https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9454

Parantai & 7 others v Registrar of Companies & 8 others (Petition E481 of 2025) [2026] KEHC 9454 (KLR) (Constitutional and Human Rights) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9454 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E481 of 2025 PM Nyaundi, J July 2, 2026 N THE MATTER OF: THE VIOLATION AND/OR THREATENED VIOLATION OF ARTICLES 1,2,3,4,10,19,20,21,22,23,24,35,47,48,50(1), 73,81,82,165(3) (f), 129, 152, 153, 159, 162, 258,259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, ACT NO. 4 OF 2015 AND IN THE MATTER OF: SECTIONS 8 AND 36 OF THE UNIVERSITIES ACT, 2012 AND IN THE MATTER OF: SECTION 3,4,5,6,7,8,9,10,11,12, OF THE FAIR ADMINISTRATIVE ACTION ACT 2022 AND IN THE MATTER OF: RULE 3,5,6 (1,2&3), 7,8,9,11,12,13,14,15,17,21,22,27 OF THE FAIR ADMINISTRATIVE ACTION RULES, 2024 AND IN THE MATTER OF: SECTION 3, 3(f), 3(g), 4, 5, 6, 7, 8, 9, & 14 OF THE TRUSTEES (PERPETUAL SUCCESSION ACT) Between Moses Parantai 1st Petitioner Nkaru Pulei 2nd Petitioner Makarios Leisanka 3rd Petitioner Lawrence Sentero 4th Petitioner Moses Mparia Orkeri 5th Petitioner Beatrice Tumuti Kosiom 6th Petitioner Kelero Ene Keno 7th Petitioner Keekonyoike Community Trust 8th Petitioner and The Registrar of Companies 1st Respondent Director General Business Registration Services 2nd Respondent and Moses Masek Monik 1st Interested Party Hannah Silapei Tuuko 2nd Interested Party Emmanuel Litei Shokore 3rd Interested Party Parsereti Mgomea Ngussur 4th Interested Party John Kamuye Ole Kiok 5th Interested Party Sentero Ole Ntiangono 6th Interested Party Peris Katito George 7th Interested Party Judgment Background 1.Vide Petition dated 31st July 2025 the Petitioner alleges the violation of Article 47 rights and seeks the following orders-a.A declaration that the Respondent’s purported revocation of the Petitioners’ election as trustee members of the 8th Petitioner and the purported appointment of the 1st; 2nd; 3rd ,4th ,5th 6th ,7th interested parties as trustees of the 8th Petitioner is ultra vires, illegal, unlawful and therefore null and void.b.An Order of Certiorari to bring into this Honourable Court for the purpose of being quashed Gazette Notice No. 2417 dated 27th June 2024 and published on 27th February 2025 revoking the election of the Petitioners as trustee members of the Keekonyokie community Trust.c.An Order of Certiorari to bring into this Honourable Court for the purpose of being quashed changes made in the records of the Respondents vided.application No. TPSOS-4ATK4 appointing the 1st, 2nd ,3rd ,4th ,5th ,6th 7th interested parties Petitioner, as trustee members of the 8th Petitioner.e.A declaration do issue that the 1st, 2nd, 3rd ,4th ,5th ,6th ,7th Petitioners and the lawfully elected Trustees of the 8th Petitioner.f.An order DO issue to the Respondents to complete registration of the Petitioners vide Application TPSCR-WGT57 and issue them with an original certificate of incorporation of the Trust.g.An Order of Certiorari to bring into this Honourable Court for the purpose of being quashed certificate of incorporation dated 26th June 2024 appointing the 1,2,3,4,5,6,7 interested parties as trustee members of the 8th Petitioner.h.An Order of Prohibition prohibiting the Respondents from appointing or gazetting any other persons other than the Petitioners to replace the interested parties as trustee members of the 8th Petitioner.i.A declaration do issue that the 2nd interested party Hannah Silapei Tuuko is not a member of the 8th petitioner keekonyokie community trust.j.An Order of Prohibition to prohibit the 1st Respondent from issuing illegal directives and/or unlawfully interfering or in any other way whatsoever and/or meddling with the operations and management of the 8th Petitioner and the performance of the Petitioners’ statutory duties as trustee members of the 8th Petitioner.k.Damages for breach of the Petitioner’s Constitutional rightsl.Cost of and incidental to this suit to be born by Respondents and interested parties but specifically by Sarah Wainaina on behalf of the Respondents 2.The factual basis as set out in the supporting affidavit sworn on 31st July 2025 and the further affidavit sworn on 24th October 2025 by Moses Parantai is that following the Decree issued on 23rd April 2024 in ELC Case No 410 of 2017 (Kajiado) as Chairman of the 8th Petitioner, he called for elections. That elections were held on 4th June 2024 with the outcome being that the 1st to 7th Petitioners were elected as Trustees of the 8th Respondent. 