Standing the Test of Time: High Court Upholds Key Constitutional Doctrines

Standing the Test of Time: High Court Upholds Key Constitutional Doctrines




Ever since the High Court’s pronouncements in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272 (the Anarita Karimi Case) decided two score and four years ago, Courts have been vigilant in examining constitutional petitions with a view to ensuring that they are drafted with a reasonable degree of precision. To quote the Court (Trevelyan & Hancox JJ) in the Anarita Karimi Case: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”


 Additionally, Courts have been keen to ensure that as per the doc- trine of constitutional avoidance, where a dispute can be determined through another forum without necessarily raising a constitutional issue, this alternative forum ought to be pursued.


Against this backdrop, the High Court’s Constitutional Division recently affirmed these age-old doctrines in a Judgment handed down in High Court Petition No. 455 of 2018 – Consumer Federation of Kenya v Toyota Motors Corporation & 4 Others (the Petition). This article analyses the said decision, which comes at a time when an increasing number of cases that are styled as constitutional matters are being filed, whereas perhaps upon proper consideration, a good number of them are no more than private claims disguised as constitutional petitions and are capable of determination before other forums.


The Principle in the Anarita Karimi Case

The Anarita Karimi Case, an over forty (40) years’ old case, is considered in Kenya as setting the benchmark for the drafting of constitutional petitions. It therefore comes as no surprise that the decision is an often-cited authority in many constitutional cases. The Anarita Karimi Case prescribes that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed.


This principle essentially calls upon litigants to plead their case with a high degree of specificity, thereby saving on the time required by the Court to determine the issues upon which the relevant evidence and the law should be considered. Some critics argue that this principle gives constitutional Courts leeway to avoid jurisdiction over matters. However, many in favour of the principle concur that the Anarita Karimi Case sets an appropriate standard for the drafting of pleadings filed in constitutional Courts.


By reinforcing the principles of the Anarita Karimi Case in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR (the Mumo Matemu Case), the Court of Appeal not only maintained its essence, but also applied a contemporary outlook to its enduring legacy. In the Mumo Matemu Case, the Court of Appeal observed that the precision requirement in the Anarita Karimi Case is not to be mistaken for exactitude. Rather, the doctrine in the Anarita Karimi Case is applied to ensure that upon proper definition of the issues in a constitutional petition, the Court can apply its mind to the real issues at hand, thereby saving on judicial resources.


The Principle of Constitutional Avoidance

Kenyan Courts have also relied on the doctrine of constitutional avoidance to strike out claims presented before Court where it is shown that there exist alternative, sufficient and adequate avenues for parties to ventilate their grievances. The Courts have consistently maintained that when a party has an appropriate forum before which to seek redress, it is incumbent upon them to raise their concerns before the said forum as opposed to invoking the constitutional jurisdiction of the Court at the outset.


Bearing in mind the overarching nature of the Constitution of Kenya 2010 (the Constitution), it is not uncommon for parties to file constitutional petitions whereas their disputes have civil or contractual features. This notwithstanding, it is well-established under case law that Courts should not entertain such disputes as it would amount to diminishing the safeguards created for parties with legitimate constitutional issues and result in clogging-up of the Court’s diary. Scholars have argued that constitutional Courts are enticing to litigants as – (a) these Courts hear disputes expeditiously; and (b) the filing fees charged for these matters are relatively lower than ordinary civil matters.


Background of the Petition

The Petition was filed by the Consumer Federation of Kenya (COFEK) on behalf of two (2) of its members. The Petition, which contained glaring traits of a contractual dispute, arose from a contract for the purchase of a motor vehicle between a customer and a loan guarantor on one side and Toyota Kenya Limited (Toyota) and Tsusho Capital Limited (Tsusho) on the other. The Kenya Bureau of Standards (KEBS) was also joined as a party to the Petition.


In summary, the customer paid a deposit to Toyota for the motor vehicle and thereafter took a loan from Tsusho to pay the balance of the purchase price. The loan was secured with by a guarantee from one of COFEK’s members. The customer alleged that the motor vehicle developed mechanical problems rendering repayment of the loan difficult, ultimately causing him to default and following which the motor vehicle was repossesed.


Legal Arguments by the Parties

On the constitutional front, COFEK contended that Toyota violated Articles 35 and 46 (1) (b) of the Constitution, as it had failed to disclose that the motor vehicle was in the same category as those subject to recalls in other jurisdictions due to alleged manufacturing defects. Further, COFEK raised several other alleged contractual infractions committed by either Toyota or Tsusho. To this end, COFEK sought for a refund of the deposit, compensation for lost revenue and dam- ages for other consequential losses.


This principle essentially calls upon litigants to plead their case with a high degree of specificity, thereby saving on the time required by the Court to determine the issues upon which the relevant evidence and the law should be considered.


On its part, Toyota argued that the Petition did not disclose a prima facie constitutional issue and that there was a pending product liability suit before the Commercial Division of the High Court touching on the same subject matter. Toyota invited the constitutional Court to consider the case of CNM v WGM (2018) eKLR, where it was observed that a constitutional matter is one that compels a Court to consider constitutional rights or values, whereas the matters in the current case required the constitutional Court to essentially examine the contractual rights between the parties. On their part, Tsusho and KEBS both concurred with Toyota’s submissions with respect to the nature of the Petition in that it was, indeed a contractual dispute dis- guised as a constitutional petition.


Determination of the Court

In discussing the issue of whether the Petition satisfied the principle in the Anarita Karimi Case, the Court (Ong’undi J) expressed that by failing to provide evidence on how the Respondents had violated its members’ rights, COFEK had left the Court with no other option but to determine these alleged violations on a hypothetical basis.


The Court further interpreted the principle of the Anarita Karimi Case to mean that in order for a constitutional petition to be sustained, a party must provide evidence which demonstrates how their rights have been violated, as merely citing the provisions of the Constitution alleged to have been violated is not enough. In this regard, the Court noted that COFEK consistently made allegations without providing any evidence in support of the claim.


The Court further noted that under the principle of constitutional avoidance, the jurisdiction of the constitutional Court is limited to protecting and enforcing constitutional rights; and not to determine concerns of performance of contractual obligations which can be properly canvassed under civil law without the need to invoke the constitutional Court’s jurisdiction.


In relying on this established principle of law, the Court agreed with the submissions of Toyota that the claim by COFEK did not raise any constitutional question ripe for determination by the Court. In this regard, the Court was of the view that the Petition did not qualify as a constitutional matter under the definition of the Anarita Karimi Case. Once the Court determined that the Petition was wanting for the reasons listed above, it was unable to proceed with the determination of the substantive issues raised by the parties and proceeded to dismiss the Petition with costs.



The twin principles of constitutional avoidance and the need to plead the alleged constitutional grievance with specificity as espoused in the Anarita Karimi Case are firmly entrenched in Kenya’s constitutional jurisprudence. Accordingly, in order to protect their interests and particularly to avoid a striking out, litigants ought to ensure that the cases they present to Court comply with these principles. As was stated by the Court (Mwita J) in Petition No. 45 of 2017 – Maya Duty Free Limited v Hon. Attorney General & 3 Others:

“It is, therefore, inappropriate for parties to rush to institute constitutional petitions alleging violation of rights under Article 47 (1) or any other constitutional rights or fundamental rights when these petitions raise no constitutional issues at all for the Court’s determination. It is also the position in law that parties should pursue remedies available to them instead of instituting constitutional petitions.”