[2023] KEHC 23403 (KLR)

Wafula (Suing as the legal representative of the Estate of Simiyu Namawanga Mupalia (Deceased) v Industrial & Commercial Development Corporation (Constitutional Petition E003 of 2020) [2023] KEHC 23403 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23403 (KLR)

Republic of Kenya

In the High Court at Kitale

Constitutional Petition E003 of 2020

AC Mrima, J

October 12, 2023

Between

Peter Patrice Wafula (Suing as the legal representative of the Estate of Simiyu Namawanga Mupalia (Deceased)

Petitioner

and

Industrial & Commercial Development Corporation

Respondent

Judgment

Introduction and Background 1. The dispute before this Court revolves around alleged violation of the right to access information as guaranteed under Article 35 of the Constitution.

2. The Petitioner herein, Peter Patrice Wafula Simiyu, is the legal representative of the Estate of Simiyu Namawanga Mupalia (Deceased).

3. Through his letter to the Respondent, the Petitioner requested for information and documents relating to the parcel of land known as Elgon/Kaptama/265 which land originally belonged to the deceased herein, Simiyu Namawanga Mupalia, and which land had been charged as security for a loan which the Respondent advanced to one Alfred Wekesa Mwanga.

4. It was averred that the said Alfred Wekesa Mwanga defaulted on the loan repayment and the property was exposed to a public auction. However, it turned out that it was the very Alfred Wekesa Mwanga who purchased the same land at the auction. He subsequently had the land registered in his name.

5. The estate was aggrieved by the events and opted to challenge the ownership of the land including the manner in which the auction was undertaken.

6. Despite the foregoing, the Petitioner’s letter to the Respondent was met with an objection. The Respondent declined to avail the information and documents on the basis that the deceased was not its account holder and there was no Court order to that end.

7. The foregoing failure by the Respondent resulted in the instant dispute.

8. The Respondent vehemently opposed the Petition.

The Petition: 9. Through the Petition dated 2nd March, 2020, supported by the Affidavit of the Petitioner deposed to on an even date and a Further Affidavit sworn on 30th November, 2022, the Petitioner sought to enforce his constitutional right to information.

10. The Petitioner pleaded that the Respondent’s deliberate non-compliance with the Constitution and the law hindered it from pursuing the claim over the land in issue.

11. It averred that under Article 35 of the Constitution there is provided the right to access information held by another person and required for the exercise of or protection of any right and fundamental freedom.

12. On the forgoing legal and factual backdrop, the Petitioner prayed for the following reliefs: -a.A declaration that the Respondent’s conduct amounts to a violation of the Petitioner’s fundamental rights and freedoms as enshrined in Article 35 of the Constitution of Kenya.b.A declaration that the Petitioner is entitled to the right of access to the information held by the Respondent and the said right has been violated.c.An injunction compelling the respondent to furnish the Petitioner all documents relating to the charge over land Title No.Elgon/Kaptama/265, the payment of the amount secured by land Title No.Elgon/Kaptama/265 and auction of land Title No.Elgon/Kaptama/265. d.That the Petitioner be awarded general and/or other damages and/or compensation for violation of his fundamental rights by the Respondent.e.Any other relief that this honourable court may deem fit to grant.

The submissions: 13. In his written submissions dated 24th April, 2023, the Petitioner rebutted the Respondent’s claim that the deceased was not its account holder and that there was need for a Court order for such information to be released to the Petitioner.

14. It was his case that despite seeking in precise terms the supply of information and documents which were in the possession of the Respondent for purposes of enabling it to enforce the rights of the estate of the deceased, the request was not facilitated in violation of his constitutional right.

15. In citing several decisions on the importance of the right to information, the Petitioner argued that the position taken by the Respondent could not be maintained under the instant Constitution.

16. In the end, the Petitioner urged the Court to allow the Petition as prayed.

The Respondent’s case: 17. The Respondent opposed the Petition through a Replying Affidavit of Lazarus Max Ogembo Odongo, its Senior Legal Officer.

18. It reiterated the position the Petitioner and the deceased were not the holders of the loan account and had no Court order, hence, its inability to positively act on the Petitioner’s request for information.

19. He deposed that the Respondent had not violated any of the Petitioner’s legal or constitutional rights. He prayed that the Petitioner be dismissed with costs.

The Submissions: 20. The Petitioner filed written submissions dated 2nd December 2022, expounded on its position and referred to a High Court decision in urging that the Petition be dismissed with costs.

Analysis: 21. Having carefully considered this matter, it has come to the mind of this Court that in view of the prevailing jurisprudence and the enactment of statutes on the right to information under Article 35 of the Constitution, it is imperative that this Court satisfies itself of jurisdiction.

22. This Court will, hence, look at the constitutional and statutory provisions on the right to information as well as jurisprudence on it.

23. Article 35(1) of the Constitution provides as follows: -Every citizen has the right of access to—a.information held by the State; andb.information held by another person and required for the exercise or protection of any right or fundamental freedom.

24. The right of access to information under Article 35 of the Constitution is not among the rights enumerated under Article 25 of the Constitution which rights cannot be limited in anyway whatsoever. That being the case, any limitation to the right of access to information must comply with the requirements set out in Article 24 of the Constitution.

25. In Kenya, there is a law in place which provides inter alia for the limitation of the right to access to information under Article 35 of the Constitution. It is the Access to Information Act, No. 31 of 2016 (hereinafter referred to as ‘the Access Act’).

26. The object and purpose of the Access Act is in Section 3 thereof. It is to: -a.give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;b.provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;c.provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;d.promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;e.provide for the protection of persons who disclose information of public interest in good faith; andf.provide a framework to facilitate public education on the right to access information under this Act.

