Ekuru Aukot & 3 others v Registrar of Political Parties

JUDGMENT 1. The Petitioners approached this court vide an Amended Petition dated 17th November 2023 to which they averred that Section 7 (2) (a) provides for registration of a political party however the said provision introduces provisions that are not contained in the Constitution and it is therefore in the public interest that this Honourable Court declares Section 7(2)(a) of the Political Parties Act to be in conflict with Articles 38 and 91 of the Constitution. 2. The Petitioners further aver that Section 7(2)(a) of the Political Parties Act make it look like the rights of citizens to be part of a political party are limited if they are not registered voters yet the Constitution is clear that political rights belong to citizens and not registered voters as alleged. Furthermore, Article 91 (e) grants this right to all persons and it is therefore a stretch to allege that the right of citizens to be members of a political party is a right for registered voters only. 3. The Petitioners state that the Respondent has already made a decision that the 2nd - 4th Petitioners are non-compliant for the reason that their membership has fallen below the statutory minimum. They assert that there are no details and resignations annexed by the Respondent to back the baseless finding. 4. According to the Petitioners, the Respondent purported to use the voter register to access information on registered voters in violation of Article 31 of the Constitution and Section 31 of the Data Protection Act which requires safeguards such as collection from data subject and Impact assessment to ensure risks are identified and measures put in place. 5. The Petitioners are therefore seeking the following orders: 6. a. A declaration that Regulation 7(2)(a) of the Political Parties Act, 2011 is unconstitutional for violating Articles 38 and 91 of the Constitution of Kenya 2010. b. A declaration that the finding that the membership of the 2nd – 4th Petitioners fall below the legal threshold is a violation of Articles 35, 47, and 48 of the Constitution of Kenya. c. A declaration that the access to the voter register by the Respondent in the absence of a legal framework for access and a Data Impact Assessment is a violation of Articles 3 of the Constitution of Kenya. d. An order of Prohibition barring the Respondent from deregistering/ suspending the 2nd - 4th Petitioners on account of the provisions of Section 7. e. A Mandatory Order directing the Registrar of Political Parties to provide details of falling down of membership of the 2nd – 4th Petitioners considering that they had already been granted full registration by the Registrar of Political Parties. f. The costs of this Petition be borne by the Respondent. The Petition was accompanied by a Supporting Affidavit sworn by Dr. Ekuru Aukot and dated 24th October 2023. He averred that the 2nd Petitioner was registered as a fully registered political party on 20th February 2017 after complying with the laid down procedures and the Political Parties Act, 2011 however, the Respondent herein wrote a letter to the 2nd Petitioner on 25/8/2021 purporting that the party did not meet the requisite membership threshold of at least one thousand members in at least 24 counties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 2

