Machua v Deputy County Commissioner Kiambu Subcounty & 4 others (Environment & Land Petition 2 of 2021) [2022] KEELC 4000 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed citizens can compel state bodies to release land records under Article 35 without explaining why they need them.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's right of access to information under article 35 was violated
Yes. The information sought was held by public bodies, fell outside the section 6 exceptions, and the respondents failed to provide it despite requests and the 4th respondent's decision
The petitioner is a citizen who made detailed written requests under article 35 and sections 4, 8 and 9 of the Access to Information Act. The respondents are public bodies obligated to hold and disclose the information. None denied receiving the requests. The stated purpose - prosecuting a land case - does not fall within the section 6 exemptions, and article 35 imposes no conditions based on the requester's reasons. The 1st respondent ignored the Commission's decision of 4/3/2020, which was never appealed, amounting to abstention of duty that must be sanctioned.
Whether the 4th respondent fulfilled its mandate
Yes; the 4th respondent acted under the Act, made a decision on 4/3/2020 directing the 1st respondent to facilitate access, and supported enforcement of that decision
The 4th respondent, the body mandated to give effect to article 35, reviewed the petitioner's complaints, advised her to resubmit a precise request, and on 4/3/2020 directed the Deputy County Commissioner to facilitate access to the Land Control Board documents. It also advised that information touching a third party from KRA required a court order under section 6(1). Its decision was never complied with nor appealed, and it urged enforcement as a decree under section 23(5) of the Act.
Legal principles established
#- Article 35 of the Constitution places no conditions on a citizen's access to information held by the state; the right is not affected by the reason given or perceived for seeking the information
- Non-compliance with a decision of the Commission on Administrative Justice under the Access to Information Act, absent an appeal, amounts to a violation of the Act and may be enforced by the court
Court orders
#- 1.The 1st respondent to forthwith provide the petitioner with (i) a certified true copy of an extract of the proceedings of the Land Control Board in relation to land parcel no Ndumberi/ndumberi/3460 and (ii) certified true copies of the applications tendered to the Board alongside the booking for the same
- 2.In the absence of those documents, the 1st respondent to supply the petitioner with a written declaration that the documents do not exist
- 3.The 2nd respondent to supply the petitioner with a certified true copy of the documents used to effect entry no 5 in the records of Title no Ndumberi/ndumberi/3460 in favour of Kirtish Chandulal Karania on May 2, 2019
- 4.The 3rd respondent to furnish the petitioner with information as to whether Kirtish Chandulal Karania was exempted from paying stamp duty on the transfer or evidence of any stamp duty paid in relation to the suit land
- 5.Costs in favour of the petitioner
- 6.Kirtish Chandulal Karania's undetermined application to be enjoined as interested party struck out for want of prosecution
- Jurisdiction invoked
- Article 35 of the Constitution and the Access to Information Act, 2016; matter transferred from the High Court to the ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Machua v Deputy County Commissioner Kiambu Subcounty & 4 others (Environment & Land Petition 2 of 2021) [2022] KEELC 4000 (KLR)", Case Analysis (2022). Petition dated 3/4/2020 (transferred from High Court to ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4000/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.