High Court 13146 of 2026

borrowed Kshs. 960,000/= from THE 2ND Respondent and had repaid Kshs. 270,000/= leaving a balance of Kshs. 690,000/=. 2. The 1st Respondent is the Magistrate who heard and determined the aforesaid suit. 3. The Petition dated 28th April 2025 challenges proceedings and orders arising from Milimani CMCC No. E3815 of 2022. The dispute stems from an alleged unregulated "shylock" loan agreement where the Petitioner initially borrowed Kshs. 960,000/= and paid back Kshs. 270,000/= but was allegedly subsequently subjected to exorbitant interest rates that inflated the claim to Kshs. 6,150,000/=. 4. The Petitioner alleges that the 2nd Respondent is an unregistered money lender operating outside statutory regulation, thereby rendering the contract and interest charges illegal. The Petitioner further asserts that the trial magistrate exceeded jurisdiction and violated the Petitioner’s constitutional rights under Articles 10, 19, 27, and 28 by enforcing an unconscionable contract and issuing a warrant of arrest to commit the Petitioner to civil jail. 5. Invoking the High Court’s supervisory jurisdiction under Article 165(6) and (7) of the Constitution, the Petitioner seeks declarations invalidating the Magistrate Court’s judgment delivered on 23rd February 2024, that this Court prohibits execution of the arrest warrant, restrains the 2 nd Page 2 of 24

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Respondent from illegal lending practices, and award him costs together with any other relief that the Court deems just. The Petition 6. The Petition dated 28th April 2025 is instituted under Rules 4(1), 8(1), 10(1), 11, 13 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules 2013. The Petitioner Philemon Kiptum Koech seeks the following reliefs: (a) A declaration be issued that the 1st Respondent has no authority in law to charge interest on loan. (b) A declaration be issued that the 1 st Respondent acted outside the law by denying the Petitioner the protection of law. (c) A declaration be issued that the 1 st Respondent acted in a discriminatory manner in exempting the 2nd Respondent from the requirements for registration, licensing and authority to charge interest on loans. (d) A declaration that the 1st Respondent’s judgment delivered on 23rd February 2024 is invalid in law and the same be set aside. (e) A judicial review order of prohibition be issued barring, restraining, prohibiting and/or injuncting the 1st Respondent's order issued on 15th April 2025 being effected against the Petitioner. Page 3 of 24

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(f) A declaration that the 2nd Respondent is barred in law from carrying out business of lending out money with interest. (g) Any other relief that this Honourable Court may deem apt and fit to grant. (h) Cost of this petition be accorded to the Petitioner. 7. The Petition is further supported by an affidavit sworn on 25th April 2025 by the Petitioner in which the Petitioner who is an advocate of the High Court of Kenya traces a dispute originating from Milimani Civil Case No. E3815 of 2022, where the 2nd Respondent filed a suit against the Petitioner, claiming Kshs. 6,150,000/= based on a debt acknowledgment dated 20th December 2021. 8. The Petitioner asserts that he had only borrowed a principal sum of Kshs. 960,000/= which he received partly into his law firm account and partly in cash and that he repaid Kshs. 270,000/=. He states that the 2 nd Respondent operates as an unregistered, illegal "shylock" charging unconscionable and predatory interest rates and that the debt acknowledgment was merely signed under pressure to facilitate a bank loan scheme that ultimately failed. 9. He =deposes that despite his defense that the underlying agreement was an illegal and unenforceable contract, the Magistrate delivered a judgment awarding the 2nd Respondent Kshs. 6,150,000/= plus 25% interest subject Page 4 of 24

