Dishon Muthama Nzina & 26 others v Attorney General & 4 others; Francis Ngigi & 2 others (Interested Parties) [2019] KEELC 3670 (KLR)
The bottom line
#A Kenyan court ruled that you cannot force the Registrar of Companies to hand over records it doesn't have, and you must follow its official request procedure.
What this practically means
#Executive summary
#Key legal issues
#Receipt of and response to the information request
The 5th Respondent's claim that the letter was not received was not believable given the receipt stamp; the request ought to have been attended to expeditiously under Article 35 and the Access to Information Act
The Applicants exhibited a letter dated 14/7/2014 bearing a stamp of the 5th Respondent acknowledging receipt on 16/7/14. The court found the denial of receipt not believable. Although the request predated the Act, Article 35 was already in force and nothing precluded a response.
Compliance with the prescribed procedure for obtaining certified copies
Apart from the stamped letter, the Applicants did not demonstrate that the request was lodged at the Registrar of Companies counter nor any follow-up, yet the 5th Respondent indicated willingness to provide available documents without compulsion
The Registrar conceded an obligation to release copies upon the prescribed procedure: written request lodged at the counter, ascertainment of existence of documents, assessment of fees, then issue of certified copies on payment. The Applicants proved no lodging or follow-up, and the Respondent was willing to provide the 1985 list without a compulsion order.
Availability of the requested record
The 5th Respondent holds only a list of members as at 1985; no list as at 17/2/1989 was ever filed with the Registrar of Companies, and the Applicants did not show the company supplied such information
The Assistant Registrar deposed that upon perusal of the company file only a 1985 membership list exists and no 1989 list was filed. A registrar would be expected to retain information supplied through annual returns and audited reports; the Petitioners did not demonstrate the company supplied such information up to 17/2/1989. Orders in vain would issue against a body lacking the record.
Legal principles established
#- The right of access to information held by the State is guaranteed under Article 35 of the Constitution and given effect by the Access to Information Act, and requests must be attended to expeditiously
- A public body cannot be compelled by court order to produce documents it does not hold in its custody
Court orders
#- 1.The application (notice of motion dated 30/7/2018) is dismissed; no orders of mandamus/production granted
- 2.The Petitioners to comply with the procedures for request of information in the Office of the 5th Respondent and obtain the information disclosed and available regarding the list of members of the defunct Mathengeta Farmers Limited
- 3.No orders as to costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction (Article 35, Constitution of Kenya 2010) read with the Access to Information Act No. 31 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dishon Muthama Nzina & 26 others v Attorney General & 4 others; Francis Ngigi & 2 others (Interested Parties) [2019] KEELC 3670 (KLR)", Case Analysis (2019). Petition dated 23/10/2017 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3670/eng@2019-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.