[2018] KEHC 3523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

MISC. CIVIL CASE NO. 08 OF 2018

VINCENT MARIITA OMAO................................................................APPLICANT

=VERSUS=

1. THE CLERK, COUNTY ASSEMBLY OF NYAMIRA.......1ST RESPONDENT

2. HON. SPEAKER, COUNTY

ASSEMBLY OF NYAMIRA..................................................2ND RESPONDENT

3. SECREARY/C.E.O. COUNTY

GOVERNMENT OF NYAMIRA..........................................3RD RESPONDENT

RULING

The Applicant filed a Notice of Motion dated 10th July 2018 under Section 1 (a), 1 (b), 3a & 63 (e) of the Civil Procedure Rules, Article 35 (1) (a) and (b), 2 of the Constitution, 2010, Public Appointments (County Assemblies Approval) Act, Section 4 & 5 and All Other Enabling Provisions of the Law seeking that the Respondents be compelled to produce information documents relating to the vetting process and appointment of the Deputy County Secretary.

Before the application could be heard, the 3rd Respondent raised a preliminary objection on the following grounds: -

“a) THAT the Plaintiffs do not have the locus standi to institute the present suit.

b) THAT the suit is wrongly instituted or brought to this Honourable Court vide an Application as issues raised in the Application should have been canvassed or addressed in a substantive suit.

c) THAT the third Respondent is wrongly sued in this court on a personal capacity instead of suing the Public Service Board of the County Government of Nyamira.”

This Court directed that the preliminary objection be heard first and proceeded to hear arguments from Counsel for the parties. Mr. Otara for the 3rd Respondent submitted that the Applicant had no locus standi as he had not filed the authority of the people he represents in the application given that the suit is one filed in the interest of the residents of Nyamira. He also stated that the issues raised in the application should have been raised in a substantive suit and not in an application and that the 3rd Respondent had been wrongly sued in a personal capacity. He prayed that the Notice of Motion be struck out.

Mr. Ochoki, for the Applicant, submitted that this application is brought under Article 35 of the Constitution and the Fair Administrative Action Act which entitle the Applicant to seek information from the State. He further submitted that the procedure to make such an application is in fact a very simple one as provided in Section 8 of the Access to Information Act and that the same is by way of written request. He submitted that the issue of the 3rd Respondent being wrongly sued is one that can only be ascertained by evidence and not by a preliminary objection. He prayed that the preliminary objection be dismissed.

Mr. Meta, Counsel for 1st & 2nd Respondents did not support the preliminary objection. He submitted that the right to information can be raised by any citizen in whatever capacity and that the preliminary objection shall deny the Applicant who has locus standi his right to access to information that is in the custody of the 3rd Respondent. He too urged this Court to dismiss the preliminary objection.

The issue of locus of the Applicant is answered by Article 35 which makes reference to “every citizen” and Article 22 of the Constitution which provides:-

“(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

(2) In addition to a person acting in their own interest, court proceedings under Clause (1) may be instituted by:-

(a) A person acting on behalf of another person who cannot act in their own name.

(b) A person acting as a member of, or in the interest of, a group or class of persons.

(c) A person acting in the public interest; or

(d) An Association acting in the interest of one or more of its members.”

I find therefore that the Applicant has locus to bring this application.

The application herein is brought by way of a Notice of Motion under the Civil Procedure Rules 2010. However, applications of this nature are governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013and more specifically Rule 4 (1) which states:-

“4. (1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.

(2) In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by—

i. a person acting on behalf of another person who cannot act in their own name;

ii. A person acting as a member of, or in the interest of, a group or class of persons;

iii. A person acting in the public interest; or

iv. An association acting in the interest of one or more of its members.”

Rule 10 of the said rules sets out the procedure for bringing the applications and states that:-

“(10) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.

(2) The petition shall disclose the following—

(a) the petitioner’s name and address;

(b) the facts relied upon;

(c) the constitutional provision violated;

(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;

(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and

(g) the relief sought by the petitioner.

In the premises, this application ought to have been instituted by way of a petition, under Sections 22 of the Constitution and Rules 4 and 10 of the rules thereunder but not by notice of motion under the Civil Procedure Rules. Besides the Access to Information Act which Mr. Ochoki, Advocate for the Petitioner adverted to, has a procedure by which anyone wishing to obtain information should invoke. The Act even provides for appeals where the information sought is unreasonably denied. Was that procedure invoked? Whereas I am not persuaded that the 3rd Respondents is wrongly sued, and whereas the preliminary objection has no merit, it is my finding that the Applicant having invoked the wrong procedure which in my view is not curable under Article 159 (2) (d) of the Constitution, this Court must on its own motion strike out the application. Each party bear their own costs.

It is so ordered.

Signed, dated and delivered this 3rd day of August, 2018.

E. N. MAINA

JUDGE