https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10661

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA** **JUDICIAL REVIEW DIVISION** **JUDICIAL REVIEW MISC. APPLICATION NO. E001 OF 2026** **AGGREY W. WAMALWA …………………………..….. APPLICANT** * **V E R S U S –** **THE COUNTY SECRETARY, COUNTY GOVERNMENT** **OF WEST POKOT…….…………………………..… 1ST RESPONDENT** **THE GOVERNOR, COUNTY GOVERNMENT OF WEST POKOT…….……………………………………..… 2ND RESPONDENT** **J U D G M E N T** 1. By the Notice of Motion dated 20/4/2026, the exparte applicant, Aggrey W. Wamalwa seeks an order of Mandamus to issue, directing the Respondents namely, the County Secretary, County Government of West Pokot and the Governor, County Government of West Pokot (1st and 2nd Respondents) jointly and severally to supply and or disclose procurement documents relating to the renovation project at Keringet University valued at approximately Kshs.67,000,000/=; and costs of the application. 2. The application is predicated on grounds found in the statutory statement and verifying affidavit of the applicant, dated 20/4/2026. Despite service on the Respondents, neither entered appearance nor filed a response. 3. The applicant avers that on 30/3/2026, pursuant to Article 35 of the Constitution, he made a formal written request to the Respondents seeking disclosure of the procurement documents relating to Keringet University valued at Kshs.67,000,000/=; that the Respondents failed to provide the said information; 4. The applicant believes that there exist procurement irregularities in the said project including lack of tender advertisement; a questionable contractor identity and possible misuse of public funds; that the Respondents are under a Constitutional and statutory duty to provide the requested information and the refusal to avail the information violates his right of access to information and undermines transparency and accountability; that the Respondents have violated the principles of public finance under Article 201 of the Constitution. 5. The applicant filed submissions dated 18/5/2026. The applicant identified from issues to be determined as; - **(i) Whether the applicant has established a Constitutional and statutory right to access the requested information.** The applicant has urged that the access to information Act 2016 operationalized Article 35 of the Constitution which imposes a statutory obligation on public entities/persons to disclose information requested for by citizens and this is to ensure transparency and accountability in governance which is envisaged under Article 264 of the Constitution. 1. **The second issue of whether the Respondents are under a public duty to provide requested information;** The applicant submitted that Article 10 and 201of the Constitution imposes obligation of transparency, openness and accountability in management of public resources; that the Respondents cannot withhold procurement records concerning expenditure of Public funds without any lawful justification; that the matter raises allegations of procurement irregularities and lack of tender advertisement, questionable contractor and possible misuse of public funds; that the refusal to furnish the requested information was unreasonable and procedurally unfair within the meaning of Article 47 of the Constitution and the Fair Administrative Action Act. The applicant relied on the decision of **Nairobi Law Monthly Co,. Limited -V- Kenya Electricity Generation Company & 2 others (2013) eKLR.** **(iii) Whether the applicant is entitled to Judicial Review orders**:-Counsel relied on the decision of **Republic -V- Kenya National Examination Council exparte Gathenji & others and Republic -V- Nairobi City County exparte Ojienda & Company Advocates (2019) KEHC 9569 (KLR)** where the court considered when an order of mandamus may issue, that is, to compel performance of a public duty imposed by statute where a public body/ person has failed or refused to perform the duty. 6. I have considered the application, affidavit in support, the statement of facts and the applicant’s submissions. 7. This Judicial Review application is brought pursuant to Article 35 (1) of the Constitution which guarantees the right to access information held by the state. 8. The Article provides as follows; Article 35 **(1) Every citizen has the right of access to—** **(a)information held by the State; and** **(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.** 9. By the letter addressed to the Governor West Pokot and County Secretary County Government of West Pokot dated 30/3/2026, the applicant requested to be supplied with the following documents: - 1. **Provide gazette notice that calls for public participation of the said project;** 2. **Provide date and venue of public participation of the said projects and how many contractors participated during and after opening of the tender and minutes thereafter;** 3. **Date the tender was advertised publicly and the estimated amount allocated to the said project;** 4. **Provide the advertisement of the said project in both electronic and print media;** 5. **Provide the tender document;** 6. **Provide the details of the highest and lowest bidder in the tender;** 7. **What is the quotation of the highest and the lowest bidder;** 8. **How did Mtelo Contractors become the winner;** 9. **How much did Mtelo Contractors quote as the as the chosen bidder.