Carpet Importers Association of Kenya v Cabinet Secretary, Ministry of Finance and National Treasury & 2 others

2. c. A declaration that the said measure violates the principles of taxation, including equity, proportionality, predictability, and fairness, and is therefore inconsistent with Article 201 of the Constitution. d. An order of certiorari be and is hereby issued quashing the implementation of Legal Notice No. EAC/174/2025 insofar as it imposes a duty rate of USD 3 per square metre on carpets classified under HS Chapter 57, or any other rate higher than the uniform 25% ad valorem CET rate. e. An order of mandamus compelling the 1st and 2nd Respondents to revert to the standard CET rate of 25% on carpets, and to engage stakeholders through an inclusive and transparent consultative process before proposing or implementing any future deviations. f. A declaration that any future proposal to seek or implement a stay of application of CET by the Government of Kenya must, prior to such request or implementation, comply with the constitutional requirements of public participation, transparency, stakeholder consultation, and regulatory justification. g. An order directing that the costs of this Petition be borne by the Respondents, jointly and severally. h. Any other relief or orders that this Honourable Court may deem just and expedient in the circumstances of this case. Contemporaneous with the petition, the Petitioner filed the notice of motion dated 2nd October, 2025, presented under under Sections 1, 3A and 3B of the Civil Procedure Act and all other enabling provisions of the law, through which it sought the following orders: 1. That this Application be certified urgent and service be dispensed with in the first instance. 2. That pending the hearing and determination of this Application, a conservatory order be issued restraining the Respondents from implementing or enforcing the customs duty rate of “USD 3 per SQM or 25%, whichever is higher” on carpets under HS Chapter 57 pursuant to Legal Notice No. EAC/174/2025. 3. That pending the hearing and determination of the Petition, the Respondents be and are hereby directed to maintain the standard CET rate of 25% on carpets classified under HS Chapter 57, and to refrain from enforcing or applying the alternative USD 3 per SQM floor rate introduced under Legal Notice No. EAC/174/2025. 4. That pending the hearing and determination of this Application, the Respondents be and are hereby directed to maintain the standard CET rate of 25% on carpets classified under HS Chapter 57, and to refrain from enforcing or applying the alternative USD 3 per SQM floor rate introduced under Legal Notice No. EAC/174/2025. 5. That pending the hearing and determination of the Petition, a conservatory order be issued susp ending the operation and implementation of Legal Notice No. EAC/174/2025 as relates to carpets classified under HS Chapter 57. 6. That this Honorable Court be pleased to grant any other or further relief it deems just and expedient in the circumstances. 7. The costs of this Application be provided for. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 2

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3. The matter was placed before me on 3rd October, 2025 for consideration of the interim conservatory orders that the Petitioner had sought through the above motion and I granted prayer 2 of the application on an interim basis and directed that the motion be served for further subsequent orders/ directions. 4. Prompted perhaps by the grant of interim conservatory order, Kenya Revenue Authority, the 2nd Respondent herein, moved the court vide the motion dated 22nd October, 2025, brought under Section 3A of the Civil Procedure Act and Rule 25 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of the law and sought the following orders: 5. 1. That this application be certified urgent and service in the first instance be dispensed with. 2. That a stay of court orders issued on 3rd October, 2025 be issued pending the hearing and determination of this Application. 3. That this Honorable Court direct that importers provide security for the taxes for every import that will be cleared further to the court order of 3rd October, 2025 or any other court order issued contrary to the Legal Notice No. EAC/174/2025 pending the hearing and determination of this Application. 4. That this Honorable Court be pleased to set aside the order issued on 3rd October, 2025 in its entirety pending the hearing and determination of the suit herein. 5. That this Honorable Court be pleased to issue directions as to the proper implementation of the orders as the order as issued on 3rd October, 2025 is incapable of performance without breaching duties under the protocol establishing the EAC Common Customs Union. 6. That this Honorable Court direct that importers provide security for the taxes for every import that will be cleared further to the court order of 3rd Octobe,r 2025 or any other court order issued contrary to the Legal Notice No. EAC/174/2025 pending the hearing and determination of the Petition; 7. That the costs of this Application be provided for. It is instructive from the record that the 2nd Respondent also filed a notice of preliminary objection dated 15th September, 2025, raising the following points: a. The notice of motion and the petition have been filed contrary to Articles 9, 23 and 30 of the Treaty for the Establishment of the East African Community and are therefore fatally defective. b. The notice of motion and the petition seek to challenge the exercise of powers conferred upon the Council of Ministers under Articles 14 and 30 of the Treaty on the Establishment of the East African Community, which is beyond the jurisdiction of this Honourable Court. c. The jurisdiction to hear and determine the issues raised in the petition and the notice of motion lies exclusively with the East African Court of Justice (EACJ) under Articles 23 and 30 of the EAC Treaty, and not with the domestic courts of partner states. d. The petition and the notice of motion application are filed contrary to the provisions of Section 9(2) of the Fair Administrative Action Act. e. The petition and the notice of motion are fatally defective for breach of the doctrine of exhaustion of remedies. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 3

