https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9868

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E249 OF 2025** **BETWEEN** **DR. NELSON MALENYA …………………………………………PETITIONER** **AND** **THE CABINET SECRETARY FOR HEALTH ……………..1ST RESPONDENT** **KENYA DENTAL ASSOCIATION (KDA)……………..…...2ND RESPONDENT** **KENYA MEDICAL PRACTITIONERS AND DENTISTS COUNCIL (KMPDC)………………………………………………………,3RD RESPONDENT** **DR. TIMOTHY THEURI KABAIKU………………………...4TH RESPONDENT** **THE ATTORNEY GENERAL………………………………..5TH RESPONDENT** **JUDGMENT** 1. In his petition dated 5th May 2025 the petitioner, Dr. Nelson Malenya, seeks the following reliefs: 2. ***A declaration be and is hereby issued that the appointment of the 4th respondent as the representative of the 2nd respondent to the 3rd respondent is null and void ab initio due to non-compliance with section 3A (10) The Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.*** 3. ***A declaration be and is hereby issued that the 1st and 2nd respondents’ refusal to provide nomination records violates the petitioner’s rights to access information under Article 35 and section 4(1) of the Access to Information Act, 2016.*** 4. ***A declaration be and is hereby issued that the continued service of the 4th respondent as a council member of the 3rd respondent, despite the impending expiry of his term, constitutes an ongoing violation of the Constitution and Sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253.*** 5. ***An order barring the 4th respondent from acting as a council member of the 3rd respondent unless duly nominated and appointed in accordance with section 3A (10) and the Constitution.*** 6. ***An order be and is hereby made quashing the Gazette Notice No. 2877 dated 6th March 2023 and taking effect on 10th March 2023.*** 7. ***An order be and is hereby made compelling the 2nd respondent to establish a monitoring mechanism to ensure that all future appointments under section 3A (1)) of the Medical Practitioners and Dentists Act, Cap 253 laws of Kenya, are made strictly in accordance with the statutory provisions, taking into account the criteria of ethnic diversity, gender, disability, skills mix, and regional balance.*** 8. ***The cost of the suit be awarded to the petitioner.*** 9. ***Any other order that the Court deems fit in the circumstances of this case.*** 10. The petition is premised on grounds on the face thereof and supported by an affidavit of the petitioner sworn on even date. The petitioner challenges the legality of the nomination and appointment process of the **4th respondent** as a council member of the **3rd respondent.** 11. The petitioner is a member of the Kenya Dental Association (KDA) and served as a member of the National Governing Council (NGC) of the 2nd respondent from June 2021 to June 2023. It is stated than during the said period, no meetings were convened by the said Council to deliberate or approve the nomination of any person, including the 4th respondent, for the appointment to the Kenya Medical Practitioners and Dentists Council (KMPDC). 12. It is stated that on or about 6th March 2023, the 1st respondent published Gazette Notice No. 2877, appointing the 4th respondent as a council member of the 3rd respondent. It is contended that consequently, despite formal requests made on 17th September 2024, 24th October 2024 and 4th November to the 1st and 2nd respondents seeking for nomination records, none was provided. 13. The petitioner contends that the 4th respondent was the President of the 2nd respondent at the time of his nomination and appointment and therefore may have influenced or directly controlled the nomination process mandated under section 3A (1) of the Medical Practitioners and Dentists Act, thus raising serious concerns about impartiality and legality of his nomination. 14. It is asserted that the failure of the 2nd respondent to provide any records of the nomination process, despite the 4th respondent’s role, strongly suggests that the nomination may have been a self-serving act orchestrated by the 4th respondent himself. This did not align with the dictates of Articles 10, 73 and 232 of the Constitution. 15. The petitioner believes that the 2nd respondent submitted only one nominee for the appointment, contrary to section 3A (10). In addition, he acknowledges that the 4th respondent’s term as a council member of the 2nd respondent was set to expire in March 2026. 16. The petitioner asserts that in sum, the 1st and 2nd respondents’ actions violated the provisions of Articles 2(1) and (4), 3, 10 (2) (a), (c) and (d), 22, 27(1), 35 (1) (b), 48 and 232 (1) (d), (f) and (g) of the Constitution and sections 3A (10) of the Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya. **Responses to the petition** 1. The 1st, 2nd and 5th respondents did not file formal response to the petition. **The 3rd respondent’s response** 1. The 3rd respondent filed a replying affidavit sworn on 10th July 2025 by Dr. David Kariuki in opposing the petition. It is contended that under section 3A (10) of the Medical Practitioners and Dentists Act, the role of the 3rd respondent is strictly limited to the receipt of appointed members from the 1st respondent. It is further contended that the nomination and appointment processes are undertaken by the 2nd respondent and the 1st respondent respectively. 2. The 3rd respondent denies receiving any request for information from the petitioner under Article 35 of the Constitution and the Access to Information Act and therefore asserts that it cannot be faulted for non-disclosure. It is also denied that the 3rd respondent exercises any discretion or influence over the choice of nominees by professional bodies and that neither does it supervise nor control the internal affairs or governance structure of bodies, including that of the 2nd respondent. 3. The 3rd respondent posits that the allegations against the 4th respondent are speculative and do not demonstrate any constitutional or statutory violation on its part. It urges this Court not to interfere with the process unless demonstrated that there was impropriety. **The 4th Respondent’s response** 1. The 4th respondent filed replying affidavit sworn on 14th August 2025 in opposing the petition. He states that he is the immediate former President of the 2nd respondent and that he was appointed as a council member of the 3rd respondent on 6th March 2023. He further asserts that his appointment was lawful and compliant with all statutory and constitutional requirements. 2. The 4th respondent deposes that by a letter dated 16th December 2022 addressed to him in his capacity as the President of the 2nd respondent, the 1st respondent requested the 2nd respondent to forward the names of two nominees one of whom was to be appointed to the 3rd respondent (KMPDC) under Section 3A (1) (c) iii) of the Medical Practitioners and Dentists Act. 3. The 4th respondent claims that the letter requiring the nomination was received after they had closed for the year in December 2022 and that therefore, the earliest the next governing council meeting would have been held was in the third week of January 2023. That in view of the requirement that names ought to have been tendered by 3rd January 2023, there was need to move with speed in order to comply with the timelines given. 4. Accordingly, that the National Executive Committee (NEC) of the 2nd respondent convened and resorted to picking the immediate past President Dr Linus Ndegwa and the 4th respondent, as the second name for consideration by the Cabinet Secretary. 5. It is deposed that NEC informed the NGC of this decision and no objection was noted in the meeting hence, the decision was deemed ratified in an NGC meeting held on 26th January 2023. It is further deponed that by tabling the issue before the NGC, there was open room for discussion and, if necessary, a retraction of the names provided to the 1st respondent. 