https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12172

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NUMBER E480 OF 2026** **BETWEEN** **MUSA KULUBI OSIEKO…………………………………………..……..PETITIONER** **VERSUS** **INSTITUTION OF ENGINEERS OF KENYA………....................…...1ST RESPONDENT** **THE CARETAKER COMMITTEE,** **INSTITUTION OF ENGINEERS OF KENYA……………………....….2ND RESPONDENT** **THE REGISTRAR OF SOCIETIES KENYA……………………….…...3RD RESPONDENT** **AND** **ENG. HOWARD M'MAYI** **ENG. SHADRACK NTHUSI MUSYOKI** **ENG. JAMES KARORI NYABUTO** **ENG. MOHAMUD IBRAHIM MATHOPE** **ENG. SIMEON NYAKUNDI ONYIENGO** **ENG. YVONE ROBERT** **ENG .BUTICHI KAMISI** **ENG. CEDRICK OBONYO** **ENG. SIMON NDUNG'U KIMANI** **ENG. ANNETTE INGAIZA MURAMBI** **ENG. DESMOND BARONGO NYAGWOKA** **ENG. DR. ELISHA AKETCH** **ENG. HARRISON KIPLIMO KETER** **ENG. DAVID JOMELI** **ENG. SOLOMON MUTHOKA** **ENG. JOHN KARIUKI KARANJA** **ENG. JACKTON MWEMBE ACHIENG** **ENG. PATRICK OTENO OTUOMA** **ENG. JAMES MAATI ONDARI** **ENG. NASHON TAMBO** **ENG. JOHN ROBERT OTIENO OGALLO** **ENG. JASPER IRERI** **ENG. DAMARIS KERUBO OYARO………………………..…… INTERESTED PARTIES** **R U L I N G** **Introduction** 1. By a notice of motion application dated 21st July, 2026 filed under certificate of urgency, the Petitioner/applicant sought the following orders: - 2. ***THAT an Interim Conservatory Order of Injunction be and is hereby issued restraining the 1st Respondent, its Caretaker Committee, Scrutineers, agents, or employees from opening balloting, conducting, progressing, or finalizing the 2026-2028 IEK Council Elections scheduled to commence on Monday, 27th July 2026 pending the interpartes hearing and determination of this Application.*** 3. ***THAT an Interim Order be and is hereby issued staying the implementation of the current election roadmap.*** 4. ***THAT an Order be and is hereby issued directing the 2nd Respondent (Caretaker Committee) to ADJOURN the election date scheduled for 27th July 2026 and forthwith issue a formal Notice to members convening a Special General Meeting (SGM) for the purpose of announcing the fresh restarting of the 2026-2028 Council Election process under the registered IEK Constitution 2015.*** 5. ***THAT an Order be and is hereby issued directing the 2nd Respondent (Caretaker Committee) to RESTART the 2026-2028 Council Election process afresh strictly under the registered IEK Constitution 2015 by initiating a full three (3) month electoral calendar, including issuing fresh nomination notices and appointing a new, independent panel of Scrutineers under Section 8.02 and Schedule 6 of the Regulations.*** 6. ***THAT the costs of this Application be in the cause.*** 7. Upon a preliminary consideration of the application, the court certified the matter as urgent, considered it *ex-parte* in the first instance, issued interim conservatory orders and directed that the matter be heard *inter-partes* on 27th July, 2026 to confirm compliance with directions and for further directions on the hearing. **Petitioner’s Case** 1. The application is supported the affidavit of ENG. MUSA KULUBI OSIEKO sworn on even date and the grounds on the face of the application. 2. The Petitioner asserts the respondents have violated the constitution when the outgoing Council of the 1st Respondent initiated an electoral process for the 2026–2028 IEK Council Elections based on an unratified, unregistered draft 2025 Constitution which was later formally cancelled the 2026 electoral process by an official letter dated 12th March 2026. 3. That on 28th May 2026,the 3rd Respondent (Registrar of Societies) issued formal communication **(Ref: SOC/10574)** confirming that the draft 2025 Constitution had been recalled, affirming that the IEK Constitution 2015 remains the sole operative governing legal instrument, and approving the appointment of the 2nd Respondent (Caretaker Committee) to administer the Institution, with terms of reference including to oversee the preparation and conduct of fair elections for the new IEK 2026/2028 Council, in strict compliance with court directives and the IEK Constitution, upon finalisation of Kiambu Petition No. E009 of 2026. 4. The petitioner states that on 17th June 2026, the High Court at Kiambu (Chepkwony J.) delivered judgment in Petition No. HCCHRPET/E009 of 2026, dismissing the same for want of merit and discharging the interim conservatory orders issued therein suspending the 2026 elections. That judgment, read together with the 3rd Respondent's letter of 28th May 2026, removed any remaining legal impediment to the 1st and 2nd Respondents giving effect to the Petitioner's Motion of 7th April 2026. 