[2022] KEHC 12114 (KLR)

Otiende v Attorney General; Kirinyaga Construction Company (K) Limited (Interested Party) (Petition 47 of 2019) [2022] KEHC 12114 (KLR) (Constitutional and Human Rights) (27 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12114 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 47 of 2019

HI Ong'udi, J

July 27, 2022

Between

Anthony Otiende Otiende

Petitioner

and

Attorney General

Respondent

and

Kirinyaga Construction Company (K) Limited

Interested Party

Judgment

1. The petition dated February 8, 2019 was filed under Articles 2, 10, 20(4)(a), 21(1), 22, 23, 165(3), 258 and 259 of the Constitution among others. The same is supported by the petitioner’s affidavit of even dates.

2. He is seeking the following reliefs in the petition :-i)A declaration that:a)The respondent has in relation to the manner in which he handled the matter, Kirinyaga Construction (K) Limited vs AG, Nairobi HCCC No. 885 of 2009, variously violated the constitution of Kenya, 2010. b)The interested party does not qualify to be paid the decretal amount of Kshs. 321,986, 586. 94 of any other amount arising from the judgment and decree in Kirinyaga Construction (K) Limited vs AG, Nairobi HCCC No. 885 of 2009 on account of the fact that it did not undertake to completion the rehabilitation works in respect of Muranga-Sagana-Karatina-Marua Roads (C73/A2).c)The plans to pay the interested party moneys in the sum of Kshs. 321, 986, 586. 94 on account of works not undertaken, and in subjugation of various conditional principles related to public finance are both unlawful and unconstitutional and, therefore, invalid, null and void.ii)An order:a)Annulling in its entirety the plans by the respondent or any other state officer to pay the interested party the moneys in the sum of Kshs. 321, 986, 586. 94 of any other amount arising from the judgment and decree in Kirinyaga Construction (k) Limited vs AG, Nairobi HCCC No. 885 of 2009 and all other attendant Applications.b)Compelling the respondent and the interested party to transparently provide information sought in the petitioner’s letter dated December 10, 2018 to the respondent and copied to the interested party.c)Compelling the respondent and the interested party to jointly and severally bear the costs of this suit.iii)Any other relief that this Honourable Court may deem just and fit to grant in the circumstances.

The Petitioner’s case 3. A summary of his case as set out in the petition, supporting affidavit and further affidavit sworn by the Petitioner on July 7, 2020 is that, on or about 2003, the Government of Kenya through the then Ministry of Roads & Public Works awarded contract Number RN0401 to Kirinyaga Construction (K) Limited (Interested party) for rehabilitation of Muranga- Sagana – Karatina – Marua Roads (C73/A2).

4. Soon after the award, the interested party embarked on the works but shortly stalled and left the works altogether. Consequently, the government re-awarded the contract to another company to complete the works with the result that they had to be paid a relatively significant amount in respect thereof.

5. In or about the year 2009, the interested party demanded payment of the full contract price, and filed Kirinyaga Construction (K) Limited vsAG, Nairobi HCCC No. 885 of 2019 where the respondent was sued as one of the defendants.

6. He discovered that during the pendency of the aforesaid suit, the respondent herein failed to enter a defence in time, or at all, and in the subsequent proceedings or sessions, did not appear when he was supposed to. Further that whenever the Attorney General was represented in court the representation was lackadaisical an example being on November 8, 2010 where the Attorney General entered into consent with the interested party agreeing to pay them Kshs. 321, 986, 586. 94.

7. Subsequently, the interested party extracted the order in respect of the consent as well as the certificate of order against the Government, which were served and subsequent proceedings in applications related to that suit did not take away the indebtedness. The result is that the Attorney General visited indebtedness on the line Ministries of Finance and Roads & Public Works, with eventual consequences to the tax payer.

8. The said amount has accrued interest and other related charges so much that the figure has hit Kshs. 4. 6 billion and it continues to accrue such interests and penalties as to overburden the taxpayer who did not at the time have a way to contest the same, except through the Attorney General. He deponed that he has learnt through the media that the Attorney General intends to settle and is in the process of processing paper work for settling the debt in favour of the interested party.

9. According to him, he made a request to the respondent seeking clarifications on the following issues:a)How much money was paid out to the interested party before, during the pendency of the contract project and afterwards.b)After determining the contract with the interested party, how much was paid to this second company which went on to complete the works.c)Before commencement of the project, did the interested party execute a performance bond? How much was it? Did the government realize the same?d)Did the contract have a determination clause? What were the terms of the clause if it had? Did it afford the government any recourse, civil or otherwise, in situations where the contractor failed to perform its obligations under the contract?e)Why was the respondent’s office reluctant to defend the suit in court at the trial times? Was there any disciplinary action taken against the respondent’s officers for failing to discharge their duties as counsel representing the respondent? Who were they? Are they still in employment of the respondent?f)What informed the respondent’s recent decision to settle the matter out of court instead of contesting it in court? What is the progress of the reported negotiations, if any?

10. It was his averment that on or about December 10, 2018, he formally requested the Attorney General pursuant to Article 35(1) and (3) of the Constitution as well as sections 4 and 5 of the Access to Information Act No. 31 of 2016, in relation to fundamental questions raised but the Attorney General omitted or otherwise failed to respond accordingly within the 21 days statutory limit or at all. Accordingly, the respondent violated Articles 3(1), 10(2), 19(1), 20(1), 24(1), 35, 129, 201(d), 201(a), 206(4), 210, 228(5) of the Constitution.