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6. In resisting the 2nd Respondent’s preliminary objection, the Petitioner filed grounds of opposition dated 3rd November, 2025 in which it raised the following points: a. That the 2nd Respondent’s preliminary objection is misconceived, premature and legally untenable, as it proceeds from an erroneous reading of the Treaty for the Establishment of the East African Community (“the Treaty”) and the Constitution of Kenya, 2010. b. That this Honourable Court is properly seized of jurisdiction under Articles 22, 23 and 165(3)(d) of the Constitution to hear and determine questions relating to the enforcement of fundamental rights and the legality of administrative action undertaken by public bodies within the Republic of Kenya. c. That Article 27(2) of the Treaty preserves the jurisdiction of national courts to interpret and apply the Treaty within domestic settings unless and until exclusive jurisdiction is conferred upon the East African Court of Justice (EACJ) by the Council of Ministers – which has not occurred. d. That the petition before this court challenges domestic administrative and fiscal measures undertaken by the Kenya Revenue Authority and the National Treasury pursuant to Gazette Notice EAC/174/2025 and does not in any manner seek to impugn the legislative or policy acts of the Council of Ministers. e. That the 2nd Respondent’s reliance on Articles 9, 14, 23 and 30 of the Treaty is misplaced, the said provisions neither ousting domestic jurisdiction nor immunizing national agencies from judicial review. f. That it is settled law that the EACJ and national courts exercise concurrent yet distinct jurisdictions, each competent within its sphere as affirmed in Modern Holdings (E.A.) Ltd v Kenya Ports Authority [2015] eKLR and Attorney General of Uganda v Tom Kyahurwenda (EACJ, Ref. No. 7 of 2010). g. That the objection founded on Section 9(2) of the Fair Administrative Action Act and the doctrine of exhaustion is misconceived, as the doctrine is not absolute and does not apply to constitutional or jurisdictional questions, or where available remedies are inadequate. h. That the petition raises matters of public law, constitutional principle and legality of Gazettebased fiscal measures – issues which cannot be relegated to internal administrative processes. i. That the preliminary objection fails to meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as it does not raise a pure point of law but requires factual and contextual inquiry into the impugned administrative acts. j. That the objection is in substance an invitation to this Honourable Court to abdicate its constitutional mandate of ensuring legality, fairness and due process in the exercise of public power within Kenya. k. That the objection is devoid of legal foundation, offends the principles of access to justice and the right to a fair hearing, and ought to be dismissed with costs to the Petitioner. l. That the interim orders issued on the 3rd day of October, 2025 were issued based on the facts presented before the Honorable Court vis-à-vis established law and the 2nd Respondent has not been able to demonstrate the rationale for setting aside of the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 4