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to the in-duplum rule, and subsequently ordered his committal to civil jail on 15th April 2025. 10. The Petitioner deposes that the Magistrate acted ultra vires, abused court processes and violated the Petitioner’s constitutional rights to dignity, equality and due process under Articles 27 and 28 by enforcing an illegal contract and denying the Petitioner protection of the law. He further deposes that the Magistrate declined the Petitioner’s application for stay of execution and failed to furnish certified proceedings required to lodge an appeal, subjecting the Petitioner to cruel and degrading treatment and forcing the Petitioner to seek constitutional intervention from the High Court. 11. The 2nd Respondent filed a Replying Affidavit, sworn on 20 th May 2025 opposing the Notice of Motion Application and the Petition. The 2 nd Respondent, who is also the Decree Holder in Milimani CMCC No. E3815 of 2022, characterizes the Petition as a frivolous, vexatious and a gross abuse of the court process meant purely to frustrate the 2 nd Respondent from enjoying the fruits of a legitimate judgment. 12. The 2nd Respondent deposes that the Petitioner, an advocate of nearly 30 years in the practice of law, failed to file a witness statement or to present evidence during the hearing and is now attempting to use the constitutional petition to introduce new facts and launch a "back-door appeal" against a lower court judgment delivered over a year prior, a judgment which he Page 5 of 24

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never formally challenged on appeal. She asserts that the judgment remains unchallenged, making her application to execute the decree and commit the Petitioner to civil jail under Section 38 of the Civil Procedure Act a lawful exercise of her rights. 13. The 2nd Respondent emphasizes that the Petitioner appeared in court on 11 th March 2025 requesting time to make a payment proposal but that instead, he filed a replying affidavit on 14 th April 2025 without offering a single payment toward the decretal amount, which had grown to Kshs 11,588,550/=. That after evaluating the submissions on 15th April 2025, the trial court issued warrants for the Petitioner’s arrest. She urges the Court to dismiss the Petition with costs. Submissions 14. The petition was canvassed by way of written submissions. The Petitioner’s submissions are dated 14th July 2025 in which the Petitioner, urges the Court to grant constitutional declarations and judicial review orders setting aside a lower court judgment delivered on 23 rd February 2024 and prohibiting the execution of an arrest warrant issued on 15 th April 2025 by Hon. Rawlings Liluma Musiega. 15. The Petitioner reiterates his depositions that the underlying suit in Milimani CMCC No. E3815 of 2022 was premised on an illegal, unlicensed and unconscionable "shylock" money-lending arrangement with Page 6 of 24

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the 2nd Respondent, who advanced a principal loan of Kshs 960,000/= but sought an escalated claim of Kshs 6,150,000/= through usurious interest. 16. The Petitioner submits that by endorsing and enforcing an unlawful transaction that violates statutory regimes such as the Central Bank of Kenya Act and the Banking Act, the Magistrate acted ultra vires and infringed upon the Petitioner’s constitutional rights to equality before the law, human dignity and fair administrative action under Articles 27, 28, and 47 of the Constitution. 17. The Petitioner relies on Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR in support of his submission that he has the necessary locus standi to institute the Petitioner argues that in the aforesaid case, the Court of Appeal affirmed that constitutional provisions mandate a broad, flexible standard for locus standi to expand access to justice without procedural hurdles. It is submitted that this position is supported by the decision in Sollo Nzuki v. Salaries and Remuneration Commission & 2 others [2019] eKLR, which emphasized that the Constitution opens court doors wide to any party raising bona fide grounds of a constitutional contravention. 18. On the substantive issue of alleged contract illegality and unconscionable interest, the Petitioner cites Kenya Commercial Finance Company Ltd v. Ng'eny & another [2002] eKLR and submits that equity will intervene to relieve a party from harsh, unconscionable and oppressive bargains. He Page 7 of 24

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further relies on Margaret Njeri Muiruri v. Bank of Baroda (Kenya) Ltd [2014] eKLR to define substantive unconscionability as terms that are unduly harsh and commercially unreasonable. 19. To reinforce the argument that courts must not enforce contracts tainted by illegality, the Petitioner cites Mapis Investment (K) Limited v. Kenya Railways Corporation [2006] eKLR, which approved the Privy Council decision in Mistry Amar Singh v. Serwano Wofunira Kulubya [1963] EA 408 and the English authority Scott v. Brown, Doering, McNab & Co [1892] 2 QB 724 in applying the maxim ex turpi causa non oritur actio. 20. Addressing the nature and absolute importance of fundamental constitutional rights, the Petitioner invokes the Canadian Supreme Court ruling in R v. Big M Drug Mart Limited [1985] 1 SCR 295 to argue for a generous and purposive interpretation of the Bill of Rights. He submits that the foundational centrality of human dignity is further supported by the Constitutional Court of South Africa in the case of S v. Makwanyane and Another [1995] ZACC 3, where Chaskalson P and O'Regan J. are said to have highlighted that the rights to life and dignity are the source of all personal rights and the intrinsic basis for constitutional protection. 21. Finally, regarding the propriety of granting declaratory relief to settle legal ambiguities surrounding unlicensed lending, the Petitioner relies on the Court of Appeal decision in Attorney General v. Bala (Civil Appeal 223 of 2017) [2023] KECA 117 (KLR), which outlines the required conditions for Page 8 of 24

