https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1298

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KAKAMEGA PETITION NO. E005 OF 2025 IN THE MATTER OF ARTICLES 2, 10, 19, 20, 21, 23 & 35 OF THE CONSTITUTION AND IN THE MATTER OF ENFORCEMENT OF CONSTITUTION ARTICLE 165 -BETWEEN- EVANS SHIMONYO SHIPWONDO …………...……PETITIONER -VERSUS- ORIGINAL DEPUTY COUNTY COMMISSIONER………...1ST RESPONDENT THE PRINCIPAL SECRETARY MINISTRY OF INTERIOR…………………......2ND RESPONDENT THE HONOURABLE ATTORNEY GENERAL…………………….......3RD RESPONDENT ELSHAMA AFUBWA……………………...…....4TH RESPONDENT (BEFORE HON. JUSTICE DAVID NDERITU) JUDGMENT I. INTRODUCTION 1. The Petitioner commenced these proceedings by way of a petition dated 31st January 2025 filed through Onyonje W.S & Co. Advocates seeking for the following reliefs – a. As per paragraph 26 above KAK ELRC CONST. PET NO. E005 OF 2025 1 | PAGE J U D G E M E N T b. Prerogative orders of certiorari quashing the letter of appointment allegedly selecting the 4th respondent as the designated area assistant chief. c. Prerogative order of mandamus as per paragraph 27 above. d. General damages e. Costs of the petition. 2. The petition is said to be anchored on Articles 2, 10, 20, 21, 22, 23, 35, & 73 of the Constitution. 3. The petition is accompanied with an affidavit in support of the petition, sworn by the petitioner on even date with two annexures ORIGINAL thereto. i) Spent 4. The petition was accompanied with a notice of motion under certificate of urgency in which the petitioner was seeking for orders – ii) That this honourable court be pleased to issue conservatory order stopping any further action by the 1st, 2nd and 3rd respondents from invitation, consideration, evaluation, deliberation, and furthering any arrangements using public funds advancing the intention of inaugurating the 4th respondent and finally the assumption of the hallowed office of the area assistant -assistant chief Shiyunzu sub-location pursuant to decision made by the 1st 2nd and 3rd respondents pending hearing and determination of this application. KAK ELRC CONST. PET NO. E005 OF 2025 2 | PAGE J U D G E M E N T iii) That this honourable court be pleased to issue conservatory orders stopping any further action by the 1st, 2nd and respondents from invitation, consideration, evaluation, deliberation, and furthering any arrangements using public funds advancing the intention of inaugurating the 4th respondent and finally the assumption of the hallowed office of the area assistant chief Shinyunzu sub-location pursuant to a decision made by the 1st, 2nd and 3rd respondents pending hearing and determination of this petition. iv) That costs thereof be provided for. ORIGINAL 5. When the matter came up for directions on 5th March 2025, the parties consented to compromise the application and the same was accordingly marked as settled to pave the way for the expeditious hearing and determination of the substantive petition. 6. The facts and the law relied upon are set out in the body of the petition. 7. The 1st to 3rd Respondents entered appearance through the office of the Attorney General and filed a replying affidavit sworn by Christine Wafula Chacha, the Deputy County Commissioner, on 17th February 2025. The 4th respondent, through the firm of Arthur Ingutya & Co. Advocates, filed his replying affidavit sworn on 20th May 2025. 8. By consent, the court directed that the petition be canvassed by way of written submissions. KAK ELRC CONST. PET NO. E005 OF 2025 3 | PAGE J U D G E M E N T 9. Counsel for the Petitioner, Mr Onyonje, filed his submissions on 3rd September 2025. Counsel for the 1st to 3rd Respondents, Mr Simiyu, filed on 13th November 2025. The 4th respondent did not file submissions. II. THE PETITIONER’S CASE & EVIDENCE 10. In summary, the Petitioner avers that he is a resident of Shiyunzu Sub-Location, Lurambi Sub-County, Kakamega County, and is therefore directly affected by the recruitment process for the 11. He states that on 8th January 2024, the 1st and 2nd respondents position of Assistant-Chief for the said area. ORIGINAL advertised the vacancy, setting out the minimum requirements including a KCSE mean grade of C- (Minus), attainment of 30 years of age, a Certificate of Good Conduct, good communication skills and, a certificate in computer applications from a recognised institution. 