[2023] KEHC 22333 (KLR)

Wakf Commissioners of Kenya v Unclaimed Financial Assets Authority (Constitutional Petition E234 of 2021) [2023] KEHC 22333 (KLR) (Constitutional and Human Rights) (21 September 2023) (Judgment)

Neutral citation: [2023] KEHC 22333 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E234 of 2021

AC Mrima, J

September 21, 2023

Between

Wakf Commissioners of Kenya

Petitioner

and

Unclaimed Financial Assets Authority

Respondent

Judgment

1. The dispute before this Court revolves around alleged violation of the right to access information and the right to fair administrative action otherwise guaranteed under Articles 35 and 47 of the Constitution respectively.

2. The Petitioner, WAKF Commissioners of Kenya, is a body corporate established under Sections 6 and 7 of WAKF Commissioners Act. It is responsible for managing, administering, disposing, regulation and registering unclaimed assets of deceased Muslims.

3. Through its letter dated 28th September 2020, the Petitioner requested the Respondent, Unclaimed Financial Assets Authority, for upto date data of unclaimed funds and assets of deceased Muslims for purposes of discharging its mandate.

4. It is the Petitioner’s case that since it made the request, the Respondent has not availed the data in violation of its own mandate as provided for under Section 28 of Unclaimed Assets Act, 2011 (hereinafter referred to as ‘the Act’) which requires it to issue information on unclaimed assets to the public upon inquiry within 90 days.

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

6. The Respondents vehemently opposed the Petition.

The Petition 7. Through the Petition dated 23rd June 2021, supported by the Affidavit and Supplementary Affidavit of Dr. Ibrahim Bulushi, the Secretary of WAKF Commissioners Authority, deposed to on a 23rd June 2021 and 28th October 2021 respectively, the Petitioner sought to enforce its constitutional rights.

8. The Petitioner pleaded that the Respondent’s deliberate non-compliance with the Constitution and the law disrupted the very core of its functions as much as it undermined it.

9. 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.

10. Based on the foregoing and the provisions of Sections 4 and 6 of Access to Information Act, it was the Petitioner’s case that public entities are under a duty to facilitate access to information held by such entity expeditiously and at a reasonable cost.

11. It was its case further that the Respondent had violated its obligation to facilitate administrative action that was expeditious, efficient, reasonable, lawful and reasonable in accordance to Article 47 of the Constitution as read with section 4, 5 and 7 of the Fair Administrative Actions Act.

12. On the forgoing legal and factual backdrop, the Petitioner prayed for the following reliefs: -1. A declaratory Order does issue that the Respondent has contravened Article 35 and 47 of the Constitution of Kenya, Section 4 of the Access to Information Act, 2016 by withholding the information required for the execution of the Petitioner’s mandate.

2. An Order compelling the Respondent to avail the data of unclaimed financial assets of the deceased Muslims to the Petitioner.

3. Costs of this Petition and any other relief or Orders that this Honourable Court may deem just and fit to grant.

The submissions 13. In its written submissions dated 28th October 2021, the Petitioner rebutted the Respondent’s claim that there was no such data of Muslims readily available stating that it was not substantiated.

14. It was its case that despite seeking in precise terms the supply of up-to-date data of unclaimed funds and assets in the possession of the Respondent for purposes of identifying the names and assets of the deceased persons professing the Islamic faith, for purposes of enhancing its purpose and mandate, the request was not facilitated in violation of its constitutional right.

15. In citing the importance of the right to information, the Petitioner referred to the Supreme Court in Trusted Society of Human Rights Alliance & 3 Others -vs- Judicial Service Commissions & Another (2016) eKLR where it was observed: -The constitutional guarantee of the right to access information held by the State gives effect to accountability, responsiveness and openness as founding values of our constitutional democracy. It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realization of other rights in the Bill of rights…

16. On the foregoing the Petitioner submitted that under Section 27 of Unclaimed Financial Assets Act, it had the obligation to make available for public inspection at all business hours, the name of the owner or apparent owner and a general description of the assets delivered to it under the Act.

