Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.” 11. The Respondent submitted that the Petition ought to collapse under the doctrine of constitutional avoidance. The Petitioners’ Response. 12. The Petitioners in opposition to the Respondent’s preliminary objection led their written submissions on the 18th day of February, 2022. 13. The Petitioners submitted that the Court had the jurisdiction to entertain the instant Petition as was the position in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where it was held: “ (68) A Court’s jurisdiction ows 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. We agree with counsel for the rst and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 14. It was the Petitioners’ strong position that by virtue of articles 23(1) and 165(3) (b) of the Constitution, the Court had jurisdiction to determine questions of violation, denial, threat to or infringement of a right or fundamental freedoms. 15. Further, the Magistrates’ Court Act, 2015 at section 8(2) caps the jurisdiction of subordinate courts to hear only applications relating to the right to freedom from torture, inhuman and degrading treatment and freedom from slavery and servitude as provided for under article 25(a) and (b) of the Constitution. 16. In buttressing the foregoing position, the Petitioners quoted the case of Anthony Miano & others v Attorney General & others [2021] eKLR where it was stated: “ In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” 17. The Petitioners argue that the provisions ofsection 65 of the Data Protection Act only provide for an eective remedy for compensation but does not confer upon the data commissioner the jurisdiction to investigate issues relating to violation of constitutional rights. 18. The Petitioners also oppose the Preliminary Objection on the basis that it oends the laid down requirements in the locus classicus case of Mukisa Biscuits (Supra). The Petitioners thus urged the Court to dismiss the preliminary objection as it was not purely based on law but facts which could be argued. kenyalaw.org/caselaw/cases/view/237212/ 4