12. Following the advertisement, several candidates applied and interviews were conducted. However, the petitioner alleges that one Elishama Afubwa was irregularly appointed as Assistant-Chief without any formal public communication of the results of the interview. He contends that months after the interviews, no official announcement had been made, creating doubt and public suspicion regarding the integrity and transparency of the process. KAK ELRC CONST. PET NO. E005 OF 2025 4 | PAGE J U D G E M E N T 13. The Petitioner states that he verbally requested the Respondents to furnish him with – a list of all applicants, the shortlist of candidates, the evaluation and ranking report and, the application and documents of the alleged successful candidate. 14. He avers that the Respondents verbally declined to release the information, which refusal he considers to be a violation of his constitutional right of access to information under Article 35 of the Constitution. 15. The Petitioner contends that the recruitment process lacked ORIGINAL transparency and violated the National Values and Principles of Governance under Article 10 of the Constitution, the Principles of public service under Article 232 of the Constitution, and the constitutional standards on integrity and accountability. 16. The petitioner seeks for a declaratory relief, orders of certiorari and mandamus to quash the alleged appointment and, an order to compel disclosure of the requested information. He as well seeks for general damages and costs. III. THE 1 ST , 2 ND & 3 RD RESPONDENTS’ CASE & EVIDENCE 17. In their replying affidavit, the Respondents state that the position of Assistant Chief, Shiyunzu Sub-Location, within Butsotso Location, Kakamega Central Sub-County, fell vacant in 2024 and was duly KAK ELRC CONST. PET NO. E005 OF 2025 5 | PAGE J U D G E M E N T advertised on 8th January 2024. The advertisement set out the minimum qualifications, including, a KCSE mean grade of C- or its equivalent, a relevant post-secondary qualification in Public Administration, Management, Social Work, Community Development, Disaster Management or a related field, minimum age of 30 years, residency within Shiyunzu Sub-Location, possession of a valid Certificate of Good Conduct, computer literacy, good communication skills, integrity and, a development-oriented disposition. Candidates were also subjected to confidential vetting including, reports from the National Intelligence Service (NIS) and ORIGINAL the area Assistant County Commissioner. 18. A total of 20 applications were received following the advertisement. Upon review, eight applicants were not shortlisted for failure to meet the mandatory minimum requirements including, being underage, lacking the minimum academic qualifications or, failing to attach required documentation. 12 candidates were shortlisted and invited for interviews. 19. The interviews were conducted on 4th July 2024 at the County Commissioner’s Boardroom in Kakamega before a duly constituted panel comprising the Deputy County Commissioner (Chair), the Human Resource Manager, the Assistant County Commissioner, the Education Officer, and the DCROP. The Respondents contend that KAK ELRC CONST. PET NO. E005 OF 2025 6 | PAGE J U D G E M E N T the process was conducted openly, competitively, and the results were strictly based on merit. 20. Following the interviews and consideration of confidential vetting reports, the candidates were ranked. The 4th Respondent, Elishama O. Afubwa, emerged the top candidate with a score of 60.8%, followed by Benedict Andayi (53.4%) and Magdaline B. Omutsembi (51.2%) came in third. 21. Vide a communication dated 27th November 2024, the County Commissioner directed that the 4th Respondent be appointed as Assistant Chief, subject to verification of his academic and professional testimonials. Subsequently, on 29th November 2024, the 4th Respondent was formally requested to submit his original certificates for verification by the relevant bodies including the ORIGINAL Kenya National Examinations Council (KNEC). 22. The Respondents maintain that the verification process remains ongoing and that the 4th Respondent has not assumed office pending completion of the verification exercise. 23. The Respondents deny the allegations that the recruitment process was secretive, irregular, convoluted or, unlawful. They further deny that the 4th Respondent has improperly assumed office or unlawfully held himself out as Assistant-Chief. The Respondents contend that the Petitioner has failed to demonstrate any violation of Articles 2, 10, 27, 35, 41, or 232 of the Constitution, and that no KAK ELRC CONST. PET NO. E005 OF 2025 7 | PAGE J U D G E M E N T ORIGINAL formal request for information under Article 35 of the Constitution was made. 24. It is their position that the petition is speculative, unsupported by evidence and, that the burden of proof rests with the Petitioner. They therefore pray that the petition be dismissed with costs. IV. THE 4 th RESPONDENT’S CASE & EVIDENCE 25. The 4th Respondent avers that he applied for the vacancy in response to a public advertisement and was duly shortlisted and invited for an interview conducted on 4th July 2024 alongside other candidates. He maintains that the interview process was open, competitive and, was conducted fairly. 