[2025] KEHC 7942 (KLR)

Kariuki (Suing as a Member of and in the Interest of a Group of Persons going by the Name Eintreten Association) & 4 others v Muguna & 2 others (Constitutional Petition E529 of 2024) [2025] KEHC 7942 (KLR) (Constitutional and Human Rights) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 7942 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E529 of 2024

AB Mwamuye, J

March 27, 2025

IN THE OF ARTICLES 10(2) (a), 19(3) (b), 20 (3) (b), 22(2) (b), 23, 33 (1) (a), 35 (1) (a), 43 (f), 47, 174 (c) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF AN ALLEGED INFRIGEMENT/ DENIAL/ VIOLATION OF THE RIGHT OF THE GROUPS OF THE PETITIONERS HEREIN TO ACCESS TO INFORMATION UNDER ARTICLE 35(1) (a) OF THE CONSTITUTION OF KENYA 2010 AND AS RECOGNIZED OR CONFERRED BY THE PROVISIONS OF SECTION 96(1) OF THE COUNTY GOVERNMENT ACT LAWS OF KENYA, SECTION 80 OF THE EVIDENCE ACT CAP 80 LAWS OF KENYA AS READ WITH THE PROVISIONS OF SECTION 10 OF THE PUBLIC OFFICER ETHICS ACT CAP 185B LAWS OF KENYA (Construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution of Kenya 2010) AS READ TOGETHER WITH THE PROVISIONS OF SECTION 5(2) (h) OF THE PUBLIC SERVICE VALUE AND PRINCIPLES) ACT NO. CAP 185A LAWS OF KENYA AND IN LINE WITH THE PROVISIONS OF ARTICLE 19(3) (b) OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF AN ALLEGED INFRINGEMENT / DENIAL/ VIOLATION OF THE RIGHT OF THE GROUPS OF THE PETITIONERS HEREIN TO FAIR ADMINISTRATIVE ACTION THAT IS EXPEDITIOUS, EFFICIENT, LAWFUL, REASONABLE AND PROCEDURALLY FAIR UNDER ARTICLE 47 OF THE CONSTITUTION OF KENYA 2010 AND AS RECOGNISED OR CONFERRED BY THE PROVISIONS OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTIONS ACT CAP 7L LAWS OF KENYA IN LINE WITH THE PROVISIONS OF ARTICLE 19(3) (b) OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF AN ALLEGED INFRINGEMENT / DENIAL/ VIOLATION OF THE RIGHT OF THE GROUPS OF THE PETITIONERS HEREIN TO THE RULE OF LAW UNDER ARTICLE 10 (2) (a) OF THE CONSTITUTION OF KENYA 2010 AS RECOGNISED OR CONFERRED THE PROVISIONS OF SECTION 96 (1) OF THE COUNTY GOVERNMENT ACT CAP 265 LAWS OF KENYA 265 LAWS OF KENYA, SECTION 4 OF THE ACCESS TO INFORMATION ACT CAP 7M LAWS OF KENYA, SECTIONS 80 OF THE EVIDENCE ACT CAP 80 LAWS OF KENYA AS READ WITH THE PROVISIONS OF SECTION 10 OF THE PUBLIC OFFICER ETHICS ACT CAP 185B LAWS OF KENYA (construed with the alterations , adaptations , qualifications and exceptions necessary to bring it into conformity with the Constitution of Kenya 2010) AS READ TOGETHER WITH THE PROVISIONS OF SECTION 5 (2) (h) OF THE PUBLIC SERVICE (VALUE AND PRINCIPLES) ACT CAP 185 LAWS OF KENYA AND IN LINE WITH THE PROVISIONS OF ARTICLE 19(3) (b) OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF AN ALLEGED INFRINGEMENT /DENIAL / VIOLATION OF THE RIGHT OF THE GROUPS OF THE PETITIONERS HEREIN TO SEEK, RECEIVE AND IMPART INFORMATION UNDER ARTICLE 33(1) (a) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF AN ALLEGED INFRINGEMENT/ DENIAL/ VIOLATION OF THE RIGHT OF THE GROUPS OF THE PETITIONERS HEREIN TO EDUCATION UNDER ARTICLE 43 (f) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF AN ALLEGED INFRINGEMENT/ DENIAL/ VIOLATION OF THE RIGHT OF THE GROUP OF THE PETITIONERS HEREIN TO RECEIVING POWERS OF SELF – GOVERNANCE AND ENHANCING THE PARTICIPATION OF THE GROUPS OF THE PETITIONERS HEREIN IN THE EXERCISE OF THE POWERS OF THE STATE AND MAKING DECISIONS AFFECTING THEM IN THE OPERATIONS OF THE 2ND RESPONDENT HEREIN UNDER ARTICLE 174 (c) THE CONSTITUTION OF KENYA 2010 AS RECOGNIZED OR CONFERRED BY THE PROVISIONS OF SECTION 96 (1) OF THE COUNTY GOVERNMENT ACT CAP 265 LAWS OF KENYA, SECTION 4 OF THE ACCESS TO INFORMATION ACT CAP 7M LAWS OF KENYA, SECTION 80 OF THE EVIDENCE CAP 80 LAWS OF KENYA AS READ WITH THE PROVISIONS OF SECTION 10 OF THE PUBLIC OFFICER ETHICS ACT CAP 185B LAWS OF KENYA (Construed with the alternations, adaptions, qualifications and exceptions necessary bring it into conformity the Constitution of Kenya 2010) AS READ TOGETHER WITH THE PROVISIONS OF SECTION 5 (2) (h) OF THE PUBLIC SERVICE (VALUE AND PRINCIPLES) ACT CAP 185A LAWS OF KENYA AND IN LINE WITH THE PROVISIONS OF ARTICLE 19 (3) (b) OF THE CONSTITUTION OF KENYA 2010.

