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Court of AppealDismissedCivil Appeal No. 227 of 2017· [2020] KECA 857 (KLR)

Josephat Mailu Ndolo (suing on behalf of the Estate of Anthony Ndolo Mailu) v Director of Public Prosecutions & another [2020] KECA 857 (KLR)

Court of Appeal
6 March 2020
3,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that a family seeking police investigation records must prove the records exist and request them promptly, or the claim fails.

What this practically means

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Executive summary

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This Court of Appeal judgment (Nambuye, Koome and Kantai, JJ.A) dismissed the appellant's appeal against Mwita, J.'s decision declining a declaration of violation of rights to information and fair administrative action, and an order of mandamus compelling the DPP and Inspector General of Police to provide information on investigations into the 2005 death of the appellant's son, Anthony Ndolo Mailu. The appellant contended his rights under Articles 26, 35, 40 and 47 were violated by the respondents' inaction over nearly ten years. The respondents countered that the police station lacked any records of the incident - the occurrence book could not be traced and the inquest register contained no particulars of the deceased - and that the appellant had failed to prove the State possessed the information sought. The Court framed two issues: entitlement to mandamus, and infringement of the right to information. Applying the Gathenji parameters for mandamus, the Court held the appellant neither supplied sufficient particulars nor controverted the respondents' evidence that the records could not be traced; the nearly ten-year delay in requesting information was inordinate and unexplained, and no documentation (burial permit, death certificate, postmortem report) fixed investigative responsibility on the police. On the right to information, the evidential burden lay on the appellant, who failed to discharge it; even under Section 8 of the Access to Information Act, the written request lacked sufficient detail and supporting documents. The petition also failed the Anarita Karimi Njeru precision standard. The Court affirmed the High Court decision, dismissed the appeal, and ordered each party to bear their own costs, noting the appellant was a private citizen against the State.

Key legal issues

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01

Whether mandamus could issue to compel the respondents to provide information on investigations

Holding

No. Mandamus compels performance of a public duty, but the appellant failed to show the police possessed or wilfully withheld the information, and had delayed nearly ten years before making the request.

Reasoning

The court applied the ex parte Gathenji parameters: mandamus commands performance of a statutory public duty to the detriment of a party with a legal right to its performance. The uncontroverted evidence was that the OB for the incident date could not be traced and the inquest register lacked the deceased's particulars. The appellant provided no documentation (burial permit, death certificate, postmortem report) fixing investigative responsibility on Parklands Police Station, and the ten-year delay before requesting information was inordinate and unexplained. Mandamus would thus be an exercise in vain.

p. 3
02

Whether the appellant's right to information was infringed

Holding

No. The evidential burden lay on the appellant to prove the violation, and he did not show the information sought existed in the respondents' possession.

Reasoning

Under Section 107(1) of the Evidence Act, whoever asserts facts on which a court is asked to found a judgment must prove them. The appellant produced no death certificate, postmortem report or other documentation substantiating the claim. Even under the Access to Information Act 2016, Section 8 requires a written request with sufficient particulars; the request here came after ten years and without supporting documents. The respondents' averments that records could not be traced were not controverted.

p. 4
03

Whether the petition disclosed the constitutional violations with sufficient precision

Holding

No. Following Anarita Karimi Njeru and Mumo Matemu, the petition, affidavits and submissions failed to disclose how the respondents' actions or inaction violated Articles 26, 35 and 47.

Reasoning

A cardinal rule of pleadings is that a party must plead with sufficient particulars. The Anarita Karimi Njeru principle, affirmed in Mumo Matemu, requires constitutional disputes to be defined with precision so parties know the issues. Quoting Thorp v Holdsworth via Mumo Matemu, the court emphasised that pleadings narrow and define issues. The appellant's pleadings did not articulate the manner of violation of the rights claimed.

p. 4
04

Whether constitutional claims are immune from delay considerations

Holding

The court found the ten-year delay in seeking information inordinate and unexplained, which weighed against the appellant notwithstanding his contention that constitutional violations are not subject to time limitations.

Reasoning

The deceased died in October 2005; the only documented request for information was the advocate's letter of 14 May 2014, after almost ten years, with no explanation for the delay. This inordinate delay undermined the claim that the police wilfully neglected their duty and made the mandamus remedy futile, since the police station responsible had no traceable records.

p. 3

Legal principles established

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  • An appellant seeking to interfere with a trial judge's exercise of discretion must show the judge misdirected himself, arrived at a wrong decision, or was clearly wrong and occasioned injustice
  • A party claiming violation of constitutional rights bears the legal and evidential burden of proving those violations, including possession of the information sought
  • A citizen requesting information under the Access to Information Act must make a written request with sufficient details and particulars to enable the public officer understand what is being requested
  • Claims of constitutional violation must be pleaded and defined with precision per Anarita Karimi Njeru

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 35
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 26
  • Access to Information ActSection 8
  • Evidence ActSection 107(1)

Cases cited (6)

  • Katiba Institute vs. Presidents Delivery Unit & 3 others
    [2017] eKLR
  • Anarita Karimi Njeru vs. Republic
    [1979] eKLR
  • Mumo Matemu vs. Trusted Society Alliance & 5 others
    [2013] eKLR
  • Coffee Board of Kenya vs. Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
  • Thorp vs. Holdsworth
    (1876) 3 Ch. D. 637
On appeal from
High Court of Kenya at Milimani Law Courts, Nairobi, Constitutional and Human Rights Division
Const. Pet. No. 293 of 2016
Jurisdiction invoked
First appeal from the High Court sitting in constitutional and human rights jurisdiction (Constitution of Kenya, Article 165), heard by the Court of Appeal as of right under Article 164 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josephat Mailu Ndolo (suing on behalf of the Estate of Anthony Ndolo Mailu) v Director of Public Prosecutions & another [2020] KECA 857 (KLR)", Case Analysis (2020). Civil Appeal No. 227 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/857/eng@2020-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.