11. In his further affidavit and in response to the interested party’s response, he deposed that the interested party has clearly stated that it seeks to enforce the terms of a contract it executed with the respondent but whose terms it did not perform. He refuted claim that the reliefs had been overtaken by events. There was necessity for scrutiny and clarification of all relevant issues arising to determine their propriety and legality before payment, is effected. If justified and in instances where there was non- compliance with the law, this court has powers under Articles 23(3) and 259 of the Constitution to exact refunds of any moneys paid out.

12. He deposed that the issues raised in the petition are of public interest and this Court already rendered itself on the correct position via a ruling delivered on November 28, 2019. Also, the Court in the civil dispute between the interested party and the respondent was not invited to, and did not adjudicate on the constitutional aspect that form the basis of this petition. He averred that the respondent’s failure to respond to the queries raised in his letter is geared towards obscuring the manner in which the interested party’s suit against the respondent was handled. Further, the judgment relied upon observes that certified proceedings that the interested party suggests he would have obtained were either lost or missing.

13. According to him, there is little to gain from the proceedings that the interested party refers to, as there was no substantive trial in the matter. This he avers is one of the issues that motivated his decision to formally inquire information relating to the suit and the circumstances under which a consent judgment was reached and registered in court.

14. He depones to having lodged the petition in public interest and has never met any director or official of the interested party. That such an allegation is intended to cover up the interested party’s conduct in an attempt to defraud the tax payer for a contract they executed but never followed up with actual performance. Further no personal benefit accrues from public interest litigation, he avers.

15. He deposed that the petition raises fundamental questions of constitutional interpretation for determination by this court. He urged the court to consider the manner in which the interested party failed to comply with the court’s directions severally on the issue of costs. He further urged the court to consider paragraphs 91 - 94 of the judgment in HCCC 885 of 2009 which in effect reinforces the concerns raised by the petition.

The Respondent’s case 16. The respondent filed grounds of opposition dated May 30, 2019. The grounds are that:-i)The petitioner has not shown with sufficient clarity and precision, the constitutional right and fundamental freedom that he wished to protect and exercise and how they have been violated or the constitutional provision violated, how they have been violated and by whom. The petition is omnibus and based on conjection and newspaper evidence which lacks the requisite probative value.ii)To the extent that paragraphs 5, 6,7,8,9,10,11,12,13,20,21,23 and 24 of the affidavit sworn by the petitioner on February 8, 2019 and paragraphs 7,8,9, 11,12,13,14,15,16,32 and 34 of the petition refer disparagingly to the respondents capacity to represent public interest and government and / or are speculative and / or are referring to questions in issue in Nairobi HCCC No. 885 of 2009 Kirinyaga Construction Company (K) Limited vs. Hon. Attorney General and/or are omnibus the same are scandalous and ought to be struck out at the first instance.iii)The request for information, exhibit A002 does not meet the threshold of a request for information contemplated under Article 35 of the Constitution of Kenya. It does not indicate the reason for the request and the specific right that the petitioner seeks to enforce using the information sought.iv)The information sought by the petitioner is public information. It is available in the court registry under Nairobi HCCC No. 885 of 2009, which the petitioner is well aware of since he has referred to the case in his letter, application and petition.v)The petition as filed, herein is subjudice. The dispute over payments in the contract referred to by the petitioner between the respondent and the interested party herein is actively before the commercial Division of this court vide Nairobi HCCC No. 885 of 2009 Kirinyaga Construction Company (K) Limited vs. Hon. Attorney General.vi)The petition is not supported by an affidavit and it therefore offends the constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure rules 2013. It is incurably defective and the same ought to be struck out at the first instance. Reliance will be placed on Patrick Ochieng Obach and 6 others v Kenya Anti- Corruption Commission (2010) eKLR and Charles Okello Mwanda v EACC and 3 others (2014) eKLR.vii)This petition is meant to circumvent the civil dispute resolution systems established under the Civil Procedure Act and Civil Procedure Code; specifically in respect to the conduct of civil cases, the petition is an abuse of the court process and runs contrary to the court of appeal ruling in Speaker of the National Assembly v Karume Civil Application No. Nai 92 of 1992. Further such attracts to dismissal of the case in limine. (Benjoh Amalgamated & Anor vs Kenya Commercial Bank Limited [2007] eKLR.viii)The prayer (i) (a) of the petition is not predicated on any rational connection between the facts of the petition and the alleged violation. It should not be granted. Prayers (i) (b) and (c); and (ii) (a) are unenforceable, on account that the monies referred to have already been paid and that they are the subject matter in HCCC No. 885 of 2009. The same applies to prayer 4 of the motion.ix)That the prayer for information is not available at the interim stage. It is a final prayer.x)The petition and application be dismissed with costs.

The Interested party’s case 17. The interested party filed a replying affidavit by Joseph Waigwa sworn on June 29, 2020. He deposed that the suit herein arises out of the contract No. RD0401 dated November 15, 2002 which was a contract for rehabilitation of the Muranga- Sagana- Karatina Marua Roads (C73/A2). Its claim was premised on wrongful conduct of the government in management of the payment systems and unjustified deductions and application of Value Added tax and Withholding Tax in breach of the contract RD0401 that brought loss to it.

18. He made reference to clauses 70, 60. 8 (iii), 47. 2 and the general condition for section 5A and averred that via an addendum dated October 27, 2006, the Ministry increased the design life of the road from about 5years , to 15 to 20 years. As a result, the contract sum was revised in November, 2006 from the original amount of Kshs. 486,858, 820/- to Kshs. 1,613,267,470. 60/-.

19. He deposed that the contract was subject to the general conditions of contracts which form part 1 of the conditions for Works of Civil Engineering Construction Fourth Edition 1987 prepared by the Federation Internationale des Ingenieurs Conseils (FIDIC). Pursuant to clause 60 of the conditions of the Contract Part II, the Ministry was required to pay the contract price in the manner provided for therein; the Ministry would pay it the contract price which would include all duties, taxes and other levies less those payable thereunder and would not withhold Value Added Tax (VAT).