5. The Petitioner avers that despite the lapse of over a month since the Kiambu judgment, neither the 1st nor the 2nd Respondent has tabled, considered, responded to, or in any manner acted upon the Petitioner's Motion of 7th April 2026, notwithstanding its clear terms and instead the 2nd Respondent has proceeded to advance the very same tainted election process without voiding it or restarting it afresh, including by way of an Election Roadmap Update dated 9th July 2026 and a Notice of Voter Sensitisation dated 21st July 2026 issued by the Secretary to the Scrutineers, culminating in voting being scheduled for Monday, 27th July 2026. 6. The Petition avers that on 9th July 2026, the Chairman of the IEK Eminent Engineers Forum (EEF)—a body constitutionally recognized under Section 4.14 of the IEK 2015 Constitution to provide strategic guidance—issued formal written counsel to the 2nd Respondent. In the advisory, the Chairman Eminent Engineers Forum explicitly warned the 2nd Respondent against continuing the compromised 7-month-old process, pointing out, *inter alia*: 1. *That the election process commenced under an unregistered draft Constitution;* 2. *That candidate rosters cleared under the invalidated regime remain frozen and include a deceased candidate, invalidating the democratic vote;* 3. *That the Scrutineers lack a clear legal mandate;* 4. *That member participation was severely suppressed due to confusion and dual court actions; and* 5. *That the mandatory electoral calendar under the 2015 Constitution requires a full three (3) month cycle*. 7. The Petitioner avers that however, in complete violation of Article 47 of the Constitution, the 2nd Respondent (acting as Secretariat) suppressed both the Petitioner's Motion dated 7th April 2026 and the EEF Chairman’s counsel dated 9th July 2026. Instead, by a Notice of Voter Sensitization dated **21st July 2026**, the Scrutineers announced that voting for the 2026–2028 Council Elections would commence on **Monday, 27th July 2026** ahead of the Annual General Meeting (AGM) scheduled for 6th August 2026. 8. The petitioner avers that the conduct complained of in the Petition discloses an arguable and substantial constitutional questions as they breach of Articles 10, 36, 38 and 47 of the Constitution. 9. The petitioner further avers that unless this Honourable Court grants the conservatory orders sought, the election of 27th July, 2026 will cause irreparable harm to the Petitioner and the entire engineering fraternity. **1st and 2nd Respondents Preliminary Objection.** 1. The 1st and 2nd Respondents filed a notice of Preliminary objection dated 24th July, 2026 raising the following grounds: 1. ***That the Petition further offends the doctrine of exhaustion of local remedies, in that any disputes relating to the conduct of elections ought first to be referred to and determined by the Elections Dispute Board established under Clause 9 of the Election Code of Conduct for the 2026–2028 Council Elections. The Petitioner has bypassed this mandatory internal mechanism and prematurely escalated the matter to this Honourable Court.*** 2. ***That the Petition offends the doctrine of constitutional avoidance in that the issues raised are contractual and statutory can be resolved without invoking constitutional jurisdiction of this Honourable Court.*** 3. ***That the 1st Respondent’s Constitution 2015 constitutes a contract of association among members, binding them inter se, and disputes concerning elections, scrutineer appointments, nomination of candidates, and electoral timelines are matters of internal governance enforceable through an ordinary civil suit commenced by plaint, not a constitutional petition.*** 4. ***That the Petition improperly seeks to constitutionalize private governance disputes, thereby abusing the Court’s constitutional jurisdiction contrary to established principles that constitutional remedies are reserved for clear violations of fundamental rights.*** 5. ***That, therefore, this Honourable Court is without jurisdiction to hear and determine the present dispute.*** 6. ***That the Petition is therefore misconceived, incompetent, and fatally defective, and ought to be struck out in limine with costs.*** **Parties’ Submissions on the Preliminary Objection** 1. The parties tendered oral submissions on the preliminary objection. The 1st and 2nd respondent’s counsel condensed the submissions to two issues: * *That the Petitioner has not exhausted the internal dispute resolution mechanisms.* * *That the petition offends the doctrine of constitutional avoidance.* 1. He submitted that they have attached the parties governing code 2026-2028 elections of the institute and paragraph 9 of the regulations provide for a dispute resolution clause which provides that all disputes arising out of the elections to be determined by the Elections Dispute Board(EDB).That an election is a process that begins with declaration of vacancies, appointment of scrutineers, campaigns ,elections e.t.c. 2. Counsel submitted that any person aggrieved by any of the processes, the first port of call is the EDB which is supposed to determine dispute within 3 days. the dispute before court relates to an election and the same falls within the jurisdiction of the EDB, the same has not been referred to the said board yet the Petitioner is aware of the regulations hence he has not exhausted that avenue. 