6. The 4th respondent acknowledges that the petitioner did not attend the meeting but pleads that the minutes of the meeting were available to all NGC members and that therefore the petitioner had access to the same. In addition, that the petitioner was present in the succeeding meeting held on 22nd February 2023 in which he never raised any issue with the names presented to the respondent for appointment. 7. The 4th respondent deposes that during this period of nomination and appointment, he served alongside the petitioner in the NGC of the 2nd respondent and that therefore, his appointment to the 3rd respondent was done during the petitioner’s term as a member of the NGC. Further, that the petitioner continued to serve the 2nd respondent in his capacity as a member of the NGC even after the 4th respondent’s appointment to the 3rd respondent and never raised any questions, complaints or issues concerning the appointment. 8. The 4th respondent is of the view that the petitioner therefore had the capacity and capability as a serving member of the 2nd respondent’s NGC to verify the process of nomination and subsequent appointment and that having failed to do so, the allegations that the process was opaque and violative of Article 27 of the Constitution are unfounded. 9. It is further contended that the petition is filed two years after the fact and that contrary to the petitioner’s assertions, section 3A of the Medical Practitioners and Dentists Act, Cap 253 provides a criterion for nominations and appointment to the 3rd respondent. It also contended that the Act does not prescribe a specific process to be followed by the organizations for the selection of the nominees. That on the contrary, it is the Cabinet Secretary who was tasked with considering ethnic diversity, gender, disability, skills mix and regional balance while compiling the final list of nominees for purposes of appointment. **The Petitioner’s submissions** 1. The petitioner submits relying on his written submissions dated 18th November, 2025, that contrary to the 4th respondent’s assertions, in the minutes of 26th January 2023, the only reference to the nominations appears under any other business where the President reported that two names had been forwarded to the Ministry of Health. That there is no record of motion, discussion, deliberation, voting, approval or collective decision-making authorising or ratifying the nominations. 2. It is submitted that in the subsequent KDA Council meeting held on 22nd February 2023 there is no mention whatsoever of the nominations or any attempt to confirm or regularize the same, nor were the minutes of 26th January 2023 presented for confirmation. The petitioner contends that such actionwhere the President was himself one of the nominees, creates a clear conflict of interest and demonstrates procedural impropriety and abuse of office and that it violates both the statutory framework and the internal governance procedures of the 2nd respondent. 3. It is submitted that the Cabinet Secretary’s letter of 16th December 2022 expressly required one male and one female nominee yet both names forwarded were male, which led to a violation of section 3A (10) and constitutional principles of diversity, fairness and inclusivity under Articles 10 and 232(1)(g) of the Constitution. 4. According to the petitioner, section 3 A (10) requires a structured, participatory and representative nomination process and that the forwarding of names without a resolution of the NEC or NGC therefore amounted to an illegal, unreasonable and procedurally improper administrative action contrary to Article 47 of the Constitution and Section 4(1) of the Fair Administrative Action Act (FAAA). He argues that the Cabinet Secretary could not validly appoint a person whose nomination was procedurally defective. 5. The petitioner maintains that the 1st and 2nd respondent violated the provisions Article 35 of the Constitution and section 4(1) of the Access to Information Act by failing to respond to his letters requesting for information. Reliance is placed on **Law Monthly Company v Kenya Electricity Generating Company [2013] eKLR; Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission [2016] eKLR** and **Katiba Institute v President’s Delivery Unit & 3 others [2017] e KLR to support this argument.** 6. It is submitted thatan appointment tainted with illegality does not become cured merely by the effluxion of time. In this regard, the petitioner submits that the impending expiry of the 4th respondent’s term in March 2026 did not sanitize the illegality. Reliance is placed on **Trusted Society of Human Rights Alliance v Nakuru Water & Sanitation Services Co. [2013] eKLR**. The petitioner further relies on Articles 22, 23 and 165 of the Constitution and urges that the orders sought be granted. **The 3rd respondent’s submissions** 1. The 3rd respondent filed written submissions dated 4th may, 2026. It is submitted that the import of section 3A (10) of the Medical Practitioners and Dentists Act, is that,the 3rd respondent’s role is confined to the receipt of duly appointed members and that therefore, any alleged irregularity in the nomination or appointment process cannot be attributed to the 3rd respondent. 2. Regarding violation of Article 35, it is reiterated that no request for information was made to the 3rd respondent. It is argued thatthe right to access information is not self executing in the abstract but that it is triggered by a request hence, a party alleging violation must demonstrate that a request was made and that it was either declined or ignored. 3. The 3rd respondent asserts that no violation has been imputed on it***.*** That the petition makes broad references to constitutional provisions, including Articles 10, 27, 35, 73 and 232, but does not set out, with clarity, the manner in which those provisions have been infringed by the 3rd respondent, which, according to the 3rd respondent, militates against the dictates in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Othe***rswhichemphasises that allegations of constitutional violation must be supported by evidence and must clearly demonstrate the nexus between the impugned conduct and the alleged breach. 4. Further submission by the 3rd respondent is that the allegations ofconflict of interest against the 4th respondent do not implicate the 3rd respondent in any way since it has no role in vetting of the nominees and does not participate in the decision-making process leading to their appointment. It is argued that even if such allegations were to be considered, they would properly lie against the nominating or appointing authorities. **The 4th respondent’s submission** 1. The 4th respondent filed written submissions dated 5th March, 2026. He submits that the petitioner’s assertion regarding the conduct of the nomination is untenable. He asserts that he had given an outline of the process that was undertaken by the 2nd respondent in submitting his nomination and also given the timelines within which the submission of the nominees was to be done and that the petitioner had not controverted those averments on oath, including the averment that the 2nd respondent has two governing structures, the NEC and the NGC, nor does he dispute that the timelines for submitting the nominees were timebound hence the need for NEC to it and carry out the nomination. 