Talent Works and Rights Enforcement Agency v Kenya Copyright Board & Attorney General

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. 90 OF 2020** **IN THE MATTER OF ARTICLES 35(2) AND 48 THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTIONS 2, 34, 35 OF THE COPYRIGHT ACT NO. 12 OF 2001 AND** **IN THE MATTER OF DENIAL, VIOLATION, OR INFRINGEMENT OF OR THREAT THE PETITIONER’S RIGHT TO ACCESS OF INFORMATION** **AND** **IN THE MATTER OF ACCESS TO JUSTICE** **BETWEEN** **TALENT WORKS AND RIGHTS** **ENFORCEMENT AGENCY……………………………………. PETITIONER** **VERSUS** **KENYA COPYRIGHT BOARD………………..…………..1ST RESPONDENT** **THE ATTORNEY GENERAL …………………………….2ND RESPONDENT** **JUDGMENT** 1. The Petitioner herein Talent Works and Rights Enforcement Agency Describes itself as a limited liability company duly incorporated in Kenya pursuant to the Companies Act, 2015 and registered to do and offer agency services to copyright owners and or holders within the Republic of Kenya.it also pleads that it is an assignee/ exclusive licensee of Copyrights by dint of deed of assignments entered into between various copyright owners and itself. 2. The 1st Respondent is a state corporation established under section 3 of the Copyright Act No. 12 of 2001 and mandated under section 43 to prosecute cases arising out of the infringement of the Copyright Act. 3. The 2nd Respondent is the Attorney General of the Republic of Kenya and established under Article 156 of the Constitution. The Attorney General is the Principal Legal Advisor to the National Government and represents the National Government in civil proceedings. 4. The Petitioner’s case as per the Petition dated 5th March 2020 is that courtesy of its deeds of assignment with the various copyright owners, it is assigned to take up all infringement issues and in collaboration with the relevant authorities, prosecute any person found culpable; investigate, inspect, detect and identify with the help of police officers,/ inspectors/ relevant authorities on any infringement complaint; and facilitate recovery and take inventory of any seizure suspected to be used or intended to be use din making such infringement through the help of Police Officers / inspectors/ relevant authorities among others. 5. The petitioner states that in exercising its mandate, it has on several occasions been in constant communication with the 1st Respondent concerning matters that touch on copyright infringement for their prosecution. It however accuses the 1st respondent of having, through ill motive, continuously frustrating the functions of the Petitioner during the course of its business in the manner stated below. 6. That by a letter dated 29th October, 2015, addressed to the Director of Public Prosecutions, the 1st Respondent accused the Petitioner of being an impostor and of fleecing members of the public through acts of harassment and confiscation of goods 7. That again vide a letter dated 4th may 2017, the 1st Respondent wrote to the Chief Magistrate’s Court at Kajiado concerning a criminal matter where the Petitioner lodged a complaint against one Brian Godi Otieno stating that the Petitioner was an extortionist and further requested the Court to dismiss the case and proceed to return the seized goods to the accused persons. 8. That later vide a letter dated 4th July 2017, the 1st Respondent wrote to the Chief Magistrate’s Court at Kajiado stating that the aforesaid case against Brian Otieno Godi had been settled out of Court by the complainant and the accused person and it should therefore be marked as settled. 9. The Petitioner claims that the information in the two letters addressed to the Chief Magistrate’s Court at Kajiado was contradictory and misleading which led to the magistrate writing to the 1st Respondent seeking clarification on the alleged facts about the Petitioner. 10. The Petitioner also claims that it did present an infringer of copyright, to Court, one Brian Gichuki Wanjiku on 2nd May 2018 but that the 1st Respondent again wrote to the Chief Magistrate’s Court at Kerugoya Law Courts vide letter dated 21st May, 2018 in Criminal Case No. 338 of 2018, alleging that the Petitioner is an impostor, impersonating itself as the 1st Respondent and was hell bent to on extorting money from innocent hardworking individuals, and explaining how its Legal Counsel relied on averments of the accused person concerning the case that was before Court. 11. That in the same aforesaid letter, the 1st Respondent purported to withdraw the case against the accused person under section 204 of the Criminal Procedure Code, to have the accused be set at liberty and his property be returned. 12. The Petitioner further accuses the 1st Respondent of having written a letter dated 17th August, 2018 to the OCPD Dagoretti stating that the Petitioner had no certificate of authority to inspect. The Petitioner then wrote a letter dated 27th August 2018 refuting allegations contained in the letter of 17th August 2018, stating that the 1st Respondent’s letter was untruthful and had misleading information as the Petitioner was not an inspector under the Copyright Act but an agency hence not in requirement of a certificate of authority as alleged. 