Christopher Karitu v Veterinary Medicines Directorate, Naphtal Mwanziki & Attorney General [2022] KEHC 2815 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.446 OF 2019

DR. CHRISTOPHER KARITU........................................PETITIONER

VERSUS

VETERINARY MEDICINES DIRECTORATE......1ST RESPONDENT

DR.NAPHTAL MWANZIKI......................................2ND RESPONDENT

ATTORNEY GENERAL............................................3RD RESPONDENT

JUDGMENT

The Petition

1. The petitioner filed a petition dated 5th November 2019 for the alleged contravention of Articles 19, 20, 21, 22, 23, 33(1) (a), 35(1)(a), 258 and 259 of the Constitution.

He seeks the following orders: -

i. A declaration that the petitioner’s fundamental rights and freedoms as enshrined under Article 33(1)(a) and 35(1)(b) of the Constitution of Kenya have been contravened and infringed upon by the 1st and 2nd respondents by their refusal to give the petitioner the information he requested vide the letter dated 13th August 2019;

ii. A declaration that the petitioner is entitled to the payment of damages and compensation by the 1st and 2nd respondents for violation of his fundamental human rights and freedoms as provided under Articles 33(1)(a) and 35(1)(a) of the Constitution;

iii. The Court to assess the quantum of damages and compensation to be paid by the 1st and 2nd respondents;

iv. An order compelling the 1st and 2nd respondents to release all the documents requested for in the letter dated 13th August 2019 within 30 days and more particularly the following documents;

a. Letter of Appointment as Ag. Chief Executive Officer from the VMD Council to Dr. Nathan Songok.

b. Letter of removal from the VMD Council to the Ag. CEO, Dr. Nathan Songok.

c. Letter of appointment as Ag. CEO from the VMD Council to Dr. Naphtal Mwanziki.

d. Letter from Permanent Secretary (PS) livestock requesting VMD Council to find a suitable replacement for the outgoing Ag. CEO of VMD, Dr. Nathan Songok.

e. Letter from the VMD Council to the PS livestock forwarding names of suitable replacement for the outgoing Ag. CEO of VMD, Dr. Songok.

f. Letter from the PS livestock appointing Dr. Naphtal Mwanziki as Ag. CEO of VMD.

g. Letters from the PS Livestock directing VMD to transfer money to KMC.

h. Minutes of the VMD Council meeting resolving not to transfer the money to KMC.

i. Letters of reprimand to the VMD Council Chairperson from the PS livestock for defying his unlawful orders to the Council.

j. Minutes of the VMD Council meeting held on 23rd April 2019.

k. The corrupted minutes of the meeting held on 23rd April 2019.

l. Letter of the Ag. CEO of VMD, Dr. Mwanziki convening the meeting of 8th August 2018.

m. Letter from the Chairperson of the VMD Council cancelling the meeting of 8th August 2019.

n.Minutes of the meeting held on 8th August 2019 defying the cancellation letter.

o. Documents of the VMD Council generated from the deliberations of the 8th August 2019 meeting.

p. Letters from Dr. Mandieka and Prof. Mbaria withdrawing their signatures from the Council Bank Account.

v. General damages, exemplary damages and aggrieved damages under Article 23(3) of the Constitution for the unconstitutional conduct of the 1st and 2nd respondent;

vi. Costs of the suit with interest at court rates; and

vii. Any other or further orders or relief as this Honourable Court may deem just and fit to grant.

2. The core of this petition, as supported by the averments in the petitioner’s sworn affidavit of even date, is that the petitioner, a member of the Veterinary Medicines Directorate (VMD) sought information from the 1st respondent through a letter dated 13th August 2019. This information has not been issued hence violating his fundamental rights.

3. To put the matter into context the petitioner claims that he became aware of administrative and operational issues at VMD as were being discussed in various forums. Particularly that the 1st respondent had been involved in disputes since February 2019. Aggrieved by the allegations of abuse of office and un-procedural dealings, he sought to ascertain the veracity of these claims by requesting specific information from the 1st respondent in his aforementioned letter.

