Josephat Mailu Ndolo (suing on behalf of the Estate of Anthony Ndolo Mailu) v Director of Public Prosecutions & another [2020] KECA 857 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether mandamus could issue to compel the respondents to provide information on investigations
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.
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.
Whether the appellant's right to information was infringed
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.
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.
Whether the petition disclosed the constitutional violations with sufficient precision
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.
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.
Whether constitutional claims are immune from delay considerations
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- James Makura M'Abira v The Director of Public Prosecutions[2026] KECA 1703 (KLR)25 Sept 2026
Cite this brief
#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.