13. That on 5th September 2018, the Petitioner wrote to the 1st Respondent demanding that the latter retracts its letter of 21st May 2018 but that to date, no response had been received from the 1st Respondent even after reminders were send vide letter dated 6th November, 2018. 14. The Petitioner states that following this circus, it wrote to the Office of Ombudsman on 12th November, 2018 seeking action for mal administration of and administrative Justice by the 1st respondent and that in its letter to Ombudsman dated 20th December, 2018, the 1st Respondent assured that its Board would put in place a system for future engagement with the Petitioner, which never materialized. 15. The Petitioner claims that the allegations levelled against it by the 1st respondent through the aforestated letters had put the Petitioner’s integrity to question in the eyes of its clients and members of the public and has brought it great disrepute in the industry. The Petitioner therefore claims that it had been unlawfully deprived of its right to access justice, to do business lawfully and or peacefully enjoy the same and has suffered and continues to suffer substantial loss unless this Court is pleased to intervene for purposes of protecting its constitutionally guarantees right to access justice and as provided for in the Constitution. 16. The Petitioner alleges that its right under Article 35(2) of the Constitution, to the correction or deletion of information that is untrue or misleading affecting it had been denied. It also claims that its right to access justice under Article 48 of the Constitution had been denied or violated by the 1st respondent refusing to prosecute matters of infringement of copyrights. It claims that under sections 34 and 35 of the Copyright Act, it facilitates infringement cases. 17. It asserts that under Article 21 of the Constitution, it has the right to institute these proceedings and that the jurisdiction of this Court is derived from Articles 23 and 165 of the Constitution to hear and grant remedies for violation of rights. 18. The Petitioner therefore prays for the following reliefs: 19. ***A Declaration that the Petitioner’s right under Article 35(2) has been violated, breached and or infringed upon by the 1st and 2nd Respondents in contravention of Articles 35 (2) of the Constitution.*** 20. ***A declaration that the Petitioner is entitled to a deletion and or correction of the untrue and misleading information passed to the public by the 1st Respondent in giving the untrue information.*** 21. ***An order directing the respondents to compensate the Petitioner loss arising from violation of the right to information under Article 35(2) and the dissemination of wrongful information.*** 22. ***An order compelling the 1st Respondent to correct the untrue and misleading information passed to the public by the 1st Respondent in giving the untrue information specifically that the Petitioner is an impostor.*** 23. ***Any other or further just and expedient relief as the Court may deem fit to grant.*** 24. The Petition is further supported by the affidavit sworn by Edward R. Olang, the Director of the Petitioner, annexing documents which include letters referred to in the main petition. The supporting affidavit is a replica of the facts which I have reproduced herein above from the Petition and therefore I need not rehash them here. 25. Before I venture into the responses to the Petition, it is important to state here that the petition has been pending since 2020 because when the same came up for highlighting of written submissions on 22nd May, 2024, there was no appearance on the part of the petitioner or its advocate and therefore the petition was dismissed for non-attendance to prosecute. The file was then closed. Later, the petitioner applied for reinstatement vide an application dated 18th August, 2025. 26. Opposing the Petition, the 1st Respondent filed a replying affidavit sworn by George Nyakwera, the 1st Respondent’s Deputy Executive Director on 14th April, 2021. He deposes that the 1st Respondent is a state Corporation under the Office of Attorney General and department of Justice and established under section 3 of the Copyright Act No. 12 of 2001. Further, that under section 5 of the Copyright Act, the 1st Respondent is the sole organization that has the statutory mandate for administration and enforcement of all matters of copyrights in Kenya. The deponent deposes that the Petitioner is a limited liability Company registered under the Companies Act and that it purports to enforce the provisions of the Copyright Act in Kenya. 