https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1931

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI IN THE JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION PETITION NO. E122 OF 2026 IN THE MATTER OF SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT, 2011, ARTICLES 2, 10, 20, 22, 23, 27, 35, 41, 47, 162(2)(a), 201, 232 AND 258 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION OF THE RIGHT OF ACCESS TO INFORMATION, FAIR LABOUR PRACTICES AND THE PRINCIPLES OF TRANSPARENCY, ACCOUNTABILITY AND FAIR PUBLIC ADMINISTRATION AND IN THE MATTER OF IRREGULAR, OPAQUE AND UNPROCEDURAL RECRUITMENT AND PAYROLL MANAGEMENT AT THE NATIONAL LAND COMMISSION BETWEEN ACTION FOR JUSTICE AND EQUALITY ................................................................PETITIONER -VERSUS- KABALE TACHE AREO THE CHIEF EXECUTIVE OFFICER, NATIONAL LAND COMMISSION...........1ST RESPONDENT BEN CHERUTICH THE DIRECTOR OF FINANCE, NATIONAL LAND COMMISSION..................2ND RESPONDENT BEN BETT, THE DIRECTOR OF HUMAN RESOURCE, NATIONAL LAND COMMISSION………………………………………………..3RD RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The petitioner represented by Gaddaffi Isiavale alleged irregular recruitment, unlawful payroll management, noncompetitive employment practices and breach of public service employment obligations by the respondents vide a petition dated 18th April 2016. The petitioner sought for the following Orders- 2. A Declaration that the Respondents' failure to provide the requested information is unconstitutional and violates Article 35 of the Constitution of Kenya, 2010. 3. A Declaration that the recruitment, employment and payroll practices complained of are unconstitutional and unlawful, violating Articles 10, 27, 41, 47, 201 and 232 of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011. 4. An Order of Mandamus compelling the Respondents to provide the Petitioner with the information requested in the letter dated 1st April 2026 and to furnish certified records of all recruitment, appointment and payroll records for the period February 2023 to March 2026 within fourteen (14) days of the order. 5. An Order restraining the Respondents from recruiting, appointing, engaging or retaining any persons in employment outside lawful, constitutional and competitive procedures. 6. An Order directing that any recruitment undertaken in violation of the Constitution and applicable employment laws be declared null and void. 7. An Order for independent audit and/or investigation of recruitment and payroll practices within the National Land Commission for the period February 2023 to date. 8. An Order directing the Respondents to file a compliance report with this Honourable Court within sixty (60) days of the orders herein. 9. Costs of the Petition. 10. Any other or further relief that this Honourable Court may deem fit and just. 2. The petitioner simultaneously filed an application by way of Notice of Motion of even date where it sought for the following orders- * 1. THAT this Application be certified urgent and heard ex-parte in the first instance. 2. THAT pending the hearing and determination of this Application inter partes, this Honourable Court be pleased to issue a temporary conservatory order restraining the Respondents, whether by themselves, their agents, servants or assigns, from recruiting, appointing, engaging or retaining any persons, whether on permanent, contractual, casual, PNP or any other employment terms. 3. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a temporary conservatory order restraining the Respondents, whether by themselves, their agents, servants or assigns, from recruiting, appointing, engaging or retaining any persons, whether on permanent, contractual, casual, PNP or any other employment terms. 4. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an order compelling the Respondents to preserve and maintain all recruitment records, appointment letters, interview documentation and payroll records for the period February 2023 to date. 5. THAT the costs of this Application be borne by the Respondents. 6. THAT this Honourable Court be pleased to grant such further or other orders as it may deem fit and just in the circumstances. 1. When the application was placed before the duty judge on the 20th May 2026 no interim order was issued. The application having not been certified as urgent, and in order to determine the grievance with finality the court ordered the application to be determined under the petition. Response to the petition 1. The respondent filed a replying affidavit sworn on the 5th May 2026 by Brian Akol, who stated to be the Director of Legal Affairs and Dispute Resolution of the National Land Commission, on behalf of the respondents. The respondents opposed the petition. The petitioners’ case in summary 1. The Petitioner described itself as a non-partisan civil society organisation committed to the promotion of constitutionalism, transparency, accountability and the rule of law within public institutions. The petitioner stated as follows- That this Petition is brought in the public interest pursuant to Articles 22 and 258 of the Constitution of Kenya, 2010. The Respondents are senior officers within the