20. He averred that the VATAct Cap 476 was amended by the Finance Act No. 4 of 2004 following which the VAT (Tax withholding Regulations 2004(Legal Notice No. 53 of 10th June 2004) were promulgated and came into force on 11th June 2004 which said rules required the Ministries to withhold VAT directly from the sums payable to the government contractors.

21. Soon after the suit was filed the defendant therein after interpreting the legal notice No. 53 of June 10, 2004, agreed to settle this claim pursuant to negotiations. A portion of the claim was settled by the consent of the parties and it was agreed that- the VAT and Withholding Corporation Tax in the sum of 202, 281, 663. 66 be refunded; Kshs. 119, 704, 923. 28 being part claim of the entire claim of consequential losses of Kshs. 2,291,867,688. 48 be paid and the balance of the claim by the interested party be referred to court for hearing.

22. He deposed that prayers 3 and 4 were already overtaken by events in Nairobi HCCC No. 885 of 2009 Kirinyaga Construction Company (K) Limited vs Honourable Attorney General. Further that prayer 3 related to the petitioner’s letter dated December 10, 2018 and directed to the respondent. He has cited the names of the parties in HCCC No. 885 of 2009 and those appearing herein and avers that the gist of the prayers sought is on payment of Kshs. 321, 986,586. 94 arising out of HCCC 885 of 2009. He further avers that the matter has been substantially heard and judgment delivered on March 9, 2020. That by asking this court to stop payments the petitioner is asking it to sit on appeal against a judgment of a court of similar and equal jurisdiction.

23. He deposed that the petitioner has not proved poor handling of the matter neither has he proved any violations hence the allegations are nugatory. He further averred that the petitioner was asking them for a sum of money for him to withdraw the petition.

The Petitioner’s further affidavit 24. The petitioner swore a further affidavit dated July 7, 2020, in response to the interested party’s replying affidavit. He depones that all issues should be scrutinized and clarified before any payments if justified are made. He further deponed that the trial court in the civil suit was not invited to and did not adjudicate on the constitutional aspects that formed the basis of the present petition.

25. He accuses the respondent for its failure to respond to the issues he raised in his letter dated December 10, 2018. The said issues relate to how the civil suit was handled. He has stressed that this is a public interest case and he has no personal interest in the matter.

The Petitioner’s submissions 26. The petitioner filed submissions dated April 9, 2020. Regarding the petition lacking a supporting affidavit, he submitted that the issue was raised by the interested party and the same was dealt with in a decision delivered on November 27, 2019. Relying on Rule 11(1) and (2) of the Mutunga Rules he argued that annexing an affidavit to the petition is discretionary and not fatal to the suit. Further that the court having directed that the application and petition be consolidated and heard together, the affidavit sworn in support of the application also applied to the petition and was part of the documentation before the court. He argues that the respondents have not demonstrated the prejudice they will suffer.

27. On whether the respondent violated the petitioner’s rights of access to information, he maintained that his letter to the respondent dated December 10, 2018 and copied to the interested party, has never been responded to. As a result articles 10, 33 and 35 of the Constitution and sections 4, 9 and 21 of the Access to Information Act were violated. According to him, an individual has a right to access information held by public authorities acting on behalf of the State.

28. This right he argues is an important right for the proper and democratic conduct of government affairs, as it enables citizens to participate in that governance. Further, the public is the source of at least a significant sum of the funds that the respondent is spending, and has a right to know what is being done with its moneys.

29. He argued that the Constitution grants citizens access to information and it’s only the constitution that can limit it. Relying on Article 35 of the Constitution, he argued that once a citizen places a request to access information, the same should be availed to him/her without delay. Referring to section 4 of the Access to Information Act No. 31 of 2016, he argued that the right to information is not affected by failure to give reasons for the request made, or what the public officer perceives to be the reason for seeking the information. This reinforces the fact that Articles 35 does not in any way limit the right to access information.

30. Further relying on sections 5, 8 and 9 of the Access to Information Act, and Nairobi Law Monthly v Kenya Electricity Generating Company & 2 others 2013 eKLR and Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission [2016] eKLR he submitted that the right to access information is inviolable because its neither granted nor grantable by the state. It is granted by the Constitution and protected by the same Constitution.

31. He also relied on Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR for the argument that access to information is a constitutionally entrenched right. He contends that failure to allow access to this information would enable the respondent and interested party to keep from the public eye documents which may disclose evidence of corruption, graft and incompetence on the part of the respondent or which may disclose that there has been no such malfeasance contrary to the principles of transparency and accountability.

32. On whether the respondent should be compelled to give information sought by the petitioner, he relied on Articles 165 (3) (b) of the Constitution , Article 35 and the case of Attorney General v Kituo cha Sheria & 7 others [2017]eKLR. He submitted that the respondent was under obligation to obey the law and allow the petitioner access information or where not possible give reasons for that. He maintained that he had proved his case to the required standard and must succeed. He relied on Tinyefuza v Attorney General of Uganda [1997] UGCC3 for that argument and urged the court to adopt that position.

33. Further, on whether the actions of the respondent offend the principles of public finance, he submitted that the respondent concealed information relating to the payment of the moneys to the interested party. He also deliberately failed to respond to the issues raised in his letter thereby infringing the principles that guide all aspects of public finance set out in Article 201 of the Constitution.

34. Further relying on Speaker, Nakuru County Assembly & 46 others v Commission for Revenue Allocation & 3 others [2015] eKLR, he maintained that public resources must be used in a prudent manner for progressive purposes. Allowing the respondent to pay or enter into agreements aimed at paying the impugned amounts offends the provisions of Article 201 of the Constitution, and implicates unbearable financial burden on the tax payer.