27. The deponent further deposes that the 1st Respondent is mandated under section 39(1) of the Copyright Act to appoint inspectors for purposes of enforcing provisions of the Copyright Act and in so appointing, issue them with Certificate of authority to act as such inspectors who, upon appointment, holds office subject to such conditions as the 1st Respondent may determine with approval of the Cabinet Secretary. 28. Further deposition is that under section 39(2) of the Copyright Act, any member of the Copyright Board or a police officer may perform the functions of a Copyright Inspector. 29. According to the 1st Respondent, since the Petitioner has never been a member of the Copyright Board or a police officer, it has never been a copyright Inspector for it to purport to enforce the provisions of the Copyright Act. 30. Concerning prosecutorial powers, it is deponed that only the DPP or officers exercising the DPP’s delegated authority can undertake prosecution in cases of copyright infringement as provided for under section 43 (1) of the Copyright Act and the Criminal Procedure Code; 31. The deponent denies that the Petitioner has any exclusive license or deeds of assignment authorizing it to enforce copyright on behalf of the Copyright board or intellectual property owners and that such license or deeds of assignment would be illegal and unconstitutional, null and void. 32. It is further deposed that on 16th December, 2019, the DPP revoked prosecutorial powers donated to state agencies prosecutors in order to harmonize prosecutorial powers vide Gazette Notice No. 12159. That the 1st respondent has copyright inspectors who inspect copyright infringement and therefore it cannot be said to be facilitating copyright infringement as alleged by the Petitioner. 33. That there had been reports in the media, of the petitioner going round the country with compromised police officers, purporting to enforce the Copyright Act infringements by extorting money from members of the public with impunity and that in some instances, the petitioner has confiscated people’s laptops and computers containing musical works yet there is no offence known in law for possessing such gadgets with musical works and that as a result, the 1st respondent had to write to court withdrawing such charges that disclosed no offence.. 34. It is deposed that the petitioner belongs to a self-appointed group engages in acts of vigilantism with no legal basis whatsoever and who do not respect the rule of law but compromise fair trial and leads to wrongful convictions thereby violating the rights to fair trial, right to life and freedom of security. The 1st respondent urged this court to dismiss the petition. 35. The 2nd Respondent filed grounds of opposition dated 7th December, 2023 contending that the petition does not disclose any claim against it or agencies that it represents, that the 2nd respondent is not a necessary party and its presence is not required to enable the court adjudicate upon and determine the issues in controversy in the petition, that there is no nexus between it and the petitioner’s case as the alleged violations do not touch on any actions of the 2nd respondents or its agencies and that no allegation of violation of rights has been pleaded against the 2nd respondent hence it has been improperly joined to the petition hence it should be struck out from the petition. **Submissions** 1. Parties filed written submissions to canvass the petition. The petitioner’s submissions are dated 20th December, 2023 in which its counsel reiterates the contents of the petition and supporting affidavit, maintaining that the petitioner is a voluntary entity assisting talented artists to feel their intellectual property rights which have been infringed and no government action has been taken to protect from such infringement or exploitation, and that the 1st respondent had refused to prosecute violators of the Copyright Act and frustrated the petitioner’s efforts by maligning it and calling it an extortionist and imposter by withdrawing cases filed in court against violators of the intellectual property rights. 2. The petitioner reproduces what was pleaded in the petition and which the court adopts as its case. 3. The 1st respondent filed submissions dated 26th May 2026 framing three issues for determination namely: 4. ***Whether the Petitioner has legal authority under the Copyright Act to investigate, inspect, seize property, prosecute or enforce copyright infringements matters*** 5. ***Whether the actions of the 1st Respondent violated Articles 35(2) and 48 of the Constitution*** 6. ***Whether the petition satisfies the constitutional threshold required in constitutional litigation.*** 7. Submitting on issues i and ii, the 1st respondent reiterates its depositions in the replying affidavit as highlighted in the body of this Judgment. 