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7. m. That the 2nd Respondent has not been denied in totality to collect revenue to warrant the Petitioner to provide security for unforeseen and yet to be established future taxes; it is absurd as no specified figure is pleaded and/or can be established. n. That the instant petition and application by the Petitioner falls within the ambit of this Honourable Court and ought to be determined on merit. o. That the Petitioner has therefore demonstrated sufficient reasons why this Honourable Court should entertain the instant Petition and subsequently grant the orders sought. p. That the objection and application are otherwise bad in law, frivolous, vexatious and abuse of the court process. When the matter was placed before me for directions on 5th November, 2025, learned Counsel for the 2nd Respondent proposed that the court first determines the preliminary objection before proceeding with any further steps. The court agreed to this proposal, as the preliminary objection, as framed, challenged the court’s jurisdiction to hear and determine the petition. I directed that the same be canvassed by way of written submissions. B. The 2nd Respondent’s Submissions. 8. In support of the preliminary objection, the 2nd Respondent submits that the impugned Legal Notice emanates from the East African Community Council of Ministers, an organ of the Community established under Article 9 of the Treaty for the Establishment of the East African Community. 9. It is contended that the Council, acting pursuant to Articles 12(2) and (3) and 39(1)(c) of the Protocol on the Establishment of the East African Community Customs Union, adopted the Common External Tariff (CET), and subsequently, through Legal Notice No. EAC/171/2025, approved Kenya’s application of a duty rate of 25% or USD 3 per square metre, whichever is higher, on carpets and other textile floor coverings. According to the 2nd Respondent, the Petitioner’s challenge is therefore directed at a decision of an organ of the Community. 10. The 2nd Respondent argues that, by virtue of Articles 23, 27 and 30 of the EAC Treaty, jurisdiction to determine the legality of acts, regulations, directives, decisions or actions of Community organs lies exclusively with the East African Court of Justice. It is submitted that Article 30 expressly provides that any person resident in a partner state may refer such matters to the EACJ on grounds of unlawfulness or infringement of the Treaty. 11. Consequently, it is contended that the present petition, which challenges the legality of Legal Notice No. EAC/171/2025, falls squarely within the jurisdiction of the EACJ and not this Court. 12. The 2nd Respondent further submits that national courts are bound by Article 33 of the EAC Treaty, which recognizes the jurisdiction of domestic courts but accords precedence to decisions of the EACJ on matters of interpretation and application of the Treaty. It is therefore argued that this Court lacks jurisdiction to entertain the petition, as the Treaty has expressly conferred such jurisdiction upon the EACJ. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 5

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13. To buttress the centrality of jurisdiction, reliance is placed on the decision of the Supreme Court of Kenya in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR where the court held that: “ 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.” 14. Further reliance is placed on the Court of Appeal decision in Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] eKLR where Nyarangi J.A. famously stated: “ Jurisdiction is everything. Without it, a court has no power to make one more step… A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 15. The 2nd Respondent also invokes the doctrine of constitutional avoidance, submitting that where a dispute can be resolved on a non-constitutional basis, courts ought to refrain from determining constitutional questions. In this regard, reliance is placed on Lugo v Director of Public Prosecutions [2021] EWHC 327 (Admin), where the Court observed: “ Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available… a court will usually decline to determine whether there has been… a breach of the Declaration of Rights.” 16. Additional persuasive authority is drawn from comparative jurisprudence. In Sports and Recreational Commission v Sagittarius Wrestling Club & another 2001 (2) ZLR 501 (S), it was held: “ Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it…”. 17. Similarly, in Chawira & Others v Minister of Justice Legal & Parliamentary Affairs & others CCZ 3/17, the Court stated: “ Courts are generally loathe to determine a constitutional issue in the face of alternative remedies”. 18. Further, in S v Mhlungu 1995 (3) SA 867 (CC), it was held: “ Where it is possible to decide any case… without reaching a constitutional issue, that is the course which should be followed.” 19. The 2nd Respondent submits that the petition offends the doctrine of exhaustion, as the Petitioner failed to invoke the dispute resolution mechanism provided under Article 30 of the EAC Treaty. Reliance is placed on the Court of Appeal decision in Speaker of the National Assembly v Karume [1992] KLR 21, where it was held: “ Where there is a clear procedure for redress… that procedure should be strictly followed.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 6