3. On the doctrine of constitutional avoidance, counsel for the 1st and 2nd Respondent submitted that the relationship between the Petitioner and the 1st Respondent is a contract of membership governed by the 1st Respondents constitution which binds the 1st Respondent and its members .the dispute concerning the elections are matters of internal governance governed by this constitution and therefore the fact that it is a contractual relationship, the same is enforceable through a civil suit. 4. Citing **Cyril Granfield’s Modern Trade Law pg 14-16**, where the author discusses about contracts of association, he submitted that the author describes contracts of association among members of a union which position applies to the present dispute. He further submitted that there exists a contract of Association between the parties and the Petitioner need not constitutionalize the matter. They asked court to dismiss the petition as the court lacks jurisdiction to deal with the same under the doctrine of exhaustion. 5. Counsel for the Petitioner responded stating the P.O did not pass the **Mukisa Biscuits** test as it does not rely purely on points of law, it relies on an election code which is disputed. That the EDB is non-existent, what is present is and Election Dispute Committee constituted under the 2025 draft Constitution. That the election code relied on by the Respondents talks of an election of March 2026, the voter register was closed in February 2026. According to the Petitioner, these are questions of fact that of which the court is being invited to inquire. 6. The Petitioner submitted that there are violations of the constitution under Articles 38 and 47, that the Respondents did not talk of the role of the scrutineers *vis a vis* that of the elections council. That the role of the Scrutineers is to count the votes but in the instant case, they took the role of council and being that the institute is not private, there are violations of constitutional rights, which this court has jurisdiction to determine. 7. The Petitioner submits that continuation of the elections shall result in violation of the Constitution. Further, that the 3rd Respondent rejected the 2025 Constitution and only the Caretaker Committee can undertake the elections and the Scrutineers acted *Ultra-vires*, which brings the matter t the jurisdiction of the court. 8. The 1st and 2nd Respondents’ rejoinder was to the effect that their P.O meets the **Mukisa Biscuits** case test. That there exists a dispute resolution mechanism which is a pure point of law and secondly that the Petitioner has simply alleged constitutional violations. To buttress the point, the case of **KKB V SCM & 5 OTHERS 2022,** was cited, stating that the court expressly stated that court will not normally consider a constitutional question except where the existence of a remedy depends on it. That the dispute be resolved using other legal remedies ,suggesting a Civil Court would resolve the dispute. **Analysis and Determination** 1. From the record, I find the following issues for determination: 2. ***Whether the preliminary objection has merit?*** 3. ***Whether the Court is barred by the doctrine of exhaustion from entertaining the petition?*** 4. The validity of any preliminary objection is measured against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence. 5. In the case of **Mukisa Biscuit Manufacturing Co. Ltd -Vs- West End Distributors Ltd (1969) E.A 696** where Law J at Page 700 stated as follows: - ***“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the sui. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….”*** 1. The Supreme Court in **Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR,** stated that: ***“jurisdiction is a pure question of law and should be resolved on priority basis.”*** 1. The 1st and 2nd Respondents dispute the jurisdiction of this court on grounds that the Petitioner has not exhausted other avenues of resolving the dispute. To this effect, they have annexed the Electoral Code of Conduct 2026-2028 which in its paragraph 9 contains a dispute resolution clause. The doctrine of exhaustion is a principle of law applied to Constitutional petitions, barring further proceedings until it is resolved. 2. I find and hold that the preliminary objections raised by the 1st and 2nd respondents comprise of pure points of law. They therefore pass the propriety test and are for consideration in *limine.