8. On issue iii, the 1st respondent urges this court to find that the petition offends the doctrine of constitutional avoidance on account that the issues raised in the petition are defamation matters which ought to be determined in ordinary civil suits and not a constitutional petition. Reliance is placed on the Supreme Court decision in **Communications Commission of Kenya & 3 Ohers v Royal media Services Limited ad 5 others [2014] eKLR.** 9. The 1st respondent urges this court to dismiss the petition with costs. 10. The 2nd Respondent did not file any submissions. **Analysis and Determination** 1. I have considered the petition, the responses thereto and the written submissions. I find the main issues for determination to be: 2. ***Whether the 2nd respondent s a necessary party to the petition*** 3. ***Whether the petition meets the threshold for constitutional petitions or whether it offends the doctrine of avoidance*** 4. ***Depending on the answer to issue ii above, whether the petition is merited*** 5. ***What orders should this court make including on costs.*** 6. ***Whether the 2nd respondent is a necessary party to the petition*** 7. The 2nd Respondent Attorney general in the grounds of opposition dated 7th December, 2023 urged this Court to strike it off the Petition as there is no allegation leveled against it in the petition and that neither does the petitioner seek any remedy against it. 8. Further, that it had not been demonstrated as to how it violated the petitioner’s rights since there is no evidence linking it to the alleged violations. The 2nd Respondent maintained that it is not a necessary party and that its presence is not required to enable the court to adjudicate upon and determine the issues in controversy in the petition. 9. That it has been improperly joined and made to incur unnecessary expense and tedious court process. That there is no legal basis upon which it was enjoined to the petition. 10. Rule 5 of the (Mutunga Rules),[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows: **5*.The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—*** ***(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.*** ***(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.*** ***( c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.*** ***(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—*** ***i.order that the name of any party improperly joined, be struck out; and*** ***ii.that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.*** ***(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.*** 1. On the other hand, a Respondent, under the same Mutunga Rules is defined under Rule 2 as: ***“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom.*** 1. The above Rule 5 is categorical that a petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute. 2. To correct misjoinder or non-joinder, the Court is empowered either on application by a party or on its own motion, *to order the* *striking out of a party improperly joined*. The Court may also order the addition of any person who ought to have been joined, or whose participation in the matter before it may be necessary in order to enable the court adjudicate upon and settle the matter. 3. The Supreme Court in **Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment)** held as follows regarding the effect of misjoinder or non-joinder of parties: ***“Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.*** ***To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”*** 1. On who is a necessary party to proceedings before a court, L.N. Mugambi J, in **Mokaya v Independent Electoral & Boundaries Commission & 4 others (Constitutional Petition E191 of 2025) [2026] KEHC 12990 (KLR) (Constitutional and Human Rights) (20 August 2026)** (Ruling) quite recently, citing other decisions including binding ones on this Court, stated as follows at paragraphs 29 to 34 of the decision: ***“29. That notwithstanding, the Court in Youth Limited v Kihiko & another; Kenya Railways Corporation (Intended Defendant) [2024] KEELC 1413 (KLR) observed thus:*** ***“Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. This position was set out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows:*** ***A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.*** ***30.The Court of Appeal also quoted its earlier decision in Meme v Republic (2004) KLR637 wherein it held that joinder will be permissible: a. Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; b. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and c.Where the joinder will prevent a likely course of proliferated litigation.”*** ***31.As to the meaning of cause of action, this phrase simply describes the existence of facts that would give rise to a claim that is properly founded in law. In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017]eKLR the Court explained thus:*** ***A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.” In the case of Drummond Jackson v. British Medical Associations & Ors., Lord Pearson stated as follows:-“...... the expression “reasonable cause of action” ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when.... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”*** ***The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors; held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.*** ***32.The Court went further to state as follows:*** ***“… The pith and marrow of it is that where on a consideration of only the allegations in the pleading the court concludes that a cause of action with some chance of success is shown then that pleading discloses a reasonable cause of action. Person, J in Drummond Jackson v British Medical Association, the definition of a cause of action was determined as an act on the part of the Defendant which gives the Plaintiff his cause of complaint….”*** ***33.In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 citing a number of authorities with approval noted as follows:*** ***That the application discloses no reasonable cause of action or defence in law. In DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR, the Court of Appeal defined reasonable cause of action to mean “an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer…*** ***34.The 2nd Respondent’s position is that the Petitioner has not demonstrated with exactitude why the 2nd Respondent (Speaker of the National Assembly) is a party in these proceedings. The 2nd Respondent argued that the Petitioner neither mention it in the Petition nor supporting affidavit. Further, the Petitioner has not sought any relief against the 2nd Respondent.”*** 1. In the instant petition, the 1st respondent is a state corporation established under section3 of the Copyright Act and with the power to sue and be sued in its own corporate name. There is no single allegation made against the 2nd Respondent that it violated or how it violated the petitioner’s rights. Apart from simply stating in the reliefs that the respondents violated the petitioner’s rights, no pleading mentions how the 2nd respondent could have violated or threatened the petitioner’s rights with violation. 2. Under rule 5 of the Mutunga Rules, and in view of the definition of who a respondent is under Rule 2 of the said Rules, in constitutional litigation, if a petition fails to disclose a cause of action, clear allegations of rights violations, or specific reliefs against a particular respondent, the court has the authority to strike out that respondent from the petition. 3. In **African Centre for Corrective and Preventive Action & 31 others v Google Kenya Limited & 4 others; Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068 of 2023) [2026] KEHC 7021 (KLR) (Constitutional and Human Rights) (20 May 2026) (Ruling),** this Court had occasion to discuss whether a respondent against whom no allegation of violation of rights was made should be struck off the petition and the Court stated: ***“24.In the present petition, this Court has not been shown that the presence of the 5th respondent is necessary in order for this court to completely and effectually determine all the issues raised in the petition. Differently put, this Court is unable to identify any issue that cannot be fully determined in the absence of the 5th Respondent.*** ***25.I reiterate my earlier statement that parties should not be added to Court proceedings just to make the petition look good. A respondent should only be brought to court if there is an issue that needs their active and not passive participation.*** ***26.In this case, the 5th respondent is not just any other party, it is enjoined as a main respondent, not as an interested party or amicus curiae. Its continued presence in these proceedings must serve a useful legal purpose such that whereas this Court remains mindful that constitutional petitions should not be defeated by procedural technicalities, that principle cannot be stretched to justify indiscriminate joinder of parties against whom no cause of action is disclosed.*** ***27.Rule 5 of the Mutunga Rules as cited above exists not only to facilitate access to justice, but also to shield parties from unnecessary and unjustified litigation, so that the 5th respondent should not spent all the time in court simply saying that there is no allegation made against it, until the petition is heard and a decision rendered.*** ***28.I am therefore satisfied that the 5th Respondent was improperly joined to these proceedings and that no reasonable cause of action has been disclosed against it. In the end, I find the application dated 10th December, 2025, seeking to strike out the 5th Respondent from these proceedings to be merited. I allow it and proceed to strike out from the petition herein the name of the 5th respondent.”*** 1. In this case, as no cause of action has been disclosed against the 2nd Respondent, I find no reason to retain the 2nd Respondent in these proceedings, noting that the striking out will not affect the merits of the petition and neither will be sustaining the 2nd Respondent positively influence the outcome of the petition, since it is not a necessary party or whose presence before court will enable the court effectually adjudicate all issues involved in the petition. 