https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8622

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CONSTITUTIONAL PETITION NO. E013 OF 2024** **IN THE MATTER OF ARTICLES 10, 22, 23, 35, 47 AND 165 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF SECTIONS 4, 8 AND 9 OF THE ACCESS TO INFORMATION ACT, 2016** **AND** **IN THE MATTER OF SECTIONS 86 AND 88 OF THE COUNTY GOVERNMENTS ACT, 2012** **BETWEEN** **CHARLES KHAMALA………………………….……………………………………PETITIONER** **VERSUS** **THE GOVERNOR, COUNTY GOVERNMENT OF KAKAMEGA** **COUNTY GOVERNMENT OF KAKAMEGA…………………………………. RESPONDENTS** **JUDGMENT** 1. Before this Court is a Constitutional Petition dated 22nd August 2024 in which the Petitioner seeks enforcement of his constitutional rights under Articles 10, 35 and 47 of the Constitution arising from the Respondents’ alleged failure and refusal to provide information requested through a letter dated 11th July 2024. 2. The Petitioner describes himself as a resident, taxpayer and citizen of Kakamega County who sought information relating to public expenditure, county procurement, pending bills, public projects, suppliers, management of public resources and qualifications of certain county officials. 3. The Petition is founded upon Articles 22 and 23 of the Constitution, Sections 4, 8 and 9 of the Access to Information Act, 2016 and Sections 86 and 88 of the County Governments Act, 2012. 4. The Respondents oppose the Petition and contend that the information sought was available through public documents, designated county offices and official websites and therefore no violation of rights occurred. 5. It is not disputed that by a letter dated 11th July 2024 the Petitioner requested specific information from the County Government of Kakamega. 6. The information sought included: 7. Lists of pharmaceutical and non-pharmaceutical suppliers engaged by the County Government. 8. Procurement documentation and distribution records. 9. Information relating to pending bills. 10. Banking and expenditure records relating to alleged withdrawals of public funds. 11. Documentation relating to renovation of the Governor’s office. 12. Procurement records relating to county projects. 13. Qualifications of the County Chief Finance Officer. 14. The Petitioner contends that despite service and acknowledgement of the request, the Respondents failed to provide the requested information or issue any written response. 15. The Respondents, through a Replying Affidavit and submissions, contend that the information was accessible through the County Government website, County Assembly records, budget documents and designated county offices. The Respondents further argue that the Petition is premature and that some of the information sought falls outside the jurisdiction of this Court. **ISSUES FOR DETERMINATION** 1. Having considered the pleadings, affidavits, submissions and authorities cited by the parties, the Court identifies the following issues for determination: 2. Whether the Petitioner properly invoked the constitutional right of access to information. 3. Whether the Respondents violated Articles 35, 47 and 10 of the Constitution. 4. Whether the Petition is premature. 5. Whether the Petitioner is entitled to the reliefs sought. **ANALYSIS AND DETERMINATION** 1. **Whether the petitioner properly invoked Article 35** 2. Article 35(1) of the Constitution provides: “Every citizen has the right of access to: 1. information held by the State; and 2. information held by another person and required for the exercise or protection of any right or fundamental freedom.” 3. The right of access to information is intended to facilitate transparency, accountability, public participation and democratic governance. Section 4(1) of the Access to Information Act provides that information held by public entities shall be provided expeditiously upon request. 4. The evidence before Court demonstrates that the Petitioner made a formal written request dated 11th July 2024. The Respondents do not dispute receipt of that request. 5. The Court is therefore satisfied that the Petitioner properly invoked the constitutional and statutory mechanisms for obtaining information. 6. **Whether article 35 was violated** 7. The Respondents’ primary defence is that the requested information was already available through public documents and county offices. However, availability of information through alternative means does not extinguish the constitutional obligation imposed upon a public body to respond to a request for information. 8. Section 9 of the Access to Information Act obligates public entities to process and determine requests for information. Where information is available elsewhere, the public body must communicate that fact to the requester. 9. The Court notes that the Respondents have not exhibited any written response informing the Petitioner where the information could be obtained. The Court further notes that no exemption under Section 6 of the Access to Information Act was invoked. 10. In **Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others [2013] eKLR**, the Court held that the right of access to information under Article 35 underpins transparency, accountability and good governance. 11. Similarly, in **Katiba Institute v President’s Delivery Unit & 3 Others [2017] eKLR,**the Court held that a public body’s failure to respond to a request for information amounts to a violation of Article 35.The Court agrees with the reasoning that constitutional rights cannot be defeated through silence. 12. The Respondents were under a constitutional and statutory duty to respond to the request and either: 13. provide the information; 14. provide lawful reasons for refusal; or 15. direct the Petitioner to the appropriate source where the information could be obtained. 16. None of those actions were undertaken; consequently, the Court finds that the Petitioner’s right under Article 35 was violated. 