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ELCDismissedEnvironment and Land Petition E019 of 2025

Kenya Resource Centre v African Gas and Oil Company & another

Environment and Land Court
24 September 2026
2,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed an access-to-information petition because the petitioner skipped the required complaint step at the Commission on Administrative Justice.

What this practically means

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Executive summary

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The Petitioner, Kenya Resource Centre, filed a petition in the Environment and Land Court at Mombasa seeking a declaration that its right of access to information under Article 35(1)(a) and (b) of the Constitution had been violated by the Respondents' failure or refusal to provide documents relating to the licensing by Kenya Forest Service of 23.103 hectares of forest land at Mkupe Jetty, Miritini, Vikobani area in Mombasa County to African Gas and Oil Company. It also moved the Court by Notice of Motion for conservatory orders preserving the licence documents and an order compelling the Respondents to furnish the documents listed in paragraph 11 of the petition within fourteen days. Both Respondents opposed, denying receipt of any request for information, and the 1st Respondent raised a preliminary objection on jurisdiction, prematurity, non-exhaustion of the Access to Information Act mechanisms, and abuse of process. The 2nd Respondent additionally contended the matter was sub judice in Mombasa ELC No. E012 of 2023. Olola J found that the Petitioner had neither produced the alleged information request nor demonstrated service of it, despite having leave to file a supplementary affidavit. Relying on Sections 14 and 23 of the Access to Information Act and the authorities of Hulbhai Gechi Abdille and Savraj Singh Chana, the Court held that the Petitioner was bound to first seek review by the Commission on Administrative Justice, and that Parliament did not intend to confer both original and appellate jurisdiction on the court where the Commission has jurisdiction. The Court declined jurisdiction on the doctrines of constitutional avoidance and exhaustion of remedies and dismissed the Petition and the Notice of Motion with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Environment and Land Court has jurisdiction to hear the Petition and the Notice of Motion
  2. 2.Whether the Petition is premature and offends the exhaustion-of-remedies requirement under the Access to Information Act
  3. 3.Whether the Petitioner made a request for information under Article 35(1) and Section 8 of the Access to Information Act before filing the Petition

Key legal issues

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01

Exhaustion of remedies under the Access to Information Act

Holding

The Petitioner was duty bound to first apply to the Commission on Administrative Justice for review before instituting court proceedings.

Reasoning

Section 14 of the Access to Information Act requires an aggrieved requester to apply to the Commission on Administrative Justice, which under Section 23(2) may order release of withheld information, compensation or other remedy. Section 23(3) provides an appeal to the High Court within 21 days. Parliament did not intend to confer both original and appellate jurisdiction on the court where the Commission has jurisdiction.

p. 4
02

Whether a request for information was in fact made

Holding

No request was made to the Respondents before the Petition was filed; the alleged request was neither attached to the Petition nor produced even after leave to file a Supplementary Affidavit.

Reasoning

Both Respondents denied receipt of any request under Article 35(1)(b) and Section 8 of the Act. The Petitioner neither produced the request nor demonstrated when it was served. Given leave to file a Supplementary Affidavit was granted and still not availed, the Court agreed with the Respondents that no such request was made.

p. 4
03

Jurisdiction of the Environment and Land Court over the Petition

Holding

The Petition fails the jurisdictional test for a constitutional dispute; the Court declines jurisdiction on constitutional avoidance and exhaustion of remedies.

Reasoning

Because the Access to Information Act provides an adequate alternative forum through the Commission on Administrative Justice, and the Petitioner did not exhaust it, the Petition could not pass the jurisdictional test required of a constitutional dispute. The doctrine of constitutional avoidance and subsidiarity applied.

p. 5

Legal principles established

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  • Where the Access to Information Act confers jurisdiction on the Commission on Administrative Justice, a party must first exhaust that remedy before invoking the Court's process; the High Court/ELC does not hold both original and appellate jurisdiction over such matters.

Court orders

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  1. 1.The Petition is dismissed
  2. 2.The Notice of Motion dated 2nd September 2025 is dismissed
  3. 3.Costs of the Petition and the Notice of Motion are awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 35, 258 and 259 of the Constitution of Kenya 2010; Sections 4, 5, 8 and 9 of the Access to Information Act, No. 31 of 2016

Relief refused

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Conservatory order preserving documents and records relating to the licence dated 21st March 2012

The Court declined jurisdiction on constitutional avoidance and exhaustion of remedies and dismissed the Motion

p. 5

Order compelling the Respondents to furnish the documents listed in paragraph 11 of the petition within 14 days

The remedy lay first before the Commission on Administrative Justice under Section 14 of the Access to Information Act

p. 4

Costs

The Petition as well as the Notice of Motion dated 2nd September 2025 dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the foregoing, this Court declines jurisdiction to entertain this Petition on the basis of the doctrine of constitutional avoidance and exhaustion of remedies.
p. 5Decline of jurisdiction - constitutional avoidance and exhaustion
Accordingly, I hereby dismiss the Petition as well as the Notice of Motion dated 2nd September 2025 with costs.
p. 5Final orders - dismissal with costs
the Petitioner was duty bound to apply this procedure under the Access to Information Act and could only come to this Court by way of seeking to adopt the decision of the Commission of Administrative Justice or through an appeal against the decision of that Commission.
p. 4Exhaustion of remedies under the Access to Information Act
one cannot help but agree with the Respondents that no such request was made to them before this Petition was led.
p. 4Failure to prove a request for information was made

Issues in the judgment

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minor

Licence date inconsistency: Motion says 21st March 2012, judgment paragraph 12 says 21st March 2021.

minor

Petitioner named 'Kenya Resource Centre' in title but 'Kenya Resources Center' in paragraph 1.

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, "Kenya Resource Centre v African Gas and Oil Company & another", Case Analysis (2026). Environment and Land Petition E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5619/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.