Between

James Gacheru Kariuki (Suing as a Member of and in the Interest of a Group of Persons going by the Name Eintreten Association)

1st Petitioner

Moses Mega Githinji (Suing as a Member of and in the Interest of a Group of Persons going by the Name Malewa Sibs Association)

2nd Petitioner

James Gachira Nganga (Suing as a Member of and in the Interest of a Group of Persons going by the Name Wiselike Group)

3rd Petitioner

Beth Wangui Kariuki Suing as a Member of and in the Interest of a Group of Persons going by the Name Nongaimwara Association)

4th Petitioner

Joyce Njoki Kibuthu (Suing as a Member of and in the Interest of a Group of Persons going by the Name Lobbydale Associates)

5th Petitioner

and

Nahason Muguna

1st Respondent

Nairobi City Water and Sewerage Company Limited

2nd Respondent

The Commission on Administrative Justice

3rd Respondent

Judgment

1. The Petitioners are Kenyan citizens residing and working for gain in Kiambu County. They instituted the instant Petition dated 24th September, 2024 in the interest of their respective groups.

2. The 1st Respondent, Nahason Muguna, is the Managing Director and the Statutory Information Officer designate of the Nairobi City Water and Sewerage Company Limited, the 2nd Respondent herein.

3. The 2nd Respondent is a body corporate established under the Companies Act Cap 486 Laws of Kenya.

4. The 3rd Respondent is a body corporate established under Section 3 of the Commission on Administrative Justice Act Cap 7J Laws of Kenya.

Petitioners’ Position 5. The Petitioners allege that the groups of the Petitioners herein, in a joint letter dated 1st December 2023, requested to be granted access to specific information held by the 2nd Respondent herein.

6. They further allege that after 21 days with no response and in accordance to Section 9 (6) of the Access to Information Act [Cap 7M Laws of Kenya], they deemed their application for grant of access to information from the 2nd Respondent to have been rejected.

7. According to the Petitioners, they proceeded to write a letter dated 29th December, 2023 to the 3rd Respondent herein for its review.

8. They further allege that on 9th January, 2024, the 3rd Respondent wrote to the 1st Respondent requesting that he responds to the Petitioners in line with Section 9 (4) of the Access to Information Act Cap 7M Laws of Kenya.

9. The Petitioners further state that on 19th March, 2024, the 3rd Respondent wrote to the 1st Respondent clarifying that the information sought by the Petitioners’ groups had no relation to or with Nairobi Constitutional Petition No. E327 of 2022 and requested for an institutional report from the 1st and/ or 2nd Respondents herein.

10. The Petitioners further averred that on 20th March 2024, the Petitioners’ groups wrote to the 3rd Respondent applying for a review of the Respondents’ decisions with finality, to enable them take the next cause of action. They further contend that on 16th May 2024, the 3rd Respondent responded to the Petitioners and stated that they, the 3rd Respondent, were functus officio.

11. The Petitioners aver that in a letter dated 7th June, 2024, the 2nd Respondent granted the Petitioners herein access to the minutes of the Annual General Meetings for the years 2013, 2014 and 2017 but neglected, ignored and/ or refused to grant them access to the minutes for the years 2015, 2016, 2018, 2019, 2020, 2021, 2022 and 2023 and equally failed to demonstrate that the 2nd Respondent did not have those minutes.

12. The Petitioners further claim that the 3rd Respondent forwarded an edited version of the information sent to it by the 1stand/or the 2nd Respondent, thereby misleading the Petitioners to believe that they received the minutes of the Annual General Meetings for the years 2013, 2014 and 2017 only; which the 3rd Respondent forwarded to the Petitioners under its cover letter dated 10th June 2024.

