https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10864

Owino v Standard Group PLC & 3 others (Petition E571 of 2025) [2026] KEHC 10864 (KLR) (Constitutional and Human Rights) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10864 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E571 of 2025 G Mutai, J July 9, 2026 Between Francis Owino Petitioner and Standard Group plc Respondent and Gedion Moi 1st Interested Party media Council of Kenya 2nd Interested Party Communication Authority of kenya 3rd Interested Party Ruling Introduction 1.The petitioner is a public-interest litigator. He describes himself as the current president of Bunge La Mwananchi, a civil society movement committed to promoting democratic governance, accountability and the public interest. The Petition 2.By a petition dated 2nd September 2025, the Petitioner seeks various orders, including declarations that the Respondent has violated Articles 10, 33(2), 34 and 35 of the Constitution by publishing and disseminating “biased, misleading, inciting and defamatory content that undermines public trust in constitutional institutions, erodes national unity and denies citizens their right to access accurate and verifiable information,” and that the 1st Interested Party, the Hon Gideon Moi, “has abused his position as a political actor and controlling shareholder of the Respondent to influence editorial policy for partisan and personal gain thereby undermining the independence of the media,” and a declaration against the 2nd Interested Party for what the Petitioner sees as its failure to enforce its constitutional and statutory duties, to ensure ethical compliance and to regulate the Respondent in accordance with the Media Council Act, 2013 and the Kenya Information and Communication Act. 3.The basis for the said petition is that the Respondent has allegedly engaged in a consistent and deliberate pattern of conduct that not only offends the principles of responsible journalism but also violates the Constitution of Kenya, the Media Council Act and the Code of Conduct for the Practice of Journalism. The Respondent was accused of reckless disregard for the truth, accuracy, fairness and impartiality. The Petitioner averred that what he saw as editorial recklessness was directly linked to the political and financial interests of the 1st Interested Party. Responses of the Respondents 4.The petition was opposed by the Respondent and the 1st Interested Party, who filed a sworn deposition of Mr Jesse Waigwa of 2nd October 2025, in which he stated that this court lacked jurisdiction to hear and determine the Petition, and that the same was incurably defective as it was barred by prescribed statutory timelines. 5.On its part, the 3rd Interested Party filed a reply affidavit, sworn by Mr Walter Rono, its Assistant Director, Content Regulation and Compliance, in which he deposed that this court lacks jurisdiction to hear and determine the Petition. He further deposed that the crux of the complaint in the Petition was alleged defamatory content. 6.The 2nd Interested Party did not enter an appearance, nor did it file a response. The Preliminary Objections of the Respondent and the 1st Interested Party, and the 3rd Interested Party 7.By a Notice of Preliminary Objection dated 2nd October 2025, the Respondent and the 1st Interested Party sought to have this petition struck out on the ground that this honourable court lacked jurisdiction to hear and determine it, as the issues raised fell within the ambit of the Media Complaints Commission and/or the Communication and Multimedia Appeals Tribunal. It was contended that the petition was fatally defective because the Petitioner had not exhausted the available dispute resolution mechanisms. Insofar as the petition was founded on alleged defamation, it was urged that the claim was statute-barred under Section 4(2) of the Limitation of Actions Act. Further, it was contended that this court should refuse to take up the matter under the doctrine of constitutional avoidance, as at its core it was a defamation matter couched as a constitutional petition to evade statutory timelines and to seek additional remedies; that it did not disclose a reasonable cause of action against the 1st Interested Party; and that it breached the principle that a limited liability company has a separate and distinct personality from its members. 8.It was urged that the petition should be dismissed with costs. 9.The 3rd Interested Party’s Preliminary Objection is dated 21st October 2025. It likewise urged that this court lacks jurisdiction to entertain the Petition against the 3rd Interested Party, as the issues raised against it fall within the statutory mandate of the Media Council of Kenya under sections 27, 31, 33, 34, 35, 36, 37 and 38 of the Media Council Act, 2013, and not that of the Communication Authority of Kenya. For that reason, it was stated that the Petition was defective, as the Petitioner did not exhaust the alternative remedies available from the Media Complaints Commission established under Section 27 of the said Act. 10.It was contended that since the Petition was founded on defamation, the issues raised by the Petitioner were statute-barred, as under section 4 (2) of the Limitation of Actions Act, no action for libel and/or slander may be brought after the end of 12 months. It was stated that the matter was filed as a constitutional petition so as to evade the statutory limitation period. 