtain credit information from third parties as is the case with the 1st respondent on condition that third party disseminating the information ensures that it adheres to the provisions of the regulations. 2. The 3rd Respondent states that pursuant to the Regulations, customers have rights in relation to information kept by the Bureau such as the right to know what information the institution has submitted to the Bureau; the right to access credit reports kept by the bureaus; the right to a free copy of the customers credit report once yearly and in the event of disputed information, the right to dispute the information under Regulation 35 of the Regulations 2013. 3. Upon a request by the petitioner through NIPASHE service, the 3rd Respondent issued the Petitioner with his credit report on 26th May 2023 in compliance with Regulation 35(1) & (2) of the Regulations 2013. Further, via email correspondence dated 26th May 2023, the 3rd Respondent expressly indicated that should the Petitioner have any inquiries regarding the credit report issued, he should send such complaint via email address of reports@transunion.com. Contrary to the directions indicated by the 3rd respondent, the Petitioner proceeded to send its concerns to email address noreply@transunion.com and kereports@transunion.com, which emails are automated and do not serve the purpose of attending to customer complaints. 4. The 3rd Respondent states that in view of the Petitioner’s negligence, the 3rd Respondent was in the dark with regard to any complaint raised by the Petitioner until the 3rd respondent was served with a letter dated 2nd October 2023 by the Petitioner’s advocates and thus treated it as a dispute and immediately proceeded to act on it pursuant to Regulation 35(6) of the CRB Regulations 2013. Further, pursuant to Regulation 35(6) of the CRB Regulations 2013, the 3rd Respondent, upon being issued with the Notice of the Dispute with regard to the accuracy of the Petitioner’s credit information proceeded to affix a note to the Petitioner’s credit information and further forwarded to the 1st Respondent as the credit information provider and requested a confirmation of the accuracy of the credit information within 21 days. Pursuant to Regulation 35(7) of the Regulations 2013, upon receipt of a notice of dispute, the 3rd Respondent in conducting its investigation is only obliged to forward such customer’s notice of dispute to the Credit Information Provider for purposes of ascertaining its accuracy and not to have the disputing customer to attend to a hearing during such investigation as alleged by the petitioner. 5. The 3rd Respondent states that the 1st Respondent carried out its investigation and reverted back ascertaining its position on the Petitioner’s non performing loan. The 3rd Respondent then transmitted to the Petitioner the findings of the investigation via email dated 6th October 2023 confirming the accuracy of the credit information and that it will maintain the disputed information unless advised by the bank pursuant to Regulation 35(8) of the CRB Regulations 2013. 6. The 3rd Respondent maintains that it is not obliged to issue the Petitioner with a comprehensive report on the investigation given that it does not hold statements of accounts for the listed customer since such information is solely held by the reporting institution. Further, upon request or dispute by customers, the nature of reports issued by the 3rd Respondent indicate the name of the reporting institution, account type, principal amount issued, the arrears, last payment date, account status and whether a dispute as to accuracy of such information has been raised. Thus, the Petitioner’s right to access such information was never violated by the 3rd respondent. 7. The 3rd Respondent contends that the Petition does not raise any constitutional issues and ought to have been filed as a commercial claim as the dispute arises out of contractual duties governed by terms and conditions of a loan facility advanced to the Petitioner by the 1st Respondent. Further as per the Credit Regulations, a customer’s credit listing may not solely be used to deny the customer a loan but such other factors are used to inform the lender in determining the outcome of a customer’s loan application. As such, the 3rd respondent argues that the Petitioner did not produce any evidence from KCB in support of his allegation that the bank denied him a loan facility as a result of his credit listing and thus any loss incidental thereto cannot be attributed to the 3rd respondent’s listing. 8. In a rejoinder to the 1st and 3rd Respondent’s Replying affidavit, the Petitioner filed a **Further Affidavit dated 15th June 2025**. The Petitioner deposed that he is a stranger to the MOU by the 1st Respondent as he was not a signatory to the agreement and he was also not privy to any dealings the 1st Respondent may have had with Kencom Sacco. Further, he asserts that he has never applied for any loan from the 1st Respondent for home improvements and in any case, he was an employee with KCB Bank and he had financial facilities to access from his employer. 1. The Petitioner deposed that the 1st Respondent has not demonstrated which mode of money transfer they sued to send the loan purportedly disbursed. Further, the 1st Respondent authorised and opened a loan account number 016F107891700 without any source documents to initiate opening such an account as is required such as letter of offer, acceptance of offer, passport size photos of the Applicant and copy of the identity card. The 1st Respondent being a financial institution, must obey the accounting/banking principles that require that every transaction has a double entry, specifically where a loan is being granted, there ought to be a generate loan account as a debit and a personal customer account as credit. The 1st Respondent purportedly opened a loan account which is a debit account and there is no evidence money was disbursed to any of his accounts at all. 2. The Petitioner contends that even assuming he was a customer of the 1st Respondent, the 1st Respondent under the repealed CRB Regulations of 2008 still had an obligation pursuant to Section 28(1)(a) to notify him of the listing within 30 days of the first listing, which it failed to do. Thereby breaching his fundamental right under Article 47 of the Constitution and Section 4(2) of the Fair Administrative Action Act. The Petitioner reiterates that he has never had any financial dealings with the 1st Respondent and therefore he has no contractual obligations with the 1st Respondent. He argues that the matter before the court is not a civil or commercial matter as there has never been any valid contract between him and the 1st Respondent. 1. The Petitioner contends that failure to supply him with the information relied upon to list him negatively made him feel less of a citizen of the country and injured his dignity and standing in society therefore violating Article 28 of the Constitution. He further states that the application of the CRB Regulations 2020 is not retrospective as the cause of action arose on 18th May 2023 and the said regulations were and are still in force to date. Additionally, he depones that the Petition is properly before the court as he did everything possible to resolve the matter under the CRB Regulations 2020 and that the 1st Respondent is only invoking the exhaustion doctrine in an attempt to further frustrate the resolution of the dispute. 1. The Petitioner contends that his case against the 3rd Respondent is that it failed to supply him with the information relied upon to list him as a loan defaulter in line with Regulation 37(1) and 27(1)(a) of the CRB Regulations 2020. Further, under Regulation 28(1)(g) and 37(7), the 3rd Respondent has been given some investigative powers which it did not utilize at all. Under Regulation 28(1)(g), the 2nd Respondent was supposed to take reasonable steps or measures to verify the accuracy of the negative credit information supplied by the 1st Respondent and that would have included requesting for certain key documents from the 1st Respondent to verify that which has been forwarded to it and also interrogate him on the same where necessary. Thus, the 3rd respondent has infringed on his right to access to information under Article 35 of the Constitution. 2. The Petitioner asserts that the 3rd Respondent did not comply with Regulation 37(5), (6) and (7) of the CRB Regulations 2020 as it ought to have notified the 1st Respondent of the disputed credit report within five days and also investigate the same within seven days which it never did. The 3rd Respondent only responded much later on account of receiving a demand letter from his advocates. Further, on the 3rd respondent’s allegation that the emails were automated and did not address customer complaints, the Petitioner states that the same is false as the demand letter dated 2nd October 2023 was sent through kereports@transunion.com and the same was responded to. 1. The Petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The Petitioner identified four issues for determination as follows: *whether the respondents breached or violated the petitioner’s constitutional rights*; *whether the 1st respondent breached Regulation 26(1), (3), (9) and 37(1) of the Credit Reference Bureau Regulations 2020*; *whether the 1st respondent breached Section 4(3) of the Fair Administrative Action Act* and *whether the 2nd and 3rd Respondents have violated Regulation 37(1), (5), (7) and (10) of the Credit Reference Bureau Regulations 2020*. 