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7. He asserts that on 8th September 2021 the Petitioners wrote to the Respondent and requested for member resignation forms since full registration of the party and to equally share resignation forms of their members which to date have never been provided by the Respondent. 8. According to him, on 3rd June 2019, the Respondent herein after carrying out a routine compliance inspection wrote a letter signed by Ann Nderitu, the Registrar, informing the Petitioners that they were compliant with the PPA. They further averred that on 3rd June 2021 they attached a schedule to the Respondent showing that the Petitioner has over one thousand members in at least 25 counties. 9. He asserts that the Respondent’s threat to suspend the registration of the 2nd Petitioner is informed by erroneous reading and misconstruing of the Provisions of Article 27 clauses (1), (2), (4) and (5) and Article 38 of the Constitution of Kenya, 2010. Further, that the Respondent has elected to elevate Section 7(2)(a) over the mandatory, unlimited and explicit Constitutional rights clearly spelt out in Article 38 clauses (1) and (2). 10. He contends that Section 7(2)(a) runs a foul on it to or against Article 27 (1), (2), (4) (5) and Article 38 (1) and (2) whose provisions are not subject to any restrictions and by enacting the PPA, Parliament legislated an unconstitutional law as far as Section 7(2)(a) of the PPA is concerned and further that the rights under Article 38(1) and (2) cannot be predicted on whether a person is willing to join or form a political party is a registered voter or not. 11. In response and in opposition to the Petition, the Respondents filed a Notice of Preliminary Objection dated 16th November 2023 on the grounds that this Court has no Jurisdiction to hear and determine the Petition herein in line with Section 27(7), 34(a) and 40(1)(f) of the Political Parties Act,2011, Section 9 of the Administrative Actions Act, 2015 and pursuant to Sections 14 and 21 of the Access to Information Act, 2016. 12. The Respondents equally states that pursuant to the legal doctrine of exhaustion, this Honourable Court lacks jurisdiction to hear and determine the instant Petition. 13. The petition was canvassed by way of written submissions, and in compliance all parties filed and served their submissions. Petitioner’s Submissions 14. The Petitioners filed written submissions dated 9th February 2024, where they analyzed the following issues for determination: i. Whether this Honourable Court has the jurisdiction to entertain the present petition. ii. Whether Section 7(2)(a) of the Political Parties Act is unconstitutional. iii. Whether the Registrar’s decision to deregister the Petitioners due to non-compliance with Section 7(2)(a) of the Political Parties Act is a violation of Article 38 of the Constitution. iv. Whether accessing the voter register in the absence of a legal framework is a violation of the Constitution. v. Whether the procedure employed by the Registrar to reach the decision to deregister the 2nd, 3rd and 4th Petitioners was unlawful and a violation of Articles 10 and 47 of the Constitution vi. Whether the costs of the suit should be awarded to the Petitioners. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 3

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15. On the first issue, they submitted that while it is indeed true that the Political Parties Act provides for a remedial procedure in challenging a decision by the Registrar, the subject matter to the dispute at hand is a constitutional petition seeking interpretation of Articles 31 and 38 of the Constitution vis a vis the conduct of the Respondent and whether the declaration of Section 7(2)(a) of the Political Parties Act is unconstitutional. 16. They further submitted that Section 9(4) of the Fair Administrative Actions Act provides that the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust the remedy if the court considers such exemption to be in the interest of justice. Reliance was placed on the case of Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR. 17. According to the Petitioners, the doctrine of exhaustion remedies is a moot point as the tribunal lacks the necessary jurisdiction to determine a matter that raises constitutional issues granting this court jurisdiction to determine the instant petition in accordance to Article 23(1) and 165(1)(c) of the Constitution. Reliance was placed on the cases of Abidha Nicholas v The Honourable Attorney General & Others (Petition No. E007 of 2023) and Kenya Revenue Authority & 2 others vs Darasa Investments Ltd [2018] eKLR. 18. On the second issue, they submitted that Section 7(2)(a) of the Political Parties Act is unconstitutional for the reason that it seeks to curtail the freedom of Kenyan citizens to participate in the political activities of the country if they are not registered voters. They contend that participation in voting and participation in the activities of political parties are two different things which the Respondent must be dissuaded from confusing. According to them, Section 7(2)(a) of the Political Parties Act as interpreted by the Respondent has the effect of disenfranchising millions of Kenyans who for a myriad of reasons may not be in the voter register. 19. They submitted that the interpretation given to Section 7(2)(a) of the Political Parties Act by the Respondent seeks to limit fundamental rights enshrined under Article 38 and therefore unconstitutional for limiting a person’s right to freedom of politics on the grounds of whether or not they are registered to vote. They relied on the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR. 20. On the third and fifth issue, the Petitioners’ Counsel submitted that being a state organ, the Office of the Registrar of Political Parties is bound by the confines of the Constitution and that the decision to commence deregistration of the Petitioners is not only discriminatory but also unconstitutional therefore null and void. 21. The Petitioners contend that without clear resignations being provided upon request by the Petitioners, the Respondent violated Article 47 of the Constitution for failing to give clear reasons posing a serious threat to the rights of the Petitioners and their members envisaged under Article 38 of the Constitution. 22. On the sixth and final issue, the Petitioners submitted that costs are a discretion of the Court as provided under Section 27(1) of the Civil Procedure Act and that costs follow the event. They relied on the Supreme Court case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR. Respondent’s Submissions 23. The Respondent on the other hand filed submissions dated 7th October 2024 where they raised three issues for determination namely: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 4