11.The 3rd Interested Party urged that no reasonable cause of action against it had been pleaded in the petition. Directions of the Court 12.The issues raised in the 2 preliminary objections regard the jurisdiction of this court. The Respondent and the Interested Parties hold the view that this court lacks jurisdiction to hear this petition on the ground that there are specialized bodies with jurisdiction to determine the dispute. It is also urged that the petition is fatally defective as alternative remedies were not exhausted and that even if this court had jurisdiction, the doctrine of constitutional avoidance bars it from considering the matter. 13.Since the jurisdiction question has been raised, I must hear and determine the issue before taking any further steps. Should I be convinced that I have no jurisdiction, I would have no justification for continuing to hear it. The laconic words of Nyarangi, JA, in the case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) are true now, as they were when that matter was heard:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 14.Similarly, in Macharia & another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR), the Supreme Court of Kenya held that:“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction the court cannot entertain any proceedings.” 15.Since the jurisdictional question must be determined “right away’ this court directed on 27th January 2026 that the preliminary objections would be determined first; parties were directed to file written submissions, which were argued orally on 14th April 2026. I will give summaries of the parties' submissions below. The Submissions of the Respondent and the 1st Interested Party 16.The written submissions of the Respondent and the 1st Interested Party are dated the 27th day of February 2026. In its said submissions, the said parties identified the issues for determination as being:- 1.Whether the honourable court is seized with jurisdiction to determine the petition; 2.Whether the petition discloses a cause of action that is statute-barred by dint of section 4(2) of the Limitation of Actions Act; 3.Whether the petition is incompetent and fatally defective/or failure to satisfy various legal thresholds; 4.Whether the Notice of Preliminary Objection meets the legal thresholds. 17.On the jurisdiction question, it was urged that what was before the court was a petition founded on alleged defamation by the Respondent. Counsel for the Respondent and the 1st Interested Party urged that since the defamatory claims could be determined without invocation of the constitution, this court was bound by the doctrine of constitutional avoidance to disclaim jurisdiction. Counsel relied on the case of Communication Commission of Kenya v Royal Media Services Ltd & 5 others where it was held that:-“The principle of constitutional avoidance means that the court will not determine a constitutional issue when a matter may be decided on another basis.” 18.Reliance was also placed on the decision of the court in the case of Motiga v Lugalia & 4 others [2025] KEHC 275 (KLR) where a similar holding was made by the Court. 19.It was submitted that section 27 of the Media Council Act created the Media Complaint Commission, which was an appropriate forum seized with the jurisdiction to determine the matters concerning media accuracy, fairness, balance, ethics and professional standards. 20.Counsel submitted that the Petitioner did not exhaust the available remedies and, for that reason, the Petition was contrary to the doctrine of exhaustion. In support of its contention, counsel relied on the case of Speaker of the National Assembly v Njenga Karume [2008] 1 KLR 425, where it was held that where a clear procedure exists in law, it must be followed before other remedies are sought. 21.Regarding the second issue, it was urged that the cause of action was alleged defamatory publications published by the respondent. It was contended that, under section 4(2) of the Limitation of Actions Act, the petition should have been filed in the proper forum within 12 months of the alleged act. It was further contended that the publications, in particular those titled “House of Greed”, “Ruto’s Broken Promises,” “Hustler Nation in Chaos,” and “The Mess Ruto Can’t Fix,” were published more than 12 months before the Petition was filed. Thus, the Petition was founded on alleged defamatory remarks that were statute-barred. Counsel, relying on the case of Murayi alias Jamal v Nation Media Group Limited & 6 others [2025] KEHC 12289 (KLR), urged that, although the petition was couched as raising constitutional complaints, the issues were remediable as ordinary civil claims. 