2. On the first issue, the Petitioner submitted that the 1st Respondent specifically violated his rights under Articles 25(c), 47 and 50 of the Constitution, by forwarding adverse credit information to the 2nd and 3rd Respondents for negative listing as a loan defaulter with respect to three different accounts without giving any notice as required under Regulation 26(1) of the CRB Regulations 2020. Thus, he was unable to defend himself. Further, the failure to supply him with the documents relied upon to list him negatively is a blatant breach of Article 35(1)(b) of the Constitution with regards to access of information. He argued that the 1st respondent has never supplied a single document relied upon to list him which shows that the information relied upon is unavailable, malicious and defamatory in the circumstances. As such, the petitioner argued that he has a right to have the erroneous negative information corrected and deleted for being untrue and misleading as enshrined in Article 35(2) of the Constitution. 3. The Petitioner further argued that pursuant to Regulation 37(1) of the Regulations, the 2nd and 3rd Respondents has an obligation to supply or share information provided by the credit information provider when requested by a customer. He further asserted that the 1st Respondent violated his right to dignity and privacy under Article 28 of the Constitution for sharing the negative information with the 2nd and 3rd Respondents without according him a fair hearing. Further, the 3rd Respondent is guilty of breaching Article 28 of the Constitution for failing to follow the laid down procedure once it received his complaint. The 3rd respondent ought to have conducted investigations under Regulation 37(6) and (7) of the Regulations and then reported back to him. 1. The Petitioner submitted that the negative credit information was ultimately accessed by KCB thereby damaging his reputation and he has hereby been defamed. To buttress that point, reliance was placed on the case of **Christopher Orina Kenyariri vs Barclays Bank of Kenya Limited & another [2018] eKLR** where the court held, “The plaintiff has in my view proved that his character was defamed. This is because CFC Bank and KCB which are his bankers accessed the credit bureau information. As a consequence of that access the plaintiff was denied credit by CFC Bank. 2. On the second issue, the Petitioner submitted that he does not have an account with the 1st Respondent and neither did he apply for any loan from the 1st Respondent. Further the 1st Respondent breached Regulation 26(1), (3), (9), 37(1), (7), (8) and 10 of the Regulations as it forwarded information it reasonably ought to have known is inaccurate; it ought to have re-informed him that negative credit information has been submitted to a bureau in thirty days and to supply him with the credit information showing default. Further, the 1st Respondent breached Section 4(3) of the Fair Administrative Action Act when it failed to issue the requisite notices under Regulation 26(1) and (9) to inform him of the negative credit information and an opportunity to be heard before negatively listing him with the bureaus. 1. On the final issue, the Petitioner submitted that failure by the 2nd and 3rd respondents to supply information upon which he was negatively listed was a violation of Regulation 37(1) and 27(1)(a) of the Regulations. Further, under Regulation 28(1)(g) and 37(7) of the Regulations, the CRBs have been given some investigative powers, however, the 2nd and 3rd Respondents chose the easier option of waiting upon the 1st Respondent to do the investigations as outlined in Regulation 37(8) of the Regulations. Thus, had the 2nd and 3rd Respondents done their independent investigation based on the information he supplied to them, they would have established that he is not a customer of the 1st Respondent. Further, the 3rd Respondent failed to comply with Regulation 37(6) as it did not notify the 1st Respondent of the disputed information but only attempted to do so when his advocates wrote them a demand letter. Additionally, the 3rd Respondent under Regulation 37(10) of the Regulations ought to have conducted the investigations within 21 days as from 26th May 2023 and if it was not able to complete the investigations then proceed to delete the disputed information as requested by him. Thus, the 3rd Respondent is in violation of Regulation 37(10) for having not deleted the disputed information after the lapse of 21 days. 1. The Petitioner argued that the resultant consequence of the said violations is that he lost a great deal of business when a contract worth Kshs. 21,912,750/- was cancelled because his company in which he is the sole director was not able to meet its fair share of the bargain. Further, his reputation was greatly damaged and he has never been de-listed from the negative listing by the 2nd and 3rd Respondents and he therefore proposed a sum of Kshs. 45 million as reasonable compensation. **The 1st Respondent’s Submissions** 1. The 1st Respondent identified four issues for determination as follows: *whether the Petition is properly before the court*; *whether the Petitioner’s constitutional rights have been breached*; *whether the allegations on breach of CRB Regulations, Fair Administrative Actions Act and defamation are justified* and *whether the petitioner is entitled to the reliefs sought*. 2. On the first issue, the 1st Respondent cited the cases of **Owners of the Motor Vessel “Lillian S” vs Caltex Oil Kenya Ltd** (no citation given) and **Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR** and submitted that jurisdiction is a fundamental issue that must be determined before delving into the substantive merits of a case. 3. The 1st Respondent argued that in the present case, the Petitioner’s claims stem from a listing of the Petitioner’s credit information with credit reference bureaus. The competing claims being that the forwarding of the Petitioner’s credit information was an account of his failure to settle a loan he owed to the bank while the Petitioner alleges that he does not have an existing loan with the bank and therefore the listing is erroneous. Therefore, a consideration of the competing positions within the Petition would require the determination of the contractual question including the establishment of rights and obligations arising therefrom which are contractual disputes in nature. Thus, the appropriate forum is in civil or commercial proceedings wherein the matter will be considered on a preponderance of evidence rather than a constitutional petition. 1. The 1st Respondent submitted that the Petitioner has improperly invoked the jurisdiction of this Court by pursuing a constitutional petition rather than a civil suit. Reliance was placed in the case of **Gabriel Mutava & 2 Others vs Managing Director Kenya Ports Authority & Another [2016] eKLR** where the court emphasized:- **Not every violation of the law must be raised as a constitutional issue. Where a dispute is purely contractual or commercial, the appropriate avenue is through a normal civil suit and not a constitutional petition.** 1. Similar reliance was placed in the case of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR**:- ***Not every legal dispute qualifies as a constitutional matter merely because the petitioner alleges a violation of constitutional rights. Where a dispute is better resolved through statutory or contractual frameworks, constitutional avoidance should be exercised.*** 1. The 1st Respondent argued that the Petitioner has not demonstrated how its adherence to the CRB regulations violated his constitutional rights. The Petitioner’s grievances, if any, are based on an alleged breach of contract and should be pursued in a commercial or civil court. 2. The 1st Respondent relied on the case of **Speaker of the National Assembly vs Karume [1992] eKLR** wherein the Court of Appeal held that:- **Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of parliament, that procedure should be strictly followed.** 1. The Petitioner has stated that he made a complaint to the Central Bank of Kenya (CBK) invoking CBK’s administrative power. He further stated that CBK made a decision on his complaint finding that the sharing of his credit information and listing with CRB was proper. The action of CBK is an administrative action. Thus, the Petitioner ought to have sought judicial review proceedings against the decision of the CBK and not file the instant proceedings. Thus, the Petitioner has not exhausted the avenue of redressal open to him and for which he submitted himself and is therefore bound to follow that process before invoking this Honourable Court’s jurisdiction. That notwithstanding, the provision of the credit information by the Respondents has been properly adjudged. 2. The 1st Respondent submitted that the court ought to apply the principle of constitutional avoidance that requires that where a matter can be determined through alternative legal frameworks, courts should refrain from exercising constitutional jurisdiction as was stipulated in the case of **Alphonse Mwangemi Munga & 10 Others vs African Safari Club Ltd [2008] eKLR** where the court held that:- **A constitutional court should not entertain matters that are adequately addressed by other laws unless the petitioner demonstrates that such laws are inadequate or have been arbitrarily applied.