Kenya Resource Centre v African Gas and Oil Company & another

2. c. ……. d. That an urgent order be issued to the Respondents to furnish to the Petitioner and/or deposit in Court the information and/or documents listed in paragraph 11 of the petition within fourteen (14) days of the order pending the hearing and determination of this petition; e. That the costs of this application be provided for. The application is supported by an adavit sworn by the Petitioner’s Director Catherine Simon and is premised on the grounds that; i. The Petitioner has a Constitutional right under Article 35 (1) of the Constitution to Access public information held by the state and its organs; ii. The Respondents have refused, failed or neglected to furnish the Petitioner with critical public documents despite formal written request; iii. The documents sought relate to use and licensing of environmentally sensitive and protected forest land and one necessary for public oversight, transparency and lawful environmental governance; and iv. The continued denial of access to information impedes the Petitioner’s Constitutional mandate to hold public bodies accountable. 3. African Gas and Oil Company Limited (the 1st Respondent) is opposed to both the Petition and the Notice of Motion. In a Replying Adavit sworn on its behalf by its Legal Ocer Wambui Maina, the 1st Respondent avers that both the application and the Petition have no merit, are frivolous and amount to an abuse of the Court’s process. 4. The 1st Respondent avers that the Petitioner has not demonstrated the existence of an arguable prima facie case with a likelihood of success and that the Petitioner has not shown through evidence that in the absence of the conservatory orders it is likely to suer prejudice. The 1st Respondent asserts that the Petitioner has failed to demonstrate whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of the specic right or freedom in the bill of rights. 5. The 1st Respondent further avers that it has neither received nor been served with any request for information under Article 35 (1) (b) of the Constitution and Section 8 of the Access to Information Act. 6. The 1st Respondent avers further that both the Petition and application oend the principles of constitutional avoidance and subsidiarity as the Access to Information Act provides adequate mechanisms for redress. It is further the 1st Respondent’s position that the Petitioner has not demonstrated that the information allegedly requested is for the exercise or protection of any fundamental right or freedom. 7. In addition to its Replying Adavit, the 1st Respondent has taken out a Notice of Preliminary Objection dated 4th December 2025 wherein it objects to both the Motion and the Petition on the grounds that: 1. The Honourable Court does not have jurisdiction to hear and determine this matter. 2. The Petition is premature, improperly before this Honorable Court and it oends the provision of the Access to Information Act No. 31 of 2016. The Access to Information Act contains an elaborate and special avenue to address disputes arising from the application of the Access to Information Act No. 31 of 2016 which the Petitioner has not exhausted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5619/eng@2026-09-24 2

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3. The Petitioner has never sought the information alleged (the subject matter of this petition) from the 1st Respondent, under the Access to Information Act No. 31 of 2016. 4. The Petition is vexatious and an abuse of the Court process and ought to be struck out. 8. The Kenya Forest Service (the 2nd Respondent) is equally opposed to the Petition and the Motion. In a Replying Adavit sworn on its behalf by its Mombasa County Forest Conservator Bernard Wahome Kamenyi, the 2nd Respondent also avers that both the Petition and the Motion are frivolous, misconceived and an abuse of the Court process. 9. The 2nd Respondent avers that it has not received or been served with any request for information under Article 35 of the Constitution as alleged by the Petitioner. The 2nd Respondent further avers that there are ongoing suits relating to the subject matter in Mombasa ELC No. E012 of 2023; African Gas and Oil Limited –vs- Kahia Transporters Ltd and 9 Others, hence this suit is sub judice. 10. I have carefully perused and considered the Preliminary Objection as well as the Petition and the accompanying application. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Advocates representing the parties herein. 11. By its Petition dated 2nd September 2025, the Petitioner moved the Court seeking a declaration that its right under Article 35 (1) (a) and (b) of the Constitution has been violated by the Respondent’s failure and/or refusal to provide the requested information. Ultimately, the Petitioner has sought an order compelling the Respondents, either jointly or severally to provide the Petitioner with all the documents listed at paragraph 11 of the Petition within 14 days. 12. By their application accompanying the Petition, they have sought conservatory orders to preserve the said documents relating to what it states is the issuance, approval, extension and implementation of a licence dated 21st March 2021 by the 2nd Respondent to the 1st Respondent. In addition, the Petitioner prays for an urgent order to be issued to the Respondents to furnish the said documents to the Petitioner. 13. According to the Petitioner, it had, pursuant to the said Article 35 (1) (a) and (b) of the Constitution and Sections 4 and 8 of the Access to Information Act formally wrote to the Respondents requesting the disclosure of the documents as well as information relating to the issuance of the said allowance which licence according to the Petitioner allowed the 1st Respondent to utilize 23.103 Ha of the mangrove forest situated at Kilindini Bay in Miritini area of Mombasa County. It was the Petitioner’s case that despite the lapse of reasonable time after the information was requested, the Respondents had, jointly and severally, declined to supply the information thereby violating the Petitioner’s constitutional right to access information. 14. In their respective responses to the Petition and the application, the 1st and 2nd Respondents categorically denied that they had received or been served with any request for information under Article 35 (1) (b) of the Constitution and Section 8 of the Access to Information Act. In addition, the 1st Respondent averred that both the Petition and the application oend the principles of Constitutional avoidance and subsidiarity as the Access to Information Act provides adequate mechanisms for redress which had not been exhausted by the Petitioner as at the time it led the Petition and the application. 15. Those were the issues that found their way in the 1st Respondent’s Preliminary Objection before the Court in which the 1st Respondent as supported by the 2nd Respondent contends that this Court has no jurisdiction to hear and determine the matter and that the Petition is premature and improperly before the Court on the basis that the same oends the provisions of the Access to Information Act No. 31 of 2016. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5619/eng@2026-09-24 3