2. Accordingly, the 2nd Respondent Attorney General is not a necessary party and is hereby struck out of these proceedings with no orders as to costs. 3. ***Whether the petition meets the threshold for constitutional petitions or whether it offends the doctrine of avoidance*** 4. The 1st Respondent submits that the Petition is an abuse of the court process as it fails to satisfy the threshold required to sustain a claim under the Constitution. The 1st Respondent invites this Honorable Court to apply the Doctrine of Constitutional Avoidance. It contends that the Petition is a civil claim for defamation clothed as a constitutional petition. 5. The petitioner counters the 1st Respondent’s argument and submits that this court has jurisdiction to hear and determine the petition and that Article 22, of the Constitution permits any person aggrieved by violation of their rights to petition the Court while Article 48 guarantees every person access to justice, arguing that the 1st respondent frustrated the petitioner’s efforts to have copyright infringement suspects prosecuted, by withdrawing criminal cases against them. 6. It further submits that the rights to property of copyright owners, under Article 40 and its right and to have wrongful information about the petitioner, being corrected and deleted on allegations that it is an impostor and extortionist, thereby maligning its name were denied or violated. 7. The principle of constitutional avoidance dictates that a court should not determine a matter on a constitutional footing if there exist adequate alternative statutory or civil remedies to resolve the dispute. The Supreme Court in **Communications Commission of Kenya & 5 others V Royal Media Services Limited & 5 others (2014) eKLR** firmly established that a court will not decide a constitutional issue if the dispute can be properly and conclusively resolved on other legal grounds. 8. the petitioner repeatedly pleads and submits that its commercial reputation or agency agreements were harmed by the 1st Respondent’s public warnings by way of letters written to the Chief Magistrate’s Courts where copyright infringement suspects had been arraigned with the 1st respondent claiming that the petitioner was an impostor and extortionist thereby tarnishing its reputation and denying its clients access to justice as the suspects were released. 9. The question is whether these allegations meet the threshold for constitutional petitions or whether they are veiled civil tortious claims. 10. My finding on this issue is that allegations of the petitioner being an extortionist or impostor border on character assassination and defamation and not constitutional questions. Redress for such alleged written utterances can be found in the petitioner filing civil suits because pure reputational grievance is a private tort to be litigated as a civil dispute, rather than a violation of the Bill of rights. 11. I am in agreement with Mwamuye J’s holding that ordinary civil disputes should never be masked as constitutional grievances. The learned Judge stated as follows in **Murayi alias Jamal v Nation Media Group Limited & 6 others (Constitutional Petition E666 of 2024) [2025] KEHC 12289 (KLR) (Constitutional and Human Rights) (12 August 2025) (Judgment)** citing many other decisions on the doctrine of avoidance including the Court of Appeal decision in **James Kanyiita Nderitu vs Attorney General and the DPP [2019] eKLR** stated *inter alia*: ***“12. Courts have consistently struck out matters that are framed as constitutional disputes when in reality they are not. In Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR Lenaola J (as he then was) stated:*** ***“…Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…”*** ***13. Further in John Harun Mwau v Peter Gastrow & 3 others (2014) eKLR the Court held:*** ***“…Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if the remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether in addition to breach of the other declaration of rights… it is established practice where a matter can be deposed without recourse of the Constitution, Constitution should not be invoked at all…”*** ***14. In the case of Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot (2021) eKLR Mutungi J held thus: -*** ***“… there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.”