2. The 4th respondent further submits that the petitioner has in addition not disputed that the matter was tabled before the NGC and that no objection to the nominations was tabled. It is submitted that a cursory look at the minutes reflects that under the title A.O.B, members were able to raise questions and deliberate any other matters raised and where deliberated, with the record reflecting the nature of the deliberations. He argues that the fact that no member objected to the nominations as tabled by the 4th respondent is proof that there was room to discuss, raise objections and deliberate but that no deliberation was deemed necessary by NGC. 3. It is submitted by the 4th respondent that under section 3A of the KMPD Act, the responsibility for gender balance lies with the Cabinet Secretary. Further, that it has not been claimed that the 4th respondent failed to consider gender balance in the ultimate composition of the 2nd respondent’s council. He submits that there was also no statutory requirement or even a provision under the Constitution that prescribed that the 2nd respondent ought to have nominated a man and a woman, hence, a nomination of two male dentists was not a contravention of the law as long as the final constitution of the Council was balanced. 4. It is submitted that section 3A (10) does not prescribe the internal mechanisms for nominations and that as such, this Court cannot impose requirements that do not exist in law. He submits that in the process of nominating the 4th respondent, the 2nd respondent, conducted its matters through the channels available to it through the NEC. Further, that the fact that a different decision could have been made is not sufficient to conclude that the nomination and subsequent appointment of the 4th respondent was unconstitutional or shrouded in illegality. 5. The 4th respondent relies on the case of ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others* [2013] eKLR** to argue that section 3A does not require any of the professional bodies to nominate one man and one woman and that the proposal in the letter dated 16th December 2022 that the 2nd respondent nominate one man and one woman was therefore not a statutory requirement. Further reliance is placed on ***Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KLR.*** 6. It is reiterated that the petition is undermined by inordinate, unexplained and prejudicial delay. That the petitioner was a member of NGC during the meeting of 26th January 2023 when the nomination of the 4th respondent was tabled before the Council and was still a member during the appointment, but did not object to the nomination, yet he has brought this petition over two years after the impugned process. Reliance is placed on the case of Mutai ***& 9 others v Attorney General [2019] KECA 125* (KLR)** that the delay is not only inordinate but also prejudicial as it undermines certainty in public administration. 7. Regarding Article 35, the 4th respondent submits that the petitioner has not demonstrated that he sought information from the 3rd respondent. Reliance is further placed on ***Kenya Youth Parliament & 2 others v AG & Another Constitutional Petition NO. 101 of 2011***for the proposition that courts hesitate to enter into the arena of merit review of a constitutionally mandated function by another organ of State that has proceeded with due regard to procedure; and that the court’s intervention in the case would be of necessity, be pursuant to the petitioner meeting a high threshold of proof of illegality which the petitioner in this case has not demonstrated. 8. It is submitted that the petitioner has failed to provide proof of violation of Articles 2, 10, 27, 48, 50 73 and 232 of the Constitution. The 4th respondent relies on ***Trusted Society of Human Rights Alliance v Attorney General & 2 others* [2012] eKLR** and ***Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR*** and urges this Court to dismiss the petition with costs. **Analysis and Determination** 1. I have considered the petition, the responses and the detailed submissions filed by each of the parties’ counsel. I find the following issues arising for determination: 2. ***Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance*** 3. ***Whether the petition is merited*** ***Analysis*** ***Whether this court has jurisdiction in view of the doctrine of exhaustion and constitutional avoidance*** 1. A cursory look at the petition reveals that the petitioner is raising two concerns. First, that the nomination and appointment of the 4th respondent as a member of the 3rd respondent was marred with illegality and second, that he sought information regarding the said nomination from the 1st and 2nd respondents but none was forthcoming. The 1st, 2nd and 5th respondents did not file formal responses to the petition. However, the 3rd respondent in its replying affidavit contended that no such information was sought from it and that evidence was not adduced to demonstrate that information was sought but was denied. 2. In my view, although as elucidated hereinabove, two issues can be gleaned from the petition, that is that of the nominations allegedly being illegal and the failure to provide information requested, the issue of access to information is paramount. The reason is that, while the petitioner imputes the process of nominating and appointing the 4th respondent and claims that the same did not align with the dictates of section 3A(10) of the Act, in order to proof a substantive part of his case, the petitioner needs to rely on the information regarding the nominations from 1st and 2nd respondent. 3. The issue regarding jurisdiction has not been raised in the petition. However, the Court can on its own motion determine this issue. In **Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR)** the Supreme Court stated as follows; ***41.This court’s jurisdiction flows from the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and the applicable statutes. See***[***Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2012/8)***, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.*** 1. In**Vincent Mwanthi Kioko v Edward Sigei & 4 others [2021] KEHC 3947** **(KLR)** the court held that; ***15. The Preliminary objection in this matter is founded on basis of the doctrine of exhaustion. The doctrine is a sound legal one which is applicable to constitutional petitions. In essence, except in instances where the exceptions to the doctrine apply to a matter, the doctrine of exhaustion presents a complete bar to proceedings in Court. Therefore, the objection is capable of wholly disposing the matter if successful. To that end, the objection passes the propriety test and is for consideration.*** 1. Furthermore, a jurisdictional issue can be raised by the Court on its own motion or by the parties, as was stated in the locus classicus on jurisdiction in **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment)** that: ***“30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:*** ***“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” See Words and Phrases Legally defined – Volume 3: I – N Page 113*** ***31.It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.*** ***32.I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.*** ***[Paragraph omitted in the reported decision]*** ***34.In I Congresso del Partido, [1978] 1 QB 500, the River Rima, Gatoi International Inc v Arkwright – Boston M. M. Insurance Co. & Others and The Evpo Agnic, the respective courts analysed the evidence before the court and upon that evidence the question of jurisdiction was immediately decided.”*** 1. Based on the foregoing authorities it is trite that a jurisdiction issue has to be determined first and that the issue of exhaustion and constitutional avoidance is a jurisdictional issue. 2. Article 35 (1) of the Constitution guarantees every citizen the right of access to information held by the State and held by another person and required for the exercise or protection of nay right or fundamental freedom. 