17. **Whether article 47 was violated** 18. Article 47(1) guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) further requires written reasons where rights are adversely affected. 19. Administrative silence can amount to administrative unfairness where a public authority is under a legal duty to make a decision. 20. In **Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR,** the Court emphasized that procedural fairness requires communication of decisions affecting rights and interests. 21. In **Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR*,*** the Court of Appeal affirmed that Article 47 constitutionalized fair administrative action and requires public authorities to act reasonably and lawfully. 22. The Respondents neither communicated a decision nor supplied reasons for declining disclosure. Such conduct falls short of constitutional standards of administrative fairness. 23. The Court therefore finds that the Petitioner’s rights under Article 47 were violated. 24. **Whether article 10 was violated** 25. Article 10 of the Constitution binds all State organs and State officers whenever they apply or interpret the Constitution, enact or implement laws and make public policy decisions. The values enshrined therein include transparency, accountability, public participation and good governance. 26. Access to information is the vehicle through which citizens participate in governance and hold public institutions accountable. 27. **In Commission for the Implementation of the Constitution v Parliament of Kenya & 5 Others [2013] eKLR**, the Court emphasized that transparency and accountability are foundational constitutional values binding all public institutions. 28. In **Okiya Omtatah Okoiti v Communications Authority of Kenya & 8 Others [2018] eKLR**, the Court observed that meaningful public participation cannot occur in the absence of access to information. 29. The Court is satisfied that the Respondents’ failure to respond to the Petitioner’s request undermined transparency, accountability and citizen participation. 30. The Respondents therefore acted inconsistently with Article 10 of the Constitution. 31. **Whether the petition is premature** 32. The Respondents argue that the Petition is premature because the Petitioner did not exhaust alternative avenues of obtaining the information. This argument is not persuasive. 33. Once a citizen invokes Article 35 through a formal request, a corresponding obligation arises upon the public body to process and determine that request. The Respondents have not demonstrated that they responded to the request or directed the Petitioner to any alternative source. The doctrine of exhaustion cannot be used to excuse complete administrative inaction. 34. The Court therefore finds that the Petition is properly before it. 35. **Whether the information sought is disclosable** 36. The information sought concerns expenditure of public funds, procurement processes, public projects, pending bills and qualifications of public officers. Such information ordinarily falls within the category of public information. 37. In **Famy Care Limited v Public Procurement Administrative Review Board & Another [2012] eKLR**, the Court emphasized transparency and disclosure in procurement processes involving public resources. 38. The Court further notes that no evidence has been presented demonstrating that the information sought falls within any exemption contemplated under Section 6 of the Access to Information Act. The burden of establishing an exemption rests upon the public body seeking to withhold disclosure. 39. The Respondents have not discharged that burden. 40. **Whether an order of mandamus should issue** 41. The law regarding mandamus was settled In **Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR**, the Court held that mandamus issues to compel performance of a public duty where the duty exists and has not been performed. 42. The Respondents are under a constitutional and statutory duty to process and determine requests for information.Having failed to perform that duty, an order of mandamus is appropriate. 43. Having considered all the material before Court, the Court finds that the Petition is meritorious. 44. Accordingly, judgment is entered for the Petitioner and the Court makes the following orders: 45. A DECLARATION be and is hereby issued that the Respondents violated the Petitioner’s rights under Article 35 of the Constitution by failing to respond to and determine the Petitioner’s request for information contained in the letter dated 11th July 2024. 46. A DECLARATION be and is hereby issued that the Respondents violated the Petitioner’s rights under Article 47 of the Constitution by failing to provide an expeditious, lawful, reasonable and procedurally fair administrative response to the said request. 47. A DECLARATION be and is hereby issued that the Respondents acted contrary to the national values and principles of governance under Article 10 of the Constitution, particularly transparency, accountability and public participation. 48. AN ORDER OF MANDAMUS be and is hereby issued compelling the Respondents jointly and severally to provide a written determination of the Petitioner’s request dated 11th July 2024 and to furnish the information requested therein, save only for information lawfully exempted under Section 6 of the Access to Information Act, within thirty (30) days from the date of this Judgment. 49. In the event that any part of the requested information is withheld, the Respondents shall provide written reasons identifying the specific statutory exemption relied upon. 50. The Petitioner shall have the costs of this Petition. 51. Right of Appeal 30 days explained. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 16TH DAY OF JUNE, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda Parties absent. Advocates absent. Court Assistant to upload the ruling in the CTS forthwith.