13. The Petitioners filed an Affidavit in rejoinder sworn by James Gacheru Kariuki on 20th January 2025 where the Petitioners aver that without swearing under the Corporate Seal of the Nairobi City Water and Sewerage Company Limited, the 1st Respondent has no legal capacity to act on behalf of the 2nd Respondent.

14. The Petitioners further aver that the documents annexed by the 1st and 2nd Respondents marked ‘NM4’ and ‘NM7’ are not minutes but draft minutes that are unsigned and to date they have not been granted access to minutes of the AGM in the name of extra ordinary meeting for the year 2019 and the year 2023.

15. The Petitioners also contend that the Chief Executive Officer of the 3rd Respondent lacks locus standi to act on behalf of the 3rd Respondent as she has not sworn her Replying Affidavit under the Corporate Seal of the Commission as required by Order 9 Rule 2 of the Civil Procedure Rules 2010.

16. The Petitioners seeks the reliefs that: -A.A Declaration do issue that it is a requirement, in line with the provisions of Articles 10 (2)(a), 33 (1)(a) & 174 (c) of the Constitution of Kenya 2010 and in accordance with the provisions of Section 4 (1), (5) & 7(1) of the Access to Information Act Cap 7M Laws of Kenya, Section 96(1) of the County Government Act Cap 265 Laws of Kenya, Section 80 of Cap 80 Laws of Kenya that as a state organ/ public officer, the Respondents herein jointly or in the alternative are to grant access to any information held by the 2nd Respondent to any citizen of Kenya expeditiously and as of a right upon a request.B.A Declaration do issue that the provisions of Articles 10(2)(a) participation of the people and the provisions of Article 174(c) of the Constitution of Kenya 2010 although not in the bill of rights are rights conferred and or recognized by the provisions of PART VIII as read with the provisions of section 92(1) of the County Government Act Cap 265 Laws of Kenya in line with the provisions of Article 19(3)(b) of the Constitution of Kenya 2010. C.An Order do issue that the orders of the Commission on Administrative Justice herein made on 16th May 2024 in relation to the matter herein are hereby the orders of this Honourable Court.D.A Declaration do issue that the right of the groups of the Petitioners herein under Articles 10(2)(a), 33(1)(a), 35(1)(a), 43(f), 47 & 174(c) of the Constitution of Kenya 2010 have been infringed/ denied/ violated by the Respondents herein jointly or in the alternative.E.Aggravated damages included in general damages individually for the infringement/ denial/ violation of the rights of the groups of the petitioner under Article 10(2)(a) & (c) 33(1)(a), 35(1)(a), 43(f), 47 and 174(c) of the Constitution of Kenya 2010. F.Costs of the Petition and any other or further relied the honourable court may deem fit to grant.

1st and 2nd Respondents’ Position 17. In response, the 1st and 2nd Respondents opposed the Petition via a Replying Affidavit sworn by Nahason Muguna on 16th December, 2024 arguing that the Petition fails to state with precision the rights infringed. The 1st and 2nd Respondents were also of the opinion that the Petitioners dissatisfaction with the orders made by the 3rd Respondent ought to have been canvassed by way of an appeal filed within 21 days of the decision, and if they were satisfied, they should have applied for ex-parte summons for leave to enforce the Order.

18. It was further stated by the 1st and 2nd Respondents that the Petition is incompetent as it does not disclose any constitutional or human rights violations and it also offends the principles laid down in the seminal case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.

19. The 1st Respondent further alleges that on 26th March 2014, an Annual General Meeting of the 2nd Respondent was held and directors appointed. The 1st Respondent states that subsequently Constitutional Petition No. 143 of 2014 was filed challenging the appointment of the directors; and during the pendency of the said Petition, no Annual General Meeting was held, and therefore there were no minutes to be provided by the 2nd Respondent.

20. He further alleges that the directors who were in place ceased holding office and the 2nd Respondent continued to operate without directors up until about 15th July 2016, when a Board of Directors comprising of 11 members was constituted at an extra- ordinary general meeting of the 2nd Respondent. The draft meetings were then confirmed in the next annual general meeting held on 21st April 2017.

21. The 1st Respondent avers that on 27th September 2017, the Acting County Secretary of the Nairobi City County suspended the operations of the board of directors including all the meetings of the directors, pending investigations over their alleged misconduct.

22. He further avers that the Court issued orders on 25th September 2018 restraining Nairobi City County from proceeding with the extra Ordinary Meeting of the 2nd Respondent therefore no General Meeting was held from 27th September 2017 to 19th July 2019.