** 1. The Petitioner further alleges a breach of the Fair Administrative Actions Act, yet he fails to demonstrate that he exhausted the statutory remedies available under Section 9(2) of the Act. 2. On the second issue, the 1st Respondent submitted that the Petitioner failed to demonstrate how he was treated differently from others in a similar situation pursuant to Article 27 of the Constitution. If the alleged listing with the CRB applied to all individuals under similar conditions, then no discrimination occurred. Further the Petitioner has not shown how his right to dignity under Article 28 of the Constitution was violated, or hat he was subjected to degrading and humiliating treatment on account of sharing of his credit information or listing by itself. Additionally, the Petitioner has not demonstrated that the 1st Respondent unlawfully disclosed personal information beyond legal requirements under the law subsisting at the time of listing in violation of his right under Article 31 of the Constitution. Further, in regards violation of his right under Article 35 of the Constitution, the 1st Respondent submitted that the Petitioner had not demonstrated which information it alleged to have held that was needed by him for the exercise or protection of any right or fundamental freedom. The Petitioner has further not demonstrated which right or fundamental freedom he was seeking to exercise or protect with the alleged information. 1. Nevertheless, financial information relating to the Petitioner’s CRB listing is accessible upon request under the applicable regulatory framework and was admittedly accessed by the Petitioner. Thus, his claim is unfounded. On the claim that his rights under Article 47 of the Constitution were violated, the 1st Respondent submitted that the Petitioner has not demonstrated that it acted unreasonably or failed to follow the due process which was provided in the Banking CRB Regulations 2008 which were the applicable regulations at all material times material to the impugned listing in the proceedings. Further, the petitioner had recourse under the Fair Administrative Actions Act to seek review of the administrative decision of the CBK if he disagreed with the finding that its actions were improper. The petitioner further claims that his rights under Article 50 of the Constitution have been violated. The 1st Respondent submitted that the Petitioner alleges that it is in breach of his constitutional rights and fair administrative action including his right to fair hearing on account of alleged breach of regulation 26(1) of the 2020 CRB Regulations. The 1st Respondent argued that the issue in dispute being the listing of the Petitioner with CRB which was done in the year 2010 and the applicable regulations then was the CRB Regulations 2008. Regulation 28(1)(a) of the CRB Regulations 2008 created an obligation on the part of the institution such as the 1st Respondent to notify its customer that their information had been sent to CRB. The 1st Respondent argued that a party cannot be found in breach of a law of the provision that was not in effect at the time of the alleged breach. The said principle aligns with the doctrine against the retrospective application of laws. Reliance was placed in the case of **Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others [2012] eKLR** wherein the court held that ***legislation does not operate retrospectively unless a clear intention to that effect is manifested. The court emphasized that a law is only retrospective if it looks backward and contemplates the past, affecting acts or facts that existed before the law’s commencement. Therefore,*** ***individuals cannot be held liable under a law for actions that occurred before the enactment of that law***. 1. The 1st Respondent submitted that the Petitioner has not demonstrated that the said provision of the 2020 CRB Regulations was applicable to the facts of the present case to found a claim based on the 2020 regulations. Further, it submitted that it acted within the statutory obligations it had in sharing the Petitioner’s credit information and it has been confirmed by the applicable regulatory body, CBK that it was proper. Whilst relying on the case of **Anarita Karimi Njeru vs The Republic [1979] KLR 154**, the 1st Respondent submitted that the Petitioner failed to plead with specificity the constitutional provisions violated and the manner of violation. The Petitioner voluntarily entered into a contractual relationship with the 1st respondent, obtained a loan, defaulted and was listed with the CRB per statutory obligations and therefore does not amount to a constitutional breach. 2. On the third issue, the 1st Respondent submitted that at the material time the CRB Regulations 2008 were in force and imposed a statutory duty on financial institutions to report non performing loans to licensed CRBs under Regulation 14(1). The petitioner defaulted on the sacco loan repayment, prompting the 1st respondent to share his credit information with CRBs for listing as required by law. Reliance was placed in the decision in **Dry Associates Limited vs Capital Markets Authority & Another [2012] eKLR** where the court held that compliance with statutory obligations does not amount to unfair administrative action. Further, the petitioner has not shown that it acted outside its legal mandate or that it exercised its powers arbitrarily or unfairly. 1. On the fourth issue, the 1st respondent submitted that the petitioner has not demonstrated any malice on its part. The 1st respondent argued that it had statutory justification for forwarding the petitioner’s credit information to CRB and that the information so provided was justified and true. Reliance was placed in the case of **Rupa Cotton Mills (Epz) Ltd & 2 Others vs Bank of Baroda (Kenya) Limited [2012] eKLR** where the court stated:- **If a borrower has defaulted on a loan, it is mandatory that the bank shares this information with all other banks. The petitioners’ assertion they have been portrayed as bad, impecunious and doubtful debtors does not lie. The information that the defendant has provided falls within the ambit of the provisions of the Banking (Credit Reference Bureau) Regulations, 2008 and more particularly as provided for in Section 14 of the Regulations. Much as there may be a dispute as to the amount owed, the petitioners have not settled the loan advanced to them, neither have any efforts been made towards the same.** 1. The 1st respondent submitted that the act of forwarding the petitioner’s information, such information being or believed to be an accurate account of the petitioner’s indebtness, to the CRB does not constitute malice. Further pursuant to Section 31(5) of the Banking Act, the law protects banking institutions which in good faith disclose a customer’s credit information to CBK or CRB. Additionally, courts have on numerous occasions reiterated the position that no action would lie against a bank who discloses a client’s information in utmost good faith. Reliance was placed in the case of **Jamlick Gichuhi Mwangi vs Kenya Commercial Bank Ltd & Another [2026] eKLR** where the court held:- **My view on this is that the 1st defendant is protected by statute where they act in good faith. In this case, they owned up to the error of inaccuracy and upon such discovery of such error of listing the petitioner as a defaulter in the absence of evidence of default, they wrote to the 2nd defendant seeking for correction and deletion of the inaccurate information. Having so found that the inaccurate listing has not been proved to be malicious, I hold that not every wrong must give rise to a cause of action and this is one of those cases where I would find that** **in the absence of bad faith, the petitioner’s claim did not lie against the defendants.** 1. Thus the 1st Respondent submitted that the petitioner has not demonstrated how it defamed him by sharing his credit information for listing. 2. On the final issue, the 1st Respondent submitted that the Petitioner is not entitled to any of the reliefs sought. Further, the Petitioner being in loan arrears, cannot seek aid in an injunctive relief. The blanket order seeking to bar the bank from sharing credit information of its customers is not only unreasonable but seeks to mandate an order in breach of a provision of the law whose constitutionality has not been challenged, itself an illegality. Reliance was placed in the case of **Green Gold Petroleum Limited vs CFC Stanbic Limited & Another [2016] eKLR** where the court opined:- **This court in the case of Cassian Ngotho Mwachanya vs Kenya Commercial Bank and Another, Mombasa High Court Civil Case No. 11 of 2015 declined to issue similar orders and held that it would be a recipe for chaos if this court was to hold that either positive or negative information of a credit facility advanced to a borrower by financial institutions cannot be shared with credit reference bureaus. This would lead to an economic crisis** **in the banking sector with borrowers hopping from one bank to the next to take out loans whose repayments they would fail to honour due to lack of information sharing with credit reference bureaus. This court cannot encourage unscrupulous borrowers to engage undeterred in such activities. Regulation 18 of the Credit Reference Bureau regulations is aimed to cure such mischief from being perpetrated.