Nation Media Group & 2 others v Media Council of Kenya Complaints Commission; Central Bank of Kenya (Interested Party) [2023] KEHC 26394 (KLR)

Nation Media Group & 2 others v Media Council of Kenya Complaints Commission; Central Bank of Kenya (Interested Party) (Judicial Review E080 of 2023) [2023] KEHC 26394 (KLR) (Judicial Review) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26394 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E080 of 2023

JM Chigiti, J

December 13, 2023

Between

Nation Media Group

1st Applicant

Edwin Mutai

2nd Applicant

David Mwere

3rd Applicant

and

Media Council of Kenya Complaints Commission

Respondent

and

Central Bank of Kenya

Interested Party

Judgment

1. On 22nd June, 2023, the Respondent delivered a Ruling determining an application filed before it by the Applicant herein which sought to have, inter alia, Commissioner Lempaa Suyianka be recused and/or disqualified from hearing and determining the instant Complaint on account of material non-disclosure to the Commission and the parties and conflict of interest.

2. In the Ruling, the Respondent held that the Applicant did not adduce any evidence to prove a claim of perceived or real bias against it by Commissioner Lempaa Suyianka and directed that the Complaint proceeds for adjudication and determination.

3. The Applicant, aggrieved by this decision moved the court via an originating notice of motion dated 21st July 2023 seeking the following orders:1. That this Application be certified urgent and heard ex-parte in the first instance.2. That the Respondent whether by themselves, their servants, agents, officers, successors and/or assigns, be restrained from rendering its Final Determination in Complaint No. 4 of 2023 Central Bank of Kenya versus Nation Media Group Ltd, Edwin Mutai and David Mwere.3. That the decision and/or Order of the Respondent issued on 22nd June, 2023 in Media Complaints Commission Complaint No. 4 of 2021 by which the Applicant did not adduce any evidence to prove a claim of perceived or real bias against it by Commissioner Lempaa Suyianka, be quashed.4. That the costs of this Application be provided for.

The Applicants’ Case 4. The Applicants’ case is that at all material times, the Commissioner failed to inform the Respondent and the parties in MCCC No. 7 of 2022 Dr. Patrick Njoroge versus Nation Media Group and the parties in Media Complaints Commission Complaint No. 4 of 2023 Central Bank of Kenya versus Nation Media Group Limited & Others, of his involvement as Counsel in suits filed against the Applicant contrary to contrary to Code 43(3) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (“the Judicial Code of Conduct”).

5. According to the Applicant, members of the Respondent are indeed judicial officers and therefore bound by the Judicial Code of Conduct specifically, Code 43(3) of the Judicial Code of Conduct which provides that:“A judicial officer shall not engage in consultancy or practice of law by offering legal advice or draft pleadings for litigants or members of the public, while holding judicial office.”

6. The Applicants also refer to Code 5 of the Judicial Code of Conduct which provides that the Code of Conduct applies to: (a) judges of superior courts;(b) judicial officers; and (c)judicial staff.

7. The Applicants refer to definition of a judicial officer as defined under the Judicial Service Act, No. 1 of 2011 which it states includes:“a registrar, deputy registrar, magistrate, Kadhi or the presiding officer of any other court or local tribunal as may be established by an Act of Parliament.

8. The Applicants contend that the Commissioner’s continued practice of law and specifically, his participation as Counsel in matters where the 1st Applicant is involved as a party, places him in a precarious position as there is an apparent conflict of interest.

9. The Applicant places reliance on the Case of R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577, the court held that:“…the question is whether in the very unusual circumstances of this Case a non-pecuniary interest to achieve a particular result is sufficient to give rise to automatic disqualification … The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore, a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties...”

10. The Applicants also rely on the case of R v Gough [1993] 2 All ER 724 and reiterate that the Respondent was wrong in rendering its decision of 22nd June, 2023.

