Cytonn Investments Management Plc v Capital Markets Authority & 2 others

a. A declaration be and is hereby issued that the refusal by the 1st respondent to furnish the petitioner with a copy of the enquiries that informed the press releases on April 20, 2020 and June 17, 2021, as well as the assertions made in the Report amounts to a violation of the petitioner’s rights to access to information pursuant to articles 35(1)(b) of the Constitution. b. A further declaration be and is hereby issued that the failure by the 1st respondent to grant the petitioner a chance to respond to the allegations in the Report, before presenting it to Parliament and the Public, has the unconstitutional purpose and effect of violating the petitioner’s right to fair administrative action pursuant to article 47 of the Constitution as well as the Rules of Natural Justice. c. An order of Mandamus be and is hereby issued compelling the 1st respondent to forthwith release to the petitioner a copy of information that informed the assertion made in the press releases and Report. d. In the alternative to order (c) above, if the Honourable Court establishes at the hearing of the instant Petition that the 2nd respondent made the assertions without any basis, an order do issue directing the 1st respondent to issue a public apology to the petitioner for uttering incorrect, untrue and misleading information which had the direct consequence of occasioning serious reputational injury on the petitioner. e. A consequential order to order (d) above, be and is hereby issued directing the 1st respondent to pay general damages to the petitioner for the inexcusable reputational injury and impermissible violation of the petitioner’s rights to fair administrative action and access to information pursuant to articles 35(1)(b) and 47 of the Constitution. f. An order of costs and interests to the petitioner. 5. The petitioner equally filed a supporting affidavit sworn by Edwin Harold Dande, the Chief Executive Officer of the petitioner herein and dated November 22, 2022 who averred that on July 22, 2022, he made an access to information demand to the 1st respondent which demand remains ignored to date. Further, that the information demanded mentions his name adversely and he continues to suffer gross reputational injury. 6. He further averred that the petitioner learnt about the enquiries made into the licensing status of the Cytonn Investment Group through press releases dated April 20, 2020 and June 17, 2021 and the report to the Departmental Committee on Finance, Planning and Trade contrary to fair administrative action under article 47 of the Constitution and the rules of natural justice. 7. He asserts that he has been advised by Counsel on record that blatant refusal by the 1st and 2nd respondents to furnish the petitioner with a copy of the enquiries and giving the petitioner a chance to defend himself has the purpose and effect of violating the petitioner’s right under articles 35(1)(b) and 47 of the Constitution. Thus, the petitioner’s right is now threatened with violation. 8. In opposition to the petition and notice of motion, the 1st and 2nd respondents filed a replying affidavit sworn by Wycliffe Shamiah, the 2nd respondent herein and the Chief Executive Officer of the Capital Markets Authority, which was dated March 28, 2023. He averred that the petitioner has not provided any evidence of the alleged demand of information to the 2nd respondent. 9. He asserted that he is aware that the petitioner previously filed a Constitutional Petition being HCCR Pet No E414 of 2022 Cytonn Investment Management PLC v Capital Markets Authority & others https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 2