26. The 4th Respondent further states that on or about 29th November 2024 he was informed that he was being considered for appointment, subject to verification of his academic credentials. He complied with the request to submit his original certificates to the Deputy County Commissioner for verification. 27. It is his position that having undergone a lawful and transparent recruitment process and having emerged successful, he has a legitimate expectation to be appointed upon verification of his academic qualifications. KAK ELRC CONST. PET NO. E005 OF 2025 8 | PAGE J U D G E M E N T 28. The 4th Respondent adopts and associates himself with the response filed by the Attorney General for the other Respondents and contends that, the Petition fails to particularize any specific constitutional violations with precision; is based on speculation and conjecture; amounts to a fishing expedition against a lawful administrative process; does not demonstrate infringement of any identifiable right; and seeks to frustrate due process which shall deny the residents of Shiyunzu essential government services. 29. He further contends that the Petitioner has not demonstrated sufficient locus standi beyond generalised allegations. 30. The 4th Respondent, therefore, prays that the Petition be dismissed ORIGINAL with costs. V. SUBMISSIONS 31. Counsel for the Petitioner submitted on three issues – Whether the action of the respondents violated the provision of the constitution, and/or Whether the petitioners’ right of information was violated per se; Whether the petition raises triable cogent issues; and, Who should be condemned for costs thereon. 32. On the first issue, it is submitted that public confidence in the appointment process was undermined as seven months have lapsed KAK ELRC CONST. PET NO. E005 OF 2025 9 | PAGE J U D G E M E N T since interviews were conducted yet, the failure by the Respondents to disclose the recruitment records raises suspicion of irregularity. 33. It is submitted that transparency in public appointments is a constitutional imperative under Articles 10 & 232 of the Constitution and hence the respondents’ conduct undermines accountability in public service, Integrity in leadership (Article 73) and Public participation and openness in governance. 34. On the second issue, it is submitted that he Petitioner made a verbal request to be furnished with the information referred to above in a bid to uphold transparency, a key constitutional principle. ORIGINAL 35. Counsel cited Mue & Another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] KESC 28 (KLR) in asserting that information held by the State ought to be freely shared unless exceptional circumstances exist. 36.The petitioner submits that access to information is a constitutional right that must be pursued in accordance with the prescribed procedure and he claims to have followed and thus the Respondents’ refusal to provide the information requested for is unlawful. 37. The Petitioner further contends that the Respondents have not demonstrated that the requested information falls within the limitation in Section 6 of the Access to information Act’ as there is KAK ELRC CONST. PET NO. E005 OF 2025 10 | PAGE J U D G E M E N T service. no evidence that disclosure thereof would prejudice national security, privacy or, ongoing deliberations. 38.The Petitioner emphasises that Article 35 of the Constitution rights are not derogable and are supported by the Access to Information Act, No. 31 of 2016. 39.On the third issue, it is submitted that the Respondents’ refusal to release critical records, namely – Records Book – GP54 and Outward Movement Mail Register contravenes Articles 10, 35 & 232 of the Constitution on transparency, accountability and, values of public ORIGINAL 40.It is asserted that the Respondents had the authority to release the information but exhibited a cold and uncooperative conduct, leaving the public with uncertainty regarding the recruitment and appointment process. 41.On the other hand, the 1st, 2nd and 3rd Respondents’ counsel submitted on three issues – Whether the appointment of the 4th respondent was procedurally flawed; Whether the 4th respondent‘s appointment was in contravention of the Constitution; and Whether the petition meets the legal threshold for a constitutional petition. 