** 10. Article 201 of the Constitution deals with principles of public finance and provides inter alia **The following principles shall guide all aspects of public finance in the Republic—** **“(a) there shall be openness and accountability, including public participation in financial matters”** Since the applicant’s request relates to public procurement, the same is liable to public scrutiny by nature of Article 201 of the Constitution**.** 11. The applicant requested to be supplied with the said documents within seventy-two (72) hours. 12. The applicant approached this court to seek leave to commence Judicial Review orders by the chamber summons dated 13/4/2026, about twelve (12) days after the request. The applicant complaints that the information has not been supplied. 13. By the Access of Information Act 2016, Article 35 of the Constitution on the right to access information was given effect. Section 4 of the said Act reinforces the citizen’s right to access information. It states as follows **Section 4(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—** **(a)the State; and** **(b)another person where that information is required for the exercise or protection of any right or fundamental freedom.** **(2) Subject to this Act, every citizen's right to access information is not affected by—** **(a)any reason the person gives for seeking access; or** **(b)the public entity's belief as to what the person's reasons are for seeking access.** 14. The limitations to the right to access information is provided for under Section 6 (1) of the Act. The section lists the limitations to the said right under (a) – (i) **Limitation of right of access to information** **(1) Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—** **(a) undermine the national security of Kenya;** **(b)impede the due process of law;** **(c)endanger the safety, health or life of any person;** **(d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;** **(e)substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;** **(f)cause substantial harm to the ability of the Government to manage the economy of Kenya;** **(g)significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;** **(h)damage a public entity's position in any actual or contemplated legal proceedings; or** **(i)infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.** 15. The duties of the County Secretary are spelt out in section 44(3) of the County Government Act. The County Secretary is a public officer responsible for administration of County affairs and is the custodian of County records. 16. The Governor is the Chief Executive officer of the County Government and responsible for implementing the County Policy and oversight of public resource utilization. The applicant rightfully addressed the Respondents as he required to access the information held by the County Government. The Respondents did not reply to the request and have not demonstrated that the information sought by the applicant falls under the exceptions in Section 6 of the Access to Information Act which touches on inter alia – national security, which will endanger safety, health or life of any person, impede the due process of law etc. 17. The applicant deponed that he is a Kenyan Citizen. He is a resident of Keringet in West Pokot. He is therefore a person directly interested in how the County Government of West Pokot is governed and has the right to access information. 18. Whether an order of Mandamus can issue; In the case of **Republic -V- Kenya National Examination Council ex parte Gathenji (Supra)** the Court of Appeal outlined the situations when an order of mandamus may issue. The court said **“ The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again, we turn to HALISBURY’S LAW OF ENGLAND, 4h Edition Volume 1 a page 111 from paragraph 89.** **That learned treatise says: -** **“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”** **At paragraph 90 headed “the mandate” it is stated:** **“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation laid, a mandamus cannot command the duty in question to be carried out in a specific way.”** **“What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed…….”** 19. The order issues to compel performance of a public duty imposed by statute where the public body or officer has failed or refused to perform the said duty. 20. The respondents are public officers. Once the request for information was made by the applicant, they were under an obligation to supply the information required or give reasons for their refusal and/or failure to supply the said information. Having failed to perform the public duty imposed on them under Article 35 of the Constitution and the Access to information Act, the Respondents violated the applicant’s right under Article 35 (a) of the Constitution. 21. Consequently, I find that the applicant is deserving of the order sought. I allow the notice of Motion dated 13/4/2026 and direct that an order of Mandamus do issue compelling the Respondents to supply and or disclose procurement documents relating to the renovation project at Keringet University as requested, within fourteen days hereof. 22. The Respondent will bear costs of the application. **Dated, signed and delivered at Kapenguria this 15th day of July, 2026** **HON. R.P.V. WENDOH.** **JUDGE** Judgment read in the presence of:- Applicant – In person (Aggrey Wamalwa) Respondents - absent Court Assistants – Juma/Hellen