35. On whether parliament and the controller of budget have any role to play in the impugned payment, and while relying on Kisya Investments Ltd vs Attorney General & Another (2005) 1KLR 71, he submitted that the respondent did not seek parliamentary authority to pay the said sums. He elected to proceed with the plans to pay the interested party. He argues that parliamentary control over expenditure is premised on the principle that all expenditure must rest upon legislative authority and no payment of public funds is legal unless authorized by statute by virtue of Article 206(3) of the Constitution.

36. Further relying on Article 206(4) he submitted that such payment requires the approval of the controller of budget to be sought before any withdrawals from the consolidated fund is made. He claims that the respondent by passed the same contrary to Article 228(5) of the Constitution. He therefore neither had any legislative backing nor approval from the controller of budget to make payments to the interested party thus offending Article 201(d) of the Constitution. That, considering the manner in which the respondent handled the matter in Kirinyaga Construction (K) Limited vsAG Nairobi HCCC No. 885 of 2009, the said debt if justified should attach personally on the person of the respondent.

37. While relying on Articles 23(3) and 259 of the Constitution and South African Security Agency v Minister of Social Development (Corruption Watch NPC) RF Amicus Curiae) [2018] ZACC 26; 2018 JDR 1451 (CC); 2018 (10) BCLR 1291 (CC) (SASSA) and Gauteng Gambling Board v MEC for Economic Development, Gauteng[2013] ZASCA 67;2013 (5) SA 24 (SCA), he argued that this court has powers to grant de bonis propriis costs (costs which a party is ordered to pay out of his own pocket as penalty for improper conduct) against individuals in their personal capacities. This is where their conduct showed a great disregard for their professional responsivities and where they acted inappropriately.

38. Regarding costs he urged the court to be guided by the south African case of The Trustees for the Time Being of the Biowatch Trust v Registrar Genetic Resources & others [2009] ZACC 14, and condemn the respondent to pay them.

The Respondent’s submissions 39. The respondent filed two sets of submissions dated September 30, 2019 and December 12, 2021 by Mr. Moimbo Momanyi & Mr. Machesa Dan Weche respectively. In the first set of submissions he raised four issues for determination being; whether this petition is sub judice; whether this petition, as filed, is fatally defective for want of an affidavit; whether the petition herein is incurably defective on account of attempting to circumvent the lawful and statutory procedure for approaching the court; and whether the petition herein is precise and supported by cogent evidence.

40. On the issue of sub-judice counsel submitted that the issues raised by the petitioner herein are actively before the court in Nairobi HCC No. 885 of 2009 – (supra). In the said suit the Attorney General has sought by way of a counterclaim Kshs.446,000,000/= in form of a refund. It was therefore incorrect for the petitioner to claim that the interested party was yet to be paid. The respondent further argued that the issue of handling of the matter is also one to be determined upon judgment being rendered.

41. He argued that by dint of the fact that the petitioner was aware of the existence of the suit and failed to seek to be enjoined as a party but proceeded to file this petition, with the possible consequence of this court rendering a different judgment. This is an abuse of the court process and the petition should be dismissed.

42. On whether the petition as filed, is fatally defective for want of an affidavit, he submitted that the petitioner had not attached an affidavit to the petition or any document to the petition and this offended the Mutunga Rules. The same should be struck out. He relied on Patrick Ochieno Obachi and 6 others v Kenya Anti- Corruption Commission (2010) eKLR andCharles Okello Manda v EACC and 3 others (2014) eKLR.

43. He also submitted that the petition is meant to circumvent the civil dispute resolution system established by the Civil Procedure Act and Civil Procedure Code (Cap 21 Laws of Kenya). This is in respect of the conduct of civil cases. He contends that this is an abuse of the court process and urged that the same be dismissed. He relied on Speaker of the National Assembly v Karume Civil Application No. Nai 92 of 1992 and Benjoh Amalgamated & Anor vs Kenya Commercial Bank Limited [2007] eKLR for that argument.

44. On whether the petitioner has met the threshold of instituting a constitutional petition, and while relying on Anarita Karimi Njeru vs Republic ( No. 1) [1979] KLR 154, he argued that the petitioner had identified the specific constitutional provisions he alleged to have been contravened hence meeting the first threshold. However the claims on breaches of Articles 35, 228(5) and 201 of the Constitution were misconceived and asserted that the petitioner had not shown with clarity and real examples on how the violations occurred.

45. Relying on sections 107 and 109 of the Evidence Act and the cases of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, he submitted that since the petitioner wishes the court to believe his narrative, he should prove those facts before the respondent can be asked to avail the information talked about. He submits that the petitioner has not proved poor handling of the matter; not shown that the internal process payment was without the approval of the controller of budget; he has not shown how the violations affected him.

46. On whether the petitioner has met the threshold for request of information, and while relying on Article 35 of the constitution, section 3 of the Access to Information Act, and Charles Omanga & 8 others v Attorney General & another [2014]eKLR he submitted that the request was malicious and seeking to fish for points to lodge a case on. The request did not state any reason why the information was being sought. Further, the information, whether at prima facie value or in the body of the letter, showed no right or freedom that the petitioner sought to protect when granted such information.

47. Relying on paragraph 6(2) of the Access to Information Act, he argued that the information sought in the letter was public information obtainable from the court file in Nairobi HCCC 885 of 2009 (supra) once the petitioner paid the perusal fee. Further the judiciary’s website: https://www.judiciary.go. Ke/ how-to-2/ solidified this position. A copy of the contract referred to at page 14 of the defendant’s defence, bundle of documents filed on January 11, 2018 would answer question (d) of the petition, while a request for typed proceedings would answer question (e) on the officer handling the case and if indeed there was a ground for negligence, raise the same through appropriate fora.