National Land Commission responsible for administration, finance, and human resource management, and are therefore constitutionally and statutorily bound to uphold the values and principles of public service employment. The Petitioner has received credible, consistent and uncontroverted reports of ongoing irregular, unlawful and opaque recruitment and employment practices within the National Land Commission. The said reports indicate that recruitment is being conducted outside established legal and constitutional employment procedures; individuals are being engaged and/or retained without competitive and transparent processes; there exist irregular engagements, including casual and PNP arrangements, lacking legal or procedural justification; and payroll management lacks transparency, raising concerns as to the legality of payments made from public funds. In order to verify the said information and promote transparency and accountability in public employment, the Petitioner, vide a letter dated 1st April 2026, formally requested access to information from the Respondents pursuant to Article 35 of the Constitution. The said request sought, inter alia, a complete and certified list of all persons recruited, appointed or retained, details of recruitment processes including advertisement, shortlisting and interviews, a complete and certified payroll and the legal basis for any non-competitive or irregular appointments. 26. Despite the clear constitutional and statutory obligation to provide such information, the Respondents have failed, refused and/or neglected to respond to the request within the stipulated seven (7) days or at all. The Respondents' silence amounts to a constructive refusal to provide information, in violation of Article 35 of the Constitution of Kenya, 2010. The continued refusal to disclose the requested information has obstructed transparency and accountability in a public institution, prevented public scrutiny of the use of public funds and shielded potentially unlawful employment conduct from oversight. The Petitioner avers that the impugned recruitment and employment practices are ongoing and continue to be undertaken in violation of constitutional and statutory employment requirements. Unless this Honourable Court intervenes, the Respondents will continue to engage and/or employ persons irregularly, circumvent constitutional employment standards, misapply public funds and undermine public confidence in constitutional governance. The Respondent’s case 1. Conversely, the Respondents state as follows- THAT save where expressly admitted herein, the Respondents deny each and every allegation, insinuation and averment contained in the Petition and put the Petitioner to strict proof thereof. THAT the Petition, in so far as it is directed against the Respondents, is fatally defective, incurably incompetent, misconceived, devoid of merit and ought to be dismissed with costs. THAT the Petitioner alleges violation of Article 35 of the Constitution however, the right under Article 35 is not absolute and must be exercised strictly in accordance with the Access to Information Act. THAT under Sections 8, 9 and 11 of the Access to Information Act, a request must; a) Be specific and clear; b) Be capable of identification; c) Be reasonable and not oppressive. 1. THAT the Petitioner's request was overly broad and omnibus in nature, sought bulk information covering multiple individuals and processes and required disproportionate diversion of institutional resources. THAT the Respondents did not refuse access but acted within the law by declining disclosure of the information sought by the Petitioner in that the information sought falls within the exemptions under Section 6 of the Access to Information Act, which include: a) Personal and confidential employment records; b) Information protected for privacy and dignity; c) Internal deliberative processes; d) Information whose disclosure would undermine lawful administrative processes. 1. THAT disclosure of recruitment and employment records of individuals would violate their constitutional rights under Articles 28 and 31 on dignity and privacy. That the Petition is premature for failure to invoke dispute resolution mechanisms before the Commission for Administrative Justice as provided under Section 14 of the Access to Information Act. That any grievance ought first to have been lodged before the Commission on Administrative Justice, which is mandated to: a) Review refusals; b) Order disclosure where appropriate; c) Balance competing rights. 1. THAT the doctrine of exhaustion applies and bars this Honorable Court from entertaining the Petition at this stage. 