3.The Petitioners are aggrieved that the 1st and 2nd Respondent failed to effect the changes to reflect the election outcomes and instead proceeded to register the 1st to 7th Interested Parties as the Trustees. The Petitioners faulted the action of the 1st Respondent who proceeded to revoke the gazette notice that confirmed their elections. 4.The Petitioners takes issue with what they perceive as a calculated move by the 1st respondent to deny their application which they had lodged and in its place approving that of the Interested Parties which was lodged together with a certificate of Incorporation that on 20th May 2015 had been declared lost by the Chief Land Registrar. It is the submission that these facts taken together had the effect of violating their Article 47 rights as the Registrar proceeded to make a decision that had implications for their rights without notice to them and further the said decision communicated by letter dated 24th September 2024 addressed to their advocate by the 1st Respondent was not accompanied with reasons as required by Article 47 and the Fair Administrative Actions Act. 5.The Interested Parties oppose the Petition and have filed replying affidavit sworn on 17th September 2025 and 29th April 2026 by Moses Masek Monik and Hannah Silapei Tuuko the 1st and 2nd Interested parties respectively. Both assert that they are the duly elected trustees of the 8th Petitioner. Further, it is averred that the Petition is res judicata as the issue of trusteeship of the 8th Respondent was determined in ELC Miscellaneous Application No. E008 of 2025, Keekonyikie Community Trust Versus the Chief Land Registrar. Further it is submitted that the Petition is sub judice the pending appeal before the Court of Appeal in Civil Appeal No. E486 of 2025 Keekonyokie Community Trust versus Moses Masek Monik Others. 6.In addition, the Interested Petitioners have filed Notice of Preliminary Objection dated 17th September 2025. The Interested parties challenge the jurisdiction of the Court on two grounds, firstly that the Petitioners lack locus standi to present the Petition as they are not listed as Trustees of the 8th Petitioner. Secondly, it is urged that the Petition and application offend the doctrine of exhaustion as the 1st to 7th Petitioners have not challenged the election of the 1st to 7th Interested Parties as the Trustees of the 8th Petitioner. 7.The Notice of Motion, Petition, and preliminary objection were heard synchronously and were canvassed via written submissions with the parties highlighting their respective submissions on 5th May 2026. Summary Of The Petitioner’s Submissions 8.The Petitioner filed submissions dated 28th October 2025 and 21st November 2025. The issues for determination as framed by the Petitioner are-a.Whether the Preliminary Objection dated 17th September 2025 is merited?b.Whether the Respondents violated the Petitioner’s Constitutional rights enshrined in Articles (1), 2(1), 3(1), 21 (1&3), 22, 23, 47, 36, 10 (2a), 50 (1), 25 (c), 73, 152 (4a) of the Constitution 2010 of the Constitution 2010 when he revoked gazette notice No. 7360 dated 5th June 2024?c.Whether the Respondents violated Sections 3, 4, 5, 6, 7, 8.9.10,11,12 of the Fair Administrative Action and sections 3, 3f, 3G,4,5,6,8,9,14 of the Trustees (Perpetual Succession Act) and Articles 36, 30,44 of the Amended Declaration of Trust Deedd.Whether the Petitioners are entitled to damages and costs as prayed. 9.On the 1st issue it is submitted that the preliminary objection as framed does not meet the threshold set out in the locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. It is submitted that the preliminary objection is based on facts that are contested. 10.On the 2nd issue, it is submitted that the ‘Petition challenges the powers of the respondents on revoking the election results of the Petitioners and replacing the elected trustees with ones appointed by itself’. The Petitioners submit that the Petition is not an election dispute as alleged. 11.In this regard it is asserted that the respondents contravened Article 2(2) on the limit of exercise of state authority and reference made in the decision of Affordable Medicines Trust and Others v Minister of Health and Others (2005) ZA CC3; 2006(3) SA 247 (CC). 12.It is submitted further that the actions of the respondents contravene Article 21 of the Constitution as they failed to observe, respect, promote the Petitioner’s amended trust deed and specifically on the provisions relating to the appointment of trustees. 13.Further, it is submitted that the Respondent Violated Article 21(3) requires the protection of the rights of the vulnerable, minorities and marginalised communities. The actions of the respondents it is submitted further contravened the express provisions of Article 10 of the Constitution. 