https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9073

Republic v Registrar & 2 others; Gitson Energy Ltd (Ex parte Applicant) (Miscellaneous Application E042 of 2023) [2026] KEHC 9073 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9073 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Miscellaneous Application E042 of 2023 PM Nyaundi, J June 25, 2026 IN THE ENFORCEMENT OF THE ORDER IUSSED BY THE COMMISSION ON ADMINISTRATIVE OF JUSTICE ON 31ST OCTOBER, 2023 AS A DECREE OF THE HONOURABLE COURT Between Republic Applicant and The Chief Land Registrar 1st Respondent The Attorney General 2nd Respondent and The Commission on Administrative of Justice Interested Party and Gitson Energy Limited Ex parte Applicant Ruling Introduction 1.The Ex-Parte Applicant, Gitson Energy Limited, has moved this Court by an application dated 20th December 2023. The Applicant seeks leave to enforce, as a decree of this Court, the order issued by the Commission on Administrative Justice (CAJ) on 31st October 2023. The application is supported by the affidavit of James Gitau sworn on the same date and is premised on Sections 21(3) and 23(2), (4) and (5) of the Access to Information Act; Sections 1A and 1B of the Civil Procedure Act; and Articles 159(2)(d) and 165(2)(e) of the Constitution of Kenya. Background 2.The Ex parte applicant has established a wind farm project in Marsabit County. On 29th May 2023, it requested information from the 1st Respondent on the designation of Community Land Registrars for Marsabit County. The request was not answered within the statutory timelines. 3.On 9th August 2023, the Applicant escalated the matter to the Commission on Administrative Justice (CAJ), the Interested Party herein. Acting pursuant to its mandate under the Access to Information Act, the Interested Party by a communication dated 21st August 2023, required the 1st respondent to respond to the request within the timelines prescribed by Section 9 of the Access to Information Act 4.Following the 1st Respondent’s failure to respond, the Interested Party issued an order on 31st October 2023. The order directed the Chief Land Registrar, Ministry of Lands, to facilitate access to the information and records relating to the Applicant’s request made by letter dated 29th May 2023 and required compliance within seven days from the date of the order. 5.The 1st Respondent did not exercise its right of appeal under Section 23(3) of the Access to Information Act, thereby prompting the present application. The Applicant further states that the 1st Respondent has continued to withhold information on the status of the designation of Community Land Registrars, notwithstanding that the Community Land Act has been in force since 2016. 6.The 2nd Respondent opposes the application. In its Grounds of Opposition dated 16th March 2026, it contends that the Interested Party’s order of 31st October 2023 is incapable of adoption as an order of this Court because of an alleged constitutional infirmity apparent on the face of the record filed by the ex parte Applicant. 7.The Interested Party supports the application. Its Chief Executive Officer, Ms. Mercy K. Wambua, swore an affidavit on 23rd August 2024 that substantially mirrors the Applicant’s position. SUMMARY OF THE APPLICANT’S SUBMISSIONS 8.The Applicant’s submissions are dated 10th September 2024, with supplementary submissions filed on 10th April 2026. The issues framed for determination are—a.Whether the Ex Parte Applicant is entitled to the relief soughtb.Who shall bear the costs 9.It is submitted that the Applicant’s right to information is anchored in Article 35 of the Constitution, with reliance placed on Famy Care Limited v Public Procurement Administrative Review Board & Another, Petition No. 43 of 2012 [2012] eKLR, and Nairobi Law Monthly Limited v Kenya Electricity Generating Company & 2 Others [2013] eKLR. These authorities are cited for the proposition that the right to information obligates State organs and public entities to provide access to information when requested, and that such access is integral to transparency and accountability in public administration. 10.It is further submitted that the Interested Party bears both statutory and constitutional authority to issue binding orders, and that the law provides that such orders are enforceable. Reference is made to Republic v Isaiah Kubai & Another; Commission on Administrative Justice (Interested Party) Ex Parte Duncan Muthusi (2019) eKLR and Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & Another (2020) eKLR. The Applicant contends that the order issued by the Commission under the hand of Commissioner Lucy Ndung’u is valid and enforceable pursuant to Section 20(3) of the Access to Information Act. It is argued that the circumstances of the present case are distinguishable from those in Odinga & 16 Others v Ruto & 10 Others; Law Society of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment)) Summary Of The 2Nd Respondent’s Submissions 11.The Submissions of the 2nd Respondent are dated 16th March 2026. It is submitted that the decision sought to be enforced is a nullity as the decision runs afoul of Article 59(4) and 248(2)(a) of the Constitution. Reference is made to the decisions in Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment); Petition No. 12 of 2021 (consolidated with Petitions 11 & 13 of 2021 – Building Bridges Initiative); Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission & 4 others [2017] eKLR and Charity Kaluki Ngilu v Ethics & Anti-Corruption Commission & 4 others [2017] eKLR - Civil Appeal 90 of 2016 for the assertion that Lucy Ndungu lacked the Constitutional and statutory authority to issue the order on behalf of the Commission. Summary Of The Interested Party’s Submissions 12.The Submissions of the Interested Part are dated 30th January 2026, the issue for determination is framed asa.Whether the Commission’s Order should be adopted as an order of this Honorable Court? 