48. He submitted that assuming that the letter was received by the office of the respondent, the case of Kenya Society for the Mentally Handicapped (KSMH) v Attorney General and Others Nairobi Petition No. 155A of 2011 (Unreported) sums it all.

49. On costs, Counsel relied on Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 others, where Mr. Justice (Rtd.) Kuloba in his work, Judicial Hints on Civil Procedure, 2nd edition, (Nairobi: Law Africa, 2011), p 94 submitted that costs follow the suit and it is granted to a party aggrieved and needs compensation. He urged the court to dismiss the petition with costs.

50. In the latter submissions dated December 12, 2021, the respondent has more or less reiterated the contents of the former submissions save for the issue of the petition not having a supporting affidavit.

The Interested party’s submissions 51. The interested party filed submissions dated June 29, 2020 through Muriithi Kareria & associates. On privity of contracts, and while relying on Agricultural Finance Corporation v Lengetia, 1982-88 1 KAR 772 counsel submitted that the interested party entered into a contract with the Government of the Republic of Kenya acting through the Ministry of roads and public works. The same should be treated as a private contract since the clauses in the contract specifically stipulated who the parties were. He argues that the petitioner has no right to enforce or seek any lawful recourse as regards the contract. Further that the petitioner’s allegations were brought on a personal vendetta. He relied on the case of Ashok Kumar Pandey vs State of West Benga, to buttress this argument.

52. On whether the information sought by the petitioner is absolute, and while relying on Article 24(1) of the Constitution and the case of Presidential Elections Petition No. 4 of 2017 Njonjo Mue & another vs Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017], he argued that the petitioner sought crucial information which was private since it entailed terms of a contract entered into by the respondent and interested party. Releasing such information would be a violation to privacy. The petitioner ought to have requested for typed proceedings from Court if at all he had virtuous intentions.

53. On whether the petition is subjudice, he submitted that the matter was substantially in court as HCCC No. 885 2009 (supra). The same was heard and a judgment delivered in favour of the interested party herein. The petitioner was well aware of the case and ought to have made an application in court seeking to be enjoined as an interested party in the matter other than filing a similar suit with the same subject matter. Counsel relied on Kampala High Court Civil Suit No. 450 of 1993- Nyanza Garage vs Attorney General to support this submission.

54. In respect of costs he urged the court to be guided by the passage from the Halsbury’s Laws of England; the case of Re Ebuneiri Waisswa Kafuko; and Jasbir Singh Rai & Others vs Tarlochan Rai & Others. It is his submission that the reason for the reasoning in these authorities was that in public litigation, a litigant is usually advancing public interest as opposed to personal gain. The discretion of awarding costs lies entirely on the court but urged the court to deny the costs.

Analysis and determination 55. Having carefully considered the parties pleadings, cited authorities and the law I find the following issues to fall for determination: -i.Whether the petition offends the doctrine of constitutional avoidance and doctrine of exhaustionii.Whether the petition offends the doctrine of privity of contractiii.Whether the matter is subjudiceiv.Whether the petition is fatally defective for failing to attach a supporting affidavitv.Whether the petitioner has met the threshold of constitutional petition.vi.Whether the reliefs sought should be grantedi.Whether the petition offends the doctrine of constitutional avoidance and the doctrine of exhaustion

56. The respondent submitted that this petition is meant to circumvent the civil dispute resolution systems established under the civil Procedure Act and Civil Procedure Code (Cap. 21 Laws of Kenya) specifically in respect to the conduct of civil cases.

57. The doctrine of constitutional avoidance was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. The court held as follows:-“[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” ….[258] From the foundation of principle (sic)well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”

58. In Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court stated;“29. The constitutional jurisdiction of the court is a very specific jurisdiction which is not open to general claims. It is invoked pursuant to Articles 22 (1) and 23 of the Constitution by filing a petition. The reliefs that a court exercising the constitutional jurisdiction can grant are clearly spelt out by Article 23 (3). The “compensation” contemplated by Article 23 is in regard to denial, violation or infringement, or threat to a right or fundamental freedom in the Bill of Rights under Article 22 and not compensation in respect of wayleave.30. So as to ensure that constitutional jurisdiction of the court is not misused, the doctrine of constitutional avoidance comes in handy. It frowns upon the practice of bringing ordinary disputes to the constitutional court. In that regard, the Supreme Court observed as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR…”

59. The Court in the case of Council of County Governors v Attorney General & 12 others[2018] eKLR expressed itself as follows:“59. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (supra) (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.60. In the South African case of S v Mhlungu, [1995] (3) SA 867 (CC), Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. And in Ashwander v Tennessee Valley Authority, 297 U.S. 288, 347 (1936)), the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of.”

60. Justice J. M Mutungi in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR observed that: -“parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional petitions which is not proper…where there is an alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the constitution court.”

61. In the case of Bernard Murage -vs- Fine Serve Africa Ltd & others (2015) eKLR the Court stated:-“Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exist an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”

62. In the case of Godfrey Paul Okutoyi & others –vs- Habil Olaka & Another (2018) eKLR Chacha, J on the issue of there being an alternative remedy in lieu of constitutional remedies at paragraph 65 stated:-“It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”

63. While the respondent has raised this issue, the ruling dated November 28, 2019 on the preliminary objection by the interested party, in my view put this matter to rest. The learned judge was categorical that the issue raised was questioning the payment of public funds pursuant to the respondent’s contract with the interested party.