11. On another front it is the Applicants’ case that in the Respondent’s Ruling of 22nd June, 2023, the Respondent held that before any matter is adjudicated upon, it conducts a routine conflict of interest check internally during which, the conflict-of-interest forms are signed. However, none of this information was made known to the parties in MCCC No. 7 of 2022 Dr. Patrick Njoroge versus Nation Media Group and the parties in Media Complaints Commission Complaint No. 4 of 2023 Central Bank of Kenya versus Nation Media Group Limited & Others.

12. Thus, according to them this finding does not dispel the requirement of an empanelment of a panel of three Commissioners to be made for purposes of adjudicating over a Complaint, as per section 37 of the Media Council Act, No. 46 of 2013.

13. The Applicants rely on the case of Chadwick Okumu v Capital Markets Authority [2018] eKLR, in advancing the argument that in order to avoid instances of bias, the Respondent ought to empanel a separate panel of Commissioners to hear and determine the Complaint.

The Respondents Case: 14. It is the Respondent’s case that it rendered its decision after carefully considering that the test for recusal of a judicial officer is reasonable apprehension of bias and not proof of actual bias and with this consideration saw no reasonable apprehension that arose in this application.

15. It argues that the Applicant has not demonstrated the nexus between the matter where Commissioner Lempaa Suyianka acted as Counsel and the resulting apprehension of bias.

16. Reliance is placed in the case of Bernard Chege Mburu vs. Clement Kungu Waibara & 2 Others [2011] eKLR where the court quoted the decision in King Woolen Mills Limited & Another vs. Standard Chartered Financial Services Ltd & Another, Civil Appeal No. 102 of 1994 where the Court of Appeal concluded that for a judge to disqualify himself, a reasonable and fair minded person sitting in court, and knowing all the relevant facts, would have a reasonable suspicion that a fair trial for the Appellants would not be possible.

17. Reliance is further placed in the case of Miller vs. Miller [1988] KLR 555, where the Court expressed itself as follows:“…It would be disastrous if the practice was that once there are allegations made against a judge and the judge’s honour is in question, that the judge must disqualify himself.

18. To further buttress its case, the Respondent refers the court to Regulation 47 of The Judicial Service (Code of Conduct and Ethics) Regulations 2020 which states that;“A judicial officer may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judicial officer.(d)has actual bias or prejudice concerning a party.”

19. The Respondent argues that under the Bangalore Principles of Judicial Conduct, a judicial officer is required to disqualify themselves in proceedings where their impartiality might reasonably be questioned, including but not limited to instances in which they have a personal bias or prejudice concerning a party or their advocate or personal knowledge of facts in the proceedings before them, content of which the Commissioner, being a judicial officer, is well aware of.

20. The Respondent believes that no evidence was tendered by the Applicants of any interests, conduct or association which would lead to an apprehension of bias against the Interested party.

21. The Respondent also relies on the cases of Tatu City Limited & 3 others vs. Stephen Jennings & 6 others [2015] eKLR ,Kalpana H. Rawal vs. Judicial Service Commission & 2 Others [2016] eKLR and Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR.

22. The Respondent is persuaded that its ruling on 22nd June 2023 was a culmination of a process that was in conformity to Section 37 of the Media Council Act, No. 6 of 2013 in so far as the procedure to be observed on hearing of matters before the Complaints Commission is concerned.

23. The Applicant it is argued has failed to present a case that fits the principles as set out in the case of Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR.

24. The Respondent argues that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself as guided in the case of Republic vs. Commissioner of Customs Services ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of 2012 [2012] eKLR.

25. The Respondent is of the strong persuasion that the Application lacks merit.

The Interested Party’s Case 26. The Interested Party opposes the Application vide a Replying Affidavit sworn by Kennedy Kaunda Abuga on 3rd November 2023.

27. The Interested Party started off their case by arguing that the Application as filed is defective to the extent that it is lodged counter to the Media Council Act No. 46 of 2013.

28. Further that Section 42 of the Media Council Act No. 46 of 2013 prescribes that a party aggrieved by the decision of the Complaints Commission ought to apply to the High Court, 30 days after the Commission has made its decision.