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seeking similar prayers to the Petition herein where parties have filed submissions and was pending delivery of judgment on May 11, 2023. 10. He further averred that the two petitions reveal that paragraph 29, 30, 31, 33, 34, 38, 39, 40, 41, 42, 43 and 44 together with prayers (a) to (e) in petition E414 of 2022 are similar in substance to paragraphs 28, 29, 30, 32, 33, 36, 37, 38, 40 and 44 together with the reliefs sought in the instant petition are similar in substance and all emanates from a demand to be given access to an inquiry report made by the 2nd respondent. Moreover, that the two cases are essentially the same and the difference is that one is filed by the director and the other by the company itself which actions amount to an abuse of the court process thus the courts are at risk of arriving at different determinations on the same subject matter. 11. He contended that the petitioner also filed another suit against the respondents herein being HCC NoE249 of 2021 Cytonn Investment Management PLC v Wycliffe M Shamiah & Capital Markets Authority seeking damages for reputation injury arising from the press releases of April 20, 2020, June 17, 2021 and a Report to the Departmental Committee on Finance and National Planning on Question raised by Hon Aden Dwale. 12. He asserted that other than this petition, the petitioner through its Executive Officer, Edwin Dande has also filed another being Pet No E009 of 2023; Cytonn Investment Management PLC v Capital Markets Authority and others seeking similar orders for access to information another instance of abuse of the due process of court and it is clear that the petitioner is engaging in forum shopping and clogging the court with many cases that can be resolved in one suit. 13. He contended that the petitioner has always been aware of the inquiry that was done by CMA and was even afforded an opportunity to explain himself vide a notice to show cause dated April 25, 2017 to which he responded to vide letter dated August 17, 2017. 14. He further contended that the petitioner had an opportunity to seek for additional information about the CMA inquiry considering that he responded to the issues raised therein and even invited the Authority to visit and verify the existence of some of its projects. In addition, he averred that the Access to Information Act, 2016 under sections 6(1) and sections 11(3)(h), 13B, 13(1) and 13(2) of the Capital Markets Act prohibit the Authority and its officers from disclosing information obtained in its enquiry process to persons unless ordered by the court of law. 15. He averred that there is an elaborate dispute resolution mechanism under the Capital Markets Act including hearing by the Board and an appeal mechanism at the Capital Markets Tribunal which the petitioner has ignored and should have been an appropriate forum to seek redress in this matter. 16. The 1st and 2nd respondents further filed a supplementary affidavit sworn by Wycliffe M Shamiah and dated March 14, 2024 to which he averred that Constitutional Petition No E414 of 2022; Cytonn Investments Management PLC v Capital Markets Authority & 2 others was determined and a judgment delivered on May 12, 2023 by Hon HI Ong’undi J. He asserted that the orders being sought by the instant petition are the same orders as the High Court granted in the referred to judgment. 17. In summary the court granted the following orders to the petitioner: a. A declaration that the refusal by the 1st respondent (Capital Markets Authority) of the inquiry report alluded to by the 2nd respondent in his interview with the interested party amounted to a violation of the petitioner’s right to access to information pursuant to article 35(1)(b) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 3

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b. An order of Mandamus to issue compelling the 1st respondent to forthwith release the petitioner a copy of the inquiry report alluded to by the 2nd respondent in his interview with the interested party. c. The petitioner is awarded half of the costs of the Petition. 18. He asserted that pursuant to the judgment, the 1st respondent complied and shared the inquiry report and all information pertaining to the inquiry conducted, with the petitioner’s Counsel on record vide letter dated September 29, 2023. 19. He further asserted that it is noted in paragraphs 35 and 37 of the judgment that prayers (d) and (e) in the instant petition are a replica of the prayers that were dismissed by the High Court in Petition No E414 of 2022. On account of the prayers being fundamentally and directly in issue in another suit filed by the petitioner namely; HCC No 248 of 2021: Cytonn Investment Management PLC v Abubakar Hassan and Rina Hicks. 20. He asserted that he is advised by his Counsel on record that subsequently, the petitioner herein has since withdrawn the civil suit HCC No 248 of 2021 leaving the other related one, HCC No 249 of 2021 Cytonn Investment Management PLC vs Wycliffe M Shamiah & Capital Markets Authority pending in court. 21. He further asserted that he has been advised by his Counsel that the High Court having unequivocally pronounced itself on the issue of inquiry report and dismissed some prayers like in the instant petition, and the respondent having complied, the Petition herein not only lacks merit, is also overtaken by events and an abuse of the court process. 22. The 3rd respondent filed a notice of preliminary objection dated February 14, 2023 seeking the entire petition be struck out with costs on the ground that the petition was filed in violation of the doctrine of exhaustion, as they did not exhaust the mechanisms provided for under section 9(1) and (6) as read together with section 14(1)(a) and (2) of the Access to information Act, 2016. 23. The petition was canvassed by way of written submissions where all parties filed and served their submissions. Petitioner’S Submissions 24. The petitioner filed written submissions to the Preliminary Objection dated 11th January 2024 to which Counsel for the petitioner averred that it is clear that in so far as the information held by the state is concerned, citizens are entitled to that information generally and in fact, the Constitution in the spirit of openness and transparency directs the state to publicise important information affecting the nation. Further, article 35(3) therefore is an embodiment of the principle of transparency, accountability and good governance by keeping the citizens well informed of affairs of the state and decisions made on their behalf. It erases cloudiness in performance of public affairs and underscores accountable and transparent approach in provision of information by the state. 25. That section 14(1) and (2) of the Access to Information Act, 2016 does not preclude an applicant from approaching the court as the sections are merely directory. Reliance was placed on the case of Okiya Omtata Okoiti v Cabinet Secretary Ministry of Lands and Physical Planning & another (Petition E381 of 2020) [2023] KEHC 19947 (KLR) (Constitutional and Human Rights) (14 July 2023) (Judgment) and the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018]. 26. They further averred that given the petitioner herein did not receive a decision from the 1st respondent within the timelines provided in statute, the petitioner cannot fall under the ambits of section 14(1) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 4