42.On the first issue, it is submitted that the recruitment process was procedurally fair, competitive and, merit-based. It is submitted that the vacancy was publicly advertised, interviews conducted openly and the 4th Respondent scored 60.8%, topping the list and he was KAK ELRC CONST. PET NO. E005 OF 2025 11 | PAGE J U D G E M E N T recommended following review of his performance and a confidential report from the National Intelligence Service. 43.On the second issue, counsel cited the decision in Katiba Institute v Presidents Delivery Unit & 3 others (2017) KEHC 2183 (KLR) and Mwaniki v Attorney General & 6 others (Petition E342 of 2020) (2023) KEHC 22385 (KLR) in asserting that there was no violation of either Articles 10, 35 or, Chapter Six of the Constitution. It is submitted that the right under Article 35 of the Constitution is operationalized by the Access to information Act which requires written requests for information under Section 8 thereof. Further citing Njonjo Mue & Another v Chairperson of Independent Electoral and Boundaries Commission & 3 others (2017) eKLR, it is submitted that the Petitioner conceded that his request for information was verbal, which is not contemplated by the Act. It is ORIGINAL further submitted that the documents requested for were subsequently provided via the 1st to 3rd respondents’ replying affidavit, rendering the petition moot. 44.On whether the petition meets the constitutional threshold pronounced in Anarita Karimi Njeru v Republic (1979) eKLR and affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR, it is submitted that the Petition is general, speculative and, fails to demonstrate a link between any KAK ELRC CONST. PET NO. E005 OF 2025 12 | PAGE J U D G E M E N T alleged breach and harm hence falling below the constitutional threshold. 45.The Respondents argue that the threshold for certiorari has not been met as no evidence has been tendered to demonstrate illegality, irrationality, or procedural impropriety in the recruitment process. It is submitted that mere suspicion alone cannot be a ground for judicial review. 46.It is further submitted that a writ of mandamus should not issue because no statutory duty has been shown to have been refused after a proper request or demand or breach of a clear legal duty. 47.The Respondents urge the Court to find that the process was lawful and constitutional and dismiss the petition for failure to meet the constitutional threshold and, declare that no violation of Articles 10, 35, or 75 of the Constitution occurred or was established and proved ORIGINAL by the Petitioner. VI. ISSUES FOR DETERMINATION 48.The court has carefully and dutifully gone through the petition and the supporting affidavit and the annexures thereto by the Petitioner, the replying affidavits by the Respondents and, the submissions by counsel for both sides. 49.In the considered view of the court, the following issues commend themselves to the court for determination – a) Whether the petition meets the constitutional threshold. KAK ELRC CONST. PET NO. E005 OF 2025 13 | PAGE J U D G E M E N T b) Whether a violation of Article 35 of the Constitution has been demonstrated and proved. c) Whether sufficient evidence was presented to warrant the grant the orders sought. d) What are the appropriate orders for the court to make? e) Costs. VII.CONSTITUTIONAL THRESHOLD 50. The Respondents submit that the petition has not set out in precision how the Respondents have violated the Petitioner’s rights under the Constitution nor has he provided evidence to prove back his ORIGINAL assertions. 51. The constitutional provisions upon which the petition is premised are Articles 2, 10, 19, 20, 21,22,23, 35 & 73 of the Constitution. 52. Article 2 establishes the supremacy of the Constitution. Article 10 sets out the national values and principles of governance, which bind all state organs, State officers, public officers and all persons whenever they apply or interpret the Constitution; enact, apply or, interpret any law; or make or implement public policy decisions. 53. Article 19 establishes the centrality of the Bill of Rights in Kenya’s constitutional democracy. 54. Article 20 provides that the Bill of Rights applies to all laws and binds all State organs and all persons. KAK ELRC CONST. PET NO. E005 OF 2025 14 | PAGE J U D G E M E N T 55. Article 21 imposes a positive duty on the State to observe, respect, protect, promote and fulfil rights. 56. Article 22 grants broad locus standi for enforcement of rights, providing that proceedings may be instituted by – A person acting in their own interest; on behalf of another unable to act; as a member of, or in the interest of, a group or class; in the public interest; and, By an association acting for its members. 