** 1. On the issue, of special damages, the 1st Respondent submitted that although the Petitioner has pleaded special damages, he has not proven the same as he is not entitled to claim damages on behalf the company, **Kemo Suppliers Ltd**, which is a legal person capable of suing for damages by itself and has not done so; he has further failed to demonstrate that the alleged losses are directly attributable to his listing with CRB; no decision by any bank has been produced to show the alleged refusal of the loan and the Petitioner has not shown his alleged previous position that he now claims he wants to be restored to. 1. On the issue of damages, the 1st Respondent cited the case of **Capital Fish Kenya Limited vs The Kenya Power & Lighting Company Limited [2016] eKLR** where the court observed that …. **“the pieces of paper produced as evidence of income could not be accepted as correct practice. They did not constitute proof of special damages**.” 1. The court in the said case appreciated that where monies involved are huge then the burden of proof cannot be relaxed to allow for mere statements of loss to suffice. The court further stated:- **Further considering the colossal amount demanded of the respondent by the appellant running into millions of shillings, the appellant could not run away from the requirement of specifically proving the loss with credible evidence. We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class.** 1. The 1st Respondent submitted that the Petitioner did not produce evidence to prove entitlement of Kshs. 45 million and without any evidence in support of either the amount of special damages suffered and the cause of that loss being attributed to it, the said claim does not lie. 2. Further while relying on the case of **Bank of Baroda (Kenya) Ltd vs Timwood Products Limited Civil Appeal No. 132 of 2001**, the 1st Respondent submitted that the Petitioner has not shown that there exists in the present suit circumstances informing the award of punitive or exemplary damages or even general damages for that amount. **The 2nd Respondent’s Submissions** 1. The 2nd Respondent identified three issues for determination as follows: *whether the 2nd Respondent is liable*; *whether the matter is a constitutional dispute* and *whether the Petitioner is entitled to the reliefs sought*. 2. On the first issue, the 2nd Respondent submitted that under Regulation 18 of the CRB Regulations, banks and financial institutions are required to exchange both positive and negative information of their customers with bureaus. It further submitted that it does not generate financial information of bank customers but receives the same from banks and financial institutions and publishes the same in its data base. It maintained that the information published was lawfully received from the 1st Respondent and is subject to qualified privilege under Regulations 18 and 19 of the CRB Regulations 2020. The 2nd Respondent cited the case of **Joseph Njogu Kamunge vs Charles Muriuki Gachari [2016] eKLR** where Mativo J (as he then was) in a allowing a defence for qualified privilege held that:- **There is a wide range of defences that may be pleaded in defamation, but the one that is the most famously associated with the public interest is ‘qualified privilege’. The essence of this defence is that the person making a statement has a duty to do so and that the person who hears, or reads the statement has a corresponding interest in doing so.** 1. The 2nd Respondent further submitted that publications made pursuant to the Banking Regulations 2020 are communications subject to qualified privilege. Reliance was placed in the case of **Jamlick** **Gichuhi Mwangi vs Kenya Commercial Bank Ltd & Another [2026] eKLR** where the court stated:- **Inquiries, reports and references made with regard to the commercial credit of a person with whom a trader proposes to transact business may be entitled to qualified privilege.** 1. The 2nd Respondent argued that no reputation damage was visited upon the Petitioner on account of the information published as it was only shared within the confines of the regulations. Further, it investigated the account after a dispute was lodged by the petitioner, by writing to the 1st Respondent on 2nd June 2023 to conduct investigations and confirm if the information as submitted by it was accurate. On 13th June 2023, the 1st Respondent wrote back and confirmed that the information was accurate and should be retained as is, which information was relayed to the Petitioner on the same day. The 2nd Respondent argued that it could not verify the correctness of the information provided as it had no access to the bank account. The correctness of the credit information could only be known and verified by the bank. To buttress that point, reliance was placed on the case of **Jamlick Gichuhi Mwangi vs Kenya Commercial Bank Ltd (supra)** where the court held:- **In my humble view, the 2nd defendant did not act Independently. It acted and does act on information supplied to it by the financial institutions and it is only those financial institutions that can clarify whether the information given was accurate or inaccurate and in this case, once the information was supplied by the 1st defendant, the 2nd defendant promptly did effect the amendments to the information supplied thereby clearing the plaintiff of any default.** 1. On the second issue, the 2nd Respondent submitted that the issues raised in the petition are civil in nature and the suit ought to have been filed at the civil court. The petition as presented does not raise constitutional questions worthy of ventilation before this court. The 2nd Respondent urged the court to consider what Mwita J stated when faced with a similar issue but it failed to cite the case. **The petitioner’s claim is more of a commercial dispute than a claim for violation and infringement of fundamental rights and freedoms. The petitioner has a right to pursue her claim in a normal civil suit if she feels aggrieved by the respondent’s actions. I say so because many of the issues raised by the petitioner have to do with some alleged entries in her bank statement than constitutional rights violations.** 1. On the final issue, the 2nd Respondent submitted that the Petitioner is not entitled to the orders sought as the information of the credit affairs of the Petitioner was lawfully received from the 1st Respondent. The said information is supplied to all credit reference bureaus pursuant to Regulation 50(6) of the Regulations and therefore it cannot be penalized since the said information was available to any other CRB and could be accessible from any of them. Further, the information on the Petitioner was supplied and published as a statutory obligation to institutions allowed by statute. Reliance was placed in the case of **Jamlick Gichuhi Mwangi vs Kenya Commercial Bank Ltd (supra)** where the court held:- **In this instance I am in agreement with the 2nd defendant’s submissions that the 2nd defendant is merely an agent of the 1st defendant for the primary function of acting as a conduit of the customer information in the possession of the 1st defendant and transmitting the same to other banks which have subscribed to the Credit Reference Bureau. Accordingly, the 2nd defendant being a** **disclosed agent no liability can attach for its act of publishing the said information to the other banks on behalf of the 1st defendant.** 1. The 2nd Respondent submitted that there exists an alternative remedy through regulation 35(5) of the Regulations which the petitioner by passed despite being notified vide letter dated 13th June 2023. Had he followed the alternative remedy, his claim would have been resolved by the parties before coming to court. 2. On the issue of damages, the 2nd Respondent submitted that the Petitioner has not demonstrated and qualified the defamation claimed. He has equally failed to demonstrate any alleged loss that can be attributed to it. He further provides no evidence or calculations of the damages that he has suffered. The 2nd Respondent maintained that its actions were in accordance with the statutory duty imposed under the regulations. Reliance was placed in the case of **Daniel Gachanja Githaiga vs Credit Reference** **Bureau Africa Ltd & 2 Others [2020] eKLR** where the court held:- **The plaintiff cannot have expected the 1st defendant, which is a mere agent of necessity to delete the information, which it is incapable of verifying independent from the source and/or author. I therefore find and hold that, the 1st defendant acted** **within its statutory duty and the information published was received in the ordinary course of its business. Further, I concur with the submission advanced that, the plaintiff has not complied with the provisions of Order 2 Rule 7 of the Civil Procedure Rules as he did not state in the pleadings the particular words published which amount to defamation and/or particulars of that claim. How can the court arrive at a decision that, the words complained of are defamatory in nature, when it does not even know what those words are?** **It is trite law that the words that constitute defamation must not only be pleaded but must be set out verbatim in the statement of claim. The 1st defendant has made reference to several cases in its submissions that speaks to this requirement and I entirely associate myself with the same. On the basis of the aforesaid, the plaintiff having failed to prove the first ingredient of defamation that; the alleged statement was published and was defamatory, it does not call for the court to consider the other two ingredients for they stand on the foundation of the defamatory statement.