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i. Whether this Honourable Court has jurisdiction to entertain the instant Petition; ii. Whether Section 7(2)(a) of the Political Parties Act Cap 7D is unconstitutional; and iii. Whether the statutory membership of the 2nd - 4th Petitioners fell below the statutory threshold. 24. On the first issue, the Respondent’s Counsel submitted that the issues before this Court emanated from the Respondent having issued notices of intention to suspend the Petitioners an issue that could have been dealt with under the Political Parties Act Cap 7D. According to the Respondent, the Petitioners are trying to circumvent the Political Parties Act by claiming that Section 7(2)(a) is unconstitutional in order to invoke the jurisdiction of this court. 25. They further submitted that this court ought to first satisfy itself that it has jurisdiction before it proceeds to preside over any kind of matter. Notably, they submit that the instant Petition is premised on issues that fall squarely within the ambit and jurisdiction of the Political Parties Tribunal by dint of Section 40 of the Political Parties Act Cap 7D and the Commission on Administrative Justice by dint of Section 14 of the Access to Information Act Cap 7M. Reliance was placed on the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & Another (2012) eKLR together with the Court of Appeal case of Speaker of National Assembly vs James Njenga Karume [1992] KLR 21. 26. They further submitted that the issues in the instant petition squarely fall within the ambit of specific bodies, not before this Honourable Court and in the event that this court finds that it has jurisdiction, then it has to confine itself to the issue of constitutionality of Section 7(2)(a) of the PPA without delving into other issues. They relied on the following cases: Rich Productions Limited vs Pipeline Company & Another [2014] and Constitutional Petition No. E180 of 2023 Hassan Aden Osman vs Registrar of Political Parties and the Attorney General. 27. On the second issue, the Respondent submitted that the Constitution under Article 92 bestowed upon Parliament the duty to enact a law on regulation of political parties, their registration and supervision and it is from these provisions that Political Parties Act was enacted. According to them Section 7(2) (a) of the PPA is therefore a derivative of the Constitution as it was enacted following the directives of Kenyans under Articles 91 and 92 of the Constitution. 28. They contend that the claim that Section 7(2)(a) of the PPA confines political Parties to registered voters is false in fact Section 3(2A) of the PPA stipulates that a citizen of Kenya who has attained the age of eighteen years may join a political party. According to the Respondents, what Section 7(2)(a) sets is a minimum threshold for political parties; that while a political party can recruit Kenyans who are not registered voters, it must at the very least recruit at least one thousand registered voters as party members from on county for twenty-four counties. 29. In addition, they state that to achieve the national character requirement of the Constitution, Parliament legislated that a party must have the face of Kenya through registered voters. Without the voters registration status requirement, a party could as well recruit party members from another country, something the Constitution frowns upon. 30. They contend that every citizen is free to make political choices which includes the right to form or participate in forming a political party; further, that every citizen is free to participate in the activities of a political party. However, the provision cannot be read in isolation of Article 91 and 92 of the Constitution and consequently the product of the said provision that is Section 7(2)(a) of the Political Parties Act. Reliance was placed on the case of Institute of Social Accountability & Another vs National Assembly & 4 others [2015] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 5