29. The present Application, premised on the Respondent’s decision of 22nd June 2023, was filed on 21st July 2023, less than 30 days following the Respondent’s Ruling and contrary to the timelines imposed by the Media Council Act No. 46 of 2013.

30. To this end, it is our submission that the Application is defective and ought to be struck out by the Honourable Court.

31. The Interested Party also argues that the Applicants have failed to tender any proof of procedural impropriety, unreasonableness, or illegality regarding the Respondent’s Ruling of 22nd June 2023.

32. The Interested Party also argues that the Applicants vide an Application dated 27th April 2023 in Media Council Complaints Commission Complaint No.4 of 2023 sought to have the Commissioner Lempaa Suyianka disqualified and/or recused from hearing and determining the Complaint.

33. According to the Interested Party the procedure followed by the Respondent leading up to the Ruling was substantively fair and sound. The Parties before the Respondent are said to have agreed to dispose of the Applicants’ Application by way of written submissions. The Respondent is also said to have considered the submissions, eventually rendering the Ruling of 22nd June 2023. Thus, both parties were heard, and the Respondent exercised all due process in rendering its decision of 22nd June 2023.

34. It is the Interested Party’s argument that the Applicants do not depict any conflict of interest as per the definition of ‘Conflict of Interest’ is defined in Black’s law Dictionary 11th Edn which defines it as “A real or seeming incompatibility between one’s private interest and one’s public or fiduciary duties”. Further that conflict of interest is not an abstract notion but is fundamentally a question of fact that must be demonstrated on the facts alleged.

35. According to the Interested Party, the Commissioners of the Media Council Complaints Commission are not subject to Code 43(3) of the Judicial Code of Conduct and are not precluded from offering legal services.

36. It is the Interested Party’s case that the Applicants have all along been apprised of the composition of the panel of Commissioners in Media Council Complaints Commission Complaint No. 4 of 2023 but never raised issue with the same, despite being aware of the Appeal in Civil Appeal No. 296 of 2017 since June 2022.

37. The Interested Party further asserts that the Applicants have failed to present clear evidence that the Honourable Commissioner Lempaa Suyianka is acting in a manner prejudicial to the interests of either party, which test was established in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 2 others; Stanley Muluvi Kiima (interested party) [2018] eKLR.

38. The Interested Party’s case is that the presumption of impartiality carries considerable weight such that judicial officers and other adjudicators are presumed capable of rising above any prejudices and thus have a duty to sit, in matters which they duly should sit.

39. The case of Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR, is cited where Justice Njoki Ndung’u in her concurring opinion stated thus:“It must always be remembered that there is a presumption of impartiality of a Judge. In The President of the Republic of South Africa & 2 others v South African Rugby Football Union & 3 others, (CCT16/98) [1999] the South African Constitutional Court held that there was a presumption of impartiality of judges by virtue of their training. Therefore, they would be able to disabuse themselves of any irrelevant personal beliefs or predispositions when hearing and determining matters.”

40. In the same case, Supreme Court Justice Ibrahim. SCJ. in his Concurring opinion is said to have stated as follows:“In the case of Simonson –vs- General Motors Corporation U.S.D.C. p.425 R. Supp, 574, 578 (1978), the United States District Court, Eastern District of Pennsylvania, had this to say:-“Recusal and reassignment is not a matter to be lightly undertaken by a district judge, While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal, there remains what has been termed a “duty to sit” . . .”” (Emphasis added).

41. The Interested Party also places reliance in the cases of Jasbir Singh Rai & 3 Others Vs. Tarlochan Singh Rai & 4 Others [2013] eKLR and Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi & Another [2014] eKLR.

42. The Interested Party also argues that in placing reliance on the dicta of the Court of Appeal in Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996 set out the principles for Judicial Review thus:“…An order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted unprocedurally, that his decision was unreasonable and that the impugned decision was illegal.”

43. The Interested Party also cites the case of Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others [2018] eKLR where it was similarly held that:‘’…. Judicial Review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and the court should not attempt to adopt the forbidden appellate approach.……As long as the process followed by the decision-maker are proper, and the decision is within the confines of the Law, a Court will not interfere.’’