3. The Access to Information Act, 2016 was enacted to give effect to the right of access to information. Section 4(1) of the Act mirrors the provisions of Article 35(1) of the Constitution. Subsection 2 makes it explicit that the right of information is not affected by any reason the person gives for seeking access or the public entity’s belief as to what the person’s reasons are for seeking access. Subsection 3 stipulates that the access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. Subsection 4 provides that the Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. 4. Section 8 of the Act provides for application for access while section 9 provides for the processing of the application. It stipulates that subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty-one days or receipt of the application. Under subsection (2), where the information sought concerns the life or liberty of a person, the information officer shall provide the information within 48 hours of the receipt of the application. Subsection (3) provides for the circumstances where the information officer may extend the period of response in cases where the information sought concerns the life or liberty of a person. 5. Section 8(4) of the Act provides: ***(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—*** ***(a)whether or not the public entity or private body holds the information sought;*** ***(b)whether the request for information is approved:*** ***(c)if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and*** ***(d)if the request is declined, a statement about how the requester may appeal to the Commission;*** 1. Section 8 subsection (6) provides that where the applicant does not receive a response to an application within the period stated in subsection (1) that is 21 days, the application shall be deemed to have been rejected. 2. Section 11 provides for access to information as follows: ***(1) Where a decision is taken to provide the information applied for, an information access officer shall send to the applicant a written response within fifteen working days of receipt of the application, advising—*** ***(a)that the application has been granted;*** ***(b)that the information will be contained in an edited copy, where applicable;*** ***(c)the details of any fees or further fees to be paid for access, together with the calculations made to arrive at the amount of the fee;*** ***(d)the method of payment of such fees, if any;*** ***(e)the proposed process of accessing the information once the payment if any is made; and*** ***(f)that an appeal may be made to the Commission in respect of the amount of fees required or the form of access proposed to be provided.*** ***(2) Subject to subsection (3), upon receipt of the fee payable, an information access officer shall provide the information to the applicant or permit the relevant inspection immediately but in any event not later than two working days from the date of receipt of the payment.*** ***(3) Any information to be made accessible to an applicant shall be produced forthwith at the place where it is kept, for inspection in the form in which it is held unless the applicant requests that it be made available in another form and, if it is practicable to do so, such information may be copied, reproduced or used for conversion to a sound transmission at the expense of the applicant.*** ***(4) Where a request for information is to a private body, subsections (1), (2), and (3) shall apply with necessary changes made.*** 1. Section 14 of the Act provides for review of decisions by the Commission. It provides; ***(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. Section 15 of the Act provides that in reviewing a decision in terms of the Act, the Commission may, where necessary, give notice to any third party to whom the information relates unless the necessary steps to locate the third party have been unsuccessful. 2. Section 20 of the Act provides for the role of the Commision and section 21 provides for the Functions of the Commission. The functions include: ***(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 assess and act on those reports with a view to assessing and evaluating the use and disclosure of information and the protection of personal data;*** ***(c)develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data;*** ***(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)monitor state compliance with international treaty obligations relating to freedom of and right of access to information and protection of personal data;*** ***(f)hear and determine complaints and review decisions arising from violations of the right to access to information;*** ***(g)promote protection of data as provided for under this Act or the Constitution; and*** ***(h)perform such other functions as the Commission may consider necessary for the promotion of access to information and promotion of data protection.*** ***(2) The Commission shall have all the powers as are provided for under this Act, its constitutive Act and the Constitution as are necessary for the performance of its functions under this Act.*** ***(3) The decisions of the Commission shall be binding on the national and county governments.*** 1. Section 22 of the Act provides for Inquiry into complaints. It provides: ***1)A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose.*** ***(2)A complaint lodged under subsection (1) shall be in such form and contain such particulars as the Commission may, from time to time, prescribe.*** ***(3) Upon receipt of a complaint under subsection (1), the Commission may—*** ***(a)call for information or a report regarding such complaint from the public entity or any other body within such reasonable time as may be specified by the Commission and—*** ***i)if the information or report called for is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report; and*** ***(ii)if on receipt of the information or report the Commission is satisfied either that no further action is required or that the required action has been initiated by the public entity, the Commission shall, in writing, inform the complainant accordingly and take no further action; or*** ***b) without prejudice to paragraph (a), initiate such inquiry as it considers necessary, having regard to the nature of the complaint.*** 1. Section 23 of the Act provides for the Powers of the Commission. It stipulates: ***(1) In the performance of its functions under this Act, the Commission shall have the power to—*** ***(a)issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;*** ***(b)question any person in respect of any subject matter under investigation before the Commission; and*** ***(c)require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission.*** ***(2) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order—*** ***(a)the release of any information withheld unlawfully;*** ***(b)a recommendation for the payment of compensation; or*** ***(c)any other lawful remedy or redress.*** ***(3)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.*** ***(4) An order of the Commission under subsection (2) may be filed in the High Court by any party thereto in such manner as the Commission may, in regulations made in consultation with the Chief Justice, prescribe and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order.*** ***(5) 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 like effect.*** ***(6) Public entities and relevant private bodies shall provide to the Commission such reports as required by the Act.*** ***(7) The Commission shall, in consultation with the public, develop and publicize guidelines detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies.*** ***(8) The Commission may request any further information from the public entity or the relevant private body to facilitate and enhance monitoring at any time and may issue an order compelling the provision of such further information.