The Doctrine of Avoidance in Kenya: Meaning, Application and Key Case Law
- Muhoro & Gitonga Associates
- Sep 30, 2024
- 4 min read
Updated: 3 days ago
Table of Contents
1. Introduction
The Doctrine of Avoidance is a central principle in Kenyan constitutional litigation. Courts use it to decline determining constitutional issues where a matter can be resolved using other legal frameworks. Its purpose is to protect constitutional adjudication from being invoked unnecessarily.
The doctrine continues to influence commercial disputes, regulatory enforcement proceedings, administrative law challenges and contractual conflicts that attempt to introduce constitutional claims without first exhausting statutory or procedural remedies.
2. Meaning of the Doctrine of Avoidance
The Doctrine of Avoidance means that a court will not determine a constitutional question if there is another clear and adequate route to resolve the dispute. It preserves the Constitution for real constitutional controversies.
The doctrine is closely linked to:
Judicial restraint
Exhaustion of administrative remedies
The principle that constitutional interpretation should not be invoked lightly
3. Legal Basis of Avoidance in Kenya
3.1 Constitution of Kenya
Several constitutional principles support the doctrine:
Article 159 on judicial restraint and efficient use of judicial time
Article 22 on constitutional petitions, which must not replace ordinary dispute resolution mechanisms
Article 165 limits the High Court’s jurisdiction where Parliament has created specialised mechanisms
3.2 Statutory Frameworks
Courts consistently require parties to rely on statutory mechanisms first, including:
Companies Act dispute resolution mechanisms
Capital Markets Act enforcement pathways for regulated entities
Data Protection Act complaint mechanisms through the ODPC
CBK Act and CBK Prudential Guidelines for financial sector disputes
Where a detailed regulatory framework exists, courts avoid addressing constitutional arguments prematurely.
4. When Kenyan Courts Apply the Doctrine
Courts apply the doctrine where:
A statutory mechanism is available
A tribunal or regulator has primary jurisdiction
The dispute concerns contractual rights
Judicial review procedures offer a sufficient remedy
A petitioner raises broad constitutional grievances with no concrete violation
Courts prefer disputes to be resolved at the correct forum before escalating to constitutional litigation.
5. Key Kenyan Case Law on Constitutional Avoidance
The Supreme Court held that constitutional interpretation should not be invoked where statutory remedies exist.
Established the rule that where a statute provides a procedure for redress, that procedure must be strictly followed.
The Court of Appeal reaffirmed that constitutional issues should not be introduced where other mechanisms adequately address the dispute.
The High Court declined constitutional questions where contractual and statutory remedies were sufficient.
The Supreme Court stressed judicial restraint and warned against converting all grievances into constitutional disputes.
Confirmed that constitutional avoidance promotes proper case structure and protects judicial resources.
6. Application in Commercial, Regulatory and Public Law Disputes
6.1 Commercial and Corporate Disputes
Where a dispute concerns:
Shareholder rights
Breach of contract
Directors’ duties
Company meetings or resolutions
Courts require parties to rely on the Companies Act before framing issues as constitutional.
6.2 Financial and Banking Sector
Disputes involving:
6.3 Data Protection and Privacy
The ODPC must be approached first before a constitutional petition on privacy is filed.
6.4 Administrative Law and Judicial Review
If judicial review offers a suitable remedy, courts avoid entertainment of constitutional petitions.
7. Limits of the Doctrine
The doctrine does not apply where:
There is a clear violation of fundamental rights
The statutory remedy is inadequate or ineffective
The tribunal lacks jurisdiction to address the constitutional matter
Delay would lead to irreparable harm
8. Practical Guidance for Litigants and Businesses
8.1 Before Filing a Petition
Confirm:
Whether the dispute can be resolved under an existing statute
If a tribunal or regulator has primary jurisdiction
If internal dispute mechanisms are mandatory
If the constitutional issue is secondary to a commercial or regulatory dispute
8.2 Compliance Considerations for Regulated Businesses
Businesses should ensure:
8.3 Timelines
Most statutory mechanisms have strict timelines, for example:
ODPC complaint processing under the Data Protection Act
CMA enforcement timelines
CBK supervisory responses
Judicial review timelines under the Fair Administrative Action Act
Compliance with these timelines can determine whether constitutional litigation is admissible.
9. Frequently Asked Questions
1. What is the Doctrine of Avoidance in Kenyan law?
It is the principle that courts avoid deciding constitutional questions if a dispute can be resolved using another adequate legal mechanism.
2. Why do Kenyan courts prefer statutory remedies first?
Statutory mechanisms provide specialised procedures and expertise that ensure efficient dispute resolution.
3. Does the doctrine limit access to justice?
No. Courts apply it only where the alternative remedy is effective and capable of resolving the dispute.
4. Can the doctrine stop a constitutional petition?
Yes. Courts frequently dismiss or strike out petitions where the doctrine applies.
5. When will courts not apply the doctrine?
Where there is a direct violation of rights, or the available remedy is inadequate.
6. Does the doctrine apply in commercial disputes?
Yes. Courts often require parties to exhaust contractual and statutory remedies before invoking the Constitution.
7. How does the doctrine relate to judicial review?
If judicial review provides a suitable remedy, courts avoid constitutional petitions.
8. Is the doctrine the same as exhaustion?
They are related but distinct. Avoidance focuses on constitutional restraint while exhaustion focuses on statutory process.