23. According to the 1st Respondent, in 2020, the Covid -19 pandemic negatively impacted the operations of the 2nd Respondent; and due to the measures outlawing the public gatherings, the 2nd Respondent wrote to the Registrar of Companies requesting that they be exempted from holding the Annual General Meeting for that year. The request was granted, and thus no AGM was held in the year 2020. He further contends that since the pandemic did not recede within the year 2020, on 24th March 2021 the Registrar of Companies granted the 2nd Respondent an extension of six months.

24. The 1st Respondent further avers that on 18th July 2022, the three-year term of the directors lapsed. The 2nd Respondent was unable to raise quorum as stipulated in the Articles of Associations; and thus no AGM was held in the year 2022.

25. According to the 1st Respondent, there were multiple disruptions beyond the control of the 2nd Respondent that prevented it from conducting the annual general meetings as required.

26. He further contends that the Petitioners filed another matter raising similar issues in HCCC PETITION NO. E327 OF 2022 – James Gacheru Kariuki & 18 others v WASREB, NCWSC & 68 Others where a Notice to Show Cause was issued as a result of the Petitioners failing to appear in court on several occasions.

3rd Respondent’s Position 27. The 3rd Respondent equally filed a response opposing the Petition in line with the position taken by the 1st and 2nd Respondents. The 3rd Respondent further stated that the Commission is of the view that the information requested by the Petitioners was provided to them by the 2nd Respondent.

28. According to the 3rd Respondent, the Commission had no further legal obligation after issuance of its Orders dated 16th May 2024 as Section 23 (5) of the Access To Information Act requires a party in favour of whom the orders have been issued by the Commission to move the High Court for enforcement of such orders. The 3rd Respondent contends that it discharged its lawful obligations as provided by law by reviewing the application for denial of information and issuing orders, which were complied with by the 2nd Respondent.

29. The Respondents, on the other hand, urges the Court to dismiss the Petition with punitive costs, arguing that the petition as drawn and filed does not disclose any justiciable grievance to warrant judicial review.

Submissions by the parties Petitioners’ submissions 30. The Petitioners argue that the 1st Respondent together with the Chief Executive Officer for the 3rd Respondent have no locus standi to swear their respective Replying Affidavits as they did not swear the Affidavits under the Corporate Seal of the 2nd and 3rd Respondents.

31. While discussing the issue of Locus Standi, the Petitioners relied on the following cases: Bugerere Coffee Growers Limited versus Sebaduka & another [1970] EA 147, Anarita Karimi Njeru v Republic [1979] eKLR and finally the case of Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 others (2013) eKLR.

32. The Petitioners further argued that the 1st Respondent did not discharge his statutory duty of granting access to the minutes of the Annual General Meetings and/or Extra Ordinary Meetings of the 2nd Respondent for the years 2017, 2019 and 2023 as the minutes provided are not signed and confirmed as the minutes of the 2nd Respondent.

33. They submit that the Respondents jointly or in the alternative infringed Petitioners’ constitutional right of access to information held by the 2nd Respondent in violation of Article 35(1) of the Constitution of Kenya, 2010.

34. The Petitioners further submits that this Honourable Court has jurisdiction to determine whether a right or fundamental freedom has been denied, violated, infringed or threatened and thereafter grant appropriate reliefs. They prayed that this Honourable Court be guided by the principle of first precedent as outlined in the case of Raiply Woods (K) Ltd & another v Baringo County & 3 others [2017] eKLR to grant the appropriate reliefs.

1st and 2nd Respondents Submissions 35. The Respondents argues that the Petitioners’ actions amount to forum shopping and an abuse of the court process since on 16th May 2024, the 3rd Respondent issued an order in the Access to Information (ATI) Review Application No. CAJ/ATI/NWSC/009/21/24-MW and became functus officio. The Petitioners ought to have either appealed the decision or applied for ex-parte summons to enforce the order as a decree.

36. They cite cases of Sports and Recreation Commission v Sagittarius Wrestling Club and Anor (2001), KKB V SCM & 5 Others (Constitutional Petition 014 of 2020) [2022] and finally the case of Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 others (2013) eKLR in support of the issue that the Petitioners have failed to exhaust remedies under the Access to Information Act and in the principle of ripeness and constitutional avoidance this Honourable Court should decline to entertain the Petition.

37. The 1st and 2nd Respondent argued that the case of Raiply Woods (K) Ltd & another v Baringo County & 3 others [2017] eKLR relied upon by the Petitioners in their prayer for general damages is incompatible with the present case as in the above cited case, the claim was quantifiable and specific as opposed to the instant petition. They further argued that constitutional reliefs are intended to vindicate rights and deter future violations not to compensate grievances.

