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ELCPartially AllowedPetition dated 13th June, 2018· [2019] KEELC 3462 (KLR)

Saniako N. Kibiwot v Land Control Board, Marakwet Division & 2 others [2019] KEELC 3462 (KLR)

Environment and Land Court
7 May 2019
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court forced the Land Registrar to hand over land documents after two years of silence, confirming you must first request information before suing for it.

What this practically means

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Executive summary

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The petitioner, widow of the late Kibiwot Kimutul (registered proprietor of parcel Cherangany/Kapkanyor/23), petitioned under Article 35 of the Constitution seeking a declaration of entitlement to constitutional protection and an order of mandamus compelling the respondents to disclose all statutory documents relating to the subdivision of parcel No. 23 and the transfer of parcel No. 55 to Kiptanui A. Kimaget, the latter transfer allegedly effected secretly and followed by threats of eviction pursuant to a decree in Kitale Land Case No. 16 of 2001. Her advocates wrote to the District Land Registrar on 10/11/2016 requesting the documents; no response was received for over two years. The petition was unopposed, the respondents' counsel leaving the matter to the court. The court framed two issues: whether the right of access to information was violated, and what orders should issue. Relying on Andrew Omtatah Okoiti and Kahindi Lekalhaile, the court held that a violation requires a prior request that was refused or ignored. The 10/11/2016 letter was a proper request under Section 8(1) of the Access to Information Act, but it was addressed only to the 3rd respondent, the District Land Registrar; the 1st and 2nd respondents should not have been enjoined as no request was made to them. Section 9 required a decision within 21 days (extendable by 14), and the two-year silence breached Article 35(1)(a). The petition succeeded against the 3rd respondent only: mandamus issued compelling disclosure of all listed documents, with costs borne by the 3rd respondent.

Key legal issues

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01

Whether the petitioner's right of access to information under Article 35(1)(a) was violated

Holding

The petition is sustained only against the 3rd respondent, who violated the petitioner's right by failing to respond to a proper written request for over two years; the 1st and 2nd respondents never received a request and cannot be held liable

Reasoning

The court held that a violation requires proof that a request was made and refused or neglected. The letter dated 10/11/2016 from David Ingosi & Co. Advocates was a proper request under Section 8(1) of the Access to Information Act, but it was directed only to the 3rd respondent. Under Section 9, a decision was due within 21 days (extendable by 14 days); the petitioner waited over two years. The 3rd respondent therefore breached Article 35(1)(a) and Section 9 of the Act.

p. 4
02

What orders should issue

Holding

An order of mandamus compelling the 3rd respondent to issue all the listed documents, with costs against the 3rd respondent

Reasoning

Having found the petition merited against the 3rd respondent alone, the court granted the principal relief sought - a mandatory order compelling disclosure of the certified copies of the statutory documents used in the subdivision of parcel No. 23 and transfer of parcel No. 55 - and awarded costs against the defaulting respondent only.

p. 4

Legal principles established

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  • A violation of the right of access to information can only arise where a request for information was first made to the holder and refused or ignored
  • A request for information must accord with Section 8(1) of the Access to Information Act, and a public officer must decide on an application within twenty-one days

Court orders

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  1. 1.An order of judicial review in the nature of mandamus compelling the 3rd respondent to issue to the petitioner all the documents listed in the petition relating to the subdivision of parcel Cherangany/Kapkanyor/23 and the transfer of parcel Cherangany/Kapkanyor/55 to Kiptanui A. Kimaget
  2. 2.Costs of the petition borne by the 3rd respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35(1)(a)
  • Access to Information ActSection 4
  • Access to Information ActSection 6
  • Access to Information ActSection 8(1)
  • Access to Information ActSection 9

Cases cited (3)

  • Andrew Omtatah Okoiti V Attorney General & 2 Others
    [2011] eKLR
  • Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others
    [2013] eKLR (NBI Petition No. 25 of 2013)
  • Nairobi Law Monthly case
    null
Jurisdiction invoked
Article 35 of the Constitution and the Access to Information Act (constitutional petition for enforcement of the right of access to information, with judicial review order of mandamus)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Saniako N. Kibiwot v Land Control Board, Marakwet Division & 2 others [2019] KEELC 3462 (KLR)", Case Analysis (2019). Petition dated 13th June, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3462/eng@2019-05-07

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