High Court 19217 of 2025

JUDGMENT 1. What is before this court is the Petitioner’s dated 29 December 2023 seeking, among other reliefs, a declaration that the Respondent’s failure to furnish information requested through her letter dated 7 November 2023 amounted to a violation of her right of access to information under Article 35(1) of the Constitution. She further alleged that the Respondent’s refusal infringed the national values and principles of governance under Article 10, as well as the ethical obligations imposed by Chapter Six specifically Articles 73(1) and 75(1) together with various provisions of the Leadership and Integrity Act and the Public Officers Ethics Act. She prayed for an order of mandamus compelling the Respondent to provide the information at its own cost, an award of general damages for breach of constitutional rights, and an order directing the Respondent to bear the costs of the petition. 2. The Petitioner averred that she is an employee of the Public Procurement Regulatory Authority and is adversely affected by what she describes as constitutionally infirm human resource practices within the Authority. She asserted that the Respondent’s human resource instruments and procedures are “erroneous and imprecise”, formulated and applied in a manner that is “biased, subjective and non-compliant with established Guidelines and Procedures”, and that staff appointment and recruitment processes are “subjective and discriminatory”, not publicly advertised, and inconsistent with authorised documents and Public Service Commission requirements. It was against this backdrop that she sought, through her letter of 7 November 2023, information relating to staff appointment, remuneration, recruitment processes, and other internal human resource instruments necessary for the proper discharge of her official duties. 3. The Petitioner contends that the Respondent, as the lawful custodian of the information sought, bears a constitutional obligation under Article 35 to furnish her with the requested documents, which she maintains fall squarely within the ambit of “information held by the State” under Article 35(1)(a). She asserts that the Respondent’s reply dated 29 November 2023, declining to provide the information on grounds of confidentiality and on the premise that she could access it by virtue of her employment, was both factually misplaced and legally unsustainable. She insists that formal access must be sought through the procedures prescribed by law, and that her request was properly channelled to the designated information access officer in accordance with section 7 of the Access to Information Act. 4. The Petitioner’s position is that the information requested does not fall within any of the exemptions set out under section 6 of the Access to Information Act, 2016, and that the Respondent failed to justify the refusal. She relies on the principle affirmed in Katiba Institute v President’s Delivery Unit and 3 others [2017] eKLR, and as articulated in Nairobi Law Monthly v Kenya Electricity Generating Company & 2 Others [2013] eKLR, that: “ the right to information implies the entitlement by the citizen to information, but also imposes a duty on the state with regard to provision of information… the state has a duty… to ‘Publish and publicize any important information affecting the Nation’, but also to provide open access to information as people may require from the state.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 2

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5. She further invokes the evidentiary principle reaffirmed in Orange Democratic Movement Party (ODM) v Independent Electoral and Boundaries Commission [2019] eKLR, where, with approval of President of Republic of South Africa & Others v M & G Media Limited, the court held that: “ The burden of establishing that refusal of access to information is justified rests on the state… the requestor has no access to the contents of the record sought and is therefore unable to establish that it is not exempt… hence the evidentiary burden rests with the holder of the information and not the requester.” 6. The Petitioner contends that the Respondent did not discharge this burden, nor did it propose any reasonable alternative consistent with the Data Protection Act. She submits that the refusal undermines constitutional values under Article 10, violates obligations imposed by Articles 73(1) and 75(1), and confiicts with the requirements of the Leadership and Integrity Act and the Public Officers Ethics Act. She argues that the Respondent is equally bound by the Public Service (Values and Principles) Act, 2016, which gives effect to Article 232 by mandating transparency and timely provision of accurate information to the public. 7. The Petitioner maintains that the Respondent’s refusal has impeded her ability to effectively discharge her responsibilities as a Senior Human Resource Practitioner and amounts to a violation not only of Article 35 but also of her broader right to fair administrative action and access to justice. She accordingly invites the Court to grant the declaratory reliefs sought, issue an order of mandamus compelling disclosure of the information requested, award general damages for breach of constitutional rights, and grant costs against the Respondent. Respondent’s case 8. The Respondent, through the Replying Affidavit of its Director-General, Patrick K. Wanjuki, and written submissions, opposes the Petition in its entirety. It maintains that the Petition is procedurally incompetent for want of jurisdiction and substantively unfounded. The Respondent states that it is a statutory regulatory authority established under section 8 of the Public Procurement and Asset Disposal Act, 2015, with its management vested in the Public Procurement Regulatory Board pursuant to section 10 thereof. The Board is mandated to employ management staff necessary for the proper performance of the Authority’s functions. 9. The Respondent asserts, as a preliminary point, that this Court lacks jurisdiction on account of the Petitioner’s failure to exhaust the statutory dispute-resolution mechanism prescribed under section 14 of the Access to Information Act, which requires an aggrieved applicant to seek review from the Commission on Administrative Justice within thirty days of a decision to grant or deny access to information. It contends that the Petition was brought prematurely, contrary to the doctrine of exhaustion, as explicated in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others (2012) eKLR, as cited with approval in Kenya Medical Research Institute v Davy Kiprotich Koech (2018) eKLR, where it was held that: “ a Court’s jurisdiction fiows from either the Constitution or legislation… It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 10. The Respondent further relies on the principle in Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR, that jurisdiction is everything and a court of law down its tools the moment it holds the opinion that it is without jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 3