4. He further alleges that the 2nd respondent refused to accept the letter upon delivery at their premises. He adds that the 2nd respondent was appointed by the Principal Secretary of the Ministry of Agriculture, Livestock and Fisheries instead of the 1st respondent’s Council as provided in law. As a result he wrote to the responsible Cabinet Secretary of the Ministry of Agriculture, Livestock and Fisheries petitioning him to take appropriate action.

5. He further states that the Chairman of 1st respondent in response to his letter dated 13th August 2019 advised him to forward the same to the 3rd respondent which he did but no response has been forthcoming. It is on this ground that he filed this suit for the contravention of his constitutional rights under Article 33 (1) (a) and 35 (1) (a) of the Constitution.

6. The 2nd respondent vide his replying affidavit dated 29th November 2019, avers that the petitioner is a retired veterinary officer and no longer a member of the 1st respondent. That he filed this petition with an ulterior motive.

7. He avers that the petitioner’s allegations of administrative and operational challenges at the 1st respondent in his letter were not addressed to him as the acting Chief Executive Officer (CEO) as required by law. He depones that the request was too vague, as it failed to provide specific information for the respondents to respond effectively. He observes that for the violation of Article 35 of the Constitution to be established, a petitioner must demonstrate that he needed the information to enforce his fundamental right and freedom.

8. He has deponed that from independence, Veterinary Medicines in Kenya were procured and supplied by the government of Kenya where the service was heavily subsidized.  When the World Bank came to the scene a lot of things changed.  After the struggles here and there the Veterinary Medicines Regulations were enacted in conformity with Section 39 (2) of the Veterinary Surgeons and Veterinary Paraprofessionals Act (Cap 366 Laws of Kenya) which was in fulfilment of Chapter 3, 4 of the Terrestrial Animal Health (OIE), to which Kenya is a member and signatory.

9. He depones that the operationalization of Veterinary Medicines  Directorate was contested and challenged through Nairobi Constitution Petition No.457 of 2016.  The matter was determined and the Directorate allowed to operate in September 2017.

10. It was on this ground that the Principal Secretary on interim basis appointed the 1st respondent’s secretariat to operationalize it. On this premise, he denied the existence of the information sought on Dr. Songok’s appointment as he was never appointed by the 1st respondent and further that he was neither removed from the Council nor gazetted as his tenure as acting Chief Executive Officer came to an end when he attained retirement age.

11. Equally, the 2nd respondent’s letter of appointment does not also exist as he was never appointed by the Council. He however clarifies that the 1st respondent’s council has since ratified his appointment.  He avers that the petitioner is on a wild goose chase as he has not provided any tangible evidence to support his claim.

12. The petitioner in response filed a supplementary affidavit sworn on 29th January 2020, reiterating the contents of his supporting affidavit dated 5th November 2019.  He also supplied his practicing certificate to rebut the 2nd respondent’s claim.

13. The petitioner filed written submissions and a list of authorities’ dated 12th February 2020 through MMW & Co. Advocates. Counsel identified the following as the issues for determination:

i. Whether the petitioner’s right of access to information has been violated by the respondents; and

ii. Whether the respondents should be compelled to supply the information sought by the petitioner.

14. On the first issue he submits an answer in the affirmative, arguing that Article 35(1)(a) of the Constitution grants a citizen the right of access to information held by the State, which right was violated by his not being issued with the information. Counsel sought to also rely on Article 19 of the Universal Declaration of Human Rights (UDHR), Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and People’s Rights (ACHPR) which also provide for this right.

15. On the second issue he submits that the respondents have not given any reasons for their failure to avail the information sought. He adds that Section 4(4) of the Access to Information Act, 2016 does not place any conditions to accessing information. This he argues is because this is an inviolable right that is granted by the Constitution as held in the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR. Additional reliance was placed on the cases of: Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2013] eKLR, Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR and Attorney General v Kituo cha Sheria & 7 others [2017] eKLR.

16. It is counsel’s submission that the information sought is meant to serve public interest as provided for under Section 6 of the Access to Information Act, 2016. Further it is meant to uphold accountability of public entities to the public, ensure that expenditure of public funds is subject to oversight while ensuring that the 1st respondent discharges its functions.