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16. According to the Petitioner, the Preliminary Objection is legally untenable, incompetent and devoid of merit. It is the Petitioner’s case that issues such as whether the Petition is premature or a request for information was made are matters of fact requiring evidence and that the same cannot be raised by way of a Preliminary Objection. 17. As it were, the Access to Information Act is the legislation enacted to give eect to the right of access to information by the citizenry as provided under Article 35 of the Constitution. The said Act requires the state and its agencies to make ocial information freely available to the public. Section 6 of the Act species the reasons that are appropriate for a Government agency to withhold the requested information and provides guidelines on the handling of requests and sets the timeframe within which the request ought to be responded to. 18. In the matter herein, the Petitioner contended that it had made a request for information and that despite the lapse of reasonable time, the Respondents had declined to supply the information. It was telling that despite denial of receipt of any request by the Respondents, the Petitioner had neither produced the request nor demonstrated when it was served upon the Respondents. The alleged request was neither attached to the Petition nor to the application led contemporaneously therewith. Given that the Petitioner was granted leave to le a Supplementary Adavit and that it still never availed the same, one cannot help but agree with the Respondents that no such request was made to them before this Petition was led. 19. It was also clear to me from my reading of Section 14 of the Access to Information Act that even where the request was made by the Petitioner and the Respondents had declined to comply therewith, the Petitioner’s remedy was to apply rst to the Commission on Administrative Justice seeking to review the decision. The Commission has the power under Section 23 (2) to order the release of any information unlawfully withheld. 20. In the circumstance herein it is my nding that the Petitioner did not abide by the procedure required in enforcing the right of access to information before instituting these present proceedings. In my considered view, 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. 21. As was stated by the Court of Appeal in Secretary County Public Service Board and Another –VsHulbhai Gechi Abdille, Nairobi. C. A. No. 2020 of 2015 (2017) eKLR: “ Time and again it has been said that where there exists other sucient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the Court process if the dispute could very well and eectively be dealt with in that other forum. Such party ought to seek redress under that other regime.” 22. That was indeed the position taken by Korir J. (as he then was) in Savraj Singh Chana –vs- Diamond Trust Bank (Kenya) Limited & Another (2020) eKLR where the Learned Judge stated thus; “ The preamble of the Access to Information Act, 2016 clearly states that it is an “Act of Parliament to give eect to Article 35 of the Constitution; to confer on the Commission of Administrative Justice the oversight and enforcement functions and powers and for connected purposes. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5619/eng@2026-09-24 4

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The Act deemed it necessary that any issue concerning the denial of information should rst be addressed by the Commission on Administrative Justice. Indeed, Section 23 (2) empowers the Commission on Administrative Justice as follows” “The Commission may, if satised that there has been an infringement of the provisions of this Act Order – a. The release of any information withheld unlawfully; b. A recommendation for the payment of compensation; or c. Any other lawful remedy or redess Section 23 (3) of the Act provides that; “ A person who is not satised with an order made by the Commission under Subsection (2) may appeal to the High Court within twenty-one days from the date the order was made.” I do not think that Parliament intended to bestow both original and appellate jurisdiction on the High Court in matters where the Commission on Administrative Justice has been given jurisdiction under the Access to Information Act. Section 23 (5) of the Act actually provides that an order of the Commission on Administrative Justice can be enforced as a decree. What the Petitioner seeks from the Court is readily available to him before the Commission on Administrative Justice “ 23. In the circumstance herein, I am in agreement with Korir J, (as he then was) that it could not have been the intention of Parliament when enacting the Access to Information Act to confer both original and appellate jurisdiction on the Environment and Land Court where the Commission on Administrative Justice has been given jurisdiction under the Act. 24. Arising from the foregoing, it was clear to me that this Petition cannot pass the jurisdictional test required of a constitutional dispute. 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. 25. Accordingly, I hereby dismiss the Petition as well as the Notice of Motion dated 2nd September 2025 with costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 24TH DAY OF SEPTEMBER, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Bunde Advocate for the Petitioner c) Ms. Lukoye Advocate for the 1st Respondent d) Ms. Lutta Advocate for the 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5619/eng@2026-09-24 5

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