*** 1. Section 24 of the Act provides for powers relating to investigation. It provides that: ***(1) The Commission may, for the purpose of conducting any investigation pertaining to an inquiry, utilize the services of any public officer or investigation agency of the Government and where a public officer is so utilized under this subsection, the Commission shall pay such expenses as may be incurred by the public officer or agency for the service rendered.*** ***(2)For the purpose of investigating any matter pertaining to an inquiry, a public servant or agency whose services are utilized under subsection (1) may, subject to the direction and control of the Commission—*** ***(a)summon and enforce the attendance of any person for examination;*** ***(b)require the discovery and production of any information;*** ***(c)subject to the provisions of this Act, requisition any public records or copy thereof from any public officer; and(d)take a statement under oath in relation to any investigation it is undertaking.*** ***(3) The provisions of***[***section 23***](https://new.kenyalaw.org/akn/ke/act/2016/31/eng%402022-12-31#part_V__sec_23)***shall apply in relation to any statement made by a person before any public officer or agency whose services are utilized under subsection (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.*** ***(4) The public officer or agency whose services are utilized under subsection (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission in that behalf.*** ***(5) The Commission shall satisfy itself on the correctness of the facts state****d* ***and the conclusion, if any, arrived at in the report submitted to it under subsection (4) and for that purpose, the Commission may make such inquiry, including the examination of any person who conducts or assists in the investigation, as it considers necessary.*** 1. I have extensively set out the above provisions of the Access to Information Act to demonstrate that indeed, the Act provides that first recourse for any person claiming that they have been denied access to information is by first, lodging a complaint with the Commission (Commission on Administration of Justice). As set out the Commission can make an inquiry into the complaint, investigate the complaint, review a decision by an information officer among others. 2. Article 159(2) (c) of the Constitution recognises and entrenches the use of alternative mechanisms of dispute resolution in the following terms: ***159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-*** ***(a)…*** ***(b)…*** ***(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.*** 1. Numerous decisions have been rendered by our Courts on the issue of alternative dispute resolution mechanisms. The Supreme Court **Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR**, held: ***“63.Where***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complainant the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed:*** ***“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.”*** 1. The Court of Appeal in **Benjamin v General & 55 others [2024] KECA 1672 (KLR)** addressed its mind on this issue as follows: ***“(116)The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance…*** 1. As elucidated above, the Access to information Act provides for the procedure for a requester to challenge the decision of the information access officer to deny access to information. In the instant petition, it has not been demonstrated that the petitioner utilized the mechanisms available under the Act. In my view, the petition offends the doctrine of exhaustion. 2. Additionally, Section 9 of the Fair Aministraive Action Act, 2015 provides that: ***(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.*** ***(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.*** ***(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).*** ***(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.*** ***(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.*** 1. It is argued that the 1st and 2nd respondents failed to furnish the petitioner with information regarding the nomination and appointment of the 4th respondent to the 3rd respondent. As can be gleaned from the provisions of the Access to Information Act, the failure to respond to a request for information is interpreted as a refusal as such, it is a decision. Section 2 of the Fair Administrative Action Act defines an administrative action to include any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. The said section 2 also defines **‘failure’** as follows: ***"failure", in relation to the taking of a decision, includes a refusal to take the decision.*** 2. In my view the alleged failure by the 1st and 2nd respondents to respond to the letters by the petitioner within the stipulated timelines were a decision and therefore an administrative action. 3. Section 9(2) of the Fair Administrative Action Act is explicit that where there is an alternative dispute resolution mechanism, it ought to be explored first. If this is not possible, then an application should be made under section 9(4) for exemption and in exceptional circumstances. Faced with similar scenario, Mativo J (as he then was) in **Republic v Kenya Revenue Authority Ex Parte Style Industries Limited [2019] eKLR** stated: ***“42. The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of a successful application under section 9(4) of the FAA Act.******[[41]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn41%22%20%5Co%20%22) The person seeking exemption must satisfy the court, first that there are exceptional circumstances, and, second, that it is in the interest of justice that the exemption be given.******[[42]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn42%22%20%5Co%20%22) Section 9(4) of the FAA Act******[[43]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn43%22%20%5Co%20%22) postulates an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. My reading of the said provision is that the applicant must first apply to the court and demonstrate the existence of exceptional circumstances.*** ***43. The law is that Section 9(4) of the FAA Act******[[44]](http://kenyalaw.org/caselaw/cases/view/184676/%22%20%5Cl%20%22_ftn44%22%20%5Co%20%22) postulates an application to the court, by the aggrieved party, for exemption from the obligation to exhaust an internal remedy. Put differently, an applicant must formally apply to the court and demonstrate exceptional circumstances. The law contemplates a situation where by an applicant makes his application, demonstrates the existence of exceptional circumstances and consistent with rules of fair play, afford the other party the opportunity to respond or disapprove his case and leave it to the court to determine. No application was presented before this court to determine the existence of exceptional circumstances; nor do I see any exceptional circumstances in the circumstances of this case.”*** 1. Further holdings 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** (paragraphs 52, 59. 60 and 61) and **Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR** (paragraphs 23, 24 and 25) support this position on the doctrine of exhaustion, where there is no exceptional circumstances for exemption. 2. No such application for exemption has been made in this petition as one of the prayers or exceptional circumstance demonstrated. Therefore, the petition not only offends the provisions of section 9(3) and 9(4) of the Fair Administrative Actions Act. It also offends the clear stipulations of the Access to Information Act. The petition therefore offends the doctrine of exhaustion. 3. Coupled with this is the doctrine of constitutional avoidance. Pronouncing itself on this doctrine, the Supreme Court in **Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR)** observed as follows: ***“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.