17. It is therefore the petitioner’s case that the respondents should be compelled to give the information sought and compensate him for this violation.

18. The respondents filed written submissions dated 31st August 2021, through Mr. Thande Kuria Principal State Counsel.  The issues counsel identified are similar to those of the petitioner and I will not repeat them here.

19. On the first issue counsel submits that the petitioner’s request was flawed ab initio. This is since the request was addressed to the Chairperson of the 1st respondent instead of the 2nd respondent who was the acting CEO. Further that the petitioner failed to demonstrate that the information was required for the exercise or protection of a right. Lastly that the petitioner failed to exhaust the statutory prerequisites prior to seeking redress from the High Court.

20. It is submitted that Section 4 of the Access to Information Act expressly provides that the CEO is the person from whom this information should be sought. He adds that Article 35(1)(b) of the Constitution requires that one indicate which right the information seeks to exercise or protect. This was the position adopted in the case of Nairobi Law Monthly Company Limited(supra)which he cited in support.

21. Additional reliance was placed on the cases of Cape Metropolitan Council v Metro Inspection Services Western Cape CC  and others [10/99] [2001] ZASCA 56 and Unitas Hospital v Van Wyk and another [231/05] [2006] ZASCA 34. It is their case hence that the petitioner sought the information without complying with the Constitution.

22. Counsel submits that the petitioner failed to exhaust the available statutory remedies before filing this petition. The Access to Information Act under Section 14 provides that parties aggrieved by decisions made by public bodies are to lodge their complaints with the Commission on Administrative Justice. It is counsel’s submission while quoting the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR that where there is an adequate forum to resolve a dispute a party ought to pursue that avenue first and not invoke the Court’s jurisdiction if the dispute can effectively be dealt with in that avenue.

23. Further reliance was placed on the cases of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, Cortec Mining Kenya Limited vs Cabinet Secretary Ministry of Mining & 9 others [2017] eKLR andKenya Revenue Authority & 5 others v Keroche Industries Civil Appeal No. 2 of 2008.

24. Counsel additionally submits that the petitioner failed to apply for exemption for by passing the jurisdiction of the Commission on Administrative Justice as required under Section 9(4) of the Fair Administrative Act prior to filing this petition.

25. He contends that the respondents cannot as a result be compelled to provide the information sought by the petitioner in his letter dated 13th August 2019.  The court is urged to dismiss the petition.

Analysis and Determination

26. From the foregoing account, the key issue that arises for determination is whether the petitioner’s rights under Articles 33(1) (a) and 35(1)(b) of the Constitution were violated and if so whether he is entitled to the reliefs sought.

Whether the Petitioner’s rights under Articles 33(1)(a) and 35(1)(b) of the Constitution were violated;

27. The petitioner’s central contention is that when he sought information from the 1st respondent through a letter dated 13th August 2019 the information was not issued. He claims that the respondents failure to issue the information essentially violated his fundamental rights under Articles 33(1) (a) and 35(1) (b) of the Constitution.

28. The respondents on the contrary state that the aforementioned letter was first of all not addressed to the 2nd respondent as is required by the law. Secondly, that the petitioner’s request failed to provide specific information to enable the respondents to respond effectively thus going against Article 35’s instruction that the petitioner must demonstrate that he needs the information to enforce his fundamental right and freedom. Lastly it is their contention that the petitioner failed to exhaust the procedure as espoused in the Access to Information Act No.31 of 2016.

29. The starting point in this matter is in the Constitution. The right to access information falls directly within the ambit of fundamental rights and freedoms under Chapter 4 of the Constitution. This right is provided under Article 35 of the Constitution as follows:

(1) Every citizen has the right of access to—

(a)information held by the State; and

(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3)The State shall publish and publicise any important information affecting the nation.

30. Likewise, this right is also expressed under Article 33(1)(a) of the Constitution as follows:

1. Every person has the right to freedom of expression, which includes--

a. freedom to seek, receive or impart information or ideas;

31. The right to access information is not only a hallmark of the new Constitution, but is also envisaged as a critical right universally. This was appreciated by the Court in the case of Nairobi Law Monthly Company Limited(supra).