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issuing a declaratory judgment to clarify legal relationships and uphold the rule of law. 22. The 2nd Respondent’s submissions are dated 6th March 2026. She argues that the Petition lacks merit and is an abuse of court process, intended to serve as a "backdoor appeal" against a valid subordinate court judgment delivered over two years prior in Milimani CMCC No. E3815 of 2022. It is submitted that the underlying suit arose from business dealings where the Petitioner, an advocate of over 30 years standing became indebted to the 2nd Respondent, resulting in a debt acknowledgment agreement of Kshs 6,150,000/= dated 20 December 2021. 23. It is submitted that when judgment was entered in favor of the 2 nd Respondent on 23rd February 2024 after the Petitioner failed to file witness statements or to adduce evidence, the Petitioner did not appeal the decision. That following unsuccessful attempts to attach movable property, the court issued warrants of arrest under Section 38 of the Civil Procedure Act on 15th April 2025, after the Petitioner personally appeared, promised to settle the debt, but failed to present any payment proposal or to prove an inability to pay due to poverty. 24. The 2nd Respondent submits that due process was strictly followed, that committal to civil jail is a constitutionally permissible limitation on liberty under Article 24 of the Constitution when statutory procedure is satisfied, and that the High Court’s supervisory jurisdiction under Article 165(6) Page 9 of 24

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cannot be invoked to correct alleged errors where an alternative appellate remedy existed or as a back-door appeal when a party fails to appeal a trial court’s decision. 25. It is submitted that because the Petitioner failed to file an appeal against the subordinate court’s judgment over two years after it was delivered, he cannot invoke supervisory jurisdiction of this Court to challenge the Judgment or to introduce new evidence that was never pleaded. The 2 nd Respondent relied on Stella Wandoe v Michael Nato [2026] eKLR, citing with approval Mativo, J in Republic v Chief Magistrate’s Court at Milimani Law Courts & 2 others Ex-parte Pravin Galot & another [2017] KEHC 8982 (KLR), that supervisory jurisdiction is exercised sparingly to keep lower courts within their authority, not to correct mere errors or where alternative remedies like an appeal exist. 26. The 2nd Respondent argues in contention that issuing warrants of arrest against the Petitioner for non-payment of the decretal sum is a lawful limitation of liberty under Section 38 of the Civil Procedure Act and Order 22 Rule 18 of the Civil Procedure Rules, due process having been followed, including giving the Petitioner an opportunity to appear personally on 11th March 2025, to show hence, the execution process met all statutory safeguards. 27. The 2nd Respondent relies on George Arab Muli Mwalabu v Senior Resident Magistrate Kangundo & 2 others [2019] eKLR where Odunga, Page 10 of 24

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J. is said to have affirmed that committal to civil jail is permissible once the conditions set out in Section 38 of the Civil Procedure Act are fulfilled. 28. The 2nd Respondent submits that court orders are not issued in vain and that the Petitioner has failed to prove any violation of his constitutional rights. That instead, the Petition represents an abuse of court process to avoid paying the judgment debt. The 2nd Respondent therefore prays that the Court dismisses the Petition with costs. Analysis and Determination 29. I have considered the petition, the response by the 2 nd Respondent and the respective parties’ written submissions. I find the following issues emerging for determination: (i) Whether the Petition offends the doctrine of Constitutional Avoidance; or whether the Petition constitutes an impermissible back-door appeal; (ii) What orders should the court make and (iii) Who should bear the costs of the Petition? (i) Whether the petition offends the doctrine of Constitutional Avoidance 30. The 2nd Respondent opposes the petition contending that the petition is a veiled appeal through the backdoor. Further, that this Court’s supervisory Page 11 of 24