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11. To reinforce the exhaustion requirement, the Respondent places reliance in the Matter of the Interim Independent Electoral Commission (2011) eKLR, where the Court emphasised that jurisdiction must be exercised in line with constitutional and statutory design, and that courts may not arrogate jurisdiction “through the craft of interpretation.” The Respondent also relies on Robert Khamala Situma & 8 Others v Acting Clerk of the Nairobi City County Assembly [2022] eKLR, quoting Black’s Law Dictionary (10th Ed.) on the purpose of exhaustion; Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR on courts being fora of last resort; Republic v National Environment Management Authority ex parte Sound Equipment Ltd; and William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR, all underscoring that a litigant must first pursue available internal remedies before invoking the Court’s jurisdiction. The Respondent further invokes section 9(2) of the Fair Administrative Action Act, which bars judicial review unless internal remedies have first been exhausted. 12. On the merits, the Respondent contends that it did not violate Article 35 or Article 10 of the Constitution. It acknowledges receipt of the Petitioner’s request dated 7 November 2023 and states that it responded on 29 November 2023, giving written reasons explaining why the information sought could not be disclosed. It argues that the information requested comprised personal and identifiable data of staff, including appointment letters, names, staff numbers, employment dates, grades, titles, and promotions. Such information, the Respondent asserts, is exempt under section 6(1)(d) of the Access to Information Act and is protected by the Data Protection Act, which imposes strict obligations on data controllers and processors including employers to safeguard the privacy of identifiable natural persons. Releasing the information, it submits, would amount to an invasion of privacy protected under Article 31 of the Constitution and would expose the Authority to potential legal claims by affected staff, contrary to section 6(1)(h) of the Act. 13. The Respondent emphasises that the right to access information is not absolute and must be read holistically with other constitutional rights, especially the right to privacy under Article 31, as guided by Government of Republic of Namibia v Cultura 2000 [1994] (1) SA 407 on purposive constitutional interpretation; Communication Commission of Kenya v Royal Media Services & 5 Others [2014] eKLR on holistic interpretation; In the Matter of the Kenya National Human Rights Commission, Advisory Opinion No. 1 of 2012 [2014] eKLR on contextual interpretation; and Jack Mukhongo Munialo & 12 Others v Attorney General & 2 Others [2017] eKLR, where the Court held that “the right to information in Article 35 is also not absolute and must be read in tandem with all other Articles of the Constitution.” 14. The Respondent further invokes Legal Advice Centre t/a Kituo Cha Sheria & 33 Others v Cabinet Secretary, Ministry of Education & 7 Others (Petition 104 of 2019) [2021] KEHC 390 (KLR), a threejudge bench decision affirming that limitations on access to information must satisfy Article 24 and be proportionate, lawful, and justified. 15. The Respondent states that it nonetheless expressed willingness to provide Board minutes, but sought clarification on the specific resolutions required clarification the Petitioner did not provide. It also maintains that, as a Senior Human Resource Management Officer, the Petitioner had routine internal access to the requested documents and therefore suffered no real denial of information. The Respondent maintains that it did not refuse access but merely supplied lawful and reasonable grounds for non-disclosure in compliance with statutory exemptions. 16. Finally, on costs, the Respondent submits that costs follow the event pursuant to section 27 of the Civil Procedure Act, relying on Impressa Ing Fortunato Federice v Nabwire (2001) 2 EA 383, cited with https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 4

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approval in Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR. It urges that, should the Petition be dismissed, no good reason exists to deprive it of costs. 17. The Respondent maintains that the Petition is misconceived, premature, jurisdictionally incompetent, and devoid of merit, and accordingly prays for its dismissal with costs. Analysis and Determination 18. 19. Having considered the pleadings on record alongside the submissions of the parties, this Court distils the following issue for determination: i. Whether this Court has Jurisdiction to hear this matter ii. Whether the Respondent violated Articles 35 and 10 of the Constitution. iii. Whether the Respondent is entitled to cost of the Petition Before this Court embarks upon any analysis of the substantive issues raised, it must first satisfy itself that it is possessed of jurisdiction. Jurisdiction is the life-blood of judicial authority. Without it, a court cannot take even the first step. In the oft-cited decision of The Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1, the Court emphatically stated: “ Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.” 20. This principle is now deeply woven into the fabric of our constitutional order. It obliges the Court, whether on its own motion or at the instance of a party, to determine jurisdiction as a threshold question. 21. The Respondent contends that this Court lacks jurisdiction on account of the Petitioner’s failure to exhaust the statutory dispute-resolution mechanism set out under the Access to Information Act (ATI Act). Section 14 of the Act is explicit: “ Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information(a) 22. a decision refusing to grant access to the information applied for;” It is therefore the Respondent’s position that the Petitioner ought to have sought review before the Commission on Administrative Justice (CAJ) prior to invoking this Court’s jurisdiction. The constitutional architecture under Article 159 reinforces this approach, providing that: “ 159. Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution… (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)….” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 5

