'Introduction
1. The Petition dated 25th July 2021 is supported by the Petitioner’s affidavit in support of the even date and a further affidavit dated 12th September 2024.
2. The Petition assails the Respondent’s failure to provide requested information relating to the Admitting Staff Association which the Petitioner avers violates his right under Article 35 of the Constitution.
3. For this reason, the Petitioner seeks the following reliefs:
i. A declaration that the Petitioner''s fundamental rights and freedom as enshrined under Articles 35 (1) (b) of the Constitution of Kenya 2010, have been contravened and Infringed upon by both the Respondent by their refusal to give the Petitioner the Information it requested vide the letter dated 28th June 2024.
ii. A compulsory order compelling the Respondent to release all the documents requested by the Petitioner in the letter dated 28th June 2024, to wit: List of Present and past officials of the Kenya Hospital Association: List of Present: Copies of Rules and Regulations of the Admitting Staff Association; List of present and past members of the Admitting Staff Association; list of present and past officials of the Admitting Staff Association; and copies any other documents ancillary to the a foregoing.
iii. Costs of this suit.
iv. Interests on (iii), above at Court rates until payment in full.
v. Any other relief this Court deems fit and just to grant.
Petitioner’s Case
4. The Petitioner states that the Respondent who trades as, the Nairobi Hospital has an association called Admitting Staff Association established under Article 38 of the Respondent’s Articles Association. He states that he is registered and a fully paid-up member of the Respondent and the Admitting Staff Association.
5. The Petitioner asserts that in the past, the Respondent has been involved in leadership wrangles as is apparent with several suits that it faces namely: HCCOMM/E293/2024 Dr. Luka Musyimi Musau and Dr. Patrick Olang'' Ragot and 2 Others vs The Nairobi Hospital and Kenya Hospital Association and 3 others and HCCOM/E300 of 2024 Dr. Edwin Kipng''eno Rono And Dr. Agnes Wanjiku Gachoki vs James Nyamongo and Medical Advisory Committee and 3 others.
6. He is concerned that these wrangles will affect the affairs of the Nairobi Hospital which will eventually affect the quality of services.
7. The Petitioner depones that in a letter dated 28th June 2024 and a further follow up on 3rd July 2024, he wrote to the Respondent seeking information regarding its membership and that of the Admitting Staff Association. He claims however that these letters were never responded to by the Respondent, before this Petition was filed.
8. He emphasizes that the information sought does not relate to personal information but information that is entitled to be issued to any member of the Respondent.
9. Furthermore, he states that this is a representative suit as was filed on behalf of the Respondent’s and Admitting Staff Association members.
10. The Petitioner asserts that despite his written requests as required by law, the Respondent has refused and denied to supply him with the requested information contrary to the dictates Article 35 of the Constitution and Section 4 of the Access to Information Act.
Respondent’s Case
11. The Respondent opposing the averments in the Petition filed its Answer to the Petition dated 22nd August 2024.
12. The Respondent avers that the Petitioner on 28th June 2024 wrote a demand letter through his advocates, Ngeresa, Masemgeli and Lungwe Advocates LLP seeking the requested documents.
13. The Respondent asserts that contrary to the Petitioner’s allegations, it replied to the Petitioner’s letter on 18th July 2024 in which it informed the Petitioner that it could not disclose the information sought as it is legally restricted to do so since the information contains personal details of past and current members. Instead, the Respondent states it advised the Petitioner on how to obtain the other relevant information.
14. It is alleged that the Petitioner wrote a further demand letter dated 23rd July 2024 through his new Counsel, Ahmednasir Abdullahi Advocates LLP requesting to inspect the register of members and obtain copies in line with Section 96 of the Companies Act. It is claimed that the Petitioner gave an ultimatum of 24 hours, failure to which he would lodge a complaint with the 4th Interested Party.
15. In a response of equal date, the Respondent informed the Petitioner that the requested information failed to meet the requirements of the cited Section 96 of the Companies Act as well as the Data Protection Act.
16. In light of this, the Respondent denies having violated the Petitioner’s right to access Information.
17. The Respondent further states that the right to access information is limited as is subject to Article 31 of the Constitution, the Data Protection Act and Section 96 of the Companies Act. As such, the Respondent argues that Article 35 of the Constitution in the circumstances of this case is in conflict with Article 31 of the Constitution with reference to the privacy of its members.
18. To this end, the Respondent avers that the Petitioner has not demonstrated he deserves the orders sought.
Others Parties Case
19. The other parties’ response and submissions to the main Petition are not in the Court file or Court Online Platform (CTS).