64. The petitioner has also questioned the manner in which the respondent dispensed its constitutional mandate in defending the civil suit and the consequent payment of monies to the interested party without approval of parliament or the controller of budget. Most importantly, the petitioner has alleged violation of his right to information under Article 35 of the Constitution. In my view, this matter is for this court to determine by dint of Article 165 (3) (b) and d (ii) of the Constitution.

65. Regarding the doctrine of exhaustion, section 14 of the Access to Information Act provides;“14. Review of decisions by the Commission(1) Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information—(a)a decision refusing to grant access to the information applied for;(b)a decision granting access to information in edited form;(c)a decision purporting to grant access, but not actually granting the access in accordance with an application;(d)a decision to defer providing the access to information;(e)a decision relating to imposition of a fee or the amount of the fee;(f)a decision relating to the remission of a prescribed application fee;(g)a decision to grant access to information only to a specified person; or(h)a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13. (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 of this Act or as prescribed by the Commission.”

66. Section 9(6) of the said Act, provides that an application shall be deemed rejected where the applicant does not receive a response within 21 days of receipt of the application. In this case, the petitioner received no response from the respondent.

67. Part V of the Act provides for the conferment on the commission of oversight and enforcement functions and powers. Sections 20 to 24 provide for the role of the commission, functions of the commission, inquiry into complaints, powers of the commission and powers relating to investigation. Of interest herein is section 23 (2) which provides for the orders that the commission may make if satisfied that there has been infringement of the provisions of the Act. To wit, the release of any information withheld unlawfully, a recommendation for the payment of compensation; or any other lawful remedy or redress.

68. Section 22(3) provides that a person aggrieved by the order of the commission may appeal to the High Court within 21 days from the days the order was made.

69. The Commission is defined under section 2 of the Act and the Commission on Administrative Justice established by section 3 of the Commission on Administrative Justice Act No. 23 of 2011.

70. The 5- bench judge in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR had this to say on where the question of exhaustion of administrative remedies arises. It stated;“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine 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. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is 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. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

71. The Court above however noted that there are exceptions to the doctrine of exhaustion as follows;“59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)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 precept 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.”

72. The petitioner has alleged that his constitutional rights under Article 35 of the Constitution and the provisions of the Access to Information Act were violated. That vide his letter dated December 10, 2018, addressed to the respondent and copied to the interested party, he sought for information but the same elicited no response to date. Though aggrieved by the failure by the respondent to respond to his request, he did not do any application to the Commission, to raise his complaint. He instead directly moved this court under a constitutional petition. In my view, this is an affront to the doctrine of exhaustion. First of all he ought to have invoked the mandate of the Commission and if dissatisfied, move this court by way of appeal within 21 days. It is however, important to state that none of the parties herein submitted on this issue, save for the respondent who submitted that this was a matter for the civil courts. That does not stop this court from dealing with this important issue.

ii. Whether the petition offends the doctrine of privity of contract 73. The interested party raised this issue and submitted that the contract was between it and the Government of Kenya acting through the Ministry of Roads and Public Works and that the same should be treated as a private contract. Further that the petitioner has no right to enforce or seek any lawful recourse in regard to the contract and that the allegations were brought on a personal vendetta.

74. The respondent and the petitioner did not address this issue. I have however noted that in the ruling delivered on the preliminary objection raised by the interested party on whether the petitioner had the locus standi to institute this suit, the same was dismissed vide the ruling dated November 28, 2019 by Korir J. The argument being made by the interested party is similar to the one advanced in that ruling. That the relationship between it and the Attorney General arose from a private contract and the relationship does not fall within the public arena. Further that even if the applicant had demonstrated their interest under Articles 22 and 258 of the Constitution they would still have had no locus standi in the matter.

75. In dismissing that argument, the learned judge stated “a perusal of the petition dated February 8, 2019 shows that the petitioner is questioning the manner in which the Attorney General exercised his powers in respect of a civil dispute between his office and the interested party. The issue raised is of interest to the public. The doctrine of locus standi cannot be allowed to stand on the way of such an issue. I therefore find no merit in the Attorney General’s assertion that the petitioner had no legal capacity to file the petition.”

76. Although the interested party has referred to privity of contract, the effect is the same, since this issue of locus standi has been fashioned as one of privity of contract. In effect, the interested party is saying that the petitioner had no locus to enforce the contract or even institute the suit as he was not a party to the contract between it and the respondent. This matter has been sufficiently dealt with in the said ruling. If the interested party was dissatisfied with the said ruling it had the liberty to either file an application for review of the decision of appeal against it.

iii. Whether the matter is sub judice 77. The respondent in both submissions argued that this matter is subjudice. He submitted that the parties in HCCC 885 of 2009 are Kirinyaga Construction (K) Ltd vs the Attorney General. The parties in the instant petition are Antony Otiende Otiende and the Attorney General and Kirinyaga Construction Company Limited as the interested party. The gist of the prayers in this petition is on payment of 321, 986, and 586. 94 arising out of HCCC 885 of 2009. The prayer number 2 in the notice of motion in HCCC 885 of 2009 dated November 8, 2016 was on payment of 321, 986, and 586. 94.

78. The interested party supported the respondent and further argued that being aware of the former case, the petitioner ought to have sought to be enjoined in the said civil suit which he did not do.