38. They further argue that it would appear the sole aim in filing this petition is to get an award for damages and it is not surprising that the Petitioners have repeatedly relied on the above authority notwithstanding the incompatibility of the quoted precedence.

39. According to the 1st and 2nd Respondents constitutional reliefs are intended to deter future violations and not to serve as compensatory measures for grievances. Therefore, the focus must be on safeguarding rights and not monetary compensation.

40. The 1st and 2nd Respondents finally concluded that the Petition does not disclose any justiciable grievance and it will be in the interest of justice and fairness that this Honourable Court dismisses this petition with costs.

Issues for Determination 41. Having considered the Amended Petition, the responses thereto both in support and in opposition, the written submissions filed by the parties, and the Court has identified the following five(5) issues for determination.a.Whether the 1st Respondent together with the Chief Executive Officer for the 3rd Respondent have locus standi to act on behalf of the 2nd and 3rd Respondents herein.b.Whether the Petition is procedurally and substantively ripe for consideration by this Honourable Court.c.Whether the Respondents have denied, violated and/or infringed the Petitioners’ Rights of access to information.

i. Whether the 1st Respondent and the CEO of the 3rd Respondent have locus standi to act on behalf of the 2nd and 3rd Respondents respectively 42. It is trite law that a company can sue in its own name with the sanction of its Board of Directors or by a resolution in a general or special meeting. It is during such meetings that authority is given to institute or defend a case on its behalf. It is therefore needless to say that an incorporated body has of necessity to act through agents who are usually members of its Board of Directors.

43. Order 9, Rule 1 of the Civil Procedure Rules provides that any Application to or appearance or act in any court required or authorized by the law to be made or done by a party in such a court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf.

44. Order 9 Rule 2 (c) of the Civil Procedure Rules outlines that the recognized agents of parties by whom such appearances, applications and acts may be made or done are in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.

45. I am not persuaded by the arguments of the Petitioners that since there was no authority attached by the 2nd and 3rd Respondents showing that the 1st Respondent and the CEO of the 3rd Respondent had authority to defend the instant Petition on behalf of the 2nd and 3rd Respondents respectively, they should therefore be condemned to personally pay the Petitioners the costs of the Petition.

46. My view is that when a party is of the opinion that a suit is incompetent because of want of authority, such party needs to plead that issue, or even if it is not pleaded, such party needs to file an application before this suit is heard, so that the issue is sorted out earlier in the proceedings.

47. The essence of this is to reply to the Respondent to respond to the application. The Respondent can in response to such application, demonstrate that it has given authority to defend the suit and authority to the person who swore the affidavit.

48. It has not been demonstrated to me that the director of the 2nd Respondent and the CEO of the 3rd Respondent are not the persons who would ordinarily have the authority to sign documents on behalf of both Respondents.

49. The Articles of Association could authorize a suit to be commenced by an officer of the company independently, or require a resolution of the Board of Directors or even a resolution of the General Meeting or any other way that the Company wishes. The Articles of Association of the 2nd and 3rd Respondents have not been displayed to court by the Petitioners so as to demonstrate that there was a breach in the Articles of Association in the manner in which this suit was defended.

50. It is not for this court to speculate whether or not the requisite authority has been obtained from the 2nd and 3rd Respondents herein. The assumption should be that the response has been duly authorized by the 2nd and 3rd Respondents and the court can be put into inquiry if the 2nd and 3rd Respondents or an authorized agent puts material before the court that the Replying Affidavit has not been duly authorized. This is because authority to institute or defend the suit is an internal matter of the company emanating from its Articles of Association.

51. The appropriate officer authorized to swear an affidavit on behalf of a company is known internally to the Company under its Articles of Association. To state that an affidavit by a corporation is not properly sworn by a person who is not authorized by the Articles of Association of the company is a matter that touches on a violation of the Articles of Association.

52. In any event, the Affidavit sworn by the 1st Respondent has been sworn by a director of the 2nd Respondent’s company. Pursuant to the principles of company law, a director is a known agent of the company. It is within the ostensible authority of the directors to sign documents on behalf of a company including affidavits unless evidence is given that the 1st Respondent acted outside the scope of his actual authority. I cannot hold that he was unauthorized to swear the affidavit on behalf of the 2nd Respondent.