13.It is submitted that the Interested Party has the statutory and constitutional mandate to give effect to Article 35 of the Constitution and is conferred with powers to provide oversight and ensure enforcement regarding access to information. Reference is made to the decisions in Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another [2020] eKLR and Republic v Sam Nthenya, Chief Executive Officer, Nairobi Women’s Hospital & another Ex parte Christine Nzula; Commission on Administrative Justice (Interested Party) [2021] eKLR. 14.In conclusion, it is submitted that the Court issued similar relief as the one sought in the current case in Republic v Isaiah Kubai & another; Commission on Administrative Justice (Interested Party) Ex-Parte Duncan Muthusi [2019] KEELRC 43 (KLR) in which the Court affirmed that the orders of the Interested Party are final and enforceable. 15.The 1st Respondent did not participate in the proceedings Analysis And Determination 16.Having considered the Pleadings and the submissions filed herein alongside the relevant law, I discern the issues for determination to beb.Whether the Order issued on 31st October 2023 should be enforced as a decree of the Courtc.Arising from (a) above what if any are the consequential orders Whether the Order issued on 31st October 2023 should be enforced as a decree of the Court? 17.The Constitutional and statutory underpinning of the Order of 31st October 2023 is not contested; what is contested is the validity of the Order as signed by Lucy Ndungu- Access to Information Commissioner. 18.Article 35 of the Constitution provides-Access to information.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 or protection of any right or fundamental freedom.(2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person. Constitution of Kenya, 2010(3)The State shall publish and publicise any important information affecting the nation. 19.The Commission on Administration of Justice is established pursuant to Article 59(4) and is constituted by the Commission on the Administrative Justice Act, 2011. The Access to Information Act is enacted to give effect to Article 35 of the Constitution and to confer on the Commission on Administrative Justice oversight and enforcement of functions and powers, and for connected purposes. 20.Part V of the Access to Information Act is titled Conferment on the Commission of Oversight and Enforcement Functions and Powers. Section 20 provides as follows-20.Role of the Commission(1)The Commission is hereby granted the powers of oversight and enforcement of this Act.(2)In the performance of its functions under this Act, the Commission shall be guided by the national values and principles of the Constitution.(3)The Commission shall designate one of the Commissioners as "Access to Information Commissioner" with specific responsibility of performing the functions assigned to the Commission under this Act. (Emphasis Supplied) 21.The functions and powers of the Commission under the Access to Information Act are set out under Sections 21 and 23 respectively. Section 23 (2) provides that- 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. 22.The mandate of the Commission, so far as it concerns the Access to Information Act, is one conferred and circumscribed by that statute. The legislative scheme is deliberate: Parliament required the Commission to designate one of its members as the Access to Information Commissioner, thereby identifying the officeholder responsible for discharging statutory functions under the Act. Had Parliament intended to alter the constitutional or statutory framework governing the Commission more broadly, it would have amended the Commission on Administrative Justice Act. It did not do so. The Court must therefore give effect to the structure that Parliament enacted. 23.Considering that statutory framework, the challenge advanced by the 2nd Respondent is without a legal foundation. The order issued by the Access to Information Commissioner was made pursuant to lawful authority, in accordance with the powers conferred by the Access to Information Act. It follows that the order is valid and enforceable. Arising from (a) above what are the Consequential orders? 24.Flowing from the above the orders that will issue is that the Order of the Access to Information Commissioner that issued on 31st October is hereby adopted as the Order of this Court accordingly;1.The Chief Land Registrar, Ministry of Lands will facilitate access to information on the designation of Community Land Registrars of Marsabit County in accordance with the request for information made by the applicant vide letter dated 29th May 2023.2.Compliance with No.1 shall be within 7 days from the date hereof. 25.The matter will be mentioned on 8th July 2026 to confirm compliance. 26.The 1st Respondent will meet the costs of this application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25th JUNE 2026PM NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMs. Thuku for Applicant