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ELRCStruck OutConstitutional Petition No E006 of 2024· [2025] KEELRC 896 (KLR)

Wanzetse & 10 others v Kakamega Public Service Board (Constitutional Petition E006 of 2024) [2025] KEELRC 896 (KLR)

Employment and Labour Relations Court
20 March 2025
4,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's courts require you to first complain to the access-to-information oversight body before suing over denied government records.

What this practically means

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Executive summary

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Nine petitioners, former revenue officers and senior revenue officers of the Kakamega County Public Service Board whose three-year contracts had lapsed, petitioned the Employment and Labour Relations Court at Kakamega claiming that the Board's partial denial of their request for recruitment information (made by letter dated 26th June, 2024 in aid of an intended Article 41 challenge to the recruitment) violated Articles 1, 2, 10, 21, 35 and 232 of the Constitution. They sought declarations, certiorari, mandamus and general damages. The Board filed a replying affidavit and a preliminary objection asserting that the petition failed the Anarita Karimi Njeru precision threshold, offended procedural rules, and was filed in the wrong forum since Section 20(1) of the Access to Information Act channels complaints to the Commission on Administrative Justice. By consent the petition and the preliminary objection were canvassed by written submissions. The court framed six issues and took the jurisdictional question first, applying the Lillian S principle. Examining Sections 4, 8, 11, 14, 21, 22 and 23 of the Access to Information Act, it found an elaborate statutory review mechanism through the Commission, including the Commission's power to order release of withheld information, with appeal lying to the High Court. Applying the exhaustion doctrine from Speaker of the National Assembly v Karume and Muthinja, and Article 159(2)(c), the court held that a petition should be a port of last resort and that the petitioners bypassed the statutory procedure. The court upheld the objection, found the petition prematurely filed, struck it out, and made no order as to costs. The remaining issues were not determined as any findings would be academic.

Key legal issues

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01

Whether the court's jurisdiction was invoked prematurely by bypassing the review mechanism under the Access to Information Act

Holding

Yes - the petitioners were required to first seek review by the Commission on Administrative Justice under Sections 14 and 21 of the Act before approaching the court; the petition was premature and was struck out.

Reasoning

The Access to Information Act gives effect to Article 35 and confers oversight and enforcement powers on the Commission on Administrative Justice, including power to review refusals to grant access (Section 14(1)(a)) and to order release of unlawfully withheld information. Applying the exhaustion doctrine in Speaker of the National Assembly v Karume and Muthinja, the court held that where a clear dispute-resolution mechanism exists outside courts it must be exhausted first, consistent with Article 159(2)(c) promoting alternative dispute resolution.

p. 10
02

Whether the preliminary objection on jurisdiction should be upheld

Holding

The objection that the petition was prematurely filed was upheld; the petition was struck out.

Reasoning

Relying on the principle in Owners of the Motor Vessel 'Lillian S' that jurisdiction is everything, the court determined the jurisdictional objection before the merits. It found that Sections 14, 20, 21 and 23 of the Access to Information Act prescribe a review and complaint mechanism through the Commission before court proceedings, and the petitioners did not respond to that contention.

p. 10

Legal principles established

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  • Where an established and elaborate statutory procedure exists for resolving access-to-information disputes, a petition to the court is a port of last resort and the statutory mechanism must first be exhausted

Court orders

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  1. 1.The petition herein was filed in court prematurely and is hereby struck out.
  2. 2.There is no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(2) & (4), 2, 10(1) & (2), 19, 20, 21, 22, 23, 27, 35, 41, 73, 159(2)(c), 162(2)(a), 232
  • Access to Information Act, 2016Sections 3, 4, 6(1)(d), 8, 11, 14(1), 20(1) & (3), 21, 21(1)(f), 22, 23, 23(5)
  • County Governments ActSections 57, 59(1)(d), 59(3), 68
  • Fair Administrative Action ActSection 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Cases cited (14)

  • Anarita Karimi Njeru v Republic
    (1976-1980) KLR 1272
  • Legal Advice Centre T/A Kituo Sheria & 33 Others v Cabinet Secretary Ministry of Education & 7 Others
    (2021) eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2014) eKLR
  • Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    [1989] KECA 48 (KLR)
  • Speaker of the National Assembly -vs- James Njenga Karume
    (1992) eKLR
  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] KECA 304 (KLR)
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    (2014) eKLR
  • Republic v Kenya Revenue Authority Exparte Yaya Towers Limited
    (2008) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    (2014) eKLR
  • Samson Gwer & 5 Others v Kenya Medical Research Institute & 3 Others
    (2020) eKLR
  • John Harun Mwau & 3 Others v Attorney General & 2 Others
    (2012) eKLR
  • Kenya National Examinations Council v Republic Exparte Geoffrey Githinji Njoroge & 9 others
    (1997) eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (ELRC jurisdiction); Article 35 as read with the Access to Information Act, 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, "Wanzetse & 10 others v Kakamega Public Service Board (Constitutional Petition E006 of 2024) [2025] KEELRC 896 (KLR)", Case Analysis (2025). Constitutional Petition No E006 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/896/eng@2025-03-20

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