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20. Further reliance is placed on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR where the Court of Appeal stated: “ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked… Courts ought to be fora of last resort and not the first port of call…” 21. The 2nd Respondent also cites Republic v IEBC ex parte NASA Kenya & 6 Others [2017] eKLR to underscore that exceptions to the exhaustion doctrine are limited and must be justified, particularly where constitutional issues are raised in the absence of alternative forums or where exceptional circumstances exist. It is contended that the Petitioner has failed to demonstrate any such exceptional circumstances. 22. The Court is further referred to the case of Master Freighters Limited v Kenya Bureau of Standards & Another [2018] eKLR where the court observed that: “ Where a party fails to demonstrate that any of the exceptions is available… the court is allowed to deny such a party a remedy for failure to exhaust the alternative process.” 23. On whether the preliminary objection meets the requisite threshold, the 2nd Respondent submits that the objection raises a pure point of law, namely jurisdiction, and is therefore properly taken. Reliance is placed on the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where a preliminary objection was defined as: “ …a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct… It cannot be raised if any fact has to be ascertained…” 24. The 2nd Respondent also relies on the authority of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR, where the Supreme Court reaffirmed that: “ A preliminary objection consists of a point of law… which if argued as a preliminary point may dispose of the suit… an objection to the jurisdiction of the court…” 25. In conclusion, the 2nd Respondent submits that the petition improperly invites this Court to exercise jurisdiction reserved for the EACJ, contrary to the EAC Treaty and in disregard of the doctrines of constitutional avoidance and exhaustion. It urges the Court to uphold the preliminary objection and decline jurisdiction. C. The Petitioner’s Submissions 26. In opposition to the preliminary objection, the Petitioner contends that the preliminary objection dated 15th September, 2025, which challenges the jurisdiction of this court, is misconceived, premature and legally untenable. 27. The Petitioner submits that the objection is founded on an erroneous interpretation of the Treaty for the Establishment of the East African Community, the Constitution and the Fair Administrative Action Act. 28. It is argued that under Articles 22, 23 and 165(3)(d) of the Constitution, this court is vested with jurisdiction to hear and determine matters relating to the enforcement of fundamental rights and freedoms, as well as the legality of administrative actions undertaken by public bodies within Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 7

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29. In particular, reliance is placed on Article 23(1) of the Constitution, which provides: “ 23 (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” 30. The Petitioner therefore asserts that the present dispute, being one that raises constitutional and administrative law questions, properly falls within the jurisdiction of this court. 31. The Petitioner further submits that Article 27(2) of the EAC Treaty preserves the jurisdiction of national courts to interpret and apply the Treaty within domestic contexts, unless and until exclusive jurisdiction is expressly conferred upon the East African Court of Justice, which has not occurred. It is thus contended that the jurisdiction of this court has not been ousted. 32. It is the Petitioner’s case that the impugned measures constitute domestic administrative and fiscal actions undertaken by national authorities, including the Respondents herein, and do not amount to a direct challenge to the legislative or policy decisions of the Council of Ministers as alleged. Consequently, the reliance by the 2nd Respondent on Articles 9, 14, 23 and 30 of the Treaty is said to be misplaced. 33. The Petitioner maintains that the jurisdiction of the EACJ and that of national courts is concurrent but distinct, each operating within its respective sphere. In support of this proposition, reliance is placed on the decision in Modern Holdings (E.A.) Ltd v Kenya Ports Authority (EACJ) Ref. No. 1 of 2008), where the court held as follows: “ KPA is definitely not among the institutions of the Community created under Article 9 (2) … As such KPA is not one of the Respondents envisaged under Article 30 of the Treaty… The mere fact of rendering the nature of the services it renders… does not ipso facto make it an institution of the Community… In sum… the reference is not properly before this Court due to lack of capacity of KPA as a respondent under Article 30 of the Treaty…” 34. Relying on the foregoing authority, the Petitioner submits that the Respondents herein are not institutions of the Community within the meaning of Article 9 of the Treaty, but rather national entities subject to the supervisory jurisdiction of this Court. 35. Further reliance is placed on Attorney General of Uganda v Tom Kyahurwenda (EACJ Ref. No. 7 of 2010), where the Court held: “ Articles 6, 7 and 8 of the Treaty are justiciable before national courts… [and] do confer legal authority to the national courts of the Partner States to entertain allegations of their violation…” 36. The Petitioner thus argues that issues concerning violation of rights under the Treaty are properly justiciable before national courts in the first instance. 37. On the doctrine of exhaustion as invoked under Section 9(2) of the Fair Administrative Action Act, the Petitioner submits that the doctrine is not absolute and does not apply where constitutional issues, jurisdictional questions or matters of public law are raised. It is contended that the present petition https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 8

