Kitundu v Sheik (Environment & Land Case E327 of 2021) [2022] KEELC 3163 (KLR)

The applicant sought to enforce the Article 35 right of access to information against state departments. Article 165(3)(b) vests jurisdiction over Bill of Rights violations in the High Court, while the ELC's mandate under Article 162(2)(b) is confined to land matters. Granting the orders would usurp jurisdiction vesting elsewhere, contrary to the Supreme Court's dictum in Samuel K Macharia v KCB.

Section 8 of the Act requires a written application with sufficient particulars. No evidence showed the applicant wrote to Nairobi City County or to the Chief Land Registrar, the statutory custodian of records under sections 9 and 10 of the Land Registration Act, 2012. The letter to the 'Registrar, Ministry of Lands' was unproven as dispatched, and no such office exists under the Land Registration Act.

The affidavit deposed to facts concerning efforts to obtain documents and alleged refusals by unnamed officers - facts not primarily within the advocate's knowledge and in dispute. Such facts should be deposed to by the party. Swearing them exposes the advocate to cross-examination, creating an absurd position where one cannot be both advocate and witness, contrary to Simon Isaac Ngugi v Overseas Courier Services and the Advocates Practice Rules.

Rule 9 requires exhibits to be securely sealed and marked with serial letters of identification. Here the serialization and sealing was done on a separate piece of paper preceding the annexture rather than on the annexture itself. Following Bosongo Medical Hospital, the exhibits were expunged, leaving the supporting affidavit bare and without evidentiary anchorage.

The application sought coercive orders against the County Government of Nairobi and the Chief Land Registrar, neither of whom was a party to the suit. Condemning them unheard would violate Article 50(1) of the Constitution. The proper route, within the suit, would have been witness summons under Order 16 Rule 1 of the Civil Procedure Rules 2010, supported by a list of documents under Order 3 Rule 2(d).