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31. On the third issue, they submitted that in the event that this court finds that it has jurisdiction on question of constitutionality of Section 7(2)(a) of the PPA, and proceeds to find that the said Section is constitutional, the court should not delve into the matter of whether the Petitioners’ statutory membership fell below the required threshold as these are issues that would fall under the Political Parties Disciplinary Tribunal. Alternatively, if the court addresses the issue, it should be noted that Petitioners have access to the Integrated Political Parties Management Systems (IPPMS) wherein they can recruit and monitor resignations from their respective political parties. 32. They further contend that Section 6(5) of the Access to Information Act allows the Respondent not to issue information that can be reasonably be found elsewhere in this case, through the IPPMS which was appreciated by this Court sitting in Machakos through Constitutional Petition E002 of 2022 Centre for Minority Development (CEMIRIDE) & 2 others v Attorney General & 2 others. Analysis And Determination 33. It is my considered view that the issues that arise for determination in this matter are as follows: i. Whether Section 7(2)(a) of the Political Parties Act is unconstitutional ii. Whether this Court has jurisdiction to determine the instant Whether Section 7(2)(a) of the Political Parties Act is unconstitutional 34. The principles of constitutional interpretation have been discussed severally by the Courts. The Supreme Court in The Matter of the Interim Independent Electoral Commission (Applicant) [2011] KESC 1 (KLR) guided as follows: “ (86)… The rules of Constitutional interpretation do not favour formalistic or positivistic approaches (Article 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has most modern Bill of Rights, that envisions a human-rights based, and social justice-oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Articles 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by courts. (87) In Article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights. (88) These constitutional imperatives must be implemented in interpreting the provisions of Article 163(6) and (7), on Advisory Opinions. Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 6

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inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development. (89) 35. It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is at task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.” The Court of Appeal on the other hand in Ferdinand Ndung’u Waititu vs Independent Electoral Boundaries Commission (IEBC) & 8 others [2014] KECA 615 (KLR) noted as follows: “ I accept the proposition that the appellant has put forward, that the Constitution must be interpreted in a liberal, purposive and progressive manner, in order to give effect to the principles and values contained therein. This is founded at Article 259(1) of the Constitution which is framed as follows: Article 259. (1) This Constitution shall be interpreted in a manner that – i. promotes its purposes, values and principles; ii. advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; iii. permits the development of the law; and iv. contributes to good governance. These principles have been reiterated time and again by our courts. In Njoya & 6 others vs Attorney General & 3 others No 2 [2008] 2KLR (EP), this Court held that: The Constitution is not an Act of Parliament but the Supreme law of the land. It is not to be interpreted in the same manner as an Act of Parliament. It is to be construed liberally to give effect to the values it embodies and the purpose for which its makers framed it.” 36. Furthermore, the Court in Council of County Governors vs Attorney General & another [2017] KEHC 6395 (KLR) highlighted another significant principle as follows: “ A law which violates the Constitution is void. In such cases, the Court has to examine as to what factors the court should weigh while determining the constitutionality of a statute. The Court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law is challenged on grounds that it infringes the Constitution, what the Court has to consider is the “direct and inevitable effect” of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration is the object and reasons as well as legislative history of the statute. This would help the court in arriving at a more objective and justifiable approach. Thus, the history behind the enactment in question should be borne in mind. Thus any interpretation of these provisions should bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 7

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sovereign power is only delegated to the institutions which exercise this power only in accordance with the Constitution.” 37. In the present case, the Petitioner impugns the provisions of Section 7(2)(a) of the Political Parties Act claiming that it is unconstitutional for making it look like the rights of citizens to be part of a political party are limited if they are not registered voters yet the Constitution is clear that political rights belong to citizens and not registered voters as alleged. They further argue that Article 91 (e) grants this right to all persons and it is therefore a stretch to allege that the right of citizens to be members of a political party is a right for registered voters only. 38. The Respondents on the other hand argue that Section 7(2)(a) gives effect to Article 91 of the Constitution of Kenya, 2010 that demands that political parties must have a national character thereby mitigating against the proliferation of regional or ethnic based political parties. 39. Article 91 of the Constitution provides for the basic requirements for political parties and states as follows: 91. (1) (2) Every political Party shall – a. have a national character as prescribed by an Act of Parliament; b. have a democratically elected governing body; c. promote and uphold national unity; d. abide by the democratic principles of good governance, promote and practice democracy through regular, fair and free elections within the party; e. respect the right of all persons to participate in the political process, including minorities and marginalized groups; f. respect and promote human rights and fundamental freedoms, and gender equality and equity; g. promote the objects and principles of this Constitution and the rule of law; and h. subscribe to and observe the code of conduct for political parties. A political party shall not – (a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis; (b) engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person; (c) establish or maintain a paramilitary force, militia or similar organization; (d) engage in bribery or other forms of corruption; or (e) except as is provided under this Chapter or by an Act of Parliament, accept or use public resources to promote its interests or its candidates in elections. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 8