“26. It is, I believe, beyond dispute that the right to information is at the core of the exercise and enjoyment of all other rights by citizens. It has been recognised expressly in the Constitution of Kenya 2010, and in international conventions to which Kenya is a party and which form part of Kenyan law by virtue of Article 2(6) of the Constitution. Article 19 of the Universal Declaration of Human Rights (UDHR) adopted by the United Nations in 1948 provides that

‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

27. Similarly, Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations in 1966, provides that:

‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.’

28. The right to freedom of information has also been recognized in regional treaties to which Kenya is a party. Article 9 of the African Charter on Human and People's Rights (The (Banjul Charter) states that:

Every individual shall have the right to receive information.”

32. The Access to Information Act (No. 31 of 2016) was enacted to give effect to Article 35 of the Constitution. This Act in essence provides the procedures to be followed when seeking any information held by the State or another person. At its preamble the Act states its purpose as ‘to  give  effect  to  Article  35  of  the  Constitution;  to confer  on  the  Commission  on  Administrative  Justice  the  oversight  and enforcement functions and powers and for connected purposes’.

33. Section 3 of the Act provides for its objectives which are as follows:

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; and

f. provide  a  framework  to  facilitate  public  education  on  the  right  to access information under this Act.

34. The Supreme Court while discussing this right in the case of Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR observed as follows:

“[13] Article 35(1)(a) and (b) of the Constitution, read with Section 3 of the Access to Information Act would thus show without unequivocation that all citizens have the right to access information held by the state, or public agencies including bodies such as the 2nd Respondent. In addressing that issue, the Court in Petition No. 479 of 2013 Rev. Timothy Njoya v. Attorney General & Another; [2014] eKLR, it was held;

A plain reading of Section 35(1)(a) reveals that every citizen has a right of access to information held by the State which includes information held by public bodies such as the 2nd Respondent. In Nairobi Law Monthly v. Kengen (supra) the Court dealt with the applicability of the right to information as follows;

"The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the state with regard to provision of information. Thus, the state has a duty not only to proactively publish information in the public interest... this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the state to 'publish and publicise any important information affecting the nation', but also to provide open access to such specific information as people may require from the state”."

[14] This right to access to information is, however, not absolute and there may be circumstances in which a person may be denied particular information. Specifically procedures are provided in a law on how a person ought to access information held by another person and particularly a State organ or entity.”

35. Likewise, the Court in the case of Katiba Institute v Presidents Delivery Unit (supra) expressed itself as follows:

“32. For purposes of actualizing Article 35, parliament enacted Access to Information Act 2016. Section 4 of the Act which is material, to this petition provides for the procedure to access information. The section provides;

“Subject to this Act and any other written law, every citizen has the right of access to information held by—

the State; and another person and where that information is required for the exercise or protection of any right or fundamental freedom.

Subject to this Act, every citizen's right to access information is not affected by—

a. any reason the person gives for seeking access; or

b. the public entity's belief as to what are the person's reasons for seeking access.

c. Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

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.

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.

It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information.”

36. The Court went further to state as follows under paragraph 54:

“54. The respondents were under both a constitutional and legal obligation to allow the petitioner to access information in their possession and held on behalf of the public. This is an inviolable constitutional right and that is clear from the language of Article 35 of the Constitution, and any limitation must meet the constitutional test and only then can one raise limitation as a ground for non-disclosure.”

37. While it is certain that citizens enjoy the right to access information held by the state and private bodies, citizens are required to request this information as prescribed by the Act. Of relevance to the present matter is how the information was requested for by the petitioner. It is therefore incumbent on this Court to analyze this matter in light of the procedures set out in the Access to Information Act, 2016. To do so, an examination of the relevant provisions is necessary.

38. A party seeking to access information held by the state or private body is first required to address the request to the designated information access officer under Section 7. This Section provides as follows:

1. A  chief  executive  officer  of  a  public  entity  shall  be  an  information  access officer for purposes of this Act.

2. A  chief  executive  officer  of  a  public  entity  may  delegate  the  performance of  his  or  her  duties  as  an  information  access  officer  under  this  Act  to  any  officer of the public entity.