57. Article 23 vests jurisdiction in the High Court to hear and determine applications for redress of rights violations and equips the Court with wide remedial powers to vindicate constitutional rights. ORIGINAL 58. Article 35 guarantees the right of access to information and promotes transparency, accountability and, informed public participation in governance. 59. Article 73 sets out the guiding principles of leadership and integrity and constitutionalises ethical standards and accountability in public office. 60. The petition before the court is based on Articles 2, 10 ,19, 20, 21, 23 & 35 & 73 of Constitution in support of the argument that the Respondents conducted themselves in a manner that did not accord with national values and principles of governance, the principles KAK ELRC CONST. PET NO. E005 OF 2025 15 | PAGE J U D G E M E N T governing public appointments, and the values and principles that ought to govern public recruitments and appointments. 61. The case by the Petitioner is that the Respondents acted in a manner that did not accord to the constitutional values and principles in that they failed to avail public recruitment records requested for verbally by the Petitioner and that they delayed in making public the outcome of the interviews that led to the alleged appointment of the 4th Respondent. The Petitioner further asserts that the withholding of the information regarding the recruitment process seven months after the interview demonstrates a lack of transparency and inference of an impeding unlawful appointment. 62. While the petition before the court cites various Articles of the Constitution. The question on the court to determine is whether the same meets the threshold set in Anarita Karimi Njeru vs. Attorney ORIGINAL General (1979) KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2014) KESC 6 (KLR), in terms of meeting the standards of pleadings and proving the constitutional petitions. 63. The court in Anarita Karimi Njeru vs. Attorney General (1979) KLR 154 stated as follows – “We would however again stress 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 KAK ELRC CONST. PET NO. E005 OF 2025 16 | PAGE J U D G E M E N T that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.” 64. Articles 2 & 19 to 23 of the Constitution provide for the constitutional foundation and manner of approaching the court and for the remedies available for alleged breach of fundamental rights and freedoms. 65. Articles 10 & 73 of the Constitution provide for national values and principles of governance. Conduct of public affairs. The Petitioner in Paragraph 26 of the petition “BREACH OF CONSTITUTIONAL RIGHT” states that in failing to release information sought on the recruitment process the Respondent contravened Articles 10 & 232 ORIGINAL of the Constitution, thereby violating the integrity of public appointments due to lack of transparency. 66. The petitioner, pursuant to Article 35 of the Constitution, asserts that he requested for the information regarding the recruitment of the Chief of Shiyunzu Sub-Location but the Respondents allegedly declined to provide, thus violating his right of access to information. 67. The 1st and 2nd Respondents are offices in the public service created under the Constitution and or other legislation. Those offices and the holders thereof are bound by the values and principles articulated by the Constitution, and they are under an obligation to act in KAK ELRC CONST. PET NO. E005 OF 2025 17 | PAGE J U D G E M E N T accordance with those provisions. Any person aggrieved by any of the acts of the Respondents has the right to challenge the said conduct under Article 165(5)(b) of the Constitution. This includes a situation where the Respondents have conducted themselves in a manner inconsistent with or in contravention of the Constitutional provisions in the recruitment and appointments in public service. 68. In Anarita Karimi Njeru vs. Attorney General(supra), it was held that a Petitioner must set out, with a reasonable degree of precision, that of which they complain, the provisions said to be infringed and the manner in which their rights were infringed, with the factual basis setting out how the violation occurred. The factual basis of the petition has been set out in the petition and in the supporting affidavit ORIGINAL sworn on 31st January 2025 it is averred that the 1st and 2nd Respondents conducted the recruitment of the chief of Shiyunzu Sub-Location, which culminated in the alleged appointment of the 4th Respondent, in a manner that was opaque raising public concerns. It is alleged that the 4th Respondent did not qualify for appointment and that forms the foundation of the petition. 