*** ***Currie and de Waal opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author states: -*** ***“When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”*** ***11. An important and critical issue arises from the above statements by Currie and de Waal. It is a fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware, however, of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence, all other laws give full expression to the ideals of the Constitution until found to be inconsistent with it.*** ***…*** ***The exceptions to the application of the doctrine of constitutional avoidance are: -*** ***i. where the constitutional violation is so clear and of direct relevance to the matter,*** ***ii. in the absence of an apparent alternative form of ordinary relief and*** ***iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.”*** 1. Similarly, in **C O D & another vs Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR)** the Court observed as follows: ***“11. Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011where after considering several authorities on the issue, Justice Lenaola remarked as follows:*** ***“All the authorities above would point to the fact that the constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.” (Emphasis added)*** ***12. The Supreme Court of India has also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. For instance, in Re Application by Bahadur[1986] LRC (Const) the Court expressed itself as follows at page 307;*** ***“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62).*** ***13. It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J);*** ***“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”*** 1. The Court went on to state as follows: ***“14. The law above is crystal clear that where there exist sufficient and adequate mechanisms or forums to deal with a specific issue or dispute by other designated constitutional organs or under a statute, the jurisdiction of the High Court under Article 165(3) (b) of the Constitution should not be invoked until such mechanisms have been exhausted. To my mind therefore, not every litigant ought to come to court by way of a constitutional petition even where there are no constitutional issue arising and where there are adequate remedies provided in other laws to determine such situations.*** ***15. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution: See Harrikissoon v A-G [1979] 3 WLR 62. Where it is possible to decide any case or dispute , civil or criminal, without reading a constitutional issue then that is the course that should be followed. The court sitting as a constitutional court must through the doctrine of avoidance steer clear of determining such disputes as if there were constitutional questions being raised: see S v Mhlungu[1995] 3 SA 867 (CC) and also Ashwander v Tennessee 297 US 288.”*** 1. It is my finding that petition offends the doctrine of constitutional avoidance for failing to utilize the available dispute resolution mechanisms stipulated in the Access to Information Act elucidated herein above. **Whether the petition is merited** 1. Having determined that dispute resolution mechanisms provided in the Access to Information Act should have been utilized which was not and that the petition offends the provisions of section 9 of the FAIR Administrative Action Act on exhaustion of alternative dispute resolution mechanisms before resorting to judicial intervention, I must pose and answer the question of whether , assuming the doctrines of exhaustion and constitutional avoidance were inapplicable in the circumstances of this case, there is any merit in the petition. 2. In arriving at the above alternative position, I observe that in **Katiba Institute v President’s Delivery Unit & 3 others [2017] KEHC 2183 (KLR)** the Court was asked to determine whether the petition was premature for failure to first approach the Commission and E.C. Mwita J (as he then was) persuasively stated: ***53.The respondents further contended that the petition is premature basing their argument on section 21 of the Act. Their take was that the petitioner should have first complained to the Commission on Administrative Justice (CAJ) before filing the petition. I have read the Act but could not trace a provision making a report to CAJ a condition precedent to triggering the jurisdiction of this Court to deal with petitions filed seeking to challenge violations of the right to access information under Article 35 of***[***the constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***. This Court has unlimited jurisdiction under Article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The respondents’ contention that the petition is premature is therefore unsustainable.”*** 1. In order to determine whether the petition is merited, this court has to establish whether the petitioner’s rights under Articles 35 (1) (b) of the Constitution and section 4(1) of the Access to Information Act, 2016 were violated. The other issues are whether the process of nominating and appointing the 4th respondent to the 3rd respondent was lawful and whether the respondents have violated the constitutional provisions alleged to have been violated. **The right of access to information** 1. I have extensively reproduced the provisions of the Constitution under Article 35 and the Access to Information Act. I note that the petitioner made requests through the letters dated 17th September 2024 and 24th October 2024 to the 2nd respondent. There is also a letter dated 4th November 2024 issued to the 1st respondent. All those letters request for information regarding the nomination and appointment of the 4th respondent to the 3rd respondent. Twenty-One days lapsed and no response was given to the petitioner. 2. The 3rd respondent has told this court that no request was made to it for any information, this has not been controverted by the petitioner nor has evidence been adduced to demonstrate that the petitioner served the 3rd respondent with the letters in issue. There is however evidence that the 1st and 2nd respondents received the letters dated 24th October 2024 and 4th November, 2024. Those letters were never copied to the 3rd respondent KMPDC. 3. As for the 4th respondent, the process of his nomination all the way to his appointment has been explicitly set out. It is submitted that the petitioner was all along aware of the process and did not raise an objection when the 4th respondent was nominated. Further, that the petitioner waited for over two years to challenge that process. 4. In normal circumstances, it would be expected that as provided for under Article 35 of the Constitution and section 4(1) of the Access to Information Act, once an information has been requested for, then the party in possession of the information should furnish that information within 21 days and where that information cannot be provided, then reasons have to be given to the requester. 5. In **Katiba Institute v President Delivery Unit & 3 others (supra)** the court opined that once a citizen places a request to access information, the information should be availed to the citizen without delay. Further, that Article 35 of the Constitution does not place conditions for accessing information. (paragraph 31). The Court further noted that the right of access to information is inviolable because the right is granted by the Constitution and is protected by the same Constitution. (paragraph 35). This position is also reflected in **Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission [2016] eKLR** where the Court stated thus: ***“[270] Article 35(1) (a) of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information”.