https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11216

Vocal Africa v Wetangula & 4 others (Petition E442 of 2026) [2026] KEHC 11216 (KLR) (Constitutional and Human Rights) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11216 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E442 of 2026 D Mburu, J July 23, 2026 Between Vocal Africa Petitioner and Moses Wetangula 1st Respondent Amason Kingi 2nd Respondent the Independent Electoral and Boundaries Commission (IEBC) 3rd Respondent The Ethics and Anti-Corruption Commission 4th Respondent The Attorney General 5th Respondent Ruling Introduction 1.By a notice of motion application dated 6th July, 2026 filed under certificate of urgency, the Petitioner/applicant sought the following orders: -1.That pending the hearing and determination of this Application, a conservatory order be and is hereby issued restraining the 1stand 2nd Respondents, while serving as the Speaker of the National Assembly and the Speaker of the Senate respectively, from using, invoking, relying upon or benefiting from the authority, prestige, dignity, influence or incidents of their constitutional offices in the organisation, promotion, endorsement, leadership or conduct of organized partisan political campaigns in support of or opposition to any political party, political coalition or political candidate.2.That pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1stand 2ndRespondents from appearing at organised partisan political campaign events in their official capacities as Speaker of the National Assembly and Speaker of the Senate, or from being advertised, introduced, presented or represented at such events by reference to their constitutional offices.3.That pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1st and 2nd Respondents from using parliamentary facilities, parliamentary staff, parliamentary communication platforms, official transport, official security assigned by virtue of their constitutional offices, parliamentary finances or any other public resources attached to the Offices of Speaker for purposes of partisan political mobilization or election campaigning.4.That pending the hearing and determination of this Petition, a conservatory order be and is hereby issued directing the 1st and 2nd Respondents to discharge the functions of the Offices of Speaker of the National Assembly and Speaker of the Senate in a manner consistent with Articles 10, 73, 75, 94, 95, 96 and 232 of the Constitution so as to preserve public confidence in the institutional independence, impartiality, dignity and integrity of Parliament.5.That pending the hearing and determination of this Petition, a conservatory order be and is hereby issued preserving the objects and purposes of the Conflict of Interest Act, 2023 by restraining the 1st and 2nd Respondents from engaging in conduct that gives rise to an actual, potential or perceived conflict between their constitutional duties as Speakers of Parliament and organised partisan political campaign activities.6.That pending the hearing and determination of this Petition, this Honourable Court be pleased to direct the 3rd and 4th Respondents to preserve and secure all complaints, reports, investigations, correspondence, advisory opinions, electronic records, videos, photographs, social media publications, statements, recordings and any other materials relating to the conduct complained of in this Petition and, where required by the Court, to produce the same.7.That pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an order directing the 3rd and 4th Respondents to take such lawful measures as are necessary within their respective constitutional and statutory mandates to ensure compliance with the Constitution, the Leadership and Integrity Act, the Public Officer Ethics Act and the Conflict of Interest Act in relation to the conduct complained of herein.8.That this Honourable Court be pleased to direct that this Petition be heard and determined on a priority basis owing to the continuing nature of the alleged constitutional violations, the public importance of the issues raised and the proximity of the country's electoral cycle.9.That the costs of this Application be provided for.10.That this Honourable Court be pleased to grant such further, consequential or other conservatory, supervisory or preservatory orders as it may deem just, fit and expedient for the preservation of the Constitution, the rule of law, the institutional independence of Parliament and the public interest. 4.Upon a preliminary consideration of the application, the court certified the matter as urgent, considered it exparte considered in the first instance, issued interim conservatory orders and directed that the matter be mentioned on 16th July, 2026 to confirm compliance with directions and for further directions on the hearing. Petitioner’s Case 5.The application is supported the affidavit of KHALID HUSSEIN sworn on even date and the grounds on the face of the application. The petitioner was represented by the law firm of IM Mutiso & Co Advocates. 6.He asserted the Petition concerns the continued participation of the 1st and 2nd Respondents, while serving as the Speakers of the National Assembly and the Senate respectively, in organised partisan political campaign activities in support of the re-election of the incumbent President and the political coalition presently forming the Government. 