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jurisdiction cannot be invoked where there is a clear appeal mechanism for resolving a contractual dispute decided upon by the trial court. 31. . in view of the above serious objection by the 2 nd Respondent, this Court must determine whether it is the appropriate forum for entertaining the matter as filed as a Constitutional Petition under Article 165(3) and (6) of the Constitution, or whether the dispute ought to have been resolved through standard civil appellate processes governed by the Civil Procedure Act and Rules made thereunder. 32. The principles governing the doctrine of Constitutional Avoidance were comprehensively stated by Mativo, J. (as he then was) in KKB v. SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)where the learned Judge observed that constitutional avoidance is intrinsically linked to justiciability and establishes a judicial preference for resolving disputes on non-constitutional bases wherever a statutory or common law framework exists. The learned Judge quoted the Constitutional Court of South Africa in S v. Mhlungu [1995] (3) SA 867 (CC) and the U.S. Supreme Court in Ashwander v. Tennessee Valley Authority [297 U.S. 288 (1936)], in which the Court laid down the foundational rule as follows: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.” Page 12 of 24

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33. Mativo, J. further noted in the KKB v SCM (supra) case thus: “34. 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…… 36. 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: - Page 13 of 24

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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 e fiort to seek a non-constitutional resolution of the dispute.” 34. Applying the principles set out in the above decisions to the present petition, the Petitioner’s complaint revolves around alleged contractual illegality, unconscionable interest, statutory non-compliance by a lender and the propriety of execution proceedings under Section 38 of the Civil Procedure Act. 35. From the pleadings, this Court notes that every single grievance raised by the Petitioner including whether the debt acknowledgment agreement was unenforceable, whether the interest charged was illegal, or whether execution orders were lawfully rendered, in view of alleged usurious interest charged by the 2nd Respondent unlicensed money lender, constitute a standard civil law or procedural issue. The Civil Procedure Act, the Law of Contract Act and the Banking Act all provide full statutory regimes to address these exact questions of law and fact. 36. The Petitioner had a direct, statutory remedy to address his grievances concerning the impugned lower court decision, particularly by first, filing a Page 14 of 24

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defence to the 2nd Respondent’s claim and secondly, by lodging an appeal to the High Court under Section 65 of the Civil Procedure Act against the judgment delivered on 23rd February 2024, all the way to the Court of Appeal, in the event that the High Court dismisses his appeal. 37. However, the Petitioner chose not to lodge an appeal within the prescribed period, a fact which he did not dispute when pleaded by the 2 nd Respondent; and neither did he seek leave to appeal out of time, under section 79G of the Civil Procedure Act. Instead, over a year later, when faced with execution proceedings initiated via a Notice to Show Cause, he sought to bypass the appellate mechanism by dressing standard contractual defences in a constitutional costume. 38. The practice of constitutionalizing ordinary civil litigation is abhorred by Courts . As was held in Orange Democratic Movement v. Yusuf Ali Mohamed & 5 others [2018] eKLR and reiterated by Mativo, J in Republic v. Paul Kihara Kariuki, Attorney General & 2 others ex parte Law Society of Kenya [2020] eKLR, courts detest the practice of converting commercial or contractual disputes into constitutional questions for the purpose of evading ordinary statutory remedies. 39. The petitioner is also asking this Court to exercise its supervisory jurisdiction under Article 165 of the Constitution. However, such supervision does not extend to cases of such nature, i.e. clearly appealable issues. In Republic v. Chief Magistrate’s Court at Milimani Law Courts Page 15 of 24

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& 2 others Ex-parte Pravin Galot & another [2017] KEHC 8982 (KLR) and reaffirmed in Stella Wandoe v. Michael Nato [2026] eKLR) cited by the 2nd Respondent herein, the Court held thus: “Supervisory jurisdiction... is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors... It is not for the correction of errors. It is restricted to situations where an inferior Court engages in grave dereliction of its duty or flagrant abuse of fundamental principles of law or justice...” 40. In the present case, the trial court acted within its jurisdiction under the Civil Procedure Act. If the magistrate erred in evaluating the contract or law on interest, such error ought to have been tested on appeal, not through a constitutional Petition under Article 165(6 and (7)). This Court concurs with the 2nd Respondent’s assertion that petition herein is a back-door appeal employed by the Petitioner to address issues that could have been addressed on appeal had the Petitioner explored that avenue within the statutory timelines, or sought leave to appeal out of time. 41. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014]eKLR, the Supreme Court held that: “The appellants in this case are seeking to invoke the ''principle of avoidance", also known as "constitutional avoidance". The principle Page 16 of 24

