Sandiko & 2 others v Attorney General & 6 others; Saoli & 67 others (Interested Party) (Petition 380 of 2017) [2022] KEELC 2482 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered state agencies to hand over gazette notice documents, confirming citizens' unconditional right to access state-held information.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of motion application dated 3rd March, 2022 has merit
- 2.Whether the applicants met the threshold for review of the orders made on 6th May, 2020
- 3.Whether the respondents should be compelled to supply the documents listed at paragraph 38 (a) and (b) of the petition
Key legal issues
#Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was met
The court found an error apparent on the face of the record in that the ruling of 6th May, 2020 allowed the application as prayed, including prayer 3 on production of documents, yet the respondents had not supplied them; the court proceeded to order supply of the documents.
The court reviewed the ruling of 6th May, 2020 by Justice Kullow and noted the application dated 5th April, 2019 was unopposed and allowed as prayed. The applicants contended the Attorney General undertook to supply the documents but had not done so. The court held the review jurisdiction is discretionary and must be exercised judiciously, and that a review is not an appeal but is confined to error apparent on the face of the record.
Whether the respondents were obliged to supply the documents under Article 35 of the Constitution
Yes. The court held information held by the state is accessible by citizens on request without conditions, and the respondents, being custodians of the gazette notices emanating from their office, ought to supply them.
The court emphasised the constitutional right of access to information under Article 35 as the foundation for an open, responsive, accountable and democratic government. It found the respondents' referral of the petitioners to the government printer inappropriate, since the gazette notice contents emanated from the respondents' office. Fairness and the interest of justice required the respondents to supply the documents listed in the petition.
Legal principles established
#- Article 35 of the Constitution grants citizens access to information held by the state on request, without conditions, and the information should be availed without delay.
- The power of review is confined to correction of a patent error on the face of the record; a review is not an appeal.
Court orders
#- 1.The respondents to supply to the petitioners the documents listed at paragraph 38 (a) and (b) of the petition dated 24th April, 2017
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rules 19 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Article 35 of the Constitution
Relief refused
#Review of the orders made on 6th May, 2020
The court instead allowed the application in terms of prayer 3 of the notice of motion dated 5th April, 2019, granting production of documents rather than formally reviewing the earlier orders
Costs
Each party to bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state oficer or public body.
The power of review is available only when there is an error apparent on the face of the record. Indeed, this court emphasizes that a review is not an appeal.
Arising from the above, and in the interest of justice, I will allow the notice of motion application dated 3rd March, 2022 in terms of prayer 3 of the notice of motion application dated 5th April, 2019 and I order that the respondents do supply to the petitioners with the documents listed at paragraph 38 (a) and (b) of the petition dated 24th April, 2017.Each party to bear its own costs. It is so ordered.
Issues in the judgment
#The judgment inconsistently dates the earlier ruling, describing it as made on 6th May, 2019 in the prayers but as delivered on 6th May, 2020 in the body and submissions.
The respondents' list of issues for determination in their submissions appears internally inconsistent, listing review-related issues mixed with the court's framing, including five items said to be four.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sandiko & 2 others v Attorney General & 6 others; Saoli & 67 others (Interested Party) (Petition 380 of 2017) [2022] KEELC 2482 (KLR)", Case Analysis (2022). Petition 380 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2482/eng@2022-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.