*** 6. At paragraph 39 of the **Katiba Institute decision (supra) case,** the court stated as follows: ***39.The right to access information as a basis for accountability, responsiveness and openness was emphasized in the case of Brummer v Minister for Social Development & Others (supra) where the Court stated;*** ***“(62) The importance of this right too, in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the state. Indeed, one of the basic values and principles governing public administration is transparency. And***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***demands that transparency “must be fostered by providing the public with timely, accessible and accurate information.”*** ***(63) Apart from this, access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas.”*** ***40.The above principles regarding the right to access information are also founded on international instruments. Article 19 of the Universal Declaration of Human Rights is clear that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.*** ***Article 19(2) of International Convention on Civil and Political Rights also makes the right to information imperative when it states that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” And finally, Article 9(1) of Africa Charter on Human and Peoples Rights states that “every individual has the right to receive information.”*** 1. It is not denied that the petitioner sought for information from the 1st respondent as well as from the 2nd respondent and that information was not granted. I further note that there are circumstances where despite requesting for information, this right cannot be said to have been violated. The Access to Information Act under section 6(5) provides that a public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means. In this case, it is contended that the petitioner was alive to the fact that the 4th respondent had been nominated. That although he was not in the meeting of 26th January 2023 where the nomination of the 4th respondent was announced, he could access the minutes of the meeting. The petitioner has now come to Court two years later. 2. I have examined the minutes of the said meeting and I note that the 4th respondent did not attend the said meeting. I have also noted that from the minutes, the issue of the nomination was tabled as a piece of information but it did not invoke members to vote on it or deliberate on it. 3. In my view the information in the minutes is scanty and does not address the concerns by the petitioner. The petitioner had asked for not only minutes of the meeting documenting the discussions and decisions made regarding nomination of representatives, which minutes were filed in these proceedings, but he also sought copy of the resolution passed by KDA and correspondence to the Cabinet Secretary for Health concerning the nominations. 4. Those other two documents were not supplied to the petitioner as demanded. Therefore, assuming that the right to access information is absolute and self executing and that access to information is not subject to any processes stipulated in the Access to Information Act, then the right to access to information was breached. However, as earlier stated in this judgment, Access to Information Act is the legislation enacted to give effect to Article 35 of the Constitution. In 5. However, the right to access information is not absolute. Article 35 falls outside the absolute rights that are not limitable and therefore the right can be limited subject to Article 24 of the Constitution. In addition, the petitioner must demonstrate that he has suffered injury as a result of non-disclosure of the information sought. The burden of proof that a right has been denied, violated, infringed or threatened to be infringed always lies with the petitioner. This is what this Court held in **Obare & another v Clerk, County Assembly of Siaya & another (Constitutional Petition 2A of 2020) [2020] KEHC 4999 (KLR) (17 June 2020) (Judgment)** adding that: ***“30. It is important to note that the preamble to Access to Information Act stipulates that it is AN ACT of Parliament to give effect to Article 35 of the Constitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes. The Act provides for an elaborate procedure for request for information and in the event that such request is not acceded to, section 14 thereof provides for the remedy in terms of review of the decision of the entity or person that has refused to provide access to the information that is requested.”*** 1. At paragraphs 36 to 40, the Court reiterated that resting to the statutory mechanisms provided for under the Access to Information Act was not an option in the circumstances of that case which are similar to this case where information was sought but not supplied. The Court stated as follows: ***36.******In the instant Petition, the Petitioners requested for information from the Respondents but the Respondents are alleged to have refused to respond to the letter of request and that despite the filing of the Petition herein, the Respondents have declined to submit to the request claiming that most of the documents sought are on the website of the 1st Respondent and that the other documents were submitted to the Ethics and Anti-Corruption Commission (EACC) which is investigating certain activities of the 1st Respondent including the construction of the County Assembly Complex.*** ***37. It is trite that where the Constitution or statute confers jurisdiction upon a court, tribunal, person or body or any authority, that jurisdiction must be exercised in accordance with the Constitution or statute. In Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] e KLR the Court of Appeal stated:*** ***“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.”*** ***38.The same Court of Appeal in Kenya Revenue Authority &2 others v Darasa Investments Ltd [2018] eKLR [Visram,Karanja and Koome JJA] stated as follows when it posed the following question:*** ***“What then, ids the consequence, if any, of the respondent’s failure to invoke the alternative remedies? As appreciated by the parties, availability of an alternative remedy is not a bar to judicial review proceedings. It is only in exceptional cases that the High Court can entertain judicial Review proceedings where such alternative remedies are not exhausted. Tis position is fortified by the decisions of this court in Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others[2017]e KLR and Kenya Revenue Authority & 5 others v Keroche Industries Limited CA No. 2 of 2008. Perhaps that why the legislature at section 9(4) of the Fair Administrative Action Act stipulates that:*** ***“Notwithstanding subsection (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.”*** ***“Our reading of the above provision reveals that contrary to the appellant’s contention, the High Court or a subordinate court may on its own motion or pursuant to an application by the concerned party, exempt such a party from exhausting the alternative remedy.”*** ***39. In Ndiara Enterprises Ltd v Nairobi City County Government [2018] eKLR the Court of Appeal in upholding the judgment of the High Court, Aburili J in Nairobi J.R Misc. Civil Application No. 91 of 2016) Ndiara enterprises Limited v Nairobi City County Government stated:*** ***“ Though the High Court can exempt a party from following such clear laid down procedures for redress of grievances before approaching it in the noble interests of justice, the learned Judge rightly found that the appellant had failed to prove there were exceptional circumstances in its case to warrant such exemption. Indeed, there are no apparent exceptional circumstances to justify such exception and which exception was also not sought. The High Court’s power to exercise its jurisdiction under Article 165 of the Constitution was therefore limited or restricted by statute in this instance as found by the Judge. The appellant had complained before this Court that the learned Judge erred in failing to appreciate that though there exists an alternative procedure for redress, the same was less convenient, beneficial and effective in its circumstances. However, that argument must be taken as an afterthought. The same was never raised or pursued before the High Court thus denying the respondent the opportunity for rebuttal and denying this Court the benefit of the reasoning of the High Court on the same issue.