14.The Petitioners submit that the actions resulted in a violation of Article 47 and reference made to the decisions in Kenya Human Rights Commission v Non-Governmental Organisation Coordination Board [2016] KEHC 5405 (KLR) and Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 15.On the 3rd issue it is submitted that the Respondents violated the Petitioners’ right to fair administrative action as provided for both under statute and the constitution and reference was made to the decision in Mathatani Limited v Commissioner of Lands, Attorney General, Chief Engineer Ministry of Roads, Kenya National Highway's Authority, Nicholas O'dwyer & Company Limited of Ireland & Abdul Mullick Associates Limited (Kenya) [2013] KEHC 1524 (KLR). 16.Finally, the Petitioners urge that they are entitled to damages and costs of the Petition. Reliance is placed on the decision in Katra Jama Issa v Attorney General & 3 Others [2018] Eklr and Reference No. 1 of 2014 Council of Governors versus the Senate & Another [2014] Eklr; Republic v Anti Counterfeit Agency Ex Parte Caroline Mangala t/a Hair works saloon [2019] eKLR and in support for the claim for punitive damages the decision in Godfrey Julius Ndumba Mbogori & Anor v Nairobi City County [2018] Eklr Summary Of The Interested Parties’ Submissions 17.It is submitted that although the Petition, is framed in the language of constitutional grievance, in substance it seeks to draw this Court into supervising the implementation of orders issued by a court of coordinate jurisdiction. The Interested Parties contend that the Constitution does not permit one Superior Court to assume supervisory authority over another. As the submissions emphasise, the judgment of the Environment and Land Court in Kajiado ELC No. 410 of 2017 determined that the way forward was to conduct fresh elections. Whether those directions were faithfully executed is a matter that falls squarely within the residual jurisdiction of the court that issued them. To invite this Court to reopen or oversee that process is to disregard the constitutional architecture governing the jurisdiction of Superior Courts, refernce is made to the decision in Kenya Country Bus Owners’ Association v Cabinet Secretary for Transport & Infrastructure &5 Others [2014] KEHC 7804 (KLR) 18.It is further submitted that the Petitioners’ case is further undermined by their failure to meet the wellestablished threshold for constitutional litigation. Reference is made to the decision in Anarita Karimi Njeru v Republic [1979] eKLR as reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, that defined the precision test that requires constitutional violations to be pleaded with reasonable precision and supported by cogent evidence. 19.In this regard it is submitted that the Petitioners have not demonstrated, through credible material, how any act of the Registrar or the Director General infringed their constitutional rights. 20.It is the Interested Parties’ position that the Trustees (Perpetual Succession) Act assigns the Registrar with the exclusive authority to certify the appointment of trustees and to maintain the official register. A Returning Officer, however appointed, has no statutory mandate to issue Gazette Notices purporting to communicate trustee appointments. The Petitioners’ reliance on Gazette Notice No. 7360 is therefore misplaced. The Interested Parties’ Gazette Notice No. 2417 merely reflected the Registrar’s record of the Certificate of Incorporation issued on 26 June 2024. In the absence of evidence of collusion or procedural impropriety, this Court cannot displace the statutory presumption of regularity attaching to the Registrar’s acts. 21.It is urged that although the Petitioners challenge the membership of the 2nd Interested Party, they tender no evidence capable of dislodging the factual material placed before the Court. Birth records and national identification documents demonstrate that she originates from within Keekonyokie Ward. Membership of a community trust is a matter of fact, not conjecture. It is submitted that the Petitioners have failed to discharge the evidential burden imposed by sections 106 and 107 of the Evidence Act, and this is fatal to their case. 22.It is contended that the Petition does not disclose a constitutional controversy warranting the invocation of this Court’s jurisdiction. It seeks, instead, to constitutionalise an electoral and administrative dispute governed by the Trustees (Perpetual Succession) Act and already addressed by the Environment and Land Court and therefore as determined in Communications Commission of Kenya v Royal Media Services [2014]eKLR, the Petition must fail as constitutional litigation is not a substitute for ordinary statutory mechanisms. 