*** ***15.The Court of Appeal in dismissing a similar matter in the case of James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution (2019) eKLR stated as follows:*** ***“…As we have stated above, the remedy for the appellant was to institute a suit for malicious prosecution. He has failed to do so and a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. It is not open to the appellant to urge that there can be no wrong without a remedy. Indeed, this legal principle is correct; the appellant had a remedy in the tort of malicious prosecution or an action for defamation, he has chosen not to pursue the causes of action within the legal timeframe…”*** ***16. It is cardinal principle that where there exists an alternative remedy under statutory law or otherwise, then such a remedy should be pursued instead of a constitutional petition. For instance, in Patrick Mbau Karanja v Kenyatta University [2012] eKLR Lenaola J (as he then was) held:*** ***“I should only say this as I conclude; in Francis Waithaka vs Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the constitutional imperative mandate of this court should not be invoked where other remedies lie.”*** ***17.Chacha J. was of a similar view and which I entirely agree with in the case of Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR where he stated thus:*** ***“65. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”*** 1. See also a similar holding by Mwamuye J in **Kalaiya & another v Nairobi Metropolitan Services & 2 others (Petition E144 of 2022) [2025] KEHC 7959 (KLR) (Constitutional and Human Rights) (2 May 2025) (Judgment).** 2. A similar issue arose in where the court was faced with the question of whether the constitutional petition raised any constitutional questions of violation of rights or whether it was a defamation case. Mativo J (as he then was) applied the doctrine of avoidance and stated that the doctrine is intended to prevent procedural mischief where a person’s cause of action was barred by the law of limitations and brought as a constitutional petition. The learned Judge stated: ***13.First, I will address the 1st respondent’s contestation that this is a defamation suit disguised as a constitutional petition. Even though this is a pertinent point of law, the petitioner’s counsel did not address this ground at all. The choice to file a constitutional petition for the claim at hand calls for scrutiny of two important notions. First is the doctrine of constitutional avoidance. Second, is the law of limitation of actions. Just like res judicata, the doctrine of constitutional avoidance and the law of limitation of actions can preclude a court from entertaining a case. These two concepts are completely different from the presence or absence of jurisdiction. The court may possess the requisite jurisdiction, but it may perfectly be entitled to decline to entertain a matter if any of these two concepts are established as I will demonstrate below.*** ***14.The law of limitation of actions warrants no explanation. Undeniably, the alleged publications took place on December 7, 2018. This petition was filed on November 24, 2021, after the lapse of almost three years. Section 4 (2) of the***[***Limitations of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)[***10***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_14__intro__p_1__authorialNote_1)***provides: -10Cap 22, Laws of Kenya.(2)An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.*** ***15.The statute of limitations is a statute of repose, enacted as a matter of public policy to fix a limit within which an action must be brought, or the obligation is presumed to have been paid, and is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof. These statutes are declared to be 'among the most beneficial to be found in our books. They rest upon sound policy, and tend to the peace and welfare of society. The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution.***[***11***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_15__p_1__authorialNote_1)***11Pashley v Pacific Elec. Co., 25 Cal. 2d 226, 228-29. 153 P.2d 325, 326 (1944) (quoting 1 HORACE G. WOOD. A TREATISE ON LIMITATION OF ACTIONS 8-9 (4th ed. 1916»; accord Neff v New York Life Ins. Co . 30 Cal. 2d 165, 169. 180 P.2d 900. 903 (1947).*** ***16.Statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.***[***12***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_16__p_1__authorialNote_1)***The fundamental purpose of the statute of limitations is to give defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy underlying the statute is to require plaintiffs to diligently pursue their claims.***[***13***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_16__p_1__authorialNote_2)***12Wood v. Elling Corp., 20 Cal. 3d 353, 362, 572 P.2d 755, 760,142 Cal. Rptr. 696, 701 (1977) (quoting Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348 (1944»; accord Lackner v. LaCroix, 25 Cal. 3d 747, 751, 602 P.2d 393,395, 159 Cal. Rptr. 693, 695 (1979).13Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1112,751 P.2d 923, 928, 245 eal. Rptr. 658, 662-63 (1988) {citing Davies v. Krasna, 14 Cal. 3d 502, 512, 535 P.2d 1161, 1168, 121 Cal. Rptr. 705, 712 (1975).*** ***17.The facts pleaded in this petition disclose civil defamation. Defamation is defined as the “action of damaging the good reputation of someone.”