7.Further he asserts that the Petition raises fundamental constitutional questions regarding the compatibility of such conduct with the constitutional responsibilities, fiduciary obligations and standards of leadership and integrity imposed upon holders of the constitutional Offices of Speaker under Chapters Six and Eight of the Constitution. 8.The petitioner avers that the conduct complained of in the Petition discloses an arguable and substantial constitutional question as to whether the active participation of the Respondents in organised partisan political campaigns while serving as the constitutional heads of Parliament is consistent with those constitutional obligations. 9.The petitioner further avers that unless this Honourable Court grants the conservatory orders sought, the impugned conduct is likely to continue and intensify as the country approaches the 2027 General Election, thereby occasioning continuing constitutional prejudice, undermining public confidence in Parliament as an independent arm of Government and risking rendering the Petition nugatory before its final determination. 10.The petitioner avers that he has a factual account of the conduct complained of, supported by contemporaneous media reports, electronic evidence, photographs, video recordings and other documentary material as annexed in his affidavit. 11.The petitioner contends that the 1st Respondent is the duly elected Speaker of the National Assembly established under Articles 93, 94 and 95 of the Constitution and is entrusted with the constitutional responsibility of presiding over the National Assembly and safeguarding its institutional independence, dignity and impartiality. 12.He further contends that virtue of Article 260 of the Constitution, the 1st Respondent is a State Officer and consequently a Public Officer whose authority is held in trust for the people of Kenya and whose conduct must at all times conform to the Constitution. Despite him occupying the constitutional officer he has numerous occasions, actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition. 13.The petitioner avers that on or about 3rd July 2026, the 1st Respondent led and addressed a major political rally held in Eldoret, Uasin Gishu County, popularly referred to as the "Tutam Rally", at which senior leaders of the Kenya Kwanza Coalition publicly mobilised support for the re-election of President William Ruto in the forthcoming General Election. 14.He further avers that at the said rally, the 1st Respondent publicly addressed supporters, defended the record of the incumbent administration and urged continued political support for President Ruto and the Kenya Kwanza Coalition, in which the said event was widely reported by national television stations, print media, online publications and digital media platforms. 15.Petitioner's concern arises from the fact that the authority, prestige and constitutional stature of the Office of Speaker are repeatedly invoked and publicly associated with these partisan political activities. In that he believes that such conduct gives rise to serious constitutional questions regarding the institutional independence, impartiality and perceived neutrality of the Office of Speaker and justifies the intervention of this Honourable Court pending the determination of the accompanying Petition. 16.The petitioner contends that the 2ndRespondent, Hon. Amason Jeffah Kingi, is the duly elected Speaker of the Senate established under Articles 93 and 96 of the Constitution and is entrusted with the constitutional responsibility of presiding over the Senate and safeguarding its institutional independence, dignity and impartiality. 17.Petitioner further contends that by virtue of Article 260 of the Constitution, the 2nd Respondent is a State Officer and consequently a Public Officer whose authority is exercised on behalf of the people of Kenya and is subject to the Constitution, the national values and principles of governance and the standards of leadership and integrity. 18.That the Petitioner has observed that, while serving as Speaker of the Senate, the 2nd Respondent has actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition. 19.Petitioner's complaints is not directed at the 2nd Respondent's personal political opinions or political association, but at the continued use, projection and association of the constitutional Office of Speaker of the Senate with organized partisan political campaigns. 20.Petitioner avers that on diverse occasions during the year 2026, the 2nd Respondent publicly attended, addressed and participated in political rallies organised by leaders of the Kenya Kwanza Coalition in which support was openly solicited for the incumbent President and his re-election campaign. 21.Petitioner further avers that the public events attended by the 2nd Respondent were political mobilisation meetings held within the Coast Region, including meetings in Mombasa County, where he appeared alongside senior political leaders of the Kenya Kwanza Coalition and publicly addressed supporters in his capacity as Speaker of the Senate. 22.Petitioner avers that the participation of both the 1st and 2nd Respondents in organized partisan political mobilization has occurred openly, repeatedly and consistently while they continue to hold the constitutional Offices of Speaker of the National Assembly and Speaker of the Senate respectively. 1st Respondent’s Replying Affidavit 23.The 1st Respondent file a replying affidavit under protest, in response to both the application and petition, sworn by one Samuel Njoroge, C.B.S, clerk of the National Assembly, on 15th July 2026. 