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raises issues of legality, constitutionality and public finance which cannot be adequately addressed through alternative mechanisms. 38. The Petitioner further submits that the preliminary objection does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, where it was held that: “ …a preliminary objection… raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct… It cannot be raised if any fact has to be ascertained…” 39. It is argued that the present objection requires factual and contextual interrogation of the impugned administrative actions and is therefore not a pure point of law. 40. In conclusion, the Petitioner contends that the preliminary objection is an attempt to divest this court of its constitutional mandate to uphold legality, fairness and due process in the exercise of public power. 41. It is submitted that the objection lacks merit, undermines the principles of access to justice and fair hearing and ought to be dismissed with costs. D. The 1st and 3rd Respondent’s Position. 42. The 1st and 3rd Respondents did not file any submissions in respect of the notice of preliminary objection. This is notwithstanding the fact that they were duly aware of, and had notice of, the court’s directions as well as the timelines prescribed for the filing and exchange of submissions. 43. Despite having been afforded sufficient opportunity to present their respective positions on the preliminary objection, the said Respondents failed, neglected, and/or declined to comply with the court’s directions, and consequently did not place any material or arguments before the Court for consideration on that issue. 44. In the circumstances, I will proceed on the basis that they did not wish to oppose or actively participate in the determination of the preliminary objection, and were content to abide by whatever outcome the court ultimately reaches on the issues raised. E. Issues for Determination. 45. From the pleadings, affidavits, preliminary objection and rival submissions on record, the following issues arise for determination: 1. Whether this Court has jurisdiction to entertain and determine the petition and the notice of motion in light of Articles 23, 27 and 30 of the Treaty for the Establishment of the East African Community and whether the dispute is one that falls exclusively within the jurisdiction of the East African Court of Justice or is properly justiciable before this court as a matter of constitutional and administrative law. 2. Whether the doctrine of exhaustion and/or constitutional avoidance, as invoked by the 2nd Respondent under Section 9(2) of the Fair Administrative Action Act and supporting jurisprudence, bars this court from hearing and determining the petition at this stage, and whether the Petitioner has demonstrated any exceptional circumstances to warrant exemption from the application of those doctrines. 3. Whether the notice of preliminary objection dated 15th September, 2025 meets the legal threshold of a proper preliminary objection as set out in Mukisa Biscuit Manufacturing Co. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 9