The Cross – Petition
20. The Respondent further filed a Cross – Petition dated 22nd August 2024, which is supported by the Respondent’s affidavit in support sworn by its Company Secretary, Gilbert Nyamweya. The Respondent seeks the following relief:
i. A Declaration be issued that the provisions of Section 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution and are therefore invalid, null and void to the extent of the inconsistency.
ii. In alternative to prayer a above, A declaration be issued that the requests of the Respondent in the Cross - Petition, through his various lawyers, dated the 28th June 2024 and the 23rd July 2024, to inspect the register of the Cross- Petitioner''s members and require copies are invalid and were not sought for a proper purpose within Section 96 of the Companies Act.
iii. A declaration be issued that the quest and means of the Respondent in the Cross - Petition, along with those of other third parties, including SC Ahmednasir''s unnamed clients, to obtain, distribute, and use the Cross - Petitioner''s members'' information other than in accordance with the Data Protection Act is illegal.
iv. An order of permanent injunction be issued restraining the Respondent in the Cross Petition, whether by himself, his agents, and or all other persons, from collating, processing, and storing the Cross-Petitioner’s members'' personal data without the informed written consent of said members.
v. An order of permanent injunction be issued restraining the Respondent in the Cross - Petition, whether by himself, his agents, and or all other persons, from impersonating or otherwise falsely pretending to be officers of the Cross Petitioner, and from calling, texting, emailing, or otherwise contacting members of the Cross - Petitioner using personal data that has been illegally obtained from the Cross - Petitioner or otherwise.
vi. A mandatory injunction be issued directing the Interested Parties to take the necessary measures and steps, including undertaking and/or concluding commenced investigations in a timely manner, to ensure that the Cross-Petitioner''s members'' personal data, within the meaning of Section 2 of the Data Protection Act, is protected and that individuals who have caused any breach are prosecuted accordingly.
vii. Any other relief that this Court may deem fit and just to grant in the interest of justice.
viii. Costs of this Petition.
21. He avers that the Respondent’s register of members is maintained in line with the provisions of the Companies Act and its Articles of Association. This register is said to contain information relating to the members and their families which is defined as personal data under Section 2 of the Data Protection Act.
22. He depones that Petitioner in the letter dated 28th June 2024 requested for the following information:
a) List of present and past officials of the Kenya Hospital Association;
b) List of present and past members of the Kenya Hospital Association;
c) Copies of Rules and Regulations of the Admitting Staff Association;
d) List of present and past members of the Admitting Staff Association;
e) List of present and past officials of the Admitting Staff Association; and
f) Copies any other documents ancillary to the above.
23. Reiterating, the contents of the Respondent’s its Answer to the Petition, he stresses that the information sought failed to meet the requirements of Section 96 of the Companies Act and the Data Protection Act.
24. He depones that certain individuals and members, have made a concerted effort to illegally procure the Respondent’s members personal data and that of the Admitting Staff Association. In view of this, the Respondent reported these attempts to the 2nd Interested Party and issued a warning notice to the members against such attempts.
25. He avers that following this warning notice, the Respondent received a demand letter from Senior Counsel, Ahmednasir Abdullahi on behalf of some unnamed members who had commenced requisition proceedings. In addition, it is alleged that the Senior Counsel threatened the Respondent’s officers with actions such as a criminal prosecution should it fail to issue access to the sought information.
26. He further depones that despite the Respondent’s efforts to protect this information, some of the Respondent’s former staff members who had obtained this information illegally, continue to abuse this data and collate further personal data of members while pretending to be the Respondent’s officers. He informs that this triggered a further warning notice dated 3rd July 2024.
27. He asserts that the Respondent stands the risk of losing its members trust in relation to the custody and maintenance of their personal data including its reputation if this Court does not intervene. He stresses that the Petitioner is guilty of violating Article 31 of the Constitution by illegally procuring personal data relating to the Respondent’s members and the Admitting Staff Association. Further that they violated Articles 2, 3 and 10 by impersonating the Respondent’s officers using false identities and continuing to abuse the same without the said members written consent.
28. He as well states that Section 96, 97 and 98 of the Companies Act is in conflict with Article 31 of the Constitution and Sections 25, 26, 30 and 32 of the Data Protection Act. While this right can be limited, he argues that such a limitation can only be done in accordance with the law and to the extent that it is reasonable and justifiable in an open and democratic society. Equally, that the limitation should ensure the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedoms of others. In light of this, he asserts that the limitation placed on the right to privacy by Sections 96, 97 and 98 of the Companies Act does not meet the test of proportionality set under Article 24 of the Constitution.
Petitioner’s Case
29. The Petitioner in opposition to the Respondent’s Cross-Petition filed his Relying Affidavit sworn on 12th September 2024.
30. To commence with, he asserts that he does not know the contents of the Respondent’s members register as alleged. He informs that the Respondent’s response to its correspondence was received via email on 26th July 2024, after the Petition had been filed. He states that his correspondence dated 23rd July 2024 requesting the information was written on his behalf and other members hence this Petition is a representative suit.