39. To access this request the party under Section 8(1) of the Act is required to make an application  to  access  the information  in  writing  either in  English  or Kiswahili  and  to provide  details  and  sufficient  particulars  for  the public  officer  to  understand  what  information  is  being  requested. The public officer will under Section 9 process the application and make  a  decision  on  an  application as  soon  as  possible,  but  in  any  event,  within  twenty  one  days  of  receipt  of  the application.

40. Once the party receives a response on the request but is disgruntled, the Act under Section 14 provides the following procedure:

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;

b. a decision  purporting  to  grant  access,  but  not  actually  granting  the access in accordance with an application;

c. a decision to defer providing the access to information;

d. 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.

41. The Commission on Administrative Justice in performance of this function and the others listed under Section 21 is empowered by the Act under Section 23 to act as follows:

1. In  the  performance  of  its  functions  under  this  Act,  the  Commission  shall have the power to—

a. issue  summonses  or  other  orders  requiring  the  attendance  of  any person  before  the  Commission  and  the  production  of  any  document or record relevant to any investigation by the Commission;

b. question  any  person  in  respect  of  any  subject  matter  under investigation before the Commission; and

c. require  any  person  to  disclose  any  information  within  such  person's knowledge relevant to any investigation by the Commission.

2. The  Commission  may,  if  satisfied  that  there  has  been  an  infringement  of the provisions of this Act, order—

a. the release of any information withheld unlawfully;

b. a recommendation for the payment of compensation; or

c. any other lawful remedy or redress.

3. A  person  who  is  not  satisfied  with  an  order  made  by  the  Commission  under subsection  (2)  may  appeal  to  the  High  Court  within  twenty-one  days  from  the  date the order was made.

4. An  order  of  the  Commission  under  subsection  (2)  may  be  filed  in  the  High Court  by  any  party  thereto  in  such  manner  as  the  Commission  may,  in  regulations made  in  consultation  with  the  Chief  Justice,  prescribe  and  such  party  shall  give written  notice  of  the  filing  of  the  order  to  all  other  parties  within  thirty  days  of  the date of the filing of the order.

5. If  no  appeal  is  filed  under  subsection  (3),  the  party  in  favour  of  whom the  order  is  made  by  the  Commission  may  apply  ex-parte  by  summons  for  leave to  enforce  such  order  as  a  decree,  and  the  order  may  be  executed  in  the  same manner as an order of the High Court to the like effect.

42. The Court in the case of Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] eKLR while referring on the mandate of the Commission on Administrative Justice with regards to solving grievances under Article 35 of the Constitution with reference to the Access to Information Act pronounced as follows:

“29. Under section 23 of the Access to Information Act No. 31 of 2016, the High Court has been established to have appellate jurisdiction. In Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another [2020] eKLR, Korir J observed correctly in my view, as follows:

“It is appreciated that the cited decision does indeed recognize that the unlimited jurisdiction of the High Court of Kenya under Article 165(3)(b) of the Constitution to determine questions on whether a right or fundamental freedom has been infringed or violated. Nevertheless, it must be appreciated that the High Court does not exercise its jurisdiction in a vacuum. Jurisdiction is exercised within the laid down principles of law. One of those principles is one which requires that where a statutory mechanism has been provided for the resolution of a dispute, that procedure should first be exhausted before the courts can be approached for resolution of that dispute. Indeed, like any other legal principle, this doctrine has exceptions. In my view, it is the duty of a party who bypasses a statutory dispute resolution mechanism to demonstrate that there were reasons for avoiding that route. In the case before me, the Petitioner has simply pointed to the jurisdiction of this Court. The exhaustion principle does not actually take away the constitutional jurisdiction of this Court. What it simply does is to provide the parties with a faster and more efficient mechanism for the resolution of their disputes. The courts will step in later if any party is aggrieved by the decision of the statutory body mandated to resolve the dispute.”

I entirely agree with the above holdings.

