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ELCDismissedPetition dated 23/10/2017 (Murang'a)· [2019] KEELC 3670 (KLR)

Dishon Muthama Nzina & 26 others v Attorney General & 4 others; Francis Ngigi & 2 others (Interested Parties) [2019] KEELC 3670 (KLR)

Environment and Land Court
11 April 2019
1,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by J G Kemei, Judge, of the Environment and Land Court at Murang'a, dated 11 April 2019, determines a notice of motion dated 30/7/2018 filed by the petitioners in an original constitutional petition. The petitioners alleged infringement of their property rights through fraudulent allocation of land by former directors of the defunct Mathengeta Farmers Company Limited, and sought an order compelling the Company Registrar (5th Respondent) to produce a copy of the register of members as at 17/2/1989 pursuant to their demand dated 14/7/2014. The Applicants invoked Article 35 of the Constitution and the Access to Information Act No. 31 of 2016, arguing their stamped request letter was ignored. The 5th Respondent, through an Assistant Registrar, denied receipt of the letter, stated the Applicants had not followed the prescribed procedure for certified copies, and deposed that only a 1985 membership list exists - no 1989 list was ever filed with the Registrar. The court found the denial of receipt not believable given the receipt stamp, but held that the Applicants proved no lodging of the request at the Registrar's counter nor any follow-up; further, the Respondent cannot be compelled to produce what it does not hold, and it indicated willingness to provide the available 1985 list without compulsion, which the Applicants accepted as sufficient for their petition. The application was dismissed with no orders as to costs, with liberty to the Petitioners to follow the prescribed information-request procedure.

Key legal issues

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01

Receipt of and response to the information request

Holding

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

Reasoning

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.

p. 4
02

Compliance with the prescribed procedure for obtaining certified copies

Holding

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

Reasoning

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.

p. 4
03

Availability of the requested record

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application (notice of motion dated 30/7/2018) is dismissed; no orders of mandamus/production granted
  2. 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. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 35
  • Access to Information Act No. 31 of 2016Preamble; Section 4(1)-(5); Section 5(a); Sections 7-13
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.