2. That the allegations of breach of Articles 41, 10, 232 and 47 inter alia are generalized, unsupported by evidence and based on speculations rather than fact. The Respondents have at all times acted lawfully, transparently and within constitutional and statutory mandate. That no violation has been demonstrated as the Petitioner failed to comply with statutory procedures. The Court cannot issue blanket disclosure orders where requests are vague and excessive, where information is protected by law and where statutory exemptions apply. That such disclosure of personal data of the employees as requested by the Petitioner contravenes Sections 29 and 30 of the Data Protection Act, 2019 which stipulates the need for obtaining consent from the data subjects and prior notifications before collecting such personal information. That the Data Protection Act, 2019 gives effect to Article 31 of the Constitution. which protects the right to privacy and provides the need for consent or lawful basis before disclosure of personal information. That the Petitioner has not given any substantial or lawful basis for wanting disclosure of the personal information of the employees of the National Land Commission or for allowance of any form of access to their personal data, neither has the Petitioner obtained consent or followed the statutory procedure as required by Law. That further, pursuant to Section 36 of the Data Protection Act, 2019, the data subjects are at liberty to object such processes and or access to personal data if no legitimate reason is issued by the collector unless the data controller or data processor demonstrates compelling legitimate reasons. That the Petitioner is relying on purported reports alleging irregular, opaque and potentially unlawful recruitments and retention of individuals within the National Land Commission but has not supported these claims with any tangible evidence. That the Petitioner's actions are aimed at tainting the National Land Commission's image based on falsehood, unwanted allegations and unsubstantiated facts and this Honorable court must put the Petitioner strict proof thereof of the said allegations. 3. That the prayer to nullify recruitment/appointments is unsupported by evidence, disconnected from the alleged access to information claim and therefore an abuse of constitutional litigation. The recruitment processes are governed by statute and internal procedures, and no illegality has been occasioned as alleged by the Petitioner, neither have the allegations been proved. The Court ought not to assume administrative functions of oversight bodies without a proper factual and legal basis. The Petition is frivolous and should be dismissed with costs thereof. That the law on access to information is well settled in Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company where the court opined that the Right to information must follow proper procedure. That in Katiba Institute v Presidents Delivery Unit, the court expressed itself firmly by stating that the Courts will not enforce vague or generalized requests. That further in Republic v Kenya Power & Lighting Company ex parte Consumers Federation of Kenya, the court declared itself by stating that exhaustion doctrine applies before approaching Court. In Trusted Society of Human Rights Alliance v Attorney General, the Honorable court opined that Constitutional petitions must be precise and supported by evidence. The Petitioner has not issued any evidence on record to support its allegations. Neither does the Petition disclose any constitutional violation, yet it seeks to bypass statutory procedures on speculative and legally untenable accusations. The Petitioner ought to have first lodged any grievances before the Commission on Administrative Justice, which is mandated to review refusals, order disclosure where appropriate and to balance competing rights where necessary. It is in the interest of justice that the Petition be dismissed with costs. That the Petition is an abuse of precious judicial time and it is in the interests of justice and fairness that the same be dismissed with costs to the Respondents. DETERMINATION 1. The petition was canvassed by way of written submissions. The parties complied. Issues for determination 1. The petitioner submitted on the following issues- 2. Issue 1: Whether this Honourable Court has jurisdiction to hear and determine this Petition. 3. Issue 2: Whether the Respondents’ failure to respond to the information request dated1st April 2026 constitutes a violation of Article 35 of the Constitution 4. Issue 3: Whether the doctrine of exhaustion of remedies operates to bar this Petition. 5. Issue 4: Whether the information request was unlawfully broad or otherwise exempted under the Access to Information Act. 6. Issue 5: Whether data protection considerations extinguish the Petitioner’s constitutional right of access to information. 7. Issue 6: Whether the recruitment and payroll practices at the NLC are unconstitutional and unlawful. 8. Issue 7: Whether the Petition meets the constitutional threshold for constitutional litigation. 9. Issue 8: What reliefs are appropriate in the circumstances. 10. Conversely, the respondent submitted on the following issues- 11. Whether both the Petition and the Application are premature for failure to exhaust statutory dispute resolution mechanisms under the Access to Information Act 12. Whether the Petitioner/Applicant has established violation of the right to access information under Article 35 of the Constitution. 13. c) Whether the information sought is exempt from disclosure under the Access to Information Act and the Data Protection Act, 2019. 14. Whether both the Petition and Application meet the constitutional threshold for constitutional litigation. 