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Ltd v West End Distributors Ltd [1969] EA 696, or whether it raises contested matters of fact and mixed questions of law and fact requiring full hearing of the petition. 4. A determination as to costs. F. Analysis and Findings. 46. I find that the issues framed for determination are interrelated and revolve around the question whether this court is divested of jurisdiction to hear and determine the petition by virtue of the Treaty for the Establishment of the East African Community, and whether the doctrines of exhaustion and constitutional avoidance operate to bar these proceedings. I will therefore determine all the issues together. 47. The central question for determination is whether this court is properly seized of jurisdiction. It is not in dispute that the Petitioner challenges Legal Notice No. EAC/174/2025 on the basis that it introduces a dual tariff structure allegedly implemented without compliance with constitutional and statutory requirements, including public participation, transparency and fair administrative action. The Petitioner further alleges violations of Articles 10, 27, 33, 47, 201, 210 and 232 of the Constitution. These are matters grounded in constitutional and administrative law. 48. The 2nd Respondent contends that jurisdiction lies exclusively with the East African Court of Justice under Articles 23 and 30 of the Treaty for the Establishment of the East African Community. However, jurisdiction is a creature of the Constitution and statute, and cannot be implied or assumed. 49. The Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2011, stated as follows: “ 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. The above principle is fundamental. This court must therefore interrogate whether jurisdiction has been expressly ousted by law or whether it remains constitutionally vested. 51. Under Article 165(3)(d) of the Constitution, this court is empowered to determine the question whether any law, act or omission is inconsistent with or in contravention of the Constitution. Article 23(1) further vests this court with jurisdiction to enforce the Bill of Rights. The present petition squarely raises questions of constitutional compliance in the exercise of public power. 52. The jurisdiction of this court is also reinforced by the well-settled principle that where constitutional violations are alleged, the High Court is the primary forum for determination. 53. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal held: “ 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 a continuation of proceedings pending other evidence.” 54. However, the reverse is equally true, that where jurisdiction exists, a court has not only the power but also the duty to hear and determine the matter placed before it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 10

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55. In the present case, no provision of the EAC Treaty has been demonstrated to expressly oust the constitutional jurisdiction of this court over matters involving alleged violation of constitutional rights arising from domestic implementation of fiscal measures. 56. On the doctrine of exhaustion under Section 9(2) of the Fair Administrative Action Act, the Court is guided by settled jurisprudence. In Speaker of the National Assembly v Karume [1992] KLR 21, the Court of Appeal held: “ 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.” 57. However, the doctrine is not absolute. The Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR clarified its application and stated: “ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked… Courts ought to be fora of last resort and not the first port of call.” 58. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR further explained the principle of constitutional avoidance and held that courts should not determine constitutional issues where a dispute can be resolved on another basis. However, the Court also recognized that constitutional questions properly raised cannot be avoided merely because alternative forums exist. 59. In the present case, the issues raised are not purely contractual, administrative or technical matters capable of resolution within a specialized tribunal. They involve alleged violations of constitutional provisions on taxation, public participation, fair administrative action and legality of governmental action. These are matters which fall within the core jurisdiction of this court under Article 165 of the Constitution. 60. The East African Court of Justice, while a competent forum on matters of Treaty interpretation, does not displace the jurisdiction of national courts in matters involving constitutional enforcement against domestic authorities. This position finds support in Attorney General of Uganda v Tom Kyahurwenda, EACJ Ref. No. 7 of 2010, where the Court recognized that Articles 6, 7 and 8 of the Treaty are justiciable before national courts in appropriate circumstances. 61. I am therefore not persuaded that the doctrine of exhaustion applies to bar these proceedings. The Petitioner has raised constitutional questions that cannot be effectively addressed through alternative resolution mechanisms without undermining the jurisdiction expressly granted to this court by the Constitution. 62. On whether the preliminary objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR reaffirmed the principle that a proper preliminary objection must raise a pure point of law and not invite the court to interrogate contested facts. 63. In the present case, although jurisdiction is a point of law, the determination of the objection necessarily requires an inquiry into the nature of the impugned measures, the role of national authorities in their implementation and whether the petition challenges a Community act or a domestic administrative action. These are not purely legal questions capable of determination without https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 11

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factual context. Consequently, I find that the preliminary objection does not meet the threshold of a pure point of law as envisaged in Mukisa Biscuit. 64. In the result, the notice of preliminary objection dated 15th September, 2025 fails and is hereby dismissed. The petition shall proceed to hearing on its merits. 65. Costs of the preliminary objection shall be in the cause. 66. Orders accordingly. DELIVERED (VIRTUALLY) DATED & SIGNED THIS 28TH DAY OF APRIL, 2026. JOE M. OMIDO JUDGE. For the Ex Parte Applicant: No appearance. For the Respondent: Ms. Masai. Court Assistant: Mr. Juma. Court: The matter will be mentioned on 17th June, 2026 for directions. A mention notice to be served. JOE M. OMIDO JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8376/eng@2026-04-28 12

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