** **As a result of the aforesaid, the claim against the 1st defendant is not proved and I dismiss it.** **The 3rd Respondent’s Submissions** 1. The 3rd Respondent identified six issues for determination as follows: *whether the instant petition is an abuse of the court process as the petitioner has recourse to an alternative statutory procedure provided for under Regulation 37 of the Credit Reference Bureau* *Regulations 2020*; *whether the instant petition is an abuse of the court process as the subject matter of the petition has been caught up by the Limitation of Actions Act specifically Section 4(2)*; *whether the petition raises any constitutional issues worthy of being determined by the court in its capacity as a constitutional court*; *whether the petition is statute barred under Section 31(5) of the Banking Act*; *whether the 3rd respondent infringed the petitioner’s constitutional rights* and *whether the petitioner is entitled to relief sought.* 1. The 3rd Respondent submitted that the Petition is an abuse of the process as the Petitioner has statutory recourse provided under Regulation 35 of the CRB Regulations 2013 which the Petitioner has failed or neglected to pursue, hence the Petition is premature and an abuse of the process. To buttress that point reliance was placed in the case of **Jimmy Mutinda vs Independent Electoral and** **Boundaries Commission & 2 Others *exparte* Shaileshkumarnata Verbai Patel & 2 Others [2013] eKLR** where the court stated:- **The court is perfectly entitled to take into account the existence of such a remedy and its efficacy in deciding whether or not to entertain the dispute and may decline to do so not only on the ground of want of jurisdiction but also in order to avoid the abuse of its process where the process is being invoked to achieve some collateral purpose not recognized by the law as genuine. If therefore abuse of the court process is shown to have happened, it would be wrong to allow misuse of that process to continue. There is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it. See The King vs the General Commissioners for the purpose of the Income Tax Act for the District of Kensington ex parte Princess Edmond de Polignac [1919] KB at 495.** 1. The court further held:- **Accordingly, where there is an alternative remedy provided by an Act of Parliament which remedy is effective and applicable to the dispute before the court, the court ought to ensure that that dispute is resolved in accordance with the relevant statute. Accordingly, I agree with the decision in Pasmore vs Oswaldtwistle Urban District Council (supra) that where an obligation is created by statute and a specific remedy is given by that statute, the persons seeking the remedy is deprived of any other means of enforcement.** 1. Further reliance was placed in the case of **Narok County Council vs Trans Mara County Council & Another Civil Appeal No. 25 of 2000** where the court held:- **Although Section 60 of the Constitution gives the High Court unlimited jurisdiction, it cannot be understood to mean that it can be used to clothe the High Court with jurisdiction to deal with matters which a statute has directed should be done by a minister as part of his statutory duty; it is otherwise where the statute is silent on what is to be done in the event of a disagreement….Where the statute provides that in case of a dispute the Minister is to give direction, the jurisdiction of the Court can be invoked only if the Minister refuses to give a direction or in purporting to do so, arrives at a decision which is grossly unfair or perverse. In the latter, his decision can be challenged by an application to the High Court for a writ of certiorari because under the relevant section the decision is to be made on a fair basis. But if the Minister simply refuses to discharge his statutory duty, his refusal can also be challenged in the High Court by way of mandamus to compel the Minister to perform his statutory duty but not by way of a suit…If the court acts without jurisdiction, the proceedings are a nullity. The extent of the jurisdiction of the High Court may not only, be that which is conferred or limited by the constitution but also, that which the constitution or any other law, may by** **express provisions or by necessary implication, so confer or limit. The jurisdiction of the High Court can be ousted by an Act of Parliament and in such cases all that the High Court can do is to enforce by judicial review proceedings, the implementation of the provisions of the Act; certainly not to usurp the powers of the Minister…Even though resort to the judicial review process, may not apply in peculiar circumstances such as this one, so as to entitle the Judge to do not only what he was not requested to do, but also to do what he had no jurisdiction to embark upon….Where the law provides for procedure to be followed, the parties are bound to follow the procedure provided by the law before the parties can resort to a court of law as the court would have no jurisdiction to entertain the dispute.** 1. Further reliance was placed on the case of **Dickson Mukwelukeine vs Attorney General & 4 Others Nairobi High Court Petition No. 390 of 2012** where the court held: - **That alternative dispute resolution processes are complementary to the judicial process and by virtue of Article 159(2)(c) of the Constitution of Kenya, the court is obligated to promote these modes of alternative dispute resolution and that it is not inconsistent with Articles 22 and 23 to insist that statutory processes be followed particularly where such processes are for the specific purpose of realising, promoting** **and protecting certain rights. Accordingly, the court is entitled to either stay the proceedings until such a time as the alternative remedy has been pursued or bring an end to the proceedings before the court and leave the parties to pursue the alternative remedy. In the result I am of the view and I hold** **that the court’s jurisdiction under Article 165 can be limited and/or restricted by an Act of Parliament.** 1. The 3rd Respondent submitted that the Banking Act is clear on the procedure to be adopted if a customer disputes the information forwarded to a bureau. Reliance was placed in the case of **Kennedy Odhiambo Nyagundi vs Central Bank of Kenya & 3 Others [2013] eKLR** where Majanja J (as he then was) stated as follows in relation to **Regulation 20 of the CRB Regulations 2008** which mirror the provisions of Regulation 37 of the CRB Regulations 2020:- **I am therefore constrained to agree with the position taken by the CBK that the complaints raised by the Petitioner are provided for in Regulation 20 of the Regulations which states as follows…….** **The provisions I have cited above clearly show that the Regulations provide for relief to any customer who is aggrieved by wrong and erroneous information. The Petitioner’s grievances fall within these provisions and he is entitled to invoke the statutory procedure provided. It is for this reason, I** **have restrained myself from** **commenting on the facts of the Petitioner’s case as he is entitled to invoke these provisions.** 1. Further reliance was placed in the case of **Amy Kagendo Mate vs Prima Bank Limited & Credit Reference Bureau Africa Limited [2013] eKLR** where the court held:- **In the present case, the petitioner complains and seeks a declaration inter alia, that the 2nd respondent has violated her rights under the Constitution by maintaining in its database and dissemination ‘inaccurate, outdated and untruthful credit information regarding the petitioner and without due notice to her of the same.’** **The petitioner has not pleaded that she invoked the provisions of Regulation 20 and what the outcome thereof was. On the pleadings before me, it appears that the petitioner sought the assistance of this court after by passing the statutory remedy which is intended to address her grievances with respect to the information held by the 2nd respondent. I would therefore agree with the 2nd respondent that this petition is improperly before me on this point.