69. The Petitioner contends that the purported appointment of the 4th Respondent is against the law as it was done in secret and the same has not been made public and hence raising integrity issues. 70. The Respondents availed documents in answer to the allegations made in the petition stated that no written request for the information KAK ELRC CONST. PET NO. E005 OF 2025 18 | PAGE J U D G E M E N T ORIGINAL had been made by the Petitioner in accordance with the law to show they understood the Petitioners’ concerns. 71. In view of the above, the court finds and holds that the petitioner has set out, with a reasonable degree of precision, that of which he is complaining hence meeting the threshold in Anarita Karimi Njeru vs. Attorney General (supra). VIII. ACCESS TO INFORMATION 72. Article 35 of the Constitution provides that every citizen has a right of access to information held by the state, or information held by another person, that is required for the exercise or protection of any right or fundamental freedom. 73. The Access to Information Act (the Act) was enacted by Parliament to give effect to Article 35 of the Constitution and to confer on the Commission of Administrative Justice (the Commission) the oversight and enforcement functions and powers and for connected purposes. 74. Section 4 of the Act under Part II on the Right to Information provides that – Subject to this Act and any other written law, every citizen has the right of access to information held by—(a)the State; and(b)another person where that information is required for the exercise or protection of any right or fundamental freedom. (2) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. KAK ELRC CONST. PET NO. E005 OF 2025 19 | PAGE J U D G E M E N T (4) This Act shall be interpreted and applied on the basis of a duty to disclose, and non-disclosure shall be permitted only in circumstances exempted under section 6. (5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information. 75. Section 8 of the Act provides that – ‘(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to ORIGINAL understand what information is being requested. (2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs. (3) The information officer shall reduce to writing, in a prescribed form, the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request. (4) A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon KAK ELRC CONST. PET NO. E005 OF 2025 20 | PAGE J U D G E M E N T applicants, and no application may be rejected on the ground.’ (Emphasis added) 76. The Petitioner conceded that he made a verbal request seeking for the documents and information aforementioned. While it is contemplated that a verbal application can be made, there is no indication that the petitioner is illiterate or suffers a disability. Moreover, there is neither an indication of when the request was made nor the name of the officer to whom the Petitioner made the 77. The Petitioner states that he received a verbal response, which he terms as a refusal by the 1st & 2nd Respondents to release the request. information. ORIGINAL 78. The 1st to 3rd Respondents have asserted that the Petitioner has never requested for any information in accordance with the law. Section 14 of the Act provides – (1)Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information— (a)a decision refusing to grant access to the information applied for;(b)a decision granting access to information in edited form; (c)a decision purporting to grant access, but not actually granting the access in accordance with an application;…” KAK ELRC CONST. PET NO. E005 OF 2025 21 | PAGE J U D G E M E N T 79. The Petitioner did not lodge his complaint as contemplated under Section 22 of the Act with the Commission, complaining that the Respondents had refused to furnish him with the requested information and documents. The doctrine of exhaustion was expounded by the court of appeal in Speaker of the National Assembly -vs- James Njenga Karume (1992) eKLR) wherein the court held that – In our view, there is considerable merit in the submission that ORIGINAL where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. 80.Section 21(1)(f) of the Act empowers the Commission to — hear and determine complaints and review decisions arising from violations of the right to access to information and, the power to order the release of the information withheld unlawfully or give any other lawful remedy or redress. 