https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9074

Savla v Okonji (Petition E039 of 2023) [2026] KEHC 9074 (KLR) (Constitutional and Human Rights) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9074 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E039 of 2023 PM Nyaundi, J June 25, 2026 IN THE MATTER OF ALLEGED THREAT OF CONTRAVENTION OF ARTICLES 10 AND 31 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF RIGHT TO PRIVACY Between Nayan Savla Petitioner and Dr. Marx M.O. Okonji Respondent Judgment Introduction 1.The Petitioner Nayan Mansukhalal Savla presents Petiton dated 10th February 2023 alleging contravention of Articles 10 and 31 of the Constitution of Kenya , 2010 and seeks the following orders against the Respondent, Dr. Marx M.O. Okonji-a.A declaration that the Petitioner’s right to privacy has been violated by the Respondent contrary to the provisions of the constitution.b.A declaration that the Petitioner is entitled to compensation by way of damagesc.Costs of the Petitiond.Any other orders, writs and directions the Honorable Court considers appropriate and just to grant for the purposes of the upholding the Petitioner’s constitutional rights. 2.The petitioner avers that he contacted the respondent in 2016. That on February 2022, the respondent wrote a letter addressed to ‘whom it may concern’. The said letter was written without the authorisation and consent of the Petitioner. 3.In response the Respondent filed a preliminary objection dated 24th November 2025 on the following grounds-a.This Court lacks jurisdiction to entertain this matter because the Petitioner lacks locus standi to institute these proceedings under Order 32 Rule 15 of the Civil Procedure Rules or otherwise.b.This Court lacks jurisdiction under Section 46 of the Mental Health Act and Section 20 of the Medical Practitioners and Dentists Act, Cap 253 of the Laws of Kenya.c.That under the Doctrine of Exhaustion where there is an alternative method of dispute resolution established by legislation, courts must exercise restraint in exercising their jurisdiction conferred by law and must give deference to such dispute resolution mechanisms established by law with the mandate to deal with such specific disputes in the first instance. 4.Pursuant to directions of the Court, the Preliminary Objection was canvassed via written submissions. The Respondent's submissions are dated 20th March 2026. The Petitioners had not filed their submissions at the time I retired to write my ruling. Summary Of The Respondent’s Submissions. 5.The issue framed for determination is whether the preliminary objection is sustainable. Reference is made to the decision in Charo v Mwashetani & 3 others [2014] KESC 5 (KLR) in which the Court reiterated the principles on what constitutes a preliminary objection as pronounced in the celebrated decision of Mukisa Biscuits v West End Distributors Limited (1969) EA 6.It is submitted that the Petitioner lacks locus standi to present the suit and further that the Petition runs afoul of the constitutional doctrine of exhaustion. It is submitted that the Petition is hamstrung as the Petitioner failed to exhaust the statutory remedies under the Mental Health Act, The Kenya Medical Practitioners and Dentists Act and the Digital Health Act. 7.It is further submitted on the authority of Hiram Bere Kinuthia ( Through Administrators of his Estate) v Edick Omondi Anyanga & 6 Others [2025] KESC 60 (KLR) that the Petition is defective as the Petitioner on account of his mental illness lacks capacity to present the suit. 8.In addition, it is submitted that jurisdiction being foundational, and as the Court herein lacks jurisdiction, the Petition ought to be struck out in limine. The respondent relies on the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1; Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR; Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR); Jamari Enterprises Limited v Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR) and Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another [2015] eKLR to further advance the argument as to the appropriate orders consequent to this court lacking jurisdiction to entertain the instant suit. 9.Finally, the respondent relies on the decision in Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR and urges that the Petition be struck out with costs to the respondent. Analysis And Determination 10.Having carefully considered the pleadings and submissions filed herein alongside the relevant law, I consider the following to be the Constitutional issues for determination-a.Whether the preliminary objection meets the basic test signalled in the Mukisa Biscuit caseb.Whether this court lacks jurisdiction to entertain this suit owing to a lack of locus standi and the doctrine of exhaustion 11.The legal threshold for a preliminary objection is well settled by judicial precedent and was set down in the precedent-setting case in the decision of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 69 where the Court stated-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 a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..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 has to be ascertained or if what is sought is the exercise of judicial discretion.In Oraro v Mbaja [2005] KEHC 3182(KLR) expounded it thus;I think the principle is abundantly clear. 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 processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed... 12.On the first limb of the Preliminary Objection to the effect that the Petition is defective as the Petitioner lacks locus standi, I have no hesitation in disallowing the preliminary objection on the ground that the question of the capacity of the Petitioner to present this Petition on account of his mental incapacity is one that can only be settled by calling evidence. See Oraro v Mbaja (Supra) 13.The second limb is premised on the fact that, on account of the applicant failing to exhaust the alternative avenues available before presenting this Petition, he has run afoul of the constitutional doctrine of exhaustion. 14.It is submitted that the claim against the respondent is a complaint touching on a professional lapse that should have been presented either before the Kenya Medical Professionals and Dentists Council under Section 20 of the Medical Practitioners and Dentists Act or by dint of Section 46 of the Mental Health Act to the Kenya Health Professions Oversight Authority or to Data Commissioner under Section 56 of the Data Protection Act. The fact that the Petitoner did not file a response to the Preliminary Objection is material. 15.. I find that these are avenues that were available to the Petitioner to address his grievance yet he elected to present the Petition. The doctrine of exhaustion has its underpinnings under Article 159 (2) of the Constitituion which obligates parties and courts to consider alternative forms of dispute resolution. The Court in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and 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. The ex parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution. 16.I have considered the orders that the Petitioner seeksa.A Declaration that the Petitioner’s right to privacy has been violated by the respondent contrary to the provisions of the Constitutionb.A declaration that the Petitioner is entitled to compensation by way of damages 17.It is evident that the Petitioner is aggrieved by the letter authored by the Respondent. They had a client-patient relationship. There are clear processes provided under statute under which the Petitioner can proceed to have his grievances against the respondent addressed. 18.On account of the foregoing, I find that the Petition herein is premature and it is accordingly struck out. The Petitioner should exhaust the available processes under the Mental Health Act, the Kenya Medical Practitioners and Dental Act and the Data Protection Act. 19.On costs, each party will bear their own costs. It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JUNE 2026.P .M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantOmuganda for RespondentNayan Savla Petitioner in person