24.The deponent deposed that though the petition has been described as one filed in the public interest, it is evident from its tenor, timing and reliefs sought that it is intended to vex the 1st respondent, it is frivolous and an abuse of the court process. The deponent further deposes that the petitioner is not acting in good faith as required in public interest matters and therefore lacks locus standi to institute the proceedings. 25.The 1st respondent urged the court to find that it lacks jurisdiction and dismiss both the petition and the motion with costs. 2nd Respondent’s Notice of Preliminary Objection 26.The 2nd respondent responded to the application and the petition through a replying affidavit sworn by Mohamed Ali, the Deputy to the Clerk of the Senate sworn on 15th July, 2026. 27.In addition to the replying affidavit, the 2nd respondent filed a notice of preliminary objection dated 15th July 2026 raising the following grounds:1.This petition is premature and not ripe for hearing by the High Court as the Petitioner has not exhausted the legal fora available to address the matters raised in the Petition before approaching this High Court for the orders sought therein.2.The Petitioners have not complied with the requirements of Section 11 (1) (c) and (e) and Section 13 (2) (c)of the Ethics and Anti-Corruption Commission Act, enacted pursuant to Article 79 of the Constitution, which provides that the Ethics and Anti-Corruption Commission is the body with the power to receive complaints on the breach of the code of ethics by State of public officers, recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct, and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution.3.Article 88 (4) (e) of the Constitution and Section (4) (e) of the Independent Electoral and Boundaries Commission Act grant the Independent Electoral and Boundaries Commission the mandate over the settlement of electoral disputes.4.Section 21(1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the Independent Electoral and Boundaries Commission alleging that a breach of the Act has been committed.5.Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:"(3)For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office."6.It is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked.7.The Public Officer Ethics Act was repealed by Parliament and therefore cannot properly form the basis of any legal action as the Act is no longer in force.8.The present proceedings are therefore premature as the Petitioner is seeking the intervention of this Honourable Court without first invoking and exhausting the mechanisms provided for under the Constitution, the Ethics and Anti-Corruption Commission Act and the Independent Electoral and Boundaries Commission Act. 28.The 2nd respondent avers that the petition is premature and not ripe for hearing by this Honourable Court, as the petitioner had not exhausted the legal for a available to address the matter raised in the petition before approaching the High Court. 29.The 2nd respondent’s in his replying affidavit sworn by Mohamed Ali on the application and petition dated 6th July 2026, he avers that the evidence is inadmissible, that the petitioners relied on contents of newspaper reports and online publications, hearsay. 30.The 2nd respondent avers that the petition is premature and not ripe for hearing as it has not exhausted the legal fora available to address the matters raised in the petition before approaching the High Court for Orders sought. That Article 79 of constitution provides for enactment of Ethics and Anti-Corruption Commission as a body which receive complaints on the breach of the code of ethics by State Public officers, recommend appropriate action to be taken against state offices or public officers alleged to have engaged in unethical conduct to conduct investigation on a comply made by any person touching on Chapter 6 of the Constitution. Thus its trite laws that where the provides a mechanism for dispute resolution that mechanism must be first be invoked and exhausted before this Honourable court’s jurisdiction can be properly invoked. 31.The 2nd respondents further avers that the petitioner seeks unreasonably limit the speakers from enjoying their political rights without any constitutional or legal basis contrary to Article 23 of the Constitution, which he believes the speaker has the right to participate in apolitical party, participate in activities of the said political party and to campaign for a political party or cause has not bee limited under any law. 32.The 2nd respondent contends that the speaker of a House of Parliament should not be politically active lacks constitutional basis. That the very path to the office of Speaker of a House of Parliament is a political road commencing with nomination by a political party. 33.The 2nd respondent further contends that the Speaker of a House of Parliament is elected by members of Parliament and the members have power to remove the speak from office. In that there is no single complaint from the members of the Senate on the record before this Honourable Court that the Speaker’s political activities have interested with the performance of the functions of Speaker. 3rd Respondent’s Response 34.The 3rd respondent did not file any response. 