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23. Although the High Court is vested with the power under Article 23, read with Article 165, to hear and determine applications alleging violations of constitutional rights, constitutional interpretation requires that all provisions be read holistically. Article 23 provides: “ The High Court has jurisdiction… to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” 24. Equally, Article 35 guarantees the right to access information in the following terms: “ Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom…” 25. To give effect to Article 35, Parliament enacted the Access to Information Act; “An Act of Parliament to give effect to Article 35 of the Constitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes.” This legislation must therefore be read in harmony with the Constitution. 26. The jurisprudence on exhaustion is well-settled. In Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] KEHC 9284 (KLR), citing with approval Korir J in Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another [2020] eKLR, the Court emphasised: “ It is appreciated that the cited decision does indeed recognize the unlimited jurisdiction of the High Court of Kenya under Article 165(3)(b)… Nevertheless, it must be appreciated that the High Court does not exercise its jurisdiction in a vacuum… where a statutory mechanism has been provided for the resolution of a dispute, that procedure should first be exhausted… The exhaustion principle does not actually take away the constitutional jurisdiction of this Court. What it simply does is to provide the parties with a faster and more efficient mechanism… The courts will step in later if any party is aggrieved by the decision of the statutory body… … The legislators… deemed it necessary that any issue concerning denial of information should first be addressed by the Commission on Administrative Justice… What the Petitioner seeks from this Court is readily available to him before the Commission on Administrative Justice.” 27. Sections 23(2) and 23(3) of the Access to Information Act reinforce this statutory design. Section 23(2) empowers the Commission of Administrative Justice (CAJ) to order: “ a. 28. the release of any information withheld unlawfully; b. a recommendation for the payment of compensation; or c. any other lawful remedy or redress.” Section 23(3) provides a right of appeal to the High Court from a CAJ decision, thus confirming that the High Court’s role is appellate, not original, in disputes concerning denial of access to information. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 6

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29. Courts have consistently held that litigants must exhaust statutory remedies before invoking constitutional jurisdiction. In Patrick Mbau Karanja v Kenyatta University [2012] eKLR, Lenaola J (as he then was) observed: “ I should only say this as I conclude; in Francis Waithaka vs Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the constitutional imperative mandate of this court should not be invoked where other remedies lie.” 30. Likewise, in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal stated: “ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call… This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 31. The doctrine of constitutional avoidance complements the exhaustion principle. In John Harun Mwau v Peter Gastrow & 3 others (2014) eKLR, the Court stated: “ …Courts will not normally consider a constitutional question unless the existence of a remedy depends on it… where a matter can be deposed without recourse of the Constitution, Constitution should not be invoked at all…” 32. The purpose of these doctrines is to respect statutory mandates, prevent premature constitutional litigation, and ensure that constitutional jurisdiction is reserved for genuine constitutional controversies. 33. Turning to the instant case, the question is whether the Petitioner was obliged to exhaust the review mechanism under section 14 of the Access to Information Act. The record is clear, the Petitioner did not seek review before the Commission on Administrative Justice, nor has she demonstrated any exceptional circumstances to justify bypassing that mandatory process. There is no evidence that the statutory mechanism was inadequate, inaccessible, ineffective, or that the dispute raised issues requiring immediate constitutional intervention. The Petitioner simply invoked this Court’s jurisdiction without first pursuing the alternative remedy created specifically for disputes regarding denial of access to information. 34. Our courts have repeatedly rejected attempts to circumvent statutory processes by filing constitutional petitions prematurely. The Court of Appeal in James Kanyiita Nderitu v AG & DPP (2019) eKLR cautioned against using constitutional petitions to evade established legal procedures, emphasising that: “ a constitutional petition cannot be used to circumvent primary legislation…” 35. In the circumstances, the Petitioner has neither exhausted the required statutory process nor demonstrated a valid exception. The invocation of this Court’s original jurisdiction is therefore premature and procedurally unsound. 36. Given the foregoing reasons, I find that this Court lacks jurisdiction to entertain the petition at this stage. The Petitioner was required to exhaust the review mechanism before the Commission on https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 7

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Administrative Justice and has not done so, nor justified her failure. The petition is therefore fatally defective for want of jurisdiction. 37. Having found that this Court lacks jurisdiction to entertain the Petition, it follows inexorably that all other prayers advanced by the Petitioner must necessarily fail. In the circumstances, the Court must down its tools and refrain from entertaining any further arguments or issuing any orders in respect of this matter. The procedural defect identified is fatal, and there can be no adjudication on the merits while the threshold question of jurisdiction remains unsatisfied. 38. Final Orders: a. The Petition is hereby struck out for want of jurisdiction; and b. Each party shall bear its own costs of the petition. Orders Accordingly. File Closed Accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner: No appearance Counsel or the Respondent: Mr. Mbogo Court Assistant: Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19217/eng@2025-12-05 8

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