44. The Interested Party believes that the Application does not disclose any proof of procedural impropriety, unreasonableness, or illegality on the part of the Respondent.

Analysis and Determination 45. I have considered each parties case and two issues form for determination are as follows:i.Whether this court has jurisdiction.ii.Whether the court can grant the orders sought.

46. In the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 the Court while citing the case of Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

Whether This Court Has Jurisdiction. 47. The 1st Interested Party raised a concern, that the Application as filed is defective to the extent that it is lodged counter to the Media Council Act No. 46 of 2013.

48. Further that Section 42 of the Media Council Act No. 46 of 2013 prescribes that a party aggrieved by the decision of the Complaints Commission ought to apply to the High Court, 30 days after the Commission has made its decision.

49. The present Application, premised on the Respondent’s decision of 22nd June 2023, was filed on 21st July 2023, less than 30 days following the Respondent’s Ruling and contrary to the timelines imposed by the Media Council Act No. 46 of 2013.

50. In Mohamed Fugicha v Methodist Church in Kenya (Through its registered trustees) & 3 others [2020] eKLR the cause pitted the Methodist Church in Kenya against the Teachers Service Commission, the County Director of Education, Isiolo County, the District Education Officer, Isiolo Sub- County, and an Interested Party, Mohamed Fugicha – a parent with three students enrolled at St. Paul’s Kiwanjani Day Mixed Secondary School.

51. The Court in the above case addressing the cross petition held that the status of the 1st Respondent in the High Court petition cannot be overlooked. The 1st respondent was admitted to the suit as an ‘Interested Party’. The question then arises as to whether an ‘interested party’ has the capacity to institute a ‘cross petition.

52. The Court then went ahead to state as follows;“(51)The interested party’s case brought forth a new element in the cause: that denying Muslim female students the occasion to wear even a limited form of hijab would force them to make a choice between their religion, and their right to education: this would stand in conflict with Article 32 of the Constitution. It is on this basis that he cross-petitioned at paragraph 34 of his replying affidavit, for the Muslim students to be allowed to wear the hijab, in accordance with Articles 27 (5) and 32 of the Constitution.(53)What should we make of a cross-petition fashioned as such" Yet this Court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the Court. We did remark, in Francis Karioki Muruatetu & Another v. Republic & 5 others, Sup. Ct. Pet. 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us.Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the Court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether a new issue to be introduced before the Court” [emphasis supplied].(54)In like terms we thus observed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012 (paragraph 24):“A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”(55)Against such a background, the trial Court ought not to have entertained issues arising from the cross-petition by the interested party, especially in view of Article 163 (7) of the Constitution which provides that ‘All courts, other that the Supreme Court, are bound by the decisions of the Supreme Court.” Moreover, this cross-petition did not comply with Rule 15 (3) of the Mutunga Rules which speaks to a respondent filing a cross-petition; and it was also not in conformity with Rule 10 (2) of these Rules. Rule 10(3) cannot also be invoked as the replying affidavit of the interested party does not fit any of the descriptions contained therein.(56)We further note that the petition is unyielding that the cross – petition did not meet the set-out requirements, it was defective and inconsistent with the Mutunga Rules, further, they argue that consideration of the same by the Appellate Court violated their right to fair trial denying them opportunity to prepare and canvass the issue raised in the cross-petition.(58)Furthermore and with due respect to the Appellate Court, we are persuaded that the cross-petition was improperly before the High Court, and ought not to have been introduced by an interested party, and in that light, it should not and could not have been entertained by the Court of Appeal; neither court having proper jurisdiction to do so.