4th Respondent’s Grounds of Opposition 35.The 4th respondent filed grounds of opposition in response to the Petition and Notice of Motion application both dated 6th July 2026 raising the following grounds:1.Pursuant to Article 79 of the Constitution, the 4th Respondent is empowered under the Ethics & Anti-Corruption Commission Act, 2011 ("EACC Act") and the Anti-Corruption & Economic Crimes Act, 2003 ("ACECA"); to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crime.2.The Petitioner has not demonstrated to this Court that prior to the filing of this Petition that a report was lodged with the 4th Respondent and has without any proper or justifiable reason failed or refused to investigate such complaints to warrant the issuance of the order sought to compel the 4th Respondent to investigate the 1st and 2nd Respondents.3.The Petitioner as against the 4th Respondent is using this Honourable Court as the first port of call without approaching and using the available avenues exhaustively to address the allegations on the conduct of the 1st and 2nd Respondent as raised in the Petition and the Notice of Motion application in the first instance,4.The Petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 4thRespondent, which calls for adjudication before this Honourable Court.5.No acts or omissions attributed to the 4thRespondent, have been disclosed by the Petitioner which are in violation or are likely to be in violation of any part of the Constitution.6.Granting the order sought against the 4th Respondent would contravene Article 249(2)(b) of the Constitution which guarantees the independence of Constitutional commissions and independent offices, and Section 28 of the Ethics and Anti-Corruption Commission Act, which further guarantees the independence of the 4th Respondent.7.The Commission is mandated to report to the Office of the Director of Public Prosecution the results of any investigation and its recommendations in line with Section 35 of the Anti-Corruption and Economic Crimes Act, 2003 and therefore supervisory order Ci in the petition and orders 8 and 9 in the Notice of Motion application cannot be enforced as sought as against the 4th Respondent.8.From the foregoing, the Petitioner has not made out a prima facie case to warrant issuing the orders sought against the 4th Respondent.9.The Petition is therefore premature and the orders sought are untenable and constitute an abuse. 5th Respondent’s Preliminary Objection 36.The 5th respondent (the Attorney General) filed a notice of preliminary objection dated 15th July 2026 objecting to the constitutional competency of the Petition and the application dated 6th July, 2026 on points of law to be determined on the following grounds:1.The Petition and the Application militate against the doctrine of primacy in dispute resolution/alternative constitutional and statutory redress mechanism which ousts the jurisdiction of this Honourable Court to determine the subject matter of the proceedings herein.2.Kenya has a rich legal framework governing leadership and integrity in public service (including among elected officers, being State officers), to wit: the Constitution, Leadership and Integrity Act, Public Officer Ethics Act, the Elections Act, the Political Parties Act, the Ethics and Anti-Corruption Commission Act, the Parliamentary Service Act, etc.3.Under Article 79, the Constitution creates the Ethics and Anti- Corruption Commission to enforce the provisions on leadership and integrity. It commands the enactment of legislation on leadership and integrity, the Leadership and Integrity Act, 2012, which was enacted for the effective administration of chapter six of the Constitution.4.In relation to the Attorney-General, there is no demonstrated constitutional infraction with regard to the exercise of the mandate of the Attorney-General under Article 156 of the Constitution, either in relation to being the legal representative of national government in court or proffering legal advice as and when appropriate. 37.The court will determine the preliminary objections first as they center on the court’s jurisdiction to hear the matter. Should the objections succeed, the court will cease jurisdiction and take no further step. If the preliminary objections fail, the court will proceed and determine the application on merits. 38.The parties tendered submissions on the preliminary objections. The 2nd respondent submitted that the petition is premature and not ripe for hearing by this court. That the petitioner has not exhausted the legal for available to address the matters raised in the petition before approaching the High Court for the orders sought therein. 39.The 2nd respondent further submitted that Article 79 of the Constitution provides for the enactment of the Ethics and Anti-Corruption Commission through legislation of the Ethics and Anti-Corruption Commission Act. 40.That under Section 11(1)(c) and (e) and section 13 (2) (c) of the Ethics and Anti-Corruption Commissions Act, the Ethics and Anti-Corruption Commission (EACC) is the body with the power to receive complaints on the breach of the code of ethics by State and Public officers, recommend appropriate action to be taken against State or public officers alleged to have engaged in unethical conduct and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution. 41.The 2nd respondent further submitted that Article 88(4) (e) of the Constitution and Section 4 of the Independent Electoral and Boundaries Commission Act grant the IEBC the mandate over the settlement of electoral disputes. That Section 21 (1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the IEBC alleging that a breach of the Act has been committed. 