81. A person who is dissatisfied with an order made by the Commission may appeal to the High Court within 21 days from the date the order is made and, where no appeal is filed, the order of the Commission may be enforced by the Court through an exparte chamber summons under Section 23 (5) of the Act. 82. The court finds and holds that where there exists an established and elaborate procedure for access to information that is held by a public KAK ELRC CONST. PET NO. E005 OF 2025 22 | PAGE J U D G E M E N T or a private entity, a petition to this Court should be a last resort. Bypassing or ignoring the elaborate procedure articulated in the Act flies in the face of the Constitutional provisions under Article 159 (2) (c) of the Constitution, that mandates courts to promote alternative forms of dispute resolution mechanisms. 83. Accordingly, the court finds and holds that this petition alleging violation of the Petitioner’s right to access to information was prematurely filed before the court. IX. CERTIORARI AND MANDAMUS ORIGINAL 84. The petitioner alleges that a majority of residents believed that the recruitment of the 4th respondent as Assistant-Chief was not conducted in a transparent manner. The Court is therefore invited to determine whether the Petitioner has established a proper basis for the grant of the orders sought, namely certiorari to quash the purported appointment of the 4th Respondent and mandamus to compel disclosure of information relating to the recruitment process. 85. It is well settled that an order of certiorari shall issue where a decision of a public body is shown to be illegal, irrational, or procedurally improper. The burden, therefore, rests upon the Petitioner to demonstrate that the impugned appointment was undertaken in violation of the Constitution, statutory provisions, or established administrative procedures. KAK ELRC CONST. PET NO. E005 OF 2025 23 | PAGE J U D G E M E N T statutory procedures. 86. The petitioner’s grievance principally relates to the alleged refusal by the respondents to disclose information concerning the recruitment process. However, the Court has already found that the question relating to the disclosure of information is an issue that falls for determination before the commission as the primary and appropriate forum in accordance with the Act. 87. Beyond the allegation that the respondents failed to furnish the petitioner with information relating to the recruitment of the 4th Respondent, the Petitioner has not placed before the Court any cogent evidence demonstrating that the recruitment and appointment process was conducted contrary to the Constitution or applicable ORIGINAL 88. The Court notes that the allegations raised by the Petitioner remain largely speculative and are not supported by material evidence capable of establishing that the decision to appoint the 4th Respondent was unlawful, irrational, or procedurally flawed. 89. While concerns regarding transparency have been raised, particularly where information is alleged not to have been readily disclosed, such concerns alone do not establish that the decision to recruit and appoint the 4th respondent was itself illegal or procedurally improper. KAK ELRC CONST. PET NO. E005 OF 2025 24 | PAGE J U D G E M E N T 90. In respect to the prayer for an order of mandamus, such an order shall issue to compel the performance of a public duty imposed by law where the public body has failed, refused, and or neglected to perform that duty. 91. Apart from the generalized allegations that information regarding the recruitment process was not disclosed, the Petitioner has not demonstrated that the Respondents failed to perform a specific statutory duty capable of being compelled by an order of mandamus within the context of these proceedings. ORIGINAL 92. Consequently, in the absence of evidence demonstrating illegality, irrationality, procedural impropriety or, failure to perform a statutory duty, the Court finds that the threshold for the grant of the orders of certiorari and mandamus has not been met. Suspicion, conjecture, or dissatisfaction with the outcome of an administrative process cannot, without supporting evidence, justify the quashing of a public appointment or the issuance of coercive orders against public authorities. 93. Accordingly, the prayers for orders of certiorari to quash the appointment of the 4th Respondent and mandamus are not merited and are hereby declined. 94. The court holds that the petition dated 31st January 2025 has no merit and it is hereby dismissed with no orders as to costs. KAK ELRC CONST. PET NO. E005 OF 2025 25 | PAGE J U D G E M E N T X. ORDERS 95. The court makes the following orders – a) The petition dated 31st January 2025 has no merit and it is hereby dismissed. b) There is no order as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 14TH DAY OF MAY 2026. …………………… DAVID NDERITU JUDGE ORIGINAL KAK ELRC CONST. PET NO. E005 OF 2025 26 | PAGE J U D G E M E N T