***[***14***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_17__p_1__authorialNote_1)***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***](https://kenyalaw.org/akn/ke/act/1968/21)***, 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***](https://kenyalaw.org/akn/ke/act/1968/21)***, 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.14Oxford English Dictionary.*** ***18.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.***[***15***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_18__p_1__authorialNote_1)***As a principle, constitutional avoidance has been linked to the doctrine of justiciability.***[***16***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_18__p_1__authorialNote_2)***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.***[***17***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_18__p_1__authorialNote_3)***The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor***[***18***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_18__p_1__authorialNote_4)***in which Ebrahim JA said: -15S Woolman & M Bishop, Constitutional Law of South Africa (2013) 3-21.16I Currie & J De Waal The Bill of Rights Handbook (2013) 72.17Ibid, Page 72.182001 (2) ZLR 501 (S).“…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.”*** ***19.Courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.***[***19***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_19__p_1__authorialNote_1)***In S v Mhlungu***[***20***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_19__p_1__authorialNote_2)***the court explained constitutional avoidance as a general principle in the following terms: -“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”*** ***20.The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. The Supreme Court of Kenya in***[***Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others***](http://kenyalaw.org/caselaw/cases/view/101689/)***(at para 256) stated that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In S v Mhlungu (supra) Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. And in Ashwander v Tennessee Valley Authority***[***21***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_20__p_1__authorialNote_1)***the US Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of. Currie and de Waal***[***22***](https://kenyalaw.org/akn/ke/judgment/kehc/2022/13633/eng%402022-10-06#arguments__para_20__p_1__authorialNote_2)***opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author’s state:*** - ***When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”*** 1. In the instant petition, having examined the allegations levelled against the 1st Respondent by the Petitioner, I do not find any independent constitutional cause of action. While the Court acknowledges that the reputation and rights of others must be respected, as an internal limit on free speech, this limitation does not independently generate liability for defamation as a constitutional violation. 2. Character assassination claims remain creatures of common law and specific statutes. In his article, “***Constitutionalising Defamation: The Limits of a Constitutional Cause of Action for Reputation,***” Ayaga Max Liambilah discusses this topic and concludes by positing that: ***“The defect in the syllogism is that its middle term equivocates. Reputation is indeed an aspect of dignity, and dignity is indeed constitutionally protected. But the constitutional protection of an interest tells you that the legal order must vindicate it. It does not tell you that the Constitution must vindicate it directly, or that the existing vehicle for vindicating it has ceased to be the vehicle.”*** 3. The writer highlights the case of **Ope v Mundiari**, **(Civil Suit 13 of 2023) [2024] KEHC 8259 (KLR) (20 June 2024). The petition was Constitutional Petition E218 of 2023,** where a litigant filed a constitutional petition seeking exemplary damages for breach of rights arising out of a publication. Thande J found the claim civil in nature and directed its transfer to the Civil Division, where the court ordered that the petition be converted into a plaint. By then the twelve-month limitation period for libel had expired. 4. Thus, in the doctrine of avoidance, there is jurisdiction by the Court to adjudicate over disputes but limited to constitutional litigation. 5. From the above analysis, I reiterate my finding and hold that there are no independent constitutional questions raised for determination as all claims and reliefs sought by the petitioner border on alleged untrue /misleading information against the petitioner by the 1st respondent, and the doctrine of avoidance applies one hundred percent. 6. Having so found, I need not determine whether the petition is merited. 7. I find the petition dated 5th March, 2020 to offend the doctrine of avoidance. It is hereby struck out. 8. I make no orders as to costs. 9. This file is closed. **Dated, Signed & Delivered virtually at Nairobi this 1st Day of September, 2026** **R.E. ABURILI** **JUDGE**