15. Whether the Petitioner/Applicant is entitled to the reliefs sought. 16. The court found the parties were in agreement on the issues to be determined. The consolidated the issues as follows- 17. Whether the doctrine of exhaustion of remedies under the Access to Information Act operates to bar this Petition. If the above in the negative ii. Whether the petition had merit and available remedies Whether the doctrine of exhaustion of remedies under the Access to Information Act operates to bar this Petition. 1. The petitioner seeks for the following substantive order- An Order of Mandamus compelling the Respondents to provide the Petitioner with the information requested in the letter dated 1st April 2026 and to furnish certified records of all recruitment, appointment and payroll records for the period February 2023 to March 2026 within fourteen (14) days of the order. 2. The respondent submitted as follows:- that the Petition/Application herein offends the doctrine of exhaustion. Section 14 of the Access to Information Act establishes the Commission on Administrative Justice as the statutory body mandated to review decisions relating to denial of access to information. The Petitioner/Applicant admittedly failed to invoke the statutory dispute resolution mechanism before approaching this Honourable Court. The doctrine of exhaustion is now settled in Speaker of the National Assembly v Karume, where the Court held: "Where there is a clear procedure for redress prescribed by the Constitution statute, that procedure should be strictly followed." or Similarly, in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others 2015 eKLR, the Court emphasized that parties must first exhaust alternative dispute resolution mechanisms before resorting to Court proceedings. The High Court in Republic v Kenya Power & Lighting Company ex parte Consumers Federation of Kenya 2017 eKLR reaffirmed that the exhaustion doctrine applies to disputes concerning access to information before parties can approach the Court. Clearly, where the doctrine of exhaustion applies, parties must first seek redress before specialized statutory bodies prior to approaching the Court. The Petitioner/Applicant has not demonstrated any exceptional circumstances warranting bypass of the statutory mechanism established under the Access to Information Act. Consequently, we respectfully submit that both the Petition and the instant Application are premature and ought to be struck out. 3. Conversely, the petitioner submitted as follows to justify the petition: The Respondents contend that the Petition is premature because the Petitioner failed to invoke the dispute resolution mechanism before the Commission on Administrative Justice under Section 14 of the Access to Information Act before approaching this Court. It is submitted that the doctrine of exhaustion does not operate as an absolute bar to constitutional litigation, and certainly not in the circumstances of this Petition. The Supreme Court of Kenya in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR affirmed that where constitutional rights are directly at stake, courts of competent jurisdiction retain inherent authority to entertain a petition notwithstanding the existence of alternative statutory mechanisms, particularly where those mechanisms are inadequate to grant the relief sought. This Petition does not raise a complaint about access to information alone. It raises compound and interrelated constitutional violations spanning Articles 10, 27, 35, 41, 47, 201 and 232 of the Constitution, going to the heart of public employment law and the management of public funds. None of these violations can be addressed by the Commission on Administrative Justice, whose mandate is strictly confined to reviewing refusals of information requests under the Access to Information Act. The CAJ possesses no power to issue declarations of unconstitutionality, orders of mandamus, permanent injunctions, orders for independent audit, or any remedy cognisable under employment law. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal reaffirmed that Article 22(1) of the Constitution provides without qualification that every person has the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened. No statute can extinguish this constitutionally guaranteed right of access to justice. The Respondents rely on Speaker of the National Assembly v Karume and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others for the exhaustion principle. These authorities are inapplicable to the present circumstances for four compelling reasons. To begin with, both cases arose in the context of purely statutory disputes, entirely devoid of the compound constitutional dimension that characterises this Petition. Moreover, the Respondents invoke Karume selectively: that decision itself qualifies the exhaustion principle by stating it applies only where there is a clear procedure for redress prescribed by the Constitution or statute. The CAJ procedure under Section 14 of the Access to Information Act is neither clear nor adequate for the multi-dimensional constitutional violations raised herein. Furthermore, this Petition invokes the exclusive constitutional jurisdiction of this Court under