23.The Respondents did not participate in the proceedings. Analysis And Determination 24.Having considered the pleadings and submissions filed herein, I frame the issues for determination to bea.Whether the Preliminary Objection should be upheldb.If the answer to (a) above is in the negative, Whether the Prayers sought in the Petition should issuec.Arising from (a) and (b) above what are the consequential orders Whether the Preliminary Objection Should Be Upheld 25.The Preliminary objection as framed is hinged on two grounds namely;a.Whether the Petitioners have the locus standi to present the Petitionb.Whether the Petition is justiciable or whether it falls on the doctrine of exhaustion. 26.The legal threshold for a meritorious preliminary objection was authoritatively stated in the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. There the court (Law JA) stated-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 suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration. 27.Further Sir Charles Newbold P stated-A preliminary objection is in the nature of what used to be a demurrer. It 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 is to ascertained or if what is sought to is the exercise of judicial discretion. 28.In the case of Attorney General & another v Andrew Mwaura Githinji & Another [2016] eKLR: - The Court expressed itself on the scope of a preliminary objection thus-i.A Preliminary Objection raised a pure point of law, which is argued on the assumptions that all facts pleaded by other side are correct.ii.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; andiii.The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute 29.On the material before the Court, the first limb of the preliminary objection cannot be sustained. The question of the 1st to 7th Petitioners’ standing vis‑à‑vis the 8th Petitioner is not one that turns on a pure point of law capable of summary disposal. It is a matter that necessarily requires evidential evaluation, for the relationship between the Petitioners and the incorporated trust is a factual inquiry that cannot be resolved in the abstract. 30.On the 2nd limb it is submitted that the Petition fails on account of the doctrine of exhaustion. The doctrine was decisively articulated in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) thus-In our view, there is considerable merit in the submission 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. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions. 31.The Interested Parties also argue that the Petitioners sidestepped the dispute resolution framework established under the Trustees (Perpetual Succession) Act. That contention rests on a principle our courts have repeatedly affirmed; when Parliament has provided a specific mechanism for resolving a particular category of disputes, parties are expected to engage that mechanism before invoking constitutional jurisdiction. In Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, the Supreme Court made clear that constitutional litigation is not designed to displace statutory processes, nor to serve as a first resort where ordinary procedures are available and adequate. That guidance reflects a broader constitutional commitment to a process that ensures courts do not assume functions assigned elsewhere, and that litigants do not convert every disagreement into a constitutional controversy. 32.Whether the Petitioners failed to honour that obligation is a matter that must be evaluated against the factual record, but the principle itself is both settled and instructive. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) [2020] eKLR the Court of Appeal, the Court was firmly stated-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 33.For a petition to overcome the exhaustion doctrine, it must demonstrate that it falls within one of the recognised exceptions. articulated in the case of Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR thus-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 v Aelous (K) Ltd and 9 Others.) 34.The Petitioners skirted this issue, choosing instead to frame their case as a straightforward violation of rights. But constitutional language cannot be used to bypass a statutory framework deliberately enacted to govern the administration of trusts. The Trustees (Perpetual Succession) Act establishes a comprehensive regulatory scheme and vests the Registrar of Companies with the authority to oversee its implementation. That structure reflects legislative guidance on how disputes concerning trust governance, appointment of trustees, and maintenance of official records ought to be managed. 