53. I am inclined to agree with the position of the decision of D.K.Maraga J (as he then was) in the case of Mombasa HCCC No. 496 of 1995 Peter Onyango Onyiego vs Kenya Ports Authority who stated as follows:“from these definitions, it is clear that an affidavit is a sworn statement usually given to be used as evidence. So anybody swearing an affidavit on behalf of a corporation can also give evidence for or on behalf of a corporation. To suggest, therefore, that everybody who testifies for or on behalf of a corporation given under seal as required by order 3 rule 2 (c) is in my view not correct. In the circumstances, I hold that other than verifying affidavits, which as I have stated must be sworn by the plaintiffs themselves or authorized agents, all other affidavits filed and used in courts are not among the acts covered by order 3 rules 1 to 5. All other affidavits can be sworn on behalf of individuals or corporations y anybody as long as that person is possessed of the facts and/or information that he depones on, that in the rules of evidence would be admissible. Mere failure to state that the deponent of such affidavit has the authority of the corporation on whose behalf he swears it does not invalidate the affidavit. That is an irregularity courts can under Order 18 rule 7 of the Civil Procedure Rules ignore.”

54. The equivalent of Order 3 Rules 1 to 5 referred to above is the current Order 9 Rules 1 to 4 of the Civil Procedure Rules, 2010.

55. Similarly in the case of Britind Industries Limited vs APA Insurance Limited [2017] eKLR borrowed from the authority of Mavuno Inustries Limited & 2 Others vs Keroche Industries Limited HCCC No. 122 of 2011 where the court held that failure to file the requisite authority together with the plaint does not invalidate the suit.

56. I associate myself with the above position and find that the Replying Affidavits sworn by the 1st Respondent and the CEO of the 3rd Respondent are not incompetent in the absence of the Board Authority. My finding therefore is that this case if properly suited and both the 1st Respondent and CEO of the 3rd Respondent have locus standi to swear affidavit on behalf of the 2nd and 3rd Respondents respectively.

ii. Whether the Petition is procedurally and substantively ripe for consideration by this Honourable Court. 57. A Court must satisfy itself that the case before it is not caught up by the bar of non-justiciability. The concept of non-justiciability has its basis in Article 159 of the Constitution which routes for Alternative Dispute Resolution. The concept of non- justiciability is comprised of three doctrines: The Political Question Doctrine, the Constitutional Avoidance Doctrine and the Ripeness Doctrine which are cross cut and intertwined as discussed in length by a 3- Judge Bench in the case of Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020] eKLR.

58. While speaking to the Ripeness Doctrine the Learned Judges stated that the doctrine focuses on the time when a dispute is presented for adjudication. They referred to the Blacks Law Dictionary 10th Edition which defines ripeness as the state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made. They encouraged courts to frown upon disputes that are hypothetical, premature or academic which have not matured into justiciable controversies.

59. Section 23(3) of the Access to Information Act, 2016 provides:A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty- one days from the date the order was made.

60. Section 23 (5) further provides:If no appeal is filed under subsection (3), the party in favour of whom the order is made by the Commission may apply ex-parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the High Court to the order effect.

61. The 1st and 2nd Respondent while relying on the above Sections contend that on 16th May 2024 the 3rd Respondent issued an Order in the Access to Information (ATI) Review Application No. CAJ/ATI/NWSC/009/21/24-MW and became functus officio. They contend further that despite being fully aware of the existence of such order, the Petitioners failed to pursue the appropriate procedure under the Access to Information Act to enforce it. Instead, they prematurely burdened this Court with a petition and based on the principle of ripeness this Honourable Court should decline to entertain it as alternative legal remedies were readily available but were not pursued.

62. Article 22 of the Constitution however makes it clear that an applicant may approach a court to obtain an interdict to prevent violation of a right whether or not such an applicant will be successful.

63. The Article makes it clear that such an applicant will have standing to seek relief in such circumstances even though no violation exists. The issue of threats to violation of fundamental rights and freedom does not require real and live case for the court to intervene and the mere threat of violation of rights is sufficient for this court to intervene. Petitioner will have standing to seek relief even though no actual violation suffices.

64. The Petitioners having encountered a violation and/or infringement of their rights to access information were well within their constitutional rights to approach this court for relief.

65. Article 23(1) of the Constitution of Kenya 2010 gives the High Court jurisdiction, in accordance to Article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

66. Article 258 (1) further provides that every person has the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened with contravention.

67. On interpretation of constitutional provisions, Article 259(1) of the Constitution provides that the Constitution shall be interpretated in a manner that promotes its purpose, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; and also contributes to good governance.

68. Although the 3rd Respondent is an independent body, that independence does not at all mean that this Court has no power to intervene where the Respondents engage in actions that amount to abuse of their discretionary powers. This is because any public body must exercise its powers judicially not whimsically.

69. In this case, I find that the Petition comprises of omnibus of issues the bulk whereof raises pure constitutional issues. It would therefore be more convenient to deal with the constitutional issues herein.

70. I am guided by the 5-Judge bench decision in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR. The Court while analyzing and appreciating the doctrine of exhaustion stated as follows:“60. As observed above, 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.

61. 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 concept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR

62. 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.”