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40. Section 7(2)(a) of the Political Parties Act specifies the conditions of full registration of a political party to include inter-alia 7(2) A provisionally registered political party shall be qualified to be fully registered if – a. it has recruited as members, not fewer than one thousand registered voters from each of more than half of the counties; 41. Article 92 of the Constitution further provides that Parliament shall enact legislation on Political Parties and proceeds to delineate what shall be contained in that legislation. 42. Article 38(1)(a), (b) and (c) of the Constitution provides for political rights as follows: “ Every Citizen is free to make political choices, which include the right – a. to form or participate in forming, a political party; b. to participate in the activities of, or recruit members for, a political party; or c. to campaign for a political party or cause. 43. The question therefore becomes are the above provisions of the Act inconsistent with the Constitution or are the limitations within the bounds of proportionality and reasonableness in a democratic society envisaged under Article 24 of the Constitution of Kenya, 2010? 44. It my view, the requirements of Section 7(2)(a) of the Political Parties Act is designed to not only ensure the parties reflect a national character by ensuring that the Parties have national wide presence in at least half of the counties but also populated by special interest groups and people of diverse ethnic backgrounds. The Petition contends that the high threshold requirement to have the members as registered voters breeds discrimination but has not demonstrated how their parties have been discriminated based on Section 7(2)(a) of the Political Parties Act. It is my humble vie that that the provision prescribes minimum provisions that applies to all. 45. Further, given the importance of the purpose of limitation, the provision is justifiable as it gives effect to Articles 4(2) and 91 (1)(a),(c),(e) of the Constitution; the Act is meant to promote the values of Article 10 of the Constitution, including national unity; and the limitations in the Act have been informed and necessitated by the electoral history of cyclical ethnic violence after every general election in Kenya; that the nature and extent of the limitation is justifiable as the Act limits the registration of political parties by making regulations for the purposes of sponsoring candidates in elections, and benefitting from public funding of political parties. It requires that a party makes an effort to recruit 1000 members from at least half of the counties. 46. Given the provisions of Article 91 of the Constitution and the clear legislative intent in enacting the Act, I agree with the Respondent that the impugned provision of the Act, while limiting to some extent the rights guaranteed under Articles 36 and 38, do not violate the provisions of the Constitution on the right to association and political participation. The provision of Section 7(2)(a) is an expression of the legislature’s intent in meeting the requirements of Articles 91 and 92 of the Constitution. 47. The Provisions of the Act with regard to membership appear to be reasonable to me. While one has the freedom of association and political participation as provided under Article 36 and 38 of the Constitution, one must enjoy these rights in so far as they are registered voters and relate to membership of a political party within the parameters set in the Act, which is ordained by the Constitution. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 9

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provisions cannot be read in isolation but must be read together with the rest of the Constitution and interpreted within its aims, object and purpose. 48. The Petitioner has failed to provide cogent evidence as to why the cited provisions of the Political Parties Act should be declared unconstitutional and therefore the provisions of the said Act prevail. Whether this Court has jurisdiction to determine the instant petition based on the exhaustion doctrine. 49. The jurisdiction of court or tribunal is derived from the Constitution, statute or by principle laid out in judicial precedent. The Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2012] eKLR held “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…” 50. Whenever the issue of jurisdiction is raised due to the existence of a dispute resolution process that is provided under statute, the Court should examine the nature of the case and the reliefs sought to determine whether or not the aggrieved party would get redress elsewhere. 51. This Court has on a number of occasions discussed the exhaustion doctrine. In an expanded Bench of the High Court in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others vs Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) 2020 eKLR, the Court stated as follows: “ “ 52. 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 and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus: 42. Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. While this case was decided before Constitution of Kenya 2010, was promulgated, many cases in the post 2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 10