79. This issue was also raised in the preliminary objection by the interested party and the ruling by Korir J, extensively and substantively addressed it. The judge on dismissing the said point of objection stated “as already pointed out, the petitioner is through these proceedings questioning the payment of public funds pursuant to the respondent’s contract with the interested party. The civil case will determine if the money is payable. The issues raised by the petitioner will still need to be considered and a decision made on them. The issues raised by the petitioner are not the same with the issues in the civil case. The rule of sub judice does not therefore apply to the circumstances of this case. This ground of preliminary objection fails.” This ruling has not been challenged by the respondents or interested party.

iv. Whether the petition is fatally defective for failing to attach a supporting affidavit 80. The respondent in the initial submissions and the grounds of opposition argued that the petition is fatally defective for failure to attach a supporting affidavit to the petition. The petitioner dismissed that argument and argued that Rule 11 of the Mutunga Rules does not make it mandatory for one to attach a supporting affidavit to the petition. He further argued that this issue was dealt with in the ruling and it being that the application and petition were consolidated, the supporting affidavit attached to the application would suffice.

81. To put the record straight I wish to state that there are no directions that the application and petition be consolidated as submitted by the petitioner. There was also no application made to that effect. That notwithstanding, what is the effect of failing to attach a supporting affidavit to the petition?

82. Rule 11 of the Mutunga Rules provides as follows:-11(1)the petition filed under these rules may be supported by an affidavit.(2)If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.

83. In the case of Anthony Muli Nzioka v Attorney General [2020] eKLR, Makau J, stated as follows:-“30. From clear reading of Rule 11(1) of the Mutunga Rules, it appears in my view that a Petition may be filed without a supporting affidavit. The word used is “may be supported by an affidavit” which to me is not mandatory to file all petitions with supporting affidavit. However there is no bar where a party wishing to rely on any document, to annex the document to the supporting affidavit or the petition where there is no supporting affidavit. It therefore follows if a party has to attach an affidavit it has to be properly drawn, signed, dated and commissioned but it appears there is no bar where a party do not wish to file an affidavit, to attach the document to Petition even without a supporting affidavit. In addition to the above Rule 10(3) of the Mutunga Rules provides:“Subject to Rules 9 and 10 the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.”

84. I entirely agree with Makau J that it is not mandatory to attach a supporting affidavit to the petition. The petition is therefore not fatally defective.

v. Whether the petitioner has met the threshold of a constitutional petition 85. The petitioner submitted that he sought for crucial information from the respondents but the request was not responded to hence violating Articles’ 10, 33 and 35 of the Constitution and sections 4, 9 and 21 of the Access to Information Act. The right to information is not affected by failure to give a reason as to why the citizen is seeking information or even what a public officer perceives to be the reason for seeking the information.

86. According to the petitioner, the respondent was obligated to obey the law and allow the petitioner access information or where possible give reasons for that. That the respondent concealed information relating to the payment of the money to the interested party and deliberately failed to respond to the issues raised in his letter. Allowing the respondent to pay or enter into an agreement aimed at paying the impugned amounts offends the provisions of Article 201 of the Constitution and implicates unbearable financial burden on the tax payer he contends.

87. He argued that the respondent did not seek parliamentary authority and the approval of the controller of budget to pay the said sum. Further that going by the way the case HCC No. 885 of 2009 (supra) was handled, the debt should attach personally on the person of the respondent.

88. The respondent argued that the petitioner had identified the specific constitutional provision he alleged to have been contravened, but he did not show with clarity and real examples what the violations were. That he did not prove the poor handling of the matter, nor show that the internal process for payment was done without the approval of the controller of budget and how the violations affected him.

89. Regarding Article 35, he argued that the request was malicious, as no reason was advanced why the information was being sought or the rights to be protected by seeking the said information. Further the sought information was publicly accessible from the court file Nairobi HCCC 885 of 2019.

90. The interested party submitted that the information sought was crucial information that was private hence releasing the same would be a violation of his right to privacy. That the petitioner ought to have requested for typed proceedings.

91. It is trite that when it comes to matters concerning the violation of human rights the same must be clear and explicit as was stated in the case of Anarita Karimi Njeru vs Republic (1979) eKLR where the Court stated that :-“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be ingrained.” (Emphasis added)The case of Memo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR also reaffirmed the position stated in Anarita Karimi Njeru (supra).

92. Section 107 and 109 of the Evidence Act Cap 80 Laws of Kenya provide as follows:-107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

93. Based on the cited provisions of the Evidence Act and the authorities, the position is that he who alleges a fact must prove it. The petitioner has alleged violation of named constitutional provisions. It is upon him to demonstrate to this court the manner in which the said provisions were infringed. He alleged infringement of Article 35 of the Constitution on the right to access information, Article 201 on the Principles of public finance and Article 228(5) on the Controller of budget approving any withdrawal from a public fund if the withdrawal is authorized by law.

94. In essence the petitioner is saying that he requested for information from the respondent vide his letter dated December 10, 2018 and which was copied to the interested party but the same elicited no response. Also that parliamentary and the controller of budget approval were not sought and granted before commencing the internal payments to the interested party. Lastly, that the Respondent handled the civil case in a questionable manner and that the civil debt should be recovered from the employees of the respondent.

95. To begin with, on the allegations of the respondent not obtaining the consent of parliament and the controller of budget, the petitioner has very well set out the constitutional provisions that were allegedly violated but has failed to demonstrate to the court that indeed the said consents were not obtained. Is there any claim from Parliament or the Controller of budget saying that the respondent by passed the laid down procedures before commencing the internal payment? None whatsoever has been pointed out to this court. He did not enjoin parliament nor the Controller of budget to this proceedings.

96. Furthermore Judgment was delivered and a decree issued in the civil case. Judgment and a decree were issued by the Court in the civil case. Before the final judgment delivered on March 9, 2020, there had been a consent judgment for part of the claim. The same was accepted by the trial court and endorsed as a Judgment of the Court. After a full hearing the court found in favour of the interested party. The said Judgment has not been overturned, and neither is there an Appeal challenging it.

