https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12243

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **HCCHR PETITION NO. E013 OF 2026** **MICHAEL KOJO OTIENO & ANOTHER ..................... 1ST PETITIONER** **EVANCE OTIENO OLOO GOR .………………………. 2ND PETITIONER** * **VERSUS -** **KENYA TOURISM BOARD CHIEF EXECUTIVE OFFICER ......... 1ST RESPONDENT** **LAKE VICTORIA TOURISM ASSOCIATION …….. 2ND RESPONDENT** **CHARLES KATARO ………………………………….. 3RD RESPONDENT** **RASHID HUSSEIN …………………………………..… 4TH RESPONDENT** **BOB ONIMO ……………………….......................... INTERESTED PARTY** **R U L I N G** 1. The Court is called upon to determine the Notice of Preliminary Objection dated **15/6/2026** filed by the 2nd and 4th respondent. The Objection is founded on a single ground that the petitioners lack the requisite locus standi to institute and prosecute the present petition. 2. The objection was canvassed by way of oral submissions. Counsel for the 2nd and 4th respondent submitted that the petitioners had approached the Court under the guise of public interest litigation yet all the substantive reliefs sought are directed against the internal affairs of the 2nd respondent, a private association. 3. It was argued that the petitioners had admitted neither being members of the **Lake Victoria Tourism Association** nor persons holding any office within the Association. Consequently, they lacked the legal capacity to question the governance, elections, constitution or management of the Association. 4. Further, it was submitted that the constitution of the Association provided elaborate mechanisms for resolving disputes relating to elections and governance, which mechanisms are only available to members of the Association. That the petitioners cannot invoke constitutional jurisdiction to interfere with matters reserved exclusively for members of the Association. 5. Opposing the Objection, the 1st petitioner submitted that ***Articles 2 and 3 of the Constitution*** impose upon every person an obligation to respect, uphold and defend the Constitution while ***Article 260*** defines "person" broadly. He maintained that the petition was not merely about the affairs of a private association but it concerned accountability in the utilization of public funds by an entity receiving financial support from a public body. 6. He relied on ***Articles 22 and 258 of the Constitution*** for the contention that any person may institute proceedings where there is an actual or threatened violation of the Constitution. That the petitioners had annexed correspondence demonstrating that the 2nd respondent had received public funds from the 1st respondent and therefore the matter transcended private rights and raises issues of public accountability. 7. Reliance was placed on **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** and **Njoroge Njuki v Salaries and Remuneration Commission & Another [2017] eKLR** in support of the proposition that public interest litigation should receive a liberal interpretation. 8. The 2nd petitioner fully associated himself with the submissions of the 1st petitioner. 9. In rejoinder, Counsel for the 2nd and 4th respondent maintained that the petitioners had no legal standing because none of the rights allegedly infringed belonged to them. That the correspondence relied upon by the petitioners merely demanded payment of outstanding participation fees by the Association and did not constitute evidence that public funds had been disbursed to the Association. He therefore concluded that the petition remained a dispute concerning the internal affairs of a private association which only members thereof could litigate. 10. The only issue for determination in the objection is whether the petitioners have locus standi to institute the present proceedings. 11. A preliminary objection is one which raises a pure point of law and, if successful, is capable of disposing off the suit without the necessity of receiving evidence. See the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. 12. The concept of locus standi in constitutional litigation is principally governed by ***Articles 22 and 258 of the Constitution of Kenya 2010***. ***Article 22(1)*** provides that: - ***"Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened."*** 1. On the other hand, ***Article 258(1)*** provides that: - **"*Every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention*."** 1. The Constitution therefore deliberately expanded standing in constitutional litigation beyond persons whose personal rights have been directly violated. 2. In **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR**, the Supreme Court of Kenya emphasized that the Constitution liberalized standing in order to facilitate constitutional accountability and public interest litigation. This buttressed the Court of Appeal’s observation in paragraph 27 of its judgment that was under appeal that: - **“*Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution*.”** 1. However, although standing has been greatly enlarged, ***Articles 22 and 258 of the Constitution*** do not convert every private dispute into a constitutional controversy. The Court must examine the substance of the pleadings to determine whether the dispute genuinely raises constitutional questions or merely seeks to constitutionalize matters governed by private law. 2. In the present case, the petitioners describe themselves as public spirited citizens, human rights defenders and persons acting in defence of the Constitution. They expressly invoke ***Articles 2, 3, 22 and 258 of the Constitution*** as the foundation of their standing. 3. The petition alleges, among other things, that: - 4. public funds are allegedly being channelled to unauthorized persons within the 2nd respondent Association; 5. the 3rd respondent allegedly holds himself out as Chief Executive Officer without authority; 6. constitutional principles of accountability, transparency and prudent financial management under Article 201 of the constitution have been or are being violated; and 7. public officers have allegedly facilitated those irregularities. 8. The reliefs sought include declarations touching on ***Articles 47, 201 and 226 (5) of the Constitution***, orders restraining the conduct of elections, reinstatement of the Interested Party as a signatory of the Association and orders compelling production of audited accounts. 9. The respondents argue that because the petitioners are not members of the Association, they cannot challenge the internal governance of the Association. That argument, in this Court's respectful view, overlooks the distinction between **standing** and **merits**. 10. Whether the petitioners will ultimately succeed in demonstrating that public funds were unlawfully issued, or whether the dispute is in truth merely an internal dispute of a private association or extends to the public arena are questions that require examination of evidence and interpretation of the documents relied by the parties. Those issues cannot properly be determined at the preliminary stage. 11. Indeed, the 1st respondent disputes that it ever disbursed public funds to the 2nd respondent and avers that the petitioners have confused the Kenya Tourism Board with the Tourism Fund. It further states that the impugned correspondence merely related to participation fees for the Magical Kenya Travel Expo. 12. Similarly, Counsel for the 2nd and 4th respondent submitted that the letter relied upon merely demanded payment of outstanding stall fees rather than evidence of funding. Whether the impugned correspondence amounts to proof of public funding is plainly a factual issue requiring interrogation during the hearing of the petition. It cannot be conclusively resolved on a preliminary objection. 13. Equally, while some of the remedies sought concern the internal affairs of the Association, the petition simultaneously alleges misuse of public funds, breach of constitutional values and violations of the Public Finance Management framework. Whether those allegations are sustainable is a matter for substantive determination and not peremptorily. 14. The Court is persuaded that the petition cannot be disposed off solely on the basis that the petitioners are not members of the Association. ***Articles 22 and 258 of the Constitution*** deliberately permitted persons acting in the public interest to institute proceedings where constitutional violations are alleged. 15. The objection before Court therefore goes beyond a pure question of law and inevitably invites the Court to evaluate contested factual matters concerning the existence or otherwise of public funding, the relationship between the **Kenya Tourism Board** and **the Tourism Fund**, and the true character of the dispute. Those matters are unsuitable for determination by way of preliminary objection. 16. Accordingly, the Court finds that the Notice of Preliminary Objection dated **15/6/2026** is without merit and dismisses the same. The costs shall abide the outcome of the petition. It is so ordered. **DATED** and **DELIVERED** at **KISUMU** this **31st** day of **July, 2026.** **A. MABEYA, FCI Arb** **JUDGE**