17. It was its case that a period of one year had lapsed since it made the request and despite institution of the Petition no information had been supplied to it in violation of Articles 10, 33 and 35 of the Constitution.

18. The Petitioner further invited this Court to the fact that there is no specific procedure laid out for purposes of obtaining the general data from the Respondent in regard to unclaimed financial assets.

19. The Petitioner asserted the position that its functioning is heavily reliant on the information withheld by the Respondent and as such, it has been unable to claim, validate, register, manage, regulate, dispose and administer any assets on possession of the Respondent.

20. It was its case also that it was not able to advise government regarding administration and policy making features of the assets of Muslims.

21. In respect to violation of Article 47 of the Constitution as appreciated alongside Section 4 of Fair Administrative Actions Act, the Petitioner submitted that the Respondent had not issued any just or lawful reasons that hindered it from releasing the information.

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

The Respondent’s case 23. Unclaimed Financial Assets Authority opposed the Petition through Grounds of Opposition dated 8th July 2021 and an undated Replying Affidavit of Gideon Nzioki, its Acting Managing Director.

24. In the Grounds of Opposition, it was the Respondent’s case that the Petition is an abuse of process and a waste of judicial time since the Petitioner is in a position to query the Respondent’s data base through its website and obtain up to date data.

25. It was its case that the Petitioner did not comply with the provisions of Unclaimed Financial Assets Act and has not established the grounds for the grant of the Orders sought.

26. It was urged that the Petitioner had not alleged any wrongful conduct on its part and as such the Petition ought to be dismissed with costs.

27. In the Replying Affidavit Mr. Nzioki deposed that the Petition was baseless, incurably defective and abuse of Court process undeserving of the prayers sought for making misrepresentations of the law.

28. Despite acknowledging receipt of the Petitioner’s letter of request dated 28th September 2021, he deposed that it was vague and the Respondent was unbale to act upon it.

29. It was his case that the Respondent maintains a database that is accessible to members of the Public including the Petitioner which can be queried to provide information on a person claiming an interest in unclaimed financial assets that have been paid and delivered to it.

30. He deposed further that the Respondent was unable to provide the information in the form requested since the Petitioner did not request it in the manner prescribed by the Unclaimed Finance Assets Act and the Regulations therein.

31. It was his case further that the Petitioner did not provide the Respondent with any names against which the Authority would be in a position to search its data base and communicate the results.

32. He deposed that the data in its custody does not contain any information or data field that would enable it identify unclaimed assets as belonging to a claimant professing any particular faith.

33. He additionally stated that the financial assets held by the Respondent does not contain any information or data field that would enable it identify unclaimed assets as belonging to a deceased person.

34. On the foregoing, the Respondent deposed that an Order directing it to provide information in respect of Muslims would be unenforceable.

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

The Submissions 36. In its written submissions dated 23rd November 2021, the Respondent identified the issues for determination as being; whether the Petitioner was premature; whether there was breach of Article 35 and the Fair administrative Actions Act, whether the Respondent disrupted the core of the Petitioner’s functions and whether the Respondent maintains a searchable database accessible to the Public.

37. On the first issue regarding propriety of the Petition, it was submitted that the Petition was premature since, according to Article 35 as read with section 21(f) of Access to Information Act, there is established the Commission on Administrative Justice which hears and determines complaints and reviews decisions arising from violations of the right to access information.

38. In reference to Section 14(1)(a) of the Access to Information Act, the relevant section allowing an aggrieved person to write to the Commission on Administrative Justice requesting for review of an administrative decision, the Respondent submitted that this Court ought not be encumbered by administrative matters that ought to be dealt with by statutory bodies.

39. On the foregoing, it was the Respondent’s case that in the event the Petitioner was dissatisfied with the decision of the Commission on Administrative Justice, it would have, pursuant to Section 23(2) and (3) of Access to Information Act, appealed to the High Court.