Article 162(2)(a) over employment and labour disputes in the public service, a jurisdiction that no administrative body can displace. Finally, the Supreme Court in Communications Commission of Kenya v Royal Media Services expressly recognised an exception to the exhaustion doctrine where the constitutional violation is manifest and immediate, which is precisely the situation here. The Respondents’ reliance on Republic v Kenya Power & Lighting Company ex parte Consumers Federation of Kenya [2017] eKLR is also misplaced. That matter was confined to a single access to information complaint against a private utility company and did not engage employment rights under Articles 41 and 232, public finance obligations under Article 201, or equality in public employment under Article 27. The present Petition engages the exclusive constitutional jurisdiction of this Court over public sector labour relations. Transposing that narrow authority as a general bar against this compound constitutional petition finds no support in the ratio of that decision and should be firmly rejected. In Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya & 10 Others [2015] eKLR, the High Court held that where a petition raises multiple constitutional provisions and seeks structural remedies beyond the competence of any administrative body, the doctrine of exhaustion cannot operate to defeat access to justice. To require the Petitioner to pursue the CAJ mechanism first would be to reward the Respondents’ obstruction with further delay and to defeat the constitutional imperative of timely redress. The persuasive authority of Doctors for Life International v Speaker of the National Assembly & Others CCT 12/05 [2006] ZACC 11, consistently applied by Kenyan courts, is also instructive. That Constitutional Court held that where a petitioner raises multiple constitutional claims, the doctrine of exhaustion cannot be selectively applied to bar jurisdiction over the whole petition merely because one of the claims may arguably have an alternative statutory remedy. This principle applies with full force to the present Petition. Decision 1. Section 14 of the Access to Information Act states as follows: ' 14**. Review of decisions by the Commission** (1)Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information— (a)a decision refusing to grant access to the information applied for; (b)a decision granting access to information in edited form; (c)a decision purporting to grant access, but not actually granting the access in accordance with an application; (d)a decision to defer providing the access to information; (e)a decision relating to imposition of a fee or the amount of the fee; (f)a decision relating to the remission of a prescribed application fee; (g)a decision to grant access to information only to a specified person; or (h)a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under [section 13](https://new.kenyalaw.org/akn/ke/act/2016/31/eng%402022-12-31#part_III__sec_13). (2)An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant. (3)The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act. (4)The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under [section 22](https://new.kenyalaw.org/akn/ke/act/2016/31/eng%402022-12-31#part_V__sec_22) of this Act or as prescribed by the Commission.’’ 1. The petitioner defends its decision to skip the above forum under Section 14 of the Access to Information Act as follows: The CAJ procedure under Section 14 of the Access to Information Act is neither clear nor adequate for the multi-dimensional constitutional violations raised herein. Furthermore, this Petition invokes the exclusive constitutional jurisdiction of this Court under Article 162(2)(a) over employment and labour disputes in the public service, a jurisdiction that no administrative body can displace. Finally, the Supreme Court in Communications Commission of Kenya v Royal Media Services expressly recognised an exception to the exhaustion doctrine where the constitutional violation is manifest and immediate, which is precisely the situation here. The petitioner contended that the Respondents’ reliance on Republic v Kenya Power & Lighting Company ex parte Consumers Federation of Kenya [2017] eKLR is also misplaced. That matter was confined to a single access to information complaint against a private utility company and did not engage employment rights under Articles 41 and 232, public finance obligations under Article 201, or equality in public employment under Article 27. The present Petition engages the exclusive constitutional jurisdiction of this Court over public sector labour relations. Transposing that narrow authority as a general bar against this compound constitutional petition finds no support in the ratio of that decision and should be firmly rejected. In Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya & 10 Others [2015] eKLR, the High Court held that where a petition raises multiple constitutional provisions and seeks structural remedies beyond the competence of any administrative body, the doctrine of exhaustion cannot operate to defeat access to justice. To require the Petitioner to pursue the CAJ mechanism first would be to reward the Respondents’ obstruction with further delay and to defeat the constitutional imperative of timely redress. The persuasive authority of Doctors for Life International v Speaker of the National Assembly & Others CCT 12/05 [2006] ZACC 11, consistently applied by Kenyan courts, is also instructive. That Constitutional Court held that where a petitioner raises multiple constitutional claims, the doctrine of exhaustion cannot be selectively applied to bar jurisdiction over the whole petition merely because one of the claims may arguably have an alternative statutory remedy. This principle applies with full force to the present Petition. 