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and (2) of the Access to Information Act, 2016 and that therefore has the right to approach this court through its petition. They further relied on the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR and also cited the case of Republic v District Land Adjudication and Settlement Officer Maara Sub-County & 3 others; Ex-parte Applicant: M’nyiri Rangwa; Njeru Kiririka (Interested Party) [2021] eKLR which relied on the landmark case of Republic v National Examination Council Ex-Parte Gathenji and others Civil Appeal No 266 of 1996. 1st and 2nd Respondents’ Submissions 27. Counsel for the 2nd respondents filed submissions dated August 11, 2023 where they discussed one issue for determination namely; whether this court has jurisdiction to hear and determine the petition. 28. They asserted that from section 23(2), (3) and (5) of the Access to Information Act, 2016 this court can be considered an appellate one in so far as the right to access to information is alleged to have been infringed. They assert that the Act further states that any party who wishes to bypass a statutory dispute resolution mechanism has to demonstrate that there were reasons for avoiding that route. They relied on the case of Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] eKLR and Geoffrey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR. 29. They further stated that the petitioner has not established that this case falls within the exemptions since it does not involve matters of public interest and also does not involve virgin areas of law and the orders being sought by the petitioner can be granted by the Commission. Thus, the appropriate forum for the petitioner to file his case is at the Commission and thereafter follow the procedure laid out under Access to Information Act, 2016. 30. The 1st and 2nd respondents further filed submissions in opposition to the Petition dated February 10, 2025 and referred this court to be guided by the Supreme Court case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8(E010) of 2022 (Consolidated) [2023] KESC 40 (KLR) (16 June 2023) (Judgment). Counsel for the 1st and 2nd respondents submitted that the petitioner has approached this court seeking information on cases before the court and other professional bodies and which he asserts to be non-existent yet is clearly a part of the same and the information touching on the cases clearly within their knowledge. 31. They further submitted that the order for damages and issuance of public apology by the respondents on account of allegedly publishing false and misleading information and without affording him an opportunity to make clarification is subjudice because the petitioner filed this case well aware thar he had sought similar orders in HCCC No E249 of2021: Cytonn Investment Management PLC v Wycliffe M Shamiah & Capital Market Authority. 32. They equally submitted that the Petition before the court is a nonstarter for being premised on documents and proceedings before Parliament and from which the respondents are accorded immunity in law. They further relied on section 10 of the Capital Markets Act which protects CMA officers from liability on acts done in good faith. 3rd Respondent’s Submissions 33. Counsel for the 3rd respondent filed written submissions dated May 23, 2023 in support of the notice of preliminary objection dated February 14, 2023 where they submitted that the present petition has been brought before this court without as much as an attempt to follow the procedure laid out in section 14(1) (a) and 14(2) of the Access to Information Act in violation of the doctrine of exhaustion and the doctrine of Constitutional avoidance. Reliance was placed on the following cases: Dhow House https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 5

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Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR) (19 August 2022) , Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR and Council of County Governors v Attorney General 12 others [2018] eKLR. 34. They further submitted that the petitioner’s actions are affront to well-guided principles as the remedies sought in this Petition could have been availed by the Commission on Administrative Justice on Access to Information and the Judicial Review division on the fair administrative action. They relied on the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022). 35. They affirmed that the Petition was filed in violation of both the doctrine of exhaustion and constitutional avoidance, and the same was misconceived, mischievous, lacks merit and should be dismissed with costs. Analysis and Determination 36. I have carefully considered the Petition, the Grounds of Opposition, the affidavits, the arguments by parties and the decisions relied on, the following core issue for determination is: - Whether the Petition is res judicata 37. The substantive law of Res Judicata is found on section 7 of the Civil Procedure Act cap 21 which provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 38. The Black’s Law Dictionary 10th Edition defines “res judicata” as “ An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 39. A person may not commence more than one action in respect of the same or substantially similar cause of action and the court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. 40. It should be noted that for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms; a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and finally determined in the former suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 6