** 1. The 3rd Respondent maintained that pursuant to Regulation 37 of the CRB Regulations 2020, it treated the letter dated 2nd October 2023 as a dispute where after it proceeded to affix a note to the petitioner’s credit listing. Further, it furnished the 1st Respondent with a notice of the petitioner’s dispute requesting confirmation of the accuracy of the credit information to be issued within 21 days notice. The 1st Respondent reverted back via email dated 6th October 2023 confirming the accuracy of the Petitioner’s listed status and that the said listing be maintained as is. 1. On the second issue, the 3rd Respondent relied on Section 4 of the Limitations of Actions Act and argued that the Petitioner’s credit listing was made on 29th September 2019 and therefore any claim under tort ought to have been raised by 29th September 2022 and any claim for defamation ought to have been made by 29th September 2020. Meanwhile the Petitioner filed the instant Petition in 2023 seeking among other orders that a declaration that his rights were violated by the respondents on account of their professional negligence. Further, the Petitioner seeks judicial review orders whereas judicial review orders should be made promptly and in any event within a maximum period of six months from the date when the ground for the application arose. The 3rd Respondent maintained that the instant Petition is an afterthought by the Petitioner and has been framed as a constitutional petition with an aim of circumventing time limitations set by statute. The Petitioner having filed the instant Petition after the lapse of six years after the cause of action arose is time barred and ought to be dismissed. To buttress that point reliance was placed in the case of **Wilson Kiarie** **Njoroge vs Family bank Limited & Another [2017] eKLR** where the court held:- **The two preliminary objections raised in this matter are mainly based on section 4 (2) of the Limitations of Actions Act and section 20 of the Defamation Act Cap 36 Laws of Kenya, both of which provide that an action for libel or slander may not be brought after the end of twelve months from the date the cause of action occurred. The 1st defendant is alleged to have published to the 2nd defendant a defamatory and/or report about the plaintiff to the effect that he could not discharge his contractual obligations to the lenders in Kenya and consequently was not a fit person to be lent money by any bank and/or financial institution.** **With regard to the 2nd defendant, the plaintiff pleaded that it, the 2nd defendant recklessly and negligently without proper cause or confirmation went on to disseminate and publish the said defamatory words and/or report to other banks and financial institutions. The said report was published on 26th April, 2011 in what is referred to as a “CONSUMER CREDIT REPORT”.** **The plaintiff’s counsel in her submissions admitted that the cause of action in defamation is time barred as it was brought outside the twelve months period provided for by the law. Though she argued that the 2nd listing is what prompted the plaintiff to come to court, am of the view that time started to run on the date when the slanderous** **remarks were made and not when the plaintiff started feeling the effect of the slander.** **This was well articulated in the case of WYCLIFFE A. SWANYA V TOYOTA EAST AFRICA & ANOTHER, 2009. Going by the plaintiff’s** **submissions that it is the listing by the 2nd defendant that prompted him to come to court and not the publication by the 1st defendant, that means that it was then that he felt the effect of the slander/libel.** 1. The 3rd Respondent argued that the court found that the date of listing is the date of publication hence time begins to run at that point hence in the instant case more than five years having passed, the Petitioner cannot make any claims based on tort and libel. 2. On the third issue, the 3rd Respondent submitted that the Petitioner failed to lead any evidence to demonstrate breach of his constitutional rights but instead filed a civil claim couching it as a Petition. The issues raised are commercial in nature arising out of contractual duties which ought to be best heard and determined in the commercial division. The 3rd Respondent argued that the Petitioner has not pleaded or challenged the legality of any of the statutes constituting the legal framework under which credit referencing is conducted namely the Banking Act and the Credit Reference Bureau Regulations 2020. Thus, the matter ought to have been filed in the civil or commercial division of the High Court. Reliance was placed in the case of **Ann Njoki Kinyanjui vs Barclays Bank of Kenya Ltd [2015] eKLR** where the court held:- **Under Article 22, the Constitution has given every person the right to approach the court claiming that a right or fundamental freedom has been violated or infringed, or is threatened with violation. Decisions of this court have settled the conditions that a party seeking constitutional relief must meet. The petitioner has an obligation to demonstrate which articles have been violated and the manner of violation with respect to her. See Anarita Karimi Njeru (1976-80) 1 KLR 1272 and Trusted Society of Human Rights Alliance vs Attorney General & Others High Court Petition No. 229 of 2012.** 1. Further as stated by Ouko J (as he then was) in the case of **Passaghia Giuseppe vs Attorney General Malindi High Court Civil Case No. 15 of 2005**, it is not enough to state that a right has been violated. One must demonstrate the manner of violation. In addition, where a party has a remedy under some other legislation, the court will decline to determine whether or not there has been a constitutional violation. Courts have held in many decisions that it would be improper to convert every issue into a constitutional issue and present it before the constitutional and human rights division for determination. The learned Judge proceeded to find as follows: - **In the present case, the petitioner is aggrieved by the decision of the respondent to deduct certain amounts form her salary deposited in her account with its Muranga Branch to offset** **certain amounts said to be due as a result of late payments on a loan. While she attempted to bring a constitutional angle to the matter by alleging violation of consumer rights under Article 41 and the right to deletion of incorrect information under Article 35(2), it is patently clear that there is nothing more before this court than a straightforward commercial dispute. Should there be any violation of a constitutional right as she alleges, then the Commercial Division of the High Court in which the matter should have been filed has the jurisdiction to determine the issue. Indeed, given the amount in dispute, Kshs. 37,758.25/- this is a mater for determination before the Resident Magistrate’s Court.** 1. Similar reliance was placed in the case of **David Kenyanya Magare & Another vs Luthafal Jiwa Ranjwani & 4 Others; Diamond Trust Bank Limited [Interested Party] [2019] eKLR** where the court stated: **The Supreme Court has taken a similar position that where there is some other forum where a matter can be determined, the matter ought to be referred to that other fora for determination and not to be couched as a constitutional petition. In the case of Communications Commission of Kenya** **& 5 Others -vs- Royal Media Services Ltd & 5 Others [2014]eKLR, the Supreme Court after reviewing the various provisions of the Copyright Act and comparative judicial pronouncements stated at paragraph 258:-** **“From the foundation of principle well developed in 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.”** 1. On the fourth issue, the 3rd Respondent cited Section 31(5) of the Banking act and Regulation 20 of the Regulations 2020 and submitted that the Petitioner had to prove that its agents acted in bad faith when they received or disclosed his credit information. Reliance was placed in the case of **Thornton vs Equifax Inc 619F 2d 700 pg 2** Ross J held as follows:- **Actions or proceedings in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information, however, are specifically provided for in the Act and are limited by the Act in Section 1681h(e). If such actions are based on information disclosed pursuant to requirements of this Act, a consumer may not bring any such action or proceeding unless the relevant information is false and furnished with malice or wilful intent to injure such consumer.** 1. The Learned Judge proceeded to find that:- **The qualified privilege under the Act is purely statutory and as previously stated is the quid pro quo for full disclosure.** 1. Thus for the Petitioner to overcome the statute bar under Section 31(5) of the Banking Act he must prove that the 3rd Respondent disseminated false credit information wilfully with malice or intent to injure. Reliance was placed in the case of **Reeves vs Equifax Services LLC et al pg 25** Scarret J stated:- **“Additionally, the court finds that the plaintiff’s libel claim is pre-empted by the FCRA and, accordingly fails as a matter of law on this independent ground. See 15 U.S.C. § 1681h(e) (“no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency . . . except as to false information furnished with malice or wilful intent to injure such consumer.”); see also Cousin, 246 F.3d at 375; Rivera, 2006 WL 2431391, at \*3 (“Plaintiff's state law claims in the nature of defamation, invasion of privacy, or negligence with respect to the Defendants' reporting of information to a consumer reporting agency are pre-empted by § 1681h(e) unless Plaintiff proves ‘malice or wilful intent to injure’ her.”) (Citing Young v. Equifax Credit Info. Servs., 294 F.3d 631, 638 (5th Cir. 2002)).”** 1. Further, the 3rd Respondent contended that the Petitioner must prove that it knowingly and intentionally committed an act in conscious disregard for the rights of others as was held in the case of **Terry Cousin vs Trans union Corporation 246 F. 3d 359 (5th Cir. 2001:**- **In Pinner, we noted that “willful” is a word of many meanings and that its construction is often influenced by its context. See Pinner, 805 F.2d at 1263. In concluding that the consumer reporting agency in that case did not commit a willful violation, we remarked that there was no evidence suggesting that the agency “knowingly and intentionally committed an act in conscious disregard for the rights of others.” Id.; see also Philbin, 101 F.3d at 970; Stevenson, 987 F.2d at 293. Generally, courts have allowed a willful noncompliance claim to proceed where a defendant’s conduct involves willful misrepresentations or concealments. See Pinner, 805 F.2d at 1263. In those cases, a consumer reporting agency has typically misrepresented or concealed some or all of a credit report from a consumer. See id. (discussing Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829 (8th Cir. 1976)); see also Stevenson, 987 F.2d at 294.”