2. The petitioner sought for the following orders- 3. A Declaration that the Respondents' failure to provide the requested information is unconstitutional and violates Article 35 of the Constitution of Kenya, 2010. 4. A Declaration that the recruitment, employment and payroll practices complained of are unconstitutional and unlawful, violating Articles 10, 27, 41, 47, 201 and 232 of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011. 5. An Order of Mandamus compelling the Respondents to provide the Petitioner with the information requested in the letter dated 1st April 2026 and to furnish certified records of all recruitment, appointment and payroll records for the period February 2023 to March 2026 within fourteen (14) days of the order. 6. An Order restraining the Respondents from recruiting, appointing, engaging or retaining any persons in employment outside lawful, constitutional and competitive procedures. 7. An Order directing that any recruitment undertaken in violation of the Constitution and applicable employment laws be declared null and void. 8. An Order for independent audit and/or investigation of recruitment and payroll practices within the National Land Commission for the period February 2023 to date. 9. An Order directing the Respondents to file a compliance report with this Honourable Court within sixty (60) days of the orders herein. 10. Costs of the Petition. 11. Any other or further relief that this Honourable Court may deem fit and just. 12. I find the prayers in isolation are not sufficient to inform on the actual cause of action. The supporting affidavit presents the evidence in support of the petition. Gaddafi Isiavale vide affidavit dated 18th April 2026 supported the petition as follows- That the Petitioner/Applicant is a non-partisan civil society organisation dedicated to advancing constitutionalism, transparency, accountability and adherence to the rule of law in public institutions. That this Petition is brought in the public interest pursuant to Articles 22 and 258 of the Constitution of Kenya, 2010, and within the exclusive original jurisdiction of this Honourable Court under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011, which confers jurisdiction over matters relating to employment and labour relations, including enforcement of fair employment and labour practices within public institutions. That by a letter dated 1st April 2026, the Petitioner/Applicant formally wrote to the Respondents requesting access to information pursuant to Article 35 of the Constitution of Kenya, 2010. A copy of the said letter is annexed hereto and marked "GI-1". That the said request was prompted by credible and consistent information of irregular recruitment, opaque employment practices and unlawful retention of staff within the National Land Commission — matters that fall squarely within the jurisdiction of this Honourable Court. That the said letter sought, inter alia, the following information:- (a) A complete and certified list of all persons recruited, appointed or retained in employment at the National Land Commission, including their job titles, departments and dates of appointment; (b) Full details of all recruitment processes undertaken, including proof of competitive advertisement, shortlisting and interview records; (c) A complete and certified payroll of all persons drawing salaries or benefits from public funds through the National Land Commission; and (d) The legal basis and authority for all appointments that were not made through open and competitive recruitment processes. That the said request was grounded on Article 35 (right of access to information), Article 10 (national values of transparency and accountability), Article 41 (fair labour practices) and Article 232 (values and principles of public service) of the Constitution of Kenya, 2010. That to date, the Respondents have wholly failed, refused and/or neglected to respond to the said request, offer any explanation or supply any of the information sought. That the Respondents' silence constitutes a constructive refusal to disclose information as required under Article 35 of the Constitution and amounts to a violation of the Petitioner's constitutional right of access to information. That the said refusal has effectively denied the Petitioner the information necessary to monitor and promote transparency and accountability in the employment and labour practices of a public institution. That the Petitioner has received credible information that the Respondents continue to engage and/or employ persons irregularly, retain individuals outside lawful appointment