22.Counsel submitted that the petition was not drafted with sufficient precision and that it did not meet the threshold for precision in constitutional litigation as was settled by the Court in the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR). In the said case, the Court held that:-“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 23.The Respondent deprecated the Petitioner’s conduct of adding the Hon Gideon Moi as the 1st Interested Party on the ground that it breached the doctrine of separate legal personality of the Respondent and its members, in accordance with the principle established in the case of Salomon v Salomon [1897] UK HL 1 AC 22 and that no justification had been given for lifting the corporate veil. 24.Counsel contended that a proper Notice of Preliminary Objection was raised which met the test set out in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 as the issues raised are pure points of law. The 3rd Interested Party’s Submissions 25.The 3rd Interested Party filed written submissions dated 26th January 2026. Its submissions are similar to those of the Respondent and the 1st Interested Party. It identified 3 issues, to wit:-i.Whether the preliminary objection raised met the legal threshold;ii.Whether the petition was founded on a cause of action that was statute-barred;iii.Whether the petition was defective as the resolution mechanism in section 27 of the Media Council Act had not been exhausted. 26.It was urged that the issues raised were of law and thus the preliminary objection was rightly taken. 27.On the second issue, it was submitted that the publications complained of were not defamatory, did not disclose which person was allegedly defamed and had been published more than a year prior to the filing of the Petition. On the said ground, it was urged that the petition was statute-barred. 28.Counsel submitted that the statute created other redressal mechanisms which the petitioner did not exhaust prior to filing the petition. 29.It was urged that the petition was bad on account of the fact that the doctrine of constitutional avoidance militates against the said Petition. The Petitioner’s Submissions 30.In his submissions dated 23rd December 2025, the Petitioner identified issues for determination as whether there was a proper preliminary objection, whether the court lacked jurisdiction, whether the doctrine of exhaustion was applicable, and whether the petition was incompetent and an abuse of the court process. 31.The petition submitted that the preliminary objections filed herein did not raise pure points of law and that the questions required the court to interrogate contested factual matters. 32.On the question of jurisdiction, it was urged that the Petition alleged violation of Articles 10, 28, 29, 33(2), 34 and 35 of the Constitution and raised questions regarding the constitutional limits of media freedom, the right of citizens to accurate information, public order and democratic governance. In his view, these matters fell squarely within the jurisdiction of the High Court. 33.It was urged that the mere existence of other statutory forums did not divest the High Court of jurisdiction to hear and determine the matter, particularly where allegations of constitutional violations are made. 34.Mr Awino urged that the doctrine of exhaustion was not absolute and that it applied only where the alternative forum is capable of granting effective relief and where the dispute does not raise pure constitutional questions. 35.It was denied that the petition was an abuse of the court process. Mr Awino prayed that this Court be pleased to dismiss the preliminary objection so that the Petition could be heard on the merits. Analysis of the Law 36.I have considered the Preliminary Objections raised, the submissions of the parties and the applicable law. In my view, the questions I must determine are:-i.Whether the preliminary objection was rightly taken and if the threshold was met;ii.Whether this court has jurisdiction to determine the matters before it;iii.Whether the petition is defective on account of the doctrine of exhaustion and avoidance; andiv.Whether the petition is statute-barred. 37.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, the court stated that:-“… A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…” 38.It was also stated that a preliminary objection should not be raised if any that has to be ascertained or if what is sought is the exercise of judicial discretion. 39.In Oraro v Mbaja [2005] KEHC 3182 (KLR), the court stated that:-“A preliminary objection, correctly understood, is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence.” 40.The objection in this matter, as I understand it, is on jurisdiction. It is urged that there are complaint redressal mechanisms under the Media Council Act, which the petitioner could have exhausted. The Respondent and the Interested Parties are of the view that the court should not consider the Petition, as the petitioner has not exhausted available remedies. It was also urged that the issues raised could be determined under ordinary civil proceedings. 41.My view is that the said issues are all matters of law that do not require this court to sift through evidence to determine, nor am I called upon to exercise a judicial discretion. That being the case, the test in the Mukisa Biscuit case has been met. In the circumstances, I find and hold that the preliminary objection was rightly raised. 42.From the said petition, it is evident that the Petitioner is aggrieved by the publications of the Respondent, which he sees as being reckless, inaccurate, unfair and partial. He characterizes the Respondent's reporting as sensational and inflammatory, and contends that such reporting may sow discord, incite public mistrust of constitutional organs, and undermine the legitimacy of state institutions. 