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of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: "I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” Similarly, the US. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936))." 42.Discussing this doctrine of constitutional avoidance, L.N. Mugambi J stated as follows in Motiga v Lugalia & 4 others (Petition E328 of 2023) [2025] KEHC 275 (KLR) (Constitutional and Human Rights) (22 January 2025) (Ruling), and I have no reason to differ with the learned Judge, relying on many other decisions: “67. 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: Page 17 of 24

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17.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). (17) 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 the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition. …. Page 18 of 24

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18.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.” 68.Equally, in C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR the Court noted as follows: 11.Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011where after considering several authorities on the issue, Justice Lenaola remarked as follows: All the authorities above would point to the fact that the Constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Page 19 of 24

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Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.” (Emphasis added) 12.The Supreme Court of India has also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. For instance, in Re Application by Bahadur[1986] LRC (Const) the Court expressed itself as follows at page 307; The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... the Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for Page 20 of 24

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invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62). 13.It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J); Courts will not normally consider a constitutional question unless the existence of a remedy depends on 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.” 69.Turning to the present Petition, the Respondents opposed the Petition for offending the doctrine of constitutional avoidance by pointing out the cause of action is claim for defamation which can be fully and effectively litigated as a tortious claim either under the defamation Act or as a common law claim in an ordinary civil suit. 70.The Petitioner however maintained that the Petition raises constitutional questions on account that although it alleged defamation by the 1st and 2nd Respondents for publishing the offensive article against the Petitioner; there was also the element of access to information that could enable the Petitioner identify the 2 nd Petitioner Page 21 of 24

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which only the 3rd and 4th Respondent could supply hence Defamation Act was inadequate in scope of remedies that it could offer. 71.It is manifest from the reading of this Petition the essential complaint is the alleged publication of the defamatory material against the Petitioner. In any case, even if the matter involves the need for supply of information under Article 35 of the Constitution, there is an elaborate procedure that is provided for under Access to Information Act prescribing how this is to be done and consequences of failure to facilitate the access to information when the conditions set out for supply of information have been met. In short, this Court will not necessarily have to turn to the Constitution to resolve the two main issues raised by the Petitioner in this Petition. That will require the Constitution to resolve. In other words, the resolution of the issues presented through this Petition will only require interpretation of the relevant statutes or principles of common law rather than the Constitution as the claim is founded on the tort of defamation and the issue of access to information is also adequately covered in the Access to Information Act. I can thus comfortably conclude that this Petition does not raise any Constitutional question that would compel the Court to resort to the Constitution to resolve. Page 22 of 24

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72.This leads me into making the finding that the dispute that this Petition presents is not a Constitutional controversy since it can be determined without application of the Constitution. Its resolution squarely lies in the application of the tort law and the Access to Information Act. 43.After considering all the above decisions, the learned Judge concluded that it is impermissible for a litigant to found a cause of action on the Constitution when the same can be founded on legislation or other established legal principles. I fully agree and add that a party is mandated to exhaust alternative dispute resolution mechanisms before approaching the Court as was stated by that Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others [2015] eKLR that: “It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for Page 23 of 24

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resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 44. The Petitioner has not demonstrated that he was justified in approaching Court by way of a constitutional petition as opposed to an appeal via the Civil Procedure Act and Rules or that the petition falls within the exception under the doctrine of exhaustion of remedies which is akin to the doctrine of constitutional avoidance 45. In the end, I find and hold that the petition dated 28th April 2025 offends the doctrine of Constitutional avoidance and it is hereby struck out. 46. Costs follow the event. However, in this case, I exercise discretion and order that each party bear their own costs as the decree in the lower court is still unsettled and the amount being claimed by the 2 nd Respondent against the petitioner is quite substantial. 47. This file is closed. Dated, Signed and Delivered at Mombasa this 27th Day of August, 2026 R.E. ABURILI JUDGE Page 24 of 24

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