frameworks and bypass competitive recruitment processes, in contravention of the Employment Act, 2007, the Labour Relations Act, 2007, the National Land Commission Act and the Public Service (Values and Principles) Act, 2015. That the said conduct is contrary to the constitutional imperatives of merit-based and competitive recruitment, and violates the right to fair labour practices guaranteed under Article 41 of the Constitution. That unless restrained, the Respondents are likely to continue irregularly engaging additional persons, including on casual and/or Personal Needs Purposes (PNP) terms, in contravention of applicable employment and labour law. That continued non-transparent recruitment poses a real and imminent risk of misuse of public funds, entrenchment of irregular employment structures and the undermining of constitutional governance and fair labour practices at the National Land Commission. That without access to payroll and employment records, it is impossible to verify the legitimacy of current employees, ensure accountability in public expenditure, or enforce constitutional and statutory labour standards. That unless this Honourable Court intervenes, this Petition risks being rendered nugatory, as continued and unmonitored recruitment will further obscure accountability and frustrate enforcement of employment and labour rights. That all attempts to obtain the information through administrative channels have been futile, making it necessary to invoke the jurisdiction of this Honourable Court. That it is just, equitable and in the public interest for this Honourable Court to compel disclosure of the requested information and to issue conservatory orders restraining further irregular recruitment pending the hearing and determination of this Petition. 13. The eye of the court was caught by the following averment in support of the petition – ‘16. THAT without access to payroll and employment records, it is impossible to verify the legitimacy of current employees, ensure accountability in public expenditure, or enforce constitutional and statutory labour standards. 17. THAT unless this Honourable Court intervenes, this Petition risks being rendered nugatory, as continued and unmonitored recruitment will further obscure accountability and frustrate enforcement of employment and labour rights. 18. THAT all attempts to obtain the information through administrative channels have been futile, making it necessary to invoke the jurisdiction of this Honourable Court. ’ The court found that the petitioner filed a misleading document by stating it had made all attempts to obtain the information sought in the instant petition, yet it had not invoked the available forum under section 14 of the Access to Information Act. 1. In the opinion of the court, the petitioner by admission in the petition that –‘16. THAT without access to payroll and employment records, it is impossible to verify the legitimacy of current employees, ensure accountability in public expenditure, or enforce constitutional and statutory labour standards. The instant petition was based on hearsay. The law has provided for a sufficient remedy for the petitioner to obtain the information it seeks before the court. The court finds that the main issue in the petition is obtaining the information to investigate the suspicions of violations of the law by the respondents . I find the mandate of the CAJ is unfettered. In **Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Petition No. 14, 14A, B & C of 2014,**the Supreme Court delivered itself thus on the issue:-**“[256] The appellants in this case are seeking to invoke the** “principle of avoidance”,**also known as**“constitutional avoidance”**. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided**on another basis**. In South Africa, in** S v. Mhlungu, 1995 (3) SA 867 (CC) **the Constitutional Court, Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:**“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” **[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of** (**Ashwander v. Tennessee Valley Authority**, 297 U.S. 288, 347 (1936)).”I am persuaded that the main issue is the lack of access to documents under the custody of the respondents, and that the other issues raised are meant to circumvent the process under section 14 of the Aces to Information Act. The allegations of violations of the law and constitutional allegations are baseless as the petitioner admits in the petition –‘16. THAT without access to payroll and employment records, it is impossible to verify the legitimacy of current employees, ensure accountability in public expenditure, or enforce constitutional and statutory labour standards\.’ I hold the petition as premature, a lack of exhaustion of the clear procedure under section 14 of the Access to Information Act(Speaker of the National Assembly v Karume(supra) upheld). The court has no first instance jurisdiction on the right to access to information . The petition is struck out. The application filed herein stands dismissed. 1. The petitioner was acting in the public interest. Each party to bear its own costs. 2. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner - Gaddafi CEO Respondent – Ms Oraro h/b Koceyo