71. Similarly in the instant case, the Petitioners allege violation of their fundamental rights. The Petitioners are also alleging that they lacked proper audience before the 3rd Respondent and therefore decided to seek this Honourable Court’s intervention. Guided by the above holding, I find that the irresistible conclusion is that the Petition herein raises constitutional issues that can be adequately litigated before this Court.

iii. Whether the Respondents have denied, violated and/or infringed the Petitioners right of access to information 72. Article 35(1) of the Constitution provides:1. Every citizen has the right of access to –

a.Information held by the State; andb.Information held by another person and required for the exercise or protection of any right or fundamental freedom. 2. Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

3. The State shall publish and publicise any important information affecting the nation.

73. The access to Information Act No. 31 of 2016 gives effect to Article 35 of the Constitution. Under the Access to Information Act the 3rd Respondent is empowered with the function and power to enforce its provisions. This is because it is the oversight authority as provided under Section 20(1) of the Act.

74. The functions of the 3rd Respondent under Section 21 of the said Act are:a.Investigate, on its initiative or upon complaint made by any person or group of persons, violation of the provisions of this Act;b.Request for and receive reports from public entities with respect to the implementation of this Act and of the Act relating to data protection and to access and acts on those reports with a view to accessing and evaluating the use and disclosure of information and the protection of personal data;c.…d.Work with public entities to promote the right to access to information and work with other regulatory bodies on promotion and compliance with data protection measures in terms of legislation;e.…f.Hear and determine complaints and review decisions arising from violations of the right to access information;g.…h.…

75. Where the 3rd Respondent is satisfied that there has been an infringement of the provisions of the Act, it is permitted under Section 23(2) to order for the release of any information withheld unlawfully.

76. The 3rd Respondent is the body mandated to receive complaints on the refusal by a public body to issue information as dictated by Article 35 of the Constitution. A person seeking this information should first exhaust or satisfy the laid down mechanism in law before approaching the court.

77. The facts stated herein reveal that the Petitioner did make a complaint to the 3rd Respondent vide a letter dated 29th December 2023. The 3rd Respondent instructed the 1st and 2nd Respondents via an order dated 16th May 2024, to issue Annual General Meeting minutes to the 2nd Respondent’s Company from 1st January 2013 to date and also to issue the Petitioners with public advertisements for all employees employed from 9th March 2013.

78. I agree with the 3rd Respondent that the Commission had no further legal obligation after issuance of its Orders dated 16th May 2024 in accordance Section 23 (5) of the Access to Information Act, 2016 and once the orders had been issued, it became functus officio thus it was upon the Petitioners of whom the orders have been issued in favour of to move the High Court for enforcement of such orders.

79. The 2nd Respondent complied with the order and vide letter dated 7th June 2024 forwarded copies of minutes of all general meetings held from 1st January 2013 and copies of public advertisement for all employees employed from March 2013 to date to the Petitioners.

80. The Petitioners contend that the Respondents granted access to the meetings for the years 2013, 2014 and 2017 but neglected, ignored and or refused to grant access to the minutes for the years 2015, 2016, 2018, 2019, 2020, 2021, 2022 and 2023.

81. The Court in the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR while discussing the right to access information referred to section 4(1) (2) (3) (4) and (5) of the Access to Information Act and stated thus:“It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information. 54. The respondents were under both a constitutional and legal obligation to allow the petitioner to access information in their possession and held on behalf of the public. This is an inviolable constitutional right and that is clear from the language of Article 35 of the Constitution, and any limitation must meet the constitutional test and only then can one raise limitation as a ground for non-disclosure.”

82. However, the 2nd Respondent in their Replying affidavit sworn by Nahason Muguna on 16th December, 2024 indicated that they could not avail the information as the same is unavailable. They indicated that that on 26th March 2014, an Annual General Meeting of the 2nd Respondent was held and directors appointed. Soon thereafter, Constitutional Petition No. 143 of 2014 was filed challenging the appointment of the directors and during the pendency of the Petition, no Annual General Meeting was held therefore no minutes to be provided by the 2nd Respondent.

83. He avers that the directors who were in place ceased holding office and the 2nd Respondent continued to operate without directors until on or about 15th July 2016, when a Board of Directors comprising of 11 members was constituted at an extra- ordinary general meeting of the 2nd Respondent. The draft meetings were then confirmed in the next annual general meeting held on 21st April 2017.

84. The 1st Respondent further avers that on 27th September 2017, the Acting County Secretary of the Nairobi City County suspended the operations of the board of directors including all the meetings of the directors, pending investigations of their alleged misconduct.

85. He claims that the Court issued orders on 25th September 2018 restraining Nairobi City County from proceeding with the extra Ordinary Meeting of the 2nd Respondent therefore no General Meeting was held from 27th September 2017 to 19th July 2019.