40. On the issue of violation of Article 35 of the Constitution, the Respondent reiterated its case that the information sought was ambiguous and lacking in sufficient detail.

41. It was submitted that the request did not meet the threshold of Section 8 of the Access to Information Act which requires and applicant to provide sufficient details and particulars to enable a public officer to understand the information requested.

42. Further, the Respondent submitted that the details provided to it by holders of unclaimed financial assets as extracted from 2, form 3 and form 6 of Unclaimed financial Assets Regulations include owners name, postal address, ID/Passport/NHIF/LAP Trust/NSSF Number, Date of Birth, asset description among other details which do not include the level of detail sought by the Petitioner.

43. It was its case that information provided to it could not enable it to establish if an asset remitted to it by a holder of unclaimed financial asset belonged to a person professing the Muslim faith.

44. In addition to the foregoing, the Respondent submitted that even if it was in possession of the information required by the Petitioner, it would be precluded from giving it out be operation of Section 6(1)(d) of the Access to Information Act which limits disclosure that invades the privacy of the individual on whose behalf information is sought.

45. To that end, it submitted that Section 36 of Unclaimed Financial Assets Act as read with Article 31 of the Constitution, access to information is limited for purposes of providing privacy to the owners.

46. On the issue whether the Respondent disrupted the core business of the Petitioner, it was the Respondent’s position that pursuant to Section 18 of WAKF Commissioners Act, the Petitioner could identify property of deceased.

47. It was its case that the Petitioner does not have a blanket mandate to look for assets that belonged to deceased Muslims but was limited to those assets that had fallen under administration of an administrator or Public Trustee and which one year has lapsed since they fell under administration.

48. It, therefore, was the Respondents’ case that the Petitioner’s request for information in question was ultra-vires its powers and functions bestowed upon it by statute.

49. On the issue as to whether it maintains a searchable data accessible to the Public, the Respondent submitted that pursuant to Section 36 of Unclaimed Financial Assets Act, it maintains a database that can be accessed through both USSD code *361# or through the Respondent’s website www.ufaa.go.ke the only requirement being, registration of the person seeking to query the database.

50. It was its position that it was open for the Petitioner to query the database and the Respondent was not obliged to provide any information since, according to Section 6 of the Access to information Act, it was reasonably accessible by the Petitioner by other means.

51. In conclusion, the Respondent urged the Court to dismiss the Petition with costs.

Analysis 52. Having carefully considered this matter, this Court ought to consider the preliminary issue raised by the Respondent. The issue is a jurisdictional challenge on the basis of the doctrine of exhaustion.

53. It is the Respondent’s position that the Petitioner ought to have complied with the provisions of the Access to Information Act, in the first instance, before approaching this Court.

54. The Court will, therefore, look at the doctrine of exhaustion in brief.

55. 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)…(b)…(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

56. Clause 3 is on traditional dispute resolution mechanisms.

57. 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.

58. 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.

59. 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.

60. 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.

61. 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.

62. In applying the above to this matter, this Court will look at the relevant constitutional and statutory provisions involved.

63. 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.

64. 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.

65. 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’).

66. 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.

67. 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.

68. 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.

69. 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.

70. 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).

71. 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.

72. 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 exceptions to the doctrine of exhaustion applied.

73. The Petitioner did not address the issue even after it was raised by the Respondent. As such, no exception to the doctrine of exhaustion was demonstrated.

74. 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.

75. In the end, it is this Court’s finding that the Respondent has ably and sufficiently demonstrated that it was legally entitled to decline the request by the Petitioner on the basis of the need for compliance with the Access Act.

76. The preliminary issue is, hence, upheld.

Disposition 77. Having said so and flowing from the findings and conclusions, the Petition dated 23rd June, 2021 cannot be maintained.

78. The Petition be and is hereby struck out with costs.

DELIVERED, DATED AND SIGNED AT KITALE THIS 21ST DAY OF SEPTEMBER, 2023. A. C. MRIMAJUDGE