** 1. The 3rd Respondent maintained that pursuant to Regulation 50(3), the petitioner’s credit information supplied to it by the 1st Respondent was accurately recorded as furnished to it. 2. The 3rd respondent submitted that the petitioner failed to produce any evidence in support of his allegations that the bank denied him a loan facility as a result of his credit listing and therefore any loss incidental thereto cannot be attributed to it. Further any allegations of violation of his constitutional rights cannot be attributed to it given that the same was solely occasioned by the petitioner’s negligence by failing to direct his complaints via the expressly provided channel. 1. On the issue of whether the 3rd Respondent infringed the Petitioner’s constitutional rights, it cited the case of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others (supra)** where the court stated as follows: **Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed as well as the basis of his or her grievance.** 1. The 3rd Respondent submitted that although the Petitioner pleaded that his rights under Articles 25(c), 47 and 50 of the Constitution were violated, he failed to demonstrate how the said rights were infringed and in what manner they were infringed by it. It further maintained that pursuant to Regulation 37 of the CRB Regulations 2020, the obligation placed upon the bureau after receiving a customer’s dispute is to affix notice of dispute on the listing, then forward such notice of dispute to the subscribing institution such as the 1st respondent herein who in turn ought to ascertain the accuracy of the listing within 21 days as opposed to the bureau having the customer attend a earning on the dispute as alleged by the petitioner. 1. On the allegation that the CRB listing occasioned loss of business and reputational damages, the 3rd Respondent argued that those are purely commercial matters arising out of contractual obligations and duties for which the appropriate forum would be the commercial division of the court. 2. On the final issue, the 3rd Respondent submitted that the Petitioner is not entitled to the reliefs sought as the issues raised in the Petition are civil and commercial claims for negligence and breach of contract and do not raise any constitutional issues. As such, the same should be struck out. **The Petitioner’s Supplementary Submissions** 1. The Petitioner submitted that the petition is properly before the court. He argued that all the respondents submit that the dispute is commercial in nature on account of the allegation that he and the 1st Respondent have a contractual relationship in respect of the loan allegedly advanced to him. He maintained that the document produced is a MOU between the 1st Respondent and Kencom Sacco and he is not privy to the said MOU and therefore the said MOU cannot confer rights or impose obligations to him. To buttress that point, reliance was placed in the case of **Agricultural Finance Corporation vs Lengetia Ltd & Another (1985) KLR 765** where the court held:- **As is stated in Halsbury’s Laws of England, 3rd Edition, Volume 8 at paragraph 110: As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.** 1. Further reliance was placed in the case of **William Muthee Muthami vs Bank of Baroda [2006] eKLR** where the court held:- **We are further guided by Halsbury’s Laws of England, 4th edn. Vol. 9(1) para 749 and this court’s own recent decision in Aineah Liluyani Njirah vs Aga Khan Health Services [2013] Civil Application No. 194 of 2009. In the former, the authors explain that-** **The general rule: the destine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose strangers to it. That is, persons who are not parties to it. The parties to a contract are those persons who reach agreement and whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts or several parties are, or both, for example in the case of multilateral contracts; collateral contracts, irrevocable credits contracts made on the basis of the memorandum and articles of a company; collective agreements, contracts with unincorporated association; and mortgage surveys and valuation.** 1. In the latter, this court observed that:- **There is however, an important distinction made between express and implied benefits which are enforceable under a contract by a third party. When a contract expressly benefits the third party, there is a presumption that the contracting parties intended the third party to have a right of enforcement. However, if the contract only impliedly benefits a third party,** **there is no such presumption and the third party has no rights unless the contract expressly gives that third party a right to enforce the contract. This creates certainty for, and protects contracting parties in that third parties cannot enforce contracts which inly incidentally benefit them unless the contract expressly states that they may do so.** 1. The Petitioner submitted that the statement of accounts allegedly being relied upon by the 1st respondent are inadmissible as they lack the well-known features of the 1st Respondent. Thus, the 1st Respondent has snot demonstrated how he is its customer and as such the dispute herein is not commercial in nature. 1. The Petitioner argued that it exhausted all the redressal mechanisms under the CRB Regulations 2020 by emailing and sending a demand letter to the 1st Respondent to resolve the dispute but the 1st Respondent did not reply to the same. He further notified the 2nd and 3rd respondents, which they have confirmed. Therefore, pursuant to Regulation 37(15) he filed the instant petition. Reliance was placed in the case of **Okiya Omtata Okoiti vs Commissioner General, Kenya Revenue Authority & 2 Others (2018) eKLR** where the court stated:- **The second principle suggested by case law for limiting the applicability of the doctrine of exhaustion in appropriate cases** **is that a statutory provision providing an alternative forum for dispute resolution must be carefully read so as not to oust the jurisdiction of the court to consider valid grievances from parties who may not have audience before the forum created 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…** 1. The Petitioner argued that the predominant issues raised in the Petition relate to the violation of his fundamental freedoms and as such the dispute resolution mechanisms cannot oust the jurisdiction of this court for the simple reason that such dispute resolution mechanisms cannot enforce fundamental rights and freedoms. The enforcement of fundamental rights and freedoms is a preserve of the current court under Articles 22, 23 and 163(3)(b) of the Constitution. To buttress that point, reliance was placed in the case of **William Odhimabo Ramongi & 2 Others vs Attorney General & 6 Others (2018) eKLR** where it was held that alternative forums would not preclude the High Court from considering a matter in the first instance if the petition is centrally about the violation of fundamental rights of the petitioner and it is demonstrated that the claimed constitutional violations are not more bootstraps or merely framed in Bill of Rights language as a pretext to gain entry to the court. 1. The court further held that courts should be reluctant to deny a litigant access to the courts unless it is proven the alternative mechanisms are available, effective and sufficient. It held:- **It is equally true that the need for an effective remedy in a case may justify this court to take the exceptional course of entertaining a dispute where the court is satisfied that the laid** **down statutory mechanism may not provide an effective remedy to the aggrieved party or if it is clear the dispute disclosed by the facts substantially or wholly lies outside the scope of the laid down statutory mechanism. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred or will occur or there is a clear violation of the Constitution and that there is no alternative effective remedy within the statutory established mechanism.** 1. The Petitioner argued that the 1st and 3rd respondents did not act in good faith in the process of trying to resolve the dispute and therefore they cannot seek refuge under the doctrine of exhaustion when they were the main architects of frustrating the attainment of the said doctrine. 2. On whether the petition is statute barred pursuant to Section 4(2) of the Limitation of Actions Act and Section 31(5) of the Banking Act, the Petitioner submitted that the same not ought to be considered as the 3rd respondent did not raise the said issues in its pleadings but raised the same in its submissions. That notwithstanding, he learnt of his wrongful listing on 18th May 2023 when he approached KCB to seek a loan for his company Kemo Import Supplies Ltd. He further argued that constitutional petitions have no strict limitation period save that they should be filed within a reasonable time. The Petitioner submitted that the 3rd Respondent did not act in good faith and cannot seek shelter under Section 31(5) of the Banking Act. He argued that the 3rd Respondent received his complaint on 26th May 2023 and blatantly ignored to comply with Regulation 37(5), (6) and (7) of the CRB Regulations 2020. The 3rd Respondent ought to have notified the 1st Respondent of the disputed credit report within five days and also investigate the same within seven days. Further, the 2nd and 3rd respondents have also never supplied him with the information relied upon by the 1st respondent to list him negatively as is required under Regulation 37(1) of the CRB Regulations 2020. 