42.The 2nd respondent further submitted that Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:“(3)For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office" 43.The 2nd respondent further submitted that it is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked. 44.The 2nd respondent submitted that Petitioner has not demonstrated to this Honourable Court that it has lodged any complaint before the IEBC or the EACC on the conduct of the 1st and 2nd Respondent and their public and participation in politics. Without such evidence being tendered before this Court, the Petition is premature and this Honourable Court lacks jurisdiction to entertain it. 45.The 2nd respondent further argued that the petitioner by filing this petition without first raising the issues herein with the EACC which has jurisdiction to deal with complaints against State Officers in respect of adherence to the provision of Chapter Six of the Constitution of Kenya is attempting to avoid the mandatory provisions of Article 79 of the Constitution which states as follows:Legislation to establish the Ethics and Anti-Corruption Commission79.Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter. 46.The 4th Respondent relied on their grounds of opposition dated 8th July 2026. They submitted that the petitioner had not established a prima facie case against the 4th respondent, that the petitioner was at liberty to lodge complaints with the 4th respondent against the 1st and 2nd respondents but had not done so. That the EACC Act provides clear procedures for redress of grievances but which the petitioner had bypassed. The 4th respondent took the position that the statutory procedure should be strictly adhered to before a party can move to file a petition before the High Court. That no order was required to compel the 4th respondent to perform its constitutional duty and all the petitioner needed to do was lodge a formal complaint with the 4th respondent. 47.The 4th respondent argued that this court is not the first port of call and that the petitioner is inviting the court to direct an independent commission against the spirit of Article 249 (2) (b). The 4th respondent therefore urged the court to decline the invitation to interfere with the operations of an independent commission. 48.The 5th respondent urged the court not to take up jurisdiction and instead have the matter referred to the EACC. The 5th respondent submitted that courts have previously held that the first opportunity has to be given to the relevant bodies. That the court must consider the nature of the dispute; whether there is an alternative mechanism for resolution of the dispute and whether the alternative mechanism is adequate and effective. 49.The 5th respondent submitted that the EACC is the first port of call when it comes to matters contravention of Chapter 6 of the Constitution as well as the Leadership and Integrity Act. That the EACC has the powers and status of a constitutional commission and under Article 249(2), is only subject to the constitution and the law. It was further submitted that under Article 252 (1) (a) of the constitution, the EACC has power to conduct investigations on its own motion or upon a complaint. 50.The 5threspondent further submitted that Part IV of the Leadership and Integrity Act establishes various mechanisms for enforcement such as disciplinary proceedings against a state officer under Section 41; lodging of complaints under Section 42; and, referral for civil and criminal proceedings under Section 43. That the EACC has vast enforcement powers and that the petitioner has not demonstrated that he moved the EACC before approaching this court. The 5th respondent therefore urged the court to decline to take up jurisdiction and instead strike out the petition. 51.The petitioner submitted that the Grounds of Opposition and Preliminary Objections filed by the 2nd, 4th and 5th Respondents are without legal foundation and ought to be dismissed with costs. That under Article 22 of the constitution, any person can move the court for enforcement of the bill of rights and that Article 165 (3) of the Constitution clothes the court with jurisdiction to hear and determine the matter. That the petition is anchored on the principles under articles 10, 73, 75, 76 and 77 of the constitution. 52.The petitioner further submitted that the petition brings out the question of separation of powers, an issue that the 3rd and 4th respondents cannot deal with. The petitioner therefore urged the court to dismiss the preliminary objections. Analysis and Determination 53.From the record, I discern the following issues for determination:a.Whether the preliminary objections are sustainable under the law.b.Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute. Whether the preliminary objections are sustainable under the law 54.The validity of any preliminary objection is measured against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence. 55.In the case of Mukisa Biscuit Manufacturing Co. Ltd -Vs- West End Distributors Ltd (1969) E.A 696 where Law J at Page 700 stated as follows: -“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 sui. 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….” 