* 3. On whether the Court is barred by the doctrine of exhaustion from entertaining the petition, the Respondents aver that, the court is barred from dealing with the petition and application for lack of jurisdiction. That the issues raised are contractual and statutory and can be resolved without invoking the constitutional jurisdiction of this Court. 4. The respondents further aver that the 1st Respondent’s Constitution 2015 constitutes a contract of association among members, binding them *inter se*, and disputes concerning elections, scrutineer appointments, nomination of candidates, and electoral timelines are matters of internal governance enforceable through an ordinary civil suit commenced by plaint, not a constitutional petition. 5. The Doctrine of Exhaustion is defined in **Black's Law Dictionary 8th Edition** as follows: *"****Exhaustion of remedies****: The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The doctrine's purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary"* 1. **In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR,** the court stated as follows, *"The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution..."* 1. Similarly, Justice Isaac Lenaola (as he then was) in **Benard Murage v. Fine Serve Africa Limited & 3 Others [2015] eKLR** held. *"I am bound to follow that principle of law since it flows from the other important principle that not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first."* 1. In ***William Odhiambo Ramogi & 3 others (supra),*** the Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: - *59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:* *What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)* *60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.* *61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in* ***Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.*** *62. In the instant case, the Petitioners allege violation of their fundamental rights.* ***Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion****.* ***This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.*** 1. In our case, the petition is primarily concerned with the enforcement of electoral and democratic rights, provided for by the 1st respondent’s Constitution. This court is in agreement with the respondents’ submissions that the 1st Respondent’s Constitution 2015 constitutes a contract of association among members, binding them *inter se*, and disputes concerning elections, scrutineer appointments, nomination of candidates, and electoral timelines are matters of internal governance enforceable through an ordinary civil suit commenced by plaint, not a constitutional petition. Consequently, the court is not satisfied that the exceptions to the doctrine of exhaustion apply in this matter. 2. The petitioner has not demonstrated that there exist any exceptional circumstances to warrant this court bypassing the contractual mechanism set out by the parties and taking up jurisdiction on the matter. The court is also not convinced that the petitioner herein lacked adequate audience before the fora created by Electoral code for resolution of electoral disputes. 3. It is a well-established principle of constitutional law that where an alternative remedy is provided by an Act of Parliament, or by the parties themselves and which remedy is effective and applicable to a dispute before court, then the first port of call ought to be that forum and the court must ensure that the dispute is resolved in accordance with the relevant statute or agreement by parties. 4. The Petitioner has not submitted proof of filing any petition before the Electoral Board and their determination if there was any, he has instead opted to file the instant petition after out rightly ignoring or bypassing the contractual dispute resolution mechanism. 5. The court is in agreement with the respondents that the nature of the issues raised by the petitioner, relating to the conduct of elections by the 1st and 2nd respondents, fall within the ambit of the Electoral board as set out by the parties, which is meant to be final and binding to parties concerned . 6. Consequently, I do find that the doctrine of exhaustion is applicable in this matter. This is because the petitioner has admittedly not lodged any complaint/petition with the Electoral Board, which has the mandate of hearing and determining the kind of issues raised by the petitioner in this petition. 7. The 1st and 2nd Respondents’ Preliminary objection has merit and is therefore upheld. On the basis of the doctrine of exhaustion, this court lacks jurisdiction to deal with the matters raised in the petition dated 21st July,2026 and the same is hereby struck out 8. Each party to bear their own costs. ***Dated, signed and delivered virtually at Nairobi this 31st day of July 2026.*** **DAVID MBURU** **JUDGE**