53. In the matter of review of the Judgement and Order of the Supreme Court (Maraga, CJ&P; Ibrahim, Njoki, Lenaola and Ojwang SCJJ) delivered on 23rd January 2019 the Court observed as follows;“It was the Applicant’s submission that there was an oversight on the part of the Court where it failed to consider his opposition to the Petitioner’s High Court Petition and erroneously prejudiced his entire case in the cross petition as an interested party. That therefore, the Applicant has not had a just determination of the eventual proceedings between the Petitioner and himself arguing that even when the cross petition was found defective, it could still be the basis of the Applicant’s opposition to the High Court petition.“The majority rested their decision on the technical point that, in the proceedings before the trial Court, the name of the applicant herein had appeared against the “interested-party” rubric, rather than that of the primary parties. This is evident from the majority’s stand in the original proceedings (para. 59):“[W]e recognise that the issue as contained in the impugned cross-petition is an important national issue [the Constitution’s safeguards for ‘human rights and fundamental freedoms’ (Article 259 (1)); ‘religious or cultural communities’ (Article 21(3)); ‘right to freedom of conscience, religion …’ (Article 32 (1)), that will provide a jurisprudential moment for this Court to pronounce itself upon in the future. However, to do so, it is imperative that the matter ought to reach us in the proper manner, so that when a party seeks redress from this Court, they ought to have had the matter properly instituted, the issues canvassed and determined in the professionally competent chain of Courts leading up to this apex Court. In view of this, it is our recommendation that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court”.

54. The Court held that the application for review had no merit and was dismissed. I am bound by the finding of the Supreme Court and I make a finding that the Interested Party may not frame its own fresh issues or introduce new issues for determination by the Court. One of the principles for admission of an Interested Party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether new issue to be introduced before the Court.

55. The Interested Party who is not a principle party introduced the doctrine of exhaustion which has a bearing on the jurisdiction. However, this court will not deal with it in the circumstances. The same is dismissed.

56. This court appreciates that it is under a duty to protect promote and fulfil the Constitution. This obligation extends and is not limited to the duty to promote the alternative dispute resolution mechanisms under Article 159 of the Constitution.

57. Section 42 (1) of The Media Council Act No. 46 of 2013 provides that a person aggrieved by a decision of the Council may appeal to the Complaints Commission against that decision in such manner as may be prescribed.

58. Section 42 (2) then stipulates that a party aggrieved by the decision of the Complaints Commission may, after thirty (30) days after the Commission has made its decision, apply to the High Court for such orders as the court may, in exercise of its jurisdiction under Article 165(6) of the Constitution, think just.

59. Section 43 provides that the decisions of the Commission to be final where no application is made to challenge the decision of the Commission within thirty days of the date of the decision.

60. Section (9) (2) of the Fair Administrative Action Act provides in mandatory terms that;“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”Under Section 9 (3) “The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”

61. In William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR the court held that 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. The doctrine of exhaustion is in keeping with Article 159 of The Constitution which seeks to promote alternative dispute resolution.

62. In the Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 the court had this to state;“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

63. In Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR the court held that: -“The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law.”

64. In the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR held 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 for a 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 for resolution outside the courts…This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

65. In Anthony Miano & others v Attorney General & others [2021] eKLR the court stated: -“The doctrine of constitutional avoidance deals with instances where a Constitutional Court will decline to deal with a matter because there exists another remedy provided in law which the aggrieved party is yet to utilize. That is also referred to as the doctrine of exhaustion.The first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively.”

66. The Applicant has not proven that it appealed to the Complaints Commission against the Respondent’s decision that was issued on 22nd June, 2023. The Applicant has not tendered any evidence to show that the Complaints Commission is inaccessible or that it will not admit its appeal or that the Commission will be biased.

67. It is this court’s finding and I so hold that the Applicant herein is bound by the Doctrine of Exhaustion under Section 42 (1) of the Media Council Act No. 46 of 2013 which provides that a person aggrieved by a decision of the Council may appeal to the Complaints Commission against that decision in such manner as may be prescribed.The court lacks jurisdiction to hear the suit or determine the second issue.

Disposition: 68. The Application dated 21st July 2023 lacks merit.

Order: 69. The Application dated 21st July 2023 is struck out with costs.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 13THDAY OF DECEMBER, 2023. ……………………………………JOHN CHIGITI (SC)JUDGE