43.There is no doubt that the Respondent is a media house. The Parliament of Kenya, in its wisdom and mindful of the freedom of the media under Article 34 of the Constitution, enacted the Media Council Act, which provides a specialized framework for the regulation of media conduct and the resolution of disputes. 44.Section 27 of the said Act establishes the Media Complaints Commission. The Petitioner hasn’t stated that he filed a complaint with the said body to resolve his grievances; it is clear he didn’t. He has not explained his decision not to use the mechanism in the said Act, nor has he stated that the said forum was unavailable or otherwise inadequate. 45.In the case of Speaker of the National Assembly v Njenga Karume [2008] 1 KLR 425, it was held that where a prescribed procedure for redress exists, it must be exhausted before resort is had to litigation. 46.The jurisdiction of the Media Complaints Commission is wide enough to redress the grievances of the Petitioner. Section 31 of the Media Council Act states that:“The functions of the Complaints Commission are to —(a)mediate or adjudicate in disputes between the government and the media and between the public and the media and intra-media on ethical issues;(b)ensure the adherence to high standards of journalism as provided for in the code of conduct for the practice of journalism in Kenya; and(c)achieve impartial, speedy and cost-effective settlement of complaints against journalists and media enterprises, without fear or favour in relation to this Act.” 47.Section 32 of the Media Council Act provides that the Media Complaints Commission has the powers, in discharge of its mandate, to:“receive, investigate and deal with complaints made against journalists and media enterprises.” 48.It is therefore evident that what the Petitioner sees as “biased, misleading, inciting and defamatory content that undermines public trust in constitutional institutions, erodes national unity and denies citizens their right to access accurate and verifiable information,” and “reckless disregard for the truth, accuracy, fairness and impartiality,” could properly be considered by the Media Complaints Commission. 49.It would appear to me that what the Petitioner is doing is to convert the allegation that unknown people were defamed by the Respondent into a constitutional dispute with a view to avoiding the statutory time bar, so as to obtain far-reaching orders that may affect press freedom. In my view, this is impermissible. 50.In the case of SG v Standard Media Group & 3 others [2022] KEHC 13633 (KLR), it was held that:-“The facts pleaded in this petition disclose civil defamation. Defamation is defined as the “action of damaging the good reputation of someone. In terms of modern human rights law, defamation can be understood as the protection against “unlawful attacks” on a person’s “honour and reputation” contained in human rights instruments. Irrefutably, defamation is a civil wrong. Under section 4 (2) of the Limitation of Actions Act, a claim for defamation may not be brought after the lapse of 12 months. The petitioner’s claim is premised on libel. It is time barred. To evade the wrath of section 4 (2) of the Limitation of Actions Act, the petitioner mischievously converted his claim into a constitutional petition. This is impermissible. On this ground alone this defamation suit disguised as a constitutional petition is bound to fail.” 51.In the said matter, the Court went on to hold that:“Even if I were to entertain the petitioner’s claim as constitutional petition, the petitioner will still have to surmount another formidable hurdle, which is the doctrine of constitutional avoidance, 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. Broadly speaking, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles, which are standing, ripeness and mootness. The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor,{{^}} in which Ebrahim JA said:“…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.” 52.Similarly, in the case of Motiga v Lugalia & 4 others [2025] KEHC 275 (KLR) the court stated that:-“72.This leads me into making the finding that the dispute that this Petition presents is not a Constitutional controversy since it can be determined without application of the Constitution. Its resolution squarely lies in the application of the tort law and the Access to Information Act.73.It is impermissible for a litigant to found a cause of action on the Constitution when the same can be founded on legislation or other established legal principles.”In my view, this court should, under the doctrine of constitutional avoidance, not take up the matter and must disclaim jurisdiction. 53.It would seem to me that, in any event, the grievances of the petitioner are statute-barred. 54.The upshot of the foregoing is that I find and hold that the preliminary objections raised have merit. They are upheld, with the consequence that the petition dated 2nd September 2025 is struck out. 55.Since the Petition was filed in the public interest, I will not make an order as to costs. 56.Orders accordingly. DATED AND SIGNED IN NAIROBI, THIS 9TH DAY OF JULY 2026.GREGORY MUTAIJUDGEIn the presence of:Mr Francis Awino – the Petitioner (pro se litigant);Ms Kinyua, holding brief for Mr Muganda, for the 3rd Interested Party;No appearance for the Respondent and the 1{{st}} Interested Party;No appearance for the 2nd Interested Party;Ms Neema Lwambia – Court Assistant.