43. A consideration of the facts of the case herein reveals that the petitioner did indeed request for access to the 1st respondent information on 13th August 2019. The contents of the letter touched majorly on his request to access various documentation with regards to appointment of the acting CEO, the 2nd respondent and his predecessor and operations of the 1st respondent. What is more is that the letter indicated that the information was required to enable the petitioner’s advocate represent the petitioner appropriately without giving any details. This letter was addressed to the Chairperson of the 1st respondent.

44. The 1st respondent responded to the petitioner’s letter vide a letter dated 15th August 2019. The Chairperson while declining to action the request referred the petitioner to the 3rd respondent who he said was in a better position to advise on the matter. The petitioner in his response dated 19th August 2019 disclosed that although he was aware that the right person to address the request to was the Chief Executive Officer as provided for in the Access to Information Act, he had chosen to address the 1st respondent’s chairperson as the Council had not appointed a CEO. In the end he sent letter to the 3rd respondent, as advised.

45. Based on the said account it is reasonable to deduce that despite the petitioner’s knowledge of the 2nd respondent position as the acting CEO he chose to make the request to the 1st respondent’s chairman and later the 3rd respondent. In addition the letter failed to disclose which fundamental right and freedom it sought to exercise or protect. While aware of the dictates of the Access to Information Act, the petitioner failed to adhere to the grievance mechanism provided in the said Act.

46. The Courts have from time to time pronounced themselves on the significance of exhausting the dispute resolution mechanisms provided by law before resorting to Court. The High Court in the case of Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR while addressing this matter stated as follows:

“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 Muthinja 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…”

47. Be that as it may, the Court went on to further state as follows:

“46. 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.”

48. It is appreciated as guided by the cited authorities that while this Court is vested with the requisite jurisdiction to entertain the matter owing to the constitutional question of a violation of a fundamental right, jurisprudence appeals to restraint where an alternative mechanism is outlined in a Statute. This restraint is however not a bar in circumstances where a party substantiates that their case is one that falls in the exceptional categories of the doctrine of exhaustion.

49. In the matter before this Court the petitioner through his documentation shows that he was aware of the rules as espoused by the Access to Information Act and Article 35 of the Constitution. He  however failed to show why he failed to adhere to the law as prescribed. Failure to give any explanation means he deliberately failed to comply with the law.

50. Secondly he fails to state the fundamental right sought to be exercised or protected by seeking this information. The importance of this disclosure cannot be emphasized enough. The South African Court examining this element in the case of Institute for Democracy in South Africa and Others v African National Congress and Others (9828/03) [2005] ZAWCHC 30 pronounced itself as follows:

“55. The phrase ‘required for the exercise or protection of any rights’ has been considered by our courts on a number of occasions, both in the context of the interim and the final Constitution. Thus, it has been held that the word ‘required’ in this context must be understood to mean ‘reasonably required’.30 In Cape Metro­politan Council v Metro Inspec­tion Services (Western Cape) CC and Others,31 Streicher JA summed up the position as follows:

Information can only be required for the exercise or protection of a right if it will be of assistance in the exercise or protection of the right. It follows that, in order to make out a case for access to information in terms of s 32, an applicant has to state what the right is that he wishes to exercise or protect, what the information is which is required and how that information would assist him in exercising or protecting that right.”

51. I find that a demonstration of the fundamental right and freedom sought to be exercised or protected would have enabled this Court to make a determination whether this case is one that implores it to consider this matter as one that falls within the exception rule.

52. In light of these findings, I am of the view that the petitioner has not properly and with the required precision demonstrated the manner in which the respondents violated his rights under Articles 33(1) (a) and 35(1) (b) of the Constitution. Suffice to say, it cannot be left to the Court to speculate on behalf of the petitioner to fill in these gaps. My conclusion is that the respondents owing to the circumstances of this case did not violate the petitioners rights under Articles 33(1) (a) and 35(1) (b) of the Constitution.

53. I therefore find that the petition lacks merit and the petitioner is not entitled to the reliefs sought.  The upshot is that the petition is dismissed.  Having been a matter citing public interest, I order each party to bear his or her own costs.

Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 27TH DAY OF JANUARY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI

HEDWIG ONG’UDI

JUDGE OF THE HIGH COURT