*** ***On the authority of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, which the Judge had in mind and cited, the High Court was bound to lay down its tools the moment it held that it lacked jurisdiction. We concur with its finding that it lacked jurisdiction to entertain and determine the proceedings.”*** ***40. The above holding was informed by the provisions of section 9(1) (2),(3) and (4) of the Fair Administrative Action Act, 2015 which Act implements Article 47 of the Constitution on the right to fair administrative action, and which clearly stipulate that an applicant must first exhaust the available internal dispute resolution mechanisms before resorting to court although in exceptional circumstances and on application, the court may exempt such party from resorting to alternative internal dispute resolution mechanisms.”*** 1. In the end, I reiterate without hesitation that the circumstances of this case the petitioner ought to have exhausted the remedies available for accessing in formation which he required and he had all the time in the two years that he took before filing petition, to exhaust those remedies as stipulated in Access to information Act and backed by section 9 of the Fair administrative Action Act. I do not find that this is a matter where this Court can exercise discretion to make a finding exempting the petitioner. **Whether the process** **of nominating the 4th respondent was lawful** 1. The petitioner submits that the process of nominating the 4th respondent was unlawful because it did not align with the provisions of section 3A (10) of the Medical Practitioners and Dentists Act, that the process was done in secrecy and that the 4th respondent being the then President of the 2nd respondent at the time of nominations may have influenced the decision to nominate him. It is also submitted that the nomination in any event did not comply with the requirements of the letter of 16th December 2022, for not including one man and one woman. 2. The 3rd and 4th respondents submit to the contrary. The 3rd respondent argues that it is neither involved in the nominating process nor the appointment process. The 4th respondent contends that section 3A (10) does not provide a procedure /process on how the nominations are to be done. Further, that the issue of gender among others lies on the 1st respondent. That the said section does not stipulate that there should be one man and one woman and therefore such a requirement was illegal. The other argument is that the petitioner has not adduced evidence to demonstrate that the 4th respondent influenced the decision to nominate him. 3. The question is whether the petitioner has demonstrated that the 4th respondent influenced his nomination to the 3rd respondent. Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya places the burden of proof on the person alleging the existence of a particular fact. In my view, no evidence has been supplied to substantiate this assertion. 4. On the illegality of the process, Section 3 of the Medical Practitioners and Dentists Act establishes the Council (the Kenya Medical Practitioners and Dentists Council). Section 3A provides for its composition. Section 3A (1) (c) provides that council shall consist of -four persons appointed by the Cabinet Secretary, nominated as follows- ***one person who shall be a representative of universities in Kenya which have the power to grant a qualification which is registerable under this Act; one person who shall be a representative of the Kenya Medical Association; one person who shall be a representative of Kenya Dental Association; and one person who shall be a representative of oral health practitioners.*** 5. Subsection (10) of section 3A provides that ***pursuant to nominations in paragraphs (1)(c) and (d), each organization shall present two nominees one of whom shall be appointed by the Cabinet Secretary taking into account ethnic diversity, gender, disability, skills mix and regional balance.*** 6. The process of nominating the 4th respondent has been explicitly set out in the 4th respondent’s replying affidavit. By a letter dated 16th December 2022 addressed to the 4th respondent and titled Nominations for appointment to the Kenya Medical Practitioners and Dentist Council, the 4th respondent is instructed to forward two (2) nominees, one male and one female, one of whom shall be appointed to the Council. The letter is from the Ministry of Health and is signed by the Principal Secretary. 7. Attached to the 4th respondent’s affidavit is also minutes of the KDA Council Meeting Held on the 26th January 2023 via zoom. In the said meeting, the petitioner was absent with apologies. From the agenda, the issue of nominating persons who shall be appointed to the Council was not among them. However, under Minute 1/1/2023; Matters arising at No. 10, the President (4th respondent) reported that KMPDC wrote asking for nominations of members to the Council and reported that two names were forwarded i.e Dr. Ndegwa and Dr. Theuri. 8. The petitioner has argued that the issue was raised as any other business and that it was not deliberated or moved. The 4th respondent has submitted otherwise and submitted that by virtue of the fact that the members did not object then the issue was accepted. 9. I have examined section 3A (10) and I agree with the 4th respondent that indeed, it is true that the 1st respondent is obligated to ensure gender balance in the nominations and not the nominating authority (2nd respondent). Was this done? My answer is yes. Looking at the letter addressed to the 4th respondent, the 4th respondent is expressly instructed to nominate one male and one female. In my view the Cabinet Secretary was fulfilling his mandate by stipulating so. I therefore do not agree with the 4th respondent that such a requirement was illegal. 10. I have noted as stated herein before, that the minutes of 26th January, only reported the nominations but did not urge the parties to deliberate or vote on the issue. Although I agree that there is no procedure as to how the nominations are to be done, a nomination is a process and therefore evidence must be supplied to demonstrate that the process has been undertaken. None has been demonstrated. What the court has been told is that there were no objections but, were the member given a chance to deliberate and vote on the issue? There is no evidence of the opportunity given to members to vote on the issue of nominations. I therefore agree with the petitioner that the nomination process did not meet the required standard, hence unlawful. ***On what orders this Court should make*** 1. Having so found, I note that the term of the persons nominated to serve in the 3rd respondent was lapsing in March 2026. Therefore, the challenge to the nomination is no doubt moot. This Court cannot grant prayers (a), (b), (c), (d) and (e) in the petition for the reasons given in the detailed judgment and as the prayers have now been overtaken by events and this court cannot issue orders in vain. Prayer (f) cannot also issue because the obligation to ensure that nominations and appointments take into account the criteria for ethnic diversity, gender, disability, skills mix and regional balance is bestowed on the Cabinet Secretary (the 1st respondent). 2. In the end, the petition dated 5th May 2025 dismissed with an order that each party bear their own costs. 3. The file is closed. **Dated, Signed and Delivered virtually at Nairobi this 2nd Day of July, 2026** **R.E. ABURILI** **JUDGE**