1. The Petitioner maintained that he has not challenged the CRB Regulations 2008 as being unconstitutional rather he is putting the 1st Respondent to task to demonstrate to the court whether it complied with the said regulations which have since been repealed and whether it complied with the CRB Regulations 2020. The 1st respondent has not demonstrated how it complied with the CRB Regulations 2008 by issuing the requisite notifications under regulation 28. Further, the 1st Respondent has not shown whether there exists a customer and banker contractual relationship to warrant its actions namely account opening documents such as identity card, passport size photos and account opening forms, loan application forms, letter of offer and acceptance which created the contractual relationship. 1. The Petitioner submitted that he has severally requested the 1st Respondent to issue him with the documents and reasons for having him listed negatively by the 2nd and 3rd respondents to no avail. He only became aware of the documents being relied upon by the 1st Respondent upon seeing its replying affidavit which is an outright breach of Articles 35(1) of the Constitution which required the 1st respondent to provide access by supplying the same to him and 47(2) of the Constitution. Thus, the Petitioner asserted that listing him negatively and denying him the documents and information relied upon is demeaning by the 1st Respondent and a breach of Article 28 of the Constitution. The failure of the 3rd respondent to act as per Regulation 37(5), (6) and (7) of the CRB Regulations 2020 is a demeaning act as well and therefore a breach of his rights under Article 28 of the Constitution. The 1st Respondent further breached the right of fair hearing under Article 50 for failing to provide the documents relied upon to list him and reasonable access to the same upon request by email. 1. The Petitioner submitted that the 1st Respondent was duty bound under Section 4(2) of the Fair Administrative Actions Act to give information and reasons for listing him with the 2nd and 3rd Respondents upon request vide email. On the issue of the remedies sought, the Petitioner submitted that he is entitled to the same as he has suffered immense anguish and agony as he cannot access credit in view of the actions of the 1st Respondent. His reputation and creditworthiness has been damaged as KCB have accessed his credit score and his credit score has affected his company because banks require SMEs or single director companies for the director to give personal guarantee for the company loan. The petitioner urged the court to be guided by the case of **Nganga vs Higher Education Loans Board & 2 Others [2020] eKLR** where the court held:- **I agree with the 3rd respondent that the petitioners might not have availed the list of banks from which she applied for loan and was denied or list of financial institutions for that matter, from where she applied for loan and was denied. She has further not given a list of business contracts she lost from** **potential clients and who these potential clients are or employment opportunities she lost. However I am alive to the fact that an adverse report from CRB is not a light joke and no prudent business person would go about giving loan or entering into business contract with someone who has an adverse report from CRB. No bank could attempt to engage to do business with such a character nor give loan proposal to such a character. Further no potential clients would wish to have any contract with such an individual or company.** **This court takes judicial notice to the fact that whoever is ever listed by any CRB following an adverse information or report cannot be taken as a person worthy granting loan or doing business with, otherwise CRB listing would have no meaning in the business world. It would therefore be extremely difficult for such individual to produce evidence to demonstrate that she applied for a loan with any bank or financial institution or business or lost potential clients as no one would wish to give such an individual any chance to initiate such a process for fear of losing finances or being conned. The person loses all respect and dignity and becomes like unwanted individual by any financial institution.** **Analysis and Determination** 1. Having regard to the deposition and submissions by the parties, I find the following to be core issues for determination in the instant Petition: 2. ***Whether or not the Petition offends the doctrine of constitutional avoidance.*** 3. ***Whether or not the petition offends the doctrine of exhaustion.*** 4. ***Whether the petitioner’s rights under Articles 25, 28, 31, 35, 47 and 50 of the Constitution were violated.*** 5. ***Whether the petitioner is entitled to the reliefs sought.*** **Whether or not the petition offends the doctrine of constitutional avoidance.** 1. The main contention is that that the Petition is barred by the doctrine of constitutional avoidance. The Respondents unanimously argued that underlying grievance is a contractual or commercial dispute which can appropriately be resolved without any recourse to the Constitution. 2. The Petitioner vehemently opposed the contention. He submitted that there existed no contractual relationship between him and the 1st Respondent stating that he has neither had a bank account with the 1st Respondent nor did he receive any loan from the 1st Respondent through Kencom Sacco as claimed by the 1st Respondent. 3. The principle of constitutional avoidance was elaborated in **KKB v SCM & 5 others [2022] KEHC 289 (KLR)** as follows: **“Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.16 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor in which Ebrahim J A said the following: -** **…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative** **provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”** **The Constitutional Court of Zimbabwe in Chawira & Ors vs Minister of Justice Legal and Parliamentary Affairs & Ors held:** **“As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face** **of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.”** The court in S v Mhlungu laid out constitutional avoidance as a general principle in the following terms: - **“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”** **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 mechanismthrough which the dispute could be resolved.”** 1. Similarly, the Supreme Court in **Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)** held thus: **“[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.”** **[257] Similarly the U.S. Supreme Court has 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 (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).”** 1. On the issue of the contractual relationship, I perused the annexures from both the Petitioner and the 1st Respondent. It shows the Petitioner applied for a loan for a sum of Kshs. 350,000/- from Kencom Sacco on 23rd December 2004. In the said form, the Petitioner indicated that he was working as a clerk with Kenya Commercial Bank Maralal Branch and provided his pay slips and a copy of his national id card as supporting documents. His identity number is 14606567 and staff number is 6954 which he has not disputed is his affidavit and supplementary affidavit. These details are also captured in the pay slips annexed. The said identity card number has been quoted in the 1st Respondent’s letter dated 15th August 2023 in response to the Petitioner’s complaint to Central Bank of Kenya. Further he indicated his home address as 484 Keroka which he has not disputed or denied is his. 1. Additionally, the Petitioner admitted in his affidavit that he previously worked with the Kenya Commercial Bank. Besides making a bare denial that he never took any loan with the 1st Respondent, he does offer any serious challenge to the matter. He does allege any fraud or forgery of his documents in question or whether he made any police report for investigation into alleged use of his personal documents to process a loan facility in his name with the 1st Respondent. 2. The 1st Respondent has prima facie adduced evidence in support of the financial contractual relationship between it and the Petitioner of which the Petitioner’s denial is markedly feeble and unpersuasive. In the circumstances, the logical conclusion is that this is purely a contractual dispute which the Petitioner, through this Petition is trying to constitutionalize. The issues raised herein, do not in law and substance raise constitutional questions. They are founded on contract. 3. In any event, it is clear even from the Parties submissions that already, a comprehensive statutory framework exists through which the grievance being raised may be properly ventilated. 4. I thus find that the Petition offends the doctrine of constitutional avoidance. Accordingly, there is no need to address the remainder of the issues framed for determination. I down my tools at this stage. 5. The consequence is that the Petition dated 15th December 2023 is hereby dismissed with costs to the Respondents. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**