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This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that: It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the court 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 of resolution outside the Courts.” 52. The exhaustion doctrine goes hand in hand with the doctrine of constitutional avoidancewhich has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness. The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor [2001] (2) ZLR 501 (S) {{^}} in which Ebrahim JA said the following: “ …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..” 53. 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. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) 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. 54. Expounding on the doctrine, the Court in Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] eKLR observed thus: “ One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR as follows: … where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra). In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 11

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the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. ….Similarly, the same court stated in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR thus: Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation.…A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done.” 55. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system. 56. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause. The exceptions to the application of the doctrine of constitutional avoidance are: i. where the constitutional violation is so clear and of direct relevance to the matter; ii. in the absence of an apparent alternative form of ordinary relief and; iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute. 57. A reading of the issues presented in this Petition leave no doubt that the Petitioner’s grievance if any can effectively be addressed by the Political Parties Disputes Tribunal. 58. Section 34 of the Political Parties Act provides the functions of the Registrar of political parties that includes to register, regulate, monitor, investigate and supervise political parties to ensure compliance with the act and to maintain a register of political parties and the symbol of political parties among others. 59. Section 39 of the Political Parties Act establishes the Political Parties Disputes Tribunal and Section 40 outlines the jurisdiction of the Tribunal. It states thus: 1. The Tribunal shall determine – a. disputes between the members of a political party; b. disputes between a member of a political party and a political party; c. disputes between political parties; d. disputes between an independent candidate and a political party; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 12

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e. disputes between coalition partners; and f. appeals from decisions of the registrar under the Act; (fa) disputes arising out of party primaries. 60. After going through the instant petition it is my view that the Petitioners’ grievance as averred is that the 2nd Petitioner was registered as a fully registered political party on 20th February 2017 after complying with the laid down procedures and the Political Parties Act, 2011 however, the Respondent herein wrote a letter to the 2nd Petitioner on 25/8/2021 purporting that the party did not meet the requisite membership threshold of at least one thousand members in at least 24 counties. 61. It is my view that the complaint is a dispute that falls under Section 40(1)(f) of the Act and should be taken directly to the PPDT. As discussed above there is ample authorities which I am guided by that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be followed. Indeed, the Petitioners ought to have explored that avenue first before approaching court. 62. I am thus guided by the holding of the Court of Appeal in the case of Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille [2017] eKLR held that an alternative and more convenient remedy in some other tribunal or forum should, in the Court’s opinion be a good ground for the court to decline to act. 63. From the foregoing, this Court holds that the Petition is barred by the doctrine of constitutional avoidance and the exhaustion doctrine. The Petitioners ought to have pursued their remedies in the Political Parties Disciplinary Tribunal before approaching this Honourable Court. Had the Petitioners exhausted the forum, then they would have established the Court’s Jurisdiction as the proper forum to appeal the decision of the tribunal’s decision on merits as appropriate. 64. Having considered the arguments above, it is my finding that the Preliminary Objection succeeds on account of want of exhaustion of the statutory procedure under the Political Parties Act No. 11 of 2011. 65. As well outlined in the case of Owners of the Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd [1989] KLR 1 “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 66. Having found that this court lacks Jurisdiction, it is necessary that this court downs its tools. By that finding alone, the Petition would collapse. 67. Consequently, and for the foregoing reasons, this Court issues the following orders: A. The Petitioners’ Amended Petition dated 17th November, 2023 is hereby struck out. B. The Grounds in the Notice of Preliminary Objection dated 16th November, 2023 succeeds to the extent that this court lacks Jurisdiction to entertain this petition in line with Section 40(1) (f) of the Political Parties Act. C. The Grounds in the Notice of Preliminary Objection dated 16th November, 2023 succeeds to the extent that the issues raised in the petition were unripe and premature for determination and that the Petitioner did not exhaust all other avenues for redress before approaching this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 13

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D. This being a public interest matter, each party to bear their own costs of proceedings. Orders accordingly, file closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioners – Ms. Abiero Counsel for the Respondent – Mr. Wakoko Court Assistant- Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19210/eng@2025-12-04 14

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