27. Section 4 of the Access Act provides for the right of every citizen to information. Section 6 provides for the limitation to the right of access to information. Section 6(1) provides as follows: -Limitation of right of access to information:1. Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to:(a)undermine the national security of Kenya;(b)impede the due process of law;(c)endanger the safety, health or life of any person;(d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;(e)substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;(f)cause substantial harm to the ability of the Government to manage the economy of Kenya;(g)significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;(h)damage a public entity's position in any actual or contemplated legal proceedings; or(i)infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

28. The limitation of the right to access to information has been discussed in several decisions including the Presidential Election Petition No. 4 of 2017, Njonjo Mue & Another -vs- Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR.

29. There is also Section 14 of the Access Act. The provision states as follows: -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.

30. The Commission referred to in Section 14 of the Access Act is defined in Section 2 thereof to mean the Commission on Administrative Justice (hereinafter referred to as ‘the Commission’) as established by Section 3 of the Commission on Administrative Justice Act, (No. 23. of 2011).

31. Under Section 14(1)(a) of the Access Act, a party whose request for information has been declined by a public entity or private body has a recourse to seek a review of that decision from the Commission.

32. The Access Act also provides for compensation in instances of violation of the right to information. That is in Section 23(2)(b).

33. Reverting to the instant matter, the Petitioner’s main complaint is the alleged refusal to be supplied with information. The Petitioner alleged breach of Article 35 rights under the Constitution. He then sought for declarations as well as compensatory damages.

34. This Court ascribes to the position that in a case where Parliament donated powers to an entity like the Commission to determine if the rights under Article 35 of the Constitution are infringed, then it means as much; that the Commission has such power to determine whether the rights as provided for in the Bill of Rights has been denied, violated, infringed or threatened. However, the Commission lacks the jurisdiction to interpret the Constitution.

35. The reason for the foregoing holding is simple. The members of the Commission, as an entity and individually so, are public officers and Article 10 calls upon them to infuse the national values and principles of governance while undertaking their duties. Article 3 obligates every person to respect, uphold and defend the Constitution. Therefore, the Commission must be in a position to uphold the Constitution, and in doing so, to be able to determine whether a given set of circumstances reveal denial, violation, infringement or threat to the information rights in the Bill of Rights.

36. The above duty is to be distinguished from the duty to interpret the Constitution. Determining whether a given set of circumstances reveal denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights is just that simple. Conversely, interpretation of the Constitution is a serious judicial function. While interpreting the Constitution, the High Court is called upon to apply its legal mind to determine the applicability and extent thereof of a constitutional provision to a set of facts. In arriving at such an interpretation, the High Court is supposed to consider all the applicable principles in constitutional interpretation. (See the Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR). The High Court may also look at comparative jurisprudence from other jurisdictions on the subject. Such a determination yields to a binding legal principle unless overturned by a Court of superior jurisdiction.

37. Unlike the High Court, Tribunals and other quasi-judicial bodies, including the Commission, do not make the law. They can, however, apply themselves to a given set of facts and determine denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights.

38. There is, therefore, a defined distinction between determining the denial, violation, infringement or threat to the information rights in the Bill of Rights and interpreting the Constitution. Whereas the former is not exclusively a judicial function, the latter is. The jurisdiction, therefore, to interpret the Constitution is the exclusive duty reserved to the High Court vide Article 165(3)(d) of the Constitution.

39. In the instant matter, the Commission has the jurisdiction to determine whether the Petitioner’s information rights in the Bill of Rights were denied, violated, infringed or threatened. The Commission has further powers to order appropriate compensation in the event of proof of the infringement.

40. The Access Act, therefore, wholly provides for the dispute at hand based on Article 35 of the Constitution as well as the remedies sought in the event the dispute is successful.

41. In such a case, it was incumbent upon the Petitioner to demonstrate to the Court any of the exceptions to the doctrine of exhaustion. A brief look at the doctrine follows.

42. In Kenya, the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(a)justice shall be done to all, irrespective of status.(b)justice shall not be delayed.(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

45. Clause 3 is on traditional dispute resolution mechanisms.

46. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows: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.

47. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself 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.

48. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

49. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

50. From the foregoing discussion, the doctrine of exhaustion is a complete bar to the jurisdiction of a Court save in cases where any of the exceptions apply.

51. In this case, the Petitioner did not comply with Section 14 of the Access Act. Therefore, the Petitioner was to demonstrate that this was a case where the exception(s) to the doctrine of exhaustion applied.

52. The Petitioner did not address the issue. In fact, the Petitioner did not even address himself to the provisions of the Access Act or at all despite the fact that the Act became law way back in 2016. As such, no exception to the doctrine of exhaustion was demonstrated.

53. Deriving from the foregoing, this Court now finds and hold that the Petitioner did not exhaust the mechanism provided for in Section 14 of the Access Act before invoking the jurisdiction of this Court.

54. In the end, it is this Court’s finding that its jurisdiction was not properly invoked and as such, this Court must decline the invitation to determine the Petition.

Disposition: 55. Having said so and flowing from the findings and conclusions, the Petition dated 2nd March, 2020 cannot be maintained.

56. The Petition be and is hereby struck out with no order as to costs since the dispute relates to an estate which is battling loss of property and the possibility of sustained litigation remains a reality.

DELIVERED, DATED AND SIGNED AT KITALE THIS 12TH DAY OF OCTOBER, 2023. A. C. MRIMAJUDGEJUDGMENT VIRTUALLY DELIVERED IN THE PRESENCE OF:MR. INGOSI, COUNSEL FOR THE PETITIONER.N/A FOR MR. LUNANI, COUNSEL FOR THE RESPONDENT.REGINA/CHEMUTAI – COURT ASSISTANTS.