35.Section 3 of the Act provides-Incorporation of Trustees(1)Any person or body of persons who have lawfully constituted themselves for the purpose of forming a trust may apply to the Registrar for a certificate of incorporation.(2)The Registrar shall within sixty days of receipt of an application for incorporation of a trust, grant or reject the application.(2A)Where an application is rejected, the Registrar shall give written notice to the applicant and the notice shall state the reason for rejecting the application.(2B)Where an application for incorporation is approved by the Registrar, he or she may grant a certificate accordingly, subject to such conditions or directions. 36.Section 14 then provides-14.Petition to decide question whether person is a member of a corporate body(1)When any question arises as to whether a person is a member of a body incorporated under this Act, any person interested in that question may apply by petition to the High Court for its opinion thereon.(2)Notice of the hearing shall be given to such persons and in such manner as the court shall think fit, and any opinion given by the court on an application under this section shall be deemed to have the force of a declaratory decree. 37.From the foregoing, it becomes clear that the Trustees (Perpetual Succession) Act does not leave parties without recourse when they are dissatisfied with a decision by the Registrar. The Act itself establishes a defined pathway: a party may petition the High Court for “its opinion thereon.” That mechanism is not incidental; it reflects a deliberate legislative choice to channel disputes concerning trustee appointments, membership, and the Registrar’s determinations through a structured statutory process. 38.Their obligation is to demonstrate why the statutory process was inadequate or inapplicable; absent such a showing, the Act’s ‘petition for opinion’ procedure remains the proper vehicle for challenging the Registrar’s decision. 39.In HCCC No. 80 of 2005 Methodist Church in Kenya Trustees Anor v Rev Jeremiah Muku and Anor the Court stated-But it must be remembered that constitutional references are not a panacea for resolution of all types of legal disputes. Invocation of constitutional remedies should only be reserved for serious breaches of the constitution and not for correction of errors either of substantive laws or procedure committed by courts in the course of litigation. The fact that a judgment or a ruling of the court is wrong does not mean that any fundamental rights of the party aggrieved by it has been breached. 40.The Petitioners rely on the decision in Mathatani Limited v Commissioner of Lands, Attorney General, Chief Engineer Ministry of Roads, Kenya National Highway's Authority, Nicholas O'dwyer & Company Limited of Ireland & Abdul Mullick Associates Limited (Kenya) [2013] KEHC 1524 (KLR) in urging the Court to exercise its jurisdiction under Article 165 (b) and (d). A careful reading of that decision shows that the applicant therein exhausted the statutory remedies before presenting the Petition. 41.The Petitioners have not demonstrated that their case falls within any of the recognised exceptions to the doctrine of exhaustion. They have not shown that the statutory mechanism under the Trustees (Perpetual Succession) Act was ineffective, incapable of providing an adequate remedy, or inapplicable to the dispute at hand. Nor have they established that the matter raises a pure constitutional question that cannot be addressed through the statutory process. For this reason, the Petition cannot be sustained. 42.Having found that the Petition is not justiciable on account of the doctrine of exhaustion, it follows that the subsequent issues framed are not available for determination; the Court is not properly seized of the dispute. Jurisdiction is not a technicality; it is a threshold inquiry that determines whether a court may proceed at all. Here, the Petitioners have not demonstrated any basis for exempting themselves from the statutory pathway under the Trustees (Perpetual Succession) Act. The Petition therefore stands dismissed. 43.On costs, each party will bear their own costs. It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.P. M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantKyobika for PetitionersOdhiambo for 1st & 2nd RespondentMs. Musati holding brief for Ojienda SC for Interested Party