86. According to the 1st Respondent, in 2020, the Covid -19 pandemic negatively impacted the smooth of the directors and due to the measures outlawing the public gatherings, the 2nd Respondent wrote to the Registrar of Companies to postpone holding the Annual General Meeting. The request was granted thus no AGM was held in the year 2020.

87. He contends that since the pandemic did not recede, on 24th March 2021, the Registrar of Companies granted the 2nd Respondent extension of six months to postpone the AGM.

88. The 1st Respondent further avers that on 18th July 2022, the three-year term of the directors lapsed. The 2nd Respondent was unable to raise quorum as stipulated in the Articles of Associations thus no AGM was held in the year 2022.

89. According to the 1st Respondent, there were multiple disruptions beyond the control of the 2nd Respondent that prevented it from conducting the annual general meetings as required.

90. Given the circumstances of this case plus what the Respondents have told the court, would the situation be made any better if this court were to grant leave for enforcement of the 3rd Respondent’s decision? Since the 1st and 2nd Respondents have made it clear that for the years referred to in his affidavit no Annual General Meeting was conducted thus granting leave for enforcement of the 3rd Respondent’s decision will not make any difference. The Respondents will be brought back here for non-compliance and the Court does not issue orders in vain.

91. However, Section 5 of the Access to Information Act, 2016 provides that a public entity should facilitate access to information held by it. The Act is also clear that the Information should be given without delay and at no fee notwithstanding why the citizen wants to access the information.

92. In Nairobi Law Monthly v Kenya Electricity Generating Company & 2 others the Court went on to state;“56 …State organs or public entities… have a constitutional obligation to provide information to citizens as of right under the provisions of Article 35(1)(a)…they cannot escape the constitutional requirement that [they provide access to such information as they hold to citizens.”

93. In the present petition, the 1st and 2nd Respondent have given sufficient reasons as to lack of information for the years 2014, 2015, 2016, 2018, 2020, 2021 and 2022. However, no reason have been given as to why they declined to grant the Petitioners access to the minutes for the Annual General Meetings for the years 2019 and 2023.

94. It is also not in contention that the 1st and 2nd Respondents supplied the Petitioners with draft minutes that are unsigned.

95. The 1st and 2nd Respondents were both under constitutional and legal obligations to allow the Petitioners to access information in their possession and on behalf of the public. It is an inviolable constitutional right and that is clear from the language of Article 35 of the Constitution and any limitation must meet the constitutional test.

96. As indicated above, the 1st and 2nd Respondents were under obligation to obey the law and allow the Petitioners access information or where not possible give reasons for that. They failed in both by issuing the Petitioners with draft minutes as opposed to the final signed records and thus violated the Petitioners rights under the Constitution.

97. For the reasons outlined above, I am satisfied that the petitioners have proved their case to the required standard and must succeed.

98. On general damages, I wish to reiterate that assessment of damages is a discretionary relief. That being the case, a court is required to take into consideration public policy as well as the interest of the society as a whole. The petitioners did not specifically plead the loss they allegedly incurred as a result of failure by the 1st and 2nd Respondents to supply them with the minutes as requested. Alive to these facts, it is my view that an award of general damages is not just and appropriate in this case.

99. Consequently, the Petition dated 24th September 2024 is allowed in the terms below, and the following orders granted:a.A Declaration be and is hereby issued that the failure by the 1st and 2nd Respondents to provide information sought under Article 35(1)(a) on the basis of the Petitioners’ request dated 1st December 2023 was and is a violation of the right to access information.b.A Declaration be and is hereby issued that the failure by the 1st and 2nd Respondents to provide information sought under Article 35(1)(a) on the basis of the Petitioners’ request dated 1st December 2023 was and is a violation of Article 10 of the Constitution specifically the values of the rule of law, participation of the people, good governance, transparency and accountability.c.A Declaration be and is hereby issued that the failure by the 1st and 2nd Respondents to provide full and accurate information sought by the Petitioners under Article 35(1)(a) was and is a violation of Section 4 (1), (5) & 7(1) of the Access to Information Act.d.An order of mandamus is hereby issued compelling the 1st and 2nd Respondents to forthwith provide the Petitioners Access to the original signed minutes of the Annual General Meetings held by the 2nd Respondent for the years 2013, 2019 and 2023 at the Respondents costs.e.Each party to bear their own costs

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MARCH 2025. ________________________BAHATI MWAMUYEJUDGEIn the presence of: -Petitioner in person – James Kariuki GicheruCounsel for the 1st,2nd Respondent – Ms. Cheptanui H/b for Mr. LimoCounsel for the 3rd Respondent – Ms. MusembiCourt Assistant – Ms. Neema