https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10901

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION E393 OF 2024** **NAYAN MANSUKHLAL SAVLA ........................................................PETITIONER** **VERSUS** **KENYA PSYCHIATRIC ASSOCIATION ..............................................RESPONDENT** **AND** **COMMISSION ON ADMINISTRATIVE JUSTICE**…………………...**INTERESTED PARTY** **RULING** 1. The Respondent, Kenya Psychiatric Association, filed a Notice of Preliminary Objection dated 6th June 2025 objecting to the entire Petition on the single ground that the Court “lacks jurisdiction over the Petition by dint of section 23 of the Access to Information Act.” The Respondent prays that the Petition dated 8th August 2024 be struck out with costs on a full indemnity basis. 2. The Petition arises from a request for information made by the Petitioner to the Respondent in June 2022; a complaint about the request for information was made to the Interested Party, which then made an order on 22nd November 2022 directing the Respondent to facilitate access to the information within seven days. The Petitioner contends the Respondent never complied with the order and now seeks declarations that his rights under Articles 35 (access to information) and 47 (fair administrative action) were violated. **Submissions on the Respondent’s Preliminary Objection** 1. The parties filed submissions on the Preliminary objection. The Respondent’s submissions are dated 27th March 2026. The Petitioner filed two sets of submissions, dated 28th November 2025 and 18th May 2026. The Interested Party’s submissions are dated 28th April 2026. 2. As previously stated, the Respondent's Preliminary Objection is that the court lacks jurisdiction to determine the Petition pursuant to section 23 of the Access to Information Act, 2016. The Respondent's position is that the Interested Party hears and determines complaints under section 23(1) of the Act, and that a dissatisfied party may appeal to the High Court within 21 days (section 23(3) of the Act). If no appeal is filed, the successful party's sole recourse is to apply ex parte by summons for leave to enforce the Interested Party’s order as a decree (section 23(5) of the Act). 3. The Respondent relied on the decisions in ***Speaker of the National Assembly v Karume [1992] KLR 21****,* ***Esendi & 2 Others v Attorney General & Another [2024] KEHC 6050 (KLR)****, and* ***Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR***, as well as the doctrine of constitutional avoidance enunciated in ***Petition No. 14 of 2014, Communications Commission of Kenya v Royal Media Services Ltd & 5 Others***. 4. The Respondent argues that a full constitutional petition seeking declaratory relief is not an available recourse for the Petitioner and that the Access to Information Act outlines a specific procedure and that the Court does not have jurisdiction to entertain the Petition as framed. The Respondent's submissions at paragraph 4 also record, as a factual matter, that it “was never served with nor did it receive” the Interested Party’s correspondence of July and November 2022. 5. The Petitioner submits that section 23 of the Access to Information Act is not an ouster clause at all, but rather the express statutory bridge to the High Court's appellate (section 23(3) of the Act) and enforcement (section 23(5) of the Act) jurisdiction. The Petitioner further submits that, because the Respondent has neither appealed nor complied with the directions and orders issued by the Interested Party, the matter is squarely in the “post-CAJ” space and that, pursuant to section 23 of the Access to Information Act, the Court has jurisdiction to determine the matter. 6. The Petitioner relied on ***Republic v Citibank NA; Suntra Investments Ltd (Ex parte); CAJ (Interested Party)* *[2024] KEHC 372 (KLR)*** for the proposition that courts have granted leave to enforce the Interested Party's orders as decrees under s.23(5) where no appeal was filed. 7. The Interested Party’s submissions support the Petitioner's position and confirm that the order of 22nd November 2022 was issued, that no appeal was filed within the statutory 21 days, and that the Court is properly seized of jurisdiction, including under Articles 22, 23(1) and 165(3)(b) of the Constitution of Kenya, 2010, to adjudicate on alleged violations of the right to information and fair administrative action. 8. The Interested party relied on the decisions of the Court in ***Matemu vs Trusted Society of Human Rights Alliance & 5 Others (Civil Application 29 of 2014) [2014] KESC 6(KLR)(9 December 2014)(Ruling)*** on procedural technicality. **Analysis and determination** 1. It is trite that a preliminary objection must raise a pure point of law, be argued on the basis that the facts pleaded by the opposing party are correct, and be capable of disposing of the matter without the need to call or weigh evidence. (***See Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696***). A point that requires the ascertainment of facts, or that is contingent on evidence which may be disputed, is not a proper subject for a preliminary objection. 2. The Respondent's own submissions assert, as fact, that it was never served with CAJ's correspondence. That proposition is squarely at odds with paragraph 12 of the Interested Party's affidavit of Mercy K. Wambua, sworn on 30th April 2025, which states that the order was duly communicated. This is a disputed question of fact going to whether the Respondent had notice and an opportunity to appeal. It cannot be resolved as a preliminary objection, and to the extent the Respondent's argument depends on it, it falls outside the proper scope of the principles set out in the decision in the Mukisa Biscuit case. 3. The legal question that remains for determination is whether Section 23 of the Access to Information Act, on its own terms, deprives this Court of jurisdiction to entertain the constitutional petition filed by the Petitioner. 4. Section 23 of the Access to Information Act provides that the Interested Party may determine complaints and order the release of information. A person dissatisfied with the Interested Party’s order may appeal to the High Court within 21 days. An order may be filed in the High Court in the prescribed manner, and where no appeal is filed, the successful party may apply ex parte by summons for leave to enforce the order as a decree, executable as an order of the High Court. 