97. The other issue raised is the manner in which the Nairobi HCCC No. 885 of 2009 (supra) case was handled. The respondent who was the defendant in the said case, filed a defence and mounted a counter-claim raising a number of issues. The learned trial Judge agreed with some of the issues raised by the respondent herein and dismissed other prayers and/ or orders sought by the interested party herein. From the Judgment in the civil case it is clear the respondent filed a defence and a counterclaim for Kshs.202,281/66 and produced documents he thought could assist but the court dismissed them. The Petitioner has not demonstrated the respondent’s carelessness to warrant the court finding in his favour.

98. The respondent is established under Article 156 of the Constitution. Article 156(4) provides:-“(4) The Attorney-General—(a)is the principal legal adviser to the Government;(b)shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and(c)shall perform any other functions conferred on the office by an Act of Parliament or by the President.(5) The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.(6) The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.”

99. In representing the government the respondent relies on materials given to him/her by the officers representing the government in various capacities. The petitioner has not demonstrated that the respondent was given sufficient relevant material in respect of the said contract and he failed to or carelessly presented it to the court leading to the favourable Judgment to the interested party.

100. Regarding, Article 35 of the Constitution, the same provides as follows:-35(1)every citizen has the right of access to-(a)Information held by the State; and(b)Information held by another person and required for the exercise of protection or any right or fundamental freedom.(2)Every person has the right to the correction of deletion of untrue or misleading information that affects the person.(3)The state shall publish and publicise any important information affecting the nation.

101. The preamble to the Access to Information Act No. 31 of 2016 provides 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.

102. Section 6 of the said Act provides for circumstances where the right of access to information is limited. Sub section 6(5) provides:A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.

103. The Act under Sections 4, 5, 8, 11 sets out the procedure to follow when requesting for information and the kind of information that should be released, by the various bodies. Section 9(6) of the Act provides that where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected which was the case with present Petitioner.

104. The petitioner submitted that he sought for information from the respondent but the same was not responded to. The respondent and the interested parties submitted that the information sought for was accessible in the civil case. Further that all he needed to do was to request for a perusal of the said Court file and a copy of the typed proceedings. The respondent further insisted that the petitioner did not advance the reasons for seeking the said information, or what rights he intended to protect. The interested party on the other hand added that the said right was not absolute.

105. I do agree with the interested party that the right under Article 35 of the Constitution is not one of the rights envisaged under Articles 25 of the Constitution and is therefore not absolute. This is also evidenced by section 6 of the Access to information Act which provides instances when access to information is limited. However looking at the provisions of section 6 of the Access to information Act, the information sought for herein does not fall under the ones categorized therein. Therefore any limitation of that right pursuant to Article 24 must be reasonable in an open, fair and democratic society and must be justified. Since there was no response hence no justification the Petitioner had good reason to move to the Commission on Administrative Justice to present his case. For reasons best known to him, he overlooked that process and decided to file this petition.See Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR and Nairobi Law Monthly v Kenya electricity Generating Company & 2 others (supra) to buttress this point.

106. The respondent and interested party suggested that the petitioner should have asked for a copy of the typed proceedings, and sought leave to peruse the file. A reading of the Judgment in HCCC No. 885/2009 (supra) shows that the trial Judge found that the respondent did not avail all the relevant documents. This brings me back to the question as to whether all the relevant documents had been given to the respondent or they were with the relevant Ministries and Officers. However, having established that the right was violated, there follows the issue of exhaustion.

107. The petitioner did not move the Commission by way of an application but instead chose to file this constitutional petition. It should fail for offending the doctrine of exhaustion. He has not given any reason at all to explain why he passed the Commission on Administrative Action Act.

vi. Whether the reliefs sought should be granted 108. I have found that Judgment having been delivered in the civil case, this court cannot declare that the interested party does not qualify to be paid the decretal sum as that is tantamount to sitting on appeal of a decision of a court of equal status when this is a petition. The judgment in the civil case also shows that the contract was completed and it was not awarded to any other contractor contrary to the petitioner’s allegations in this petition.

109. Article 23 (1) of the Constitution provides that the High Court has jurisdiction, in accordance with 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.

110. Article 23(3)of the Constitution provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-(a)A declaration of rights;(b)An injunction;(c)A conservatory order;(d)A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)An order for compensation; and(f)An order of judicial review.

111. Prayer (i) (a) sought by the petitioner shall not be granted, for the reason that the petitioner has not specifically demonstrated to this court how the cited constitutional provisions were contravened. Prayers (b), (c) and (ii) (a) have already been overtaken by events. Judgment having been delivered in the said suit, this prayer is tantamount to asking this court to sit on appeal on the said Judgment. To add on to that, I would like to point out that contrary to the petitioner’s allegation, the judgment in Nairobi HCCC 885 of 2009 shows that the contract was completed and it was never awarded to another contractor. Prayer (ii) (b) as pointed out above, the petition offends the doctrine of exhaustion, and the same shall be dismissed. Regarding costs and by virtue of Rule 26 of the Mutunga Rules, the same is granted at the discretion of the Court.

112. The reliefs sought by the Petitioner have been set out at paragraph 2 of this Judgment. I set out the issues for determination which I have considered as set out above. Following the analysis and my findings I do make the following orders:(i)Prayer (i) (a) is declined since the petitioner has not specifically demonstrated to this court how the cited constitutional provisions were violated.(ii)Prayers b, c, & (ii)(a) have been overtaken by events and are not available to the petitioner.(iii)Prayer (ii) (b) is declined as it offends the doctrine of exhaustion.(iv)The upshot is that the petition lacks merit and is dismissed.

113. The petition having been brought in public interest I order each party to bear its own costs.

Orders accordingly.

DELIVERED, VIRTUALLY, DATED AND SIGNED THIS 27TH DAY OF JULY 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. Ong’udiJudge of the High Court