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e. 41. The court that formerly heard and determined the issue was competent to try the subsequent suit in which the issue is raised. The learned judges were fully aware and applied their minds to these elements when, applying this court’s decision in Uhuru Highway Development Ltd v Central Bank of Kenya [1999] eKLR they rendered the elements as: “ (a) the former judgment or order must be final; a. the judgment or order must be on merits; b. it must have been rendered by a court having jurisdiction over the subject matter and the parties; and c. the must be between the first and the second action identity of parties, of subject matter and cause of action.” 42. The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleasers hoping, by a multiplicity of suits to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice. See William Koross v Hezekiah Kiptoo Komen & 4 others [2015] eKLR. 43. It is trite law that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment is called in question, the defence of res judicata can be raised. 44. Res judicata covers issues or facts which are so clearly part of the subject-mater of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. All the facts raised in this case, including the alleged violation of constitutional rights or violation of statutory provisions are matters that could have been raised in the previous proceedings in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others. It is my view that all the matters raised herein include violation of articles 35(1)(b) and article 47 of the Constitution are within the subject matter of the previous suit and were raised and considered in the said Petition. The case is founded on the same cause of action, same issues and same circumstances. 45. It is trite law that a litigant will not be allowed to litigate a matter all over again once a final determination has been made. Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause of action and relief are different. The purpose is obviously to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by the different courts on the same issue. 46. The doctrine of res judicata requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 7

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over the same issues again. This doctrine requires that one suit one decision is enough and there should not be many decisions in regard to the same suit or the same subject matter. A judicial decision made by a court of competent jurisdiction holds as correct and final in a civilized society. 47. I am in agreement with Kuloba J in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) which held that: “ If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case a cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…” 48. It is trite that the mere addition of parties in a subsequent suit or omission of a party or parties does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings. If the parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else. 49. A decision of the court, must be respected as fundamental to any civilized and just judicial system. Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court. A decision of the court unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct. These principles would be ‘substantially undermined’ if the court were to revisit them every time a party is dissatisfied. 50. I am further guided by the Court of Appeal observation in Greenfield Investment Limited v Baber Alibhai Manji, Civil Appeal No 1600 of 1997 which stated as follows: “ Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter which might have been brought forward as part of the subject in contest but was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. Res judicata applies also to every point which properly belonged to the subject of litigation and which the parties exercising due diligence, might have brought forward at the time. See Henderson v Henderson (1843) 3 Hare 100 at 115.” 51. In addition, the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR held as follows regarding the doctrine of res judicata: “ Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugadan case of Hon Norbert Mao v Attorney General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under articles137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 8

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already been filed under article 50, seeking similar relief; and judgment had been given in Hon Ronald Reagan Okumu v Attorney General, Misc Application No 0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in their earlier judgment…” 52. The court further relied on the case of Henderson v Henderson (1843) 67 ER 313 to which I am guided by the statement of Wigram, VC who explicated as follows: “ …where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” 53. This court notes that the cause of action in this matter is the same as the one in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC v Capital Markets Authority & others, same also is the relief that was sought in the two petitions which is whether the respondents violated the petitioner’s constitutional rights of access to information pursuant to article 35 (1)(b) of the Constitution and reputational injuries in violation to the petitioner’s rights to fair administrative action and access to information pursuant to article 35(1)(b) & 47 of the Constitution of Kenya, 2010. 54. All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process. Courts must be vigilant to ensure that public confidence. 55. It is clear that the issues raised in this petition are substantially on the same subject matter and cause of action as Constitutional Petition E414 of 2022. It is thus beyond argument that the plea of res judicata succeeds. I am of the view that this petition is a clear abuse of court process and this Court has power and duty to protect its processes from being abused. Such flagrant abuse of the court process must be brought to a halt. 56. Thus, in order to ensure jurisprudential consistency, this court is inclined in light of the foregoing analysis to dismiss the instant Petition based on the doctrine of res judicata. 57. Each party shall bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4T DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the petitioner- Ms. Koile Counsel for the 1st and 2nd respondents – Ms. Chepngeno https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 9

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Counsel for the 3rd respondent - Mr. Thande Kuria Court Assistant – Ms Lwambia HCCHRPET. NO. E009 OF 2023 JUDGMENT Page 6 | 6 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19222/eng@2025-12-04 10

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