5. The High Court exercises an appellate and enforcement jurisdiction under the provisions of Section 23 of the Access to Information Act. Nothing in the text withdraws or limits the High Court's general constitutional jurisdiction under Articles 22, 23(1) and 165(3)(b) of the Constitution of Kenya, 2010 to hear and determine claims that a right in the Bill of Rights (including Article 35, access to information, and Article 47, fair administrative action) has been denied, violated, infringed or threatened. 6. The decision of ***Republic v Citibank NA; Suntra Investments Ltd* [2024] KEHC 372 (KLR)** is an instance that the High Court exercised jurisdiction under section 23(5) of the Access to information Act to grant leave to enforce an Order issued by the Interested Party as a decree confirming that the High Court's role under section 23 is a jurisdiction to be exercised, not one that has been excluded. 7. To that extent, the Respondent's objection on grounds of jurisdiction is incorrect. In my view, section 23 of the Access to Information Act does not oust the Court's jurisdiction. 8. The Respondent's argument, as I understand it, is that the Access to Information Act prescribes a specific procedure for lodging a complaint and sets out the subsequent processes for enforcing the Orders issued by the Interested Party. The Respondent's position is that a party should not be permitted to bypass the procedure outlined in the Act by recasting the same complaint as a constitutional petition seeking declaratory relief. This is an argument about the proper procedural form of the claim, not about subject-matter jurisdiction. 9. The decisions relied on by the Respondent, ***Esendi & 2 Others v Attorney General & Another* [2024] KEHC 6050 (KLR),** Paragraph 26 of the decision, Hon. Aburili J held that there exists “**an established elaborate procedure for requiring information which is held by a public or private entity and a petition to this Court is not one of them**,” and struck out a petition as prematurely filed for want of exhaustion of the Access to Information Act's mechanism. 10. In paragraph 15 of the decision in ***Speaker of the National Assembly v Karume* [1992] KECA 42**, the Court of Appeal held that “where there is a clear procedure for the redress of any particular grievance prescribed by an Act of Parliament, that procedure should be strictly followed.” Similarly in the case of ***Secretary, County Public Service Board v Hulbhai Gedi Abdille* [2017] eKLR** similarly cautions that a statutory appellate procedure should ordinarily be exhausted before resort to the general courts, and that a bare allegation of a rights violation does not automatically license a party to bypass it. 11. My view is that the aforementioned authorities are all exhaustion cases. In each, the parties had not first invoked the specialized statutory body, or had sought to litigate a matter the statutory tribunal was equipped to determine, without first exhausting the right of first appearance to the respective bodies. 12. This is materially different from the matter before the court. It is clear from the pleadings and the interested Party’s own submissions that the Petitioner did invoke the interested Party’s jurisdiction and that the latter investigated and made an order in relation to the Petitioner's request. The Interested Party also stated that the Order was communicated to the Respondent through a letter dated 22nd November 2022. 13. It is the interested Party’s position that no appeal was filed within the Period as provided by section 23(3) of the Act. According to the Interested Party, the dispute has therefore already passed through the exhaustion stage as established in the decisions of ***Esendi & 2 Others v Attorney General & Another* [2024] KEHC 6050 (KLR)** and ***Speaker of the National Assembly v Karume* [1992] KECA 42**. 1. The question before the court is whether, once the interested party has issued orders and the appeal window has lapsed, a party seeking to raise constitutional issues relating to the complaint or to the orders issued by the interested party is confined exclusively to filing an ex parte summons under section 23(5) of the Act. 2. Section 23(5) of the Act creates a summary, ex parte mechanism for enforcing the order as a decree. A useful and expeditious remedy, but on its face directed at execution of the order, not at adjudicating a broader claim that the underlying non-compliance also breached constitutional rights. 3. The Respondent has not pointed to statutory language that makes section 23(5) of the Act the *exclusive* means of engaging the High Court once an order by the interested party exists, as opposed to the primary means of enforcing it. 4. The doctrine of constitutional avoidance in ***Petition No. 14 of 2014, Communications Commission of Kenya v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)***, enjoins courts to resolve disputes as ordinary civil causes rather than resort unnecessarily to constitutional adjudication. It is a sound principle, but it operates as a guide to how a court should structure its determination of the merits of the matter before it by first addressing the enforcement question, not as a basis for declining jurisdiction over the petition altogether at the preliminary stage. 5. Whether the constitutional prayers are, on the merits, necessary or have become moot once the enforcement question is resolved is a matter for trial, not for striking out the entire Petition *in limine*, as sought by the Respondent herein. **Disposition** 1. For the foregoing reasons: 2. The Preliminary Objection dated 6th June 2025 is accordingly dismissed; and 3. The costs of the Preliminary Objection shall be borne by the Respondent. 4. Orders accordingly. **Dated and signed at Nairobi this 16th day of July 2026** **Gregory Mutai** **JUDGE** **In the presence of:** **Nayan Mansukhlal Savla** - the Petitioner (*pro se* litigant); **Ms** **Migele**, holding brief for Mr **Ataka,** for the **Respondent**; Ms **Musembi,** for the **Interested Party**; and **Ms Neema Lwambia - Court Assistant.**