56.The quoted dictum therefore implies that a preliminary objection must consist of pure points of law which have been pleaded or which arise by clear implication out of the pleadings. This was the holding of J. B. Ojwang, J. in the case of Oraro v Mbaja [2005] eKLR where he stated 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. I am in agreement with learned counsel, Mr. Ougo, that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” 57.The question whether jurisdiction is a point of law was set out clearly by the Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, when the Learned Judges stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis. 58.The preliminary objections in this matter are founded on the doctrine of exhaustion, a sound legal doctrine applicable to constitutional petitions. Except in instances where exceptions to the doctrine apply in a matter, the doctrine of exception presents a complete bar to proceedings before court. 59.I therefore find and hold that the preliminary objections raised by the 2nd, 4th and 5th respondents comprise of pure points of law. They therefore pass the propriety test and are for consideration in limine. SUBDIVISION - Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute 60.The respondents’ main contention is that the court is barred from dealing with the petition and application for lack of jurisdiction. The respondents submit that it is a well established principle of constitutional law that where an alternative remedy is provided by an Act of Parliament, and which remedy is effective and applicable to a dispute before court, then the first port of call ought to be the statutory forum and the court must ensure that the dispute is resolved in accordance with the relevant statute. 61.The Doctrine of Exhaustion is defined in Black's Law Dictionary 8th Edition as follows:“Exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The doctrine's purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary" 62.The doctrine of exhaustion was comprehensively dealt with in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the court stated as follows,“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. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution..." 63.Justice Isaac Lenaola (as he then was) in Benard Murage v. Fine Serve Africa Limited & 3 Others [2015] eKLR held.“I am bound to follow that principle of law since it flows from the other important principle that not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first." 64.Justice Prof. (Dr.) Nixon Sifuna in Matu v Rubi Energy Limited [2024] KEHC 15235 (KLR) held;“The position of the above-cited authorities is that where there exists an alternative remedy for resolving a dispute created by the statute the alternative remedy ought to be pursued first. The provisions of Article 159(2) of the Constitution of Kenya 2010 provide that in exercising Judicial Authority, the courts and Tribunals shall be guided by the principles of alternative forms of dispute resolution mechanisms including reconciliation, mediation and arbitration. It is thus the court's finding that the provisions of the Energy Act and the Petroleum Act are applicable to the instant case and the Plaintiff ought to exhaust the available mechanism before invoking the jurisdiction of this court.” 65.In William Odhiambo Ramogi & 3 others (supra), the Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -59.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 vs Aelous (K) Ltd and 9 Others.)60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court. 66.In our case, the petition is primarily concerned with the enforcement of Chapter 6 of the Constitution as well as the Leadership and Integrity Act. There is no claim of infringement, violation or a threat to any fundamental rights and freedoms. At a glance, the petition does not seek any interpretation of a constitutional issue. Consequently, the court is not satisfied that the exceptions to the doctrine of exhaustion apply in this matter. The petitioner has not demonstrated that there exist any exceptional circumstances to warrant this court bypassing the statutory mechanism and taking up jurisdiction on the matter. The court is also not convinced that the petitioner herein lacked adequate audience before the fora a created by statute. 67.The court is in agreement with the respondents that the nature of the issues raised by the petitioner, relating to the conduct of the 1st and 2nd respondents, and concerning the enforcement of Chapter Six of the Constitution as well as the Leadership and Integrity Act, Act Number 19 of 2012, fall within the ambit of the EACC by dint of Articles 79 and 80 of the Constitution and Part IV of the Leadership and Integrity Act. 68.Consequently, I do hereby find that the petitioner has not demonstrated the applicability of the exceptions to the doctrine of exhaustion in this matter. Disposition 69.Flowing from the foregoing, I do hereby come to the inevitable conclusion that the doctrine of exhaustion is applicable in this matter. This is because the petitioner has admittedly not lodged any complaint with the 3rd and 4th respondents, the statutory bodies charged with hearing and determining the kind of issues raised by the petitioner in this petition. 70.In the end, I do hereby make the following final orders:a.The 2nd, 4th and 5th respondents’ preliminary objections dated 15th July 2026 are hereby upheld.b.That on the basis of the doctrine of exhaustion, this court lacks jurisdiction to deal with the matters raised in the petition dated 6th July 2026 with regard enforcement of Chapter 6 of the Constitution and the Leadership and Integrity Act as such jurisdiction lies with the Ethics and Anti-Corruption Commission.c.That the petition dated 6th July 2026 is hereby struck out and each party shall bear its own costs.Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY 2026.DAVID MBURUJUDGE