31. He recaps that the information he seeks is limited to information that he would ordinarily be entitled to as the Respondent’s member and it is not personal data as alleged.
32. He additionally avers that he is a stranger to the allegation that the Respondent’s members’ information was illegally obtained on the contrary he avers that he is procuring the sought information legally.
33. He adds that he has no control over Senior Counsel, Ahmednasir Abdullahi and thus his inclusion in the matter is irrelevant. He additionally faults the Respondent for alluding to the protection of private information yet proceeds to annex copies of private emails which are private and confidential. In his view, none of the Respondent’s rights have been violated as alleged and thus the orders sought should not be granted.
3rd Interested Party’s Case
34. The 3rd Interested Party in response to the Cross – Petition filed Grounds of Opposition dated 4th November 2024:
i. The Petition lacks clarity and precision in setting out the declarations in relation to the 3rd Interested party.
ii. The orders sought are therefore untenable as against the 3rd Interested Party as the Petitioners have not shown how the 3rd Interested Party has a duty in the matters raised.
iii. The 3rd Interested Party is a substantive participant and cannot therefore move the Court unless enjoined as a Respondent.
iv. The 3rd Interested Party is not aware of the matters alleged in the Petition as they do not fall within his constitutional mandate hence the Petitioners ought to direct their inquiry to the proper officers.
v. There is no inquiry file pending before the 3rd Interested Party in respect of the Petitioners or the issues raised in the Petition as the 3rd Interested Party is not seized of the matter at all.
vi. The 3rd Interested Party has not received any formal complaint from the Petitioner to enable him direct the 4th Interested Party under Article 157(4) of the Constitution.
vii. The Petitioners Petition is bad in law and devoid of any merits. The same form a classical description of an abuse of the due process of this Court and should be dismissed with costs.
Other Parties Case
35. The other parties’ response to the Cross - Petition are not in the file or Court Online Platform (CTS).
Petitioners’ Submissions
36. The Petitioner in view of both Petitions, filed submissions dated 25th February 2025 through NML Advocates LLP. Counsel underscored the key issues as: whether Sections 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution, whether the request by the Petitioner in the letter dated 28th June 2024 is merited, whether a permanent injunction should issue against the Respondent Petitioner as sought in the Cross-Petition and whether a mandatory injunction should issue against the Interested Parties as sought in the Petition.
37. On the first issue, Counsel submitted that the impugned Sections allow a public company to keep its register of members and its index of members open for inspection by either a member of the company without charge; or any other person on payment of the fee. Section 98 further makes it an offence punishable by a fine or conviction if a company refuses to allow such inspection.
38. According to Counsel, the Respondent is not a public company but one limited by guarantee as such Section 96 of the Companies Act is not applicable in the circumstances of this case. Counsel noted that the Respondent was also being contradictory, as sought to rely on these Sections whilst arguing that they are inconsistent with the Constitution. It is argued that this argument was solely raised to defeat the Petitioner’s quest to receive the sought information.
39. Nonetheless, Counsel argued that the impugned sections are not in contravention of Article 31 of the Constitution as alleged. This is because this Article protects information relating to their family or private affairs. Counsel submitted that the information in these registers is the names and addresses of members, date on which the person was registered a member and the date on which the person ceased to be a member.
40. On the second issue, Counsel submitted that the request for information is merited as it was made pursuant to Article 35 of the Constitution by the Petitioner as a member of the Respondent and the Admitting Staff Association. Counsel noted that the Petitioner only seeks information on the names of members of the Respondent and the Admitting Staff Association.
41. Counsel even reasoned that the Respondent can provide the information as requested and redact information that is private in nature. It was noted in addition that the Data Protection Act, is clear that data information should be processed in accordance with the right to privacy of the data subject. Despite this, Counsel contended that the Respondent was quick to dismiss the Petitioner’s request to access the information in essence violating the Petitioner’s right under Article 35 of the Constitution.
42. To buttress this point reliance was placed in Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR) where the Court noted as follows:
“It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information.”
43. Counsel in the next issue submitted that the Order for a permanent injunction sought by the Respondent in the Cross - Petition should not be granted. Counsel submitted that in both the response and Cross-Petition, the Petitioner was not mentioned as one of the parties in the purported illegal and un-procedural acquisition of the information. It was observed that there was no evidence connecting the Petitioner to the persons who allegedly had access to the Respondent’s information. Considering this, Counsel submitted that the Respondent had not established any prima facie case against the Petitioner to warrant issuance of this Order.
44. Reliance was placed in the Court of Appeal decision in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) where it was held that:
“There is no scope to confuse between an interlocutory and permanent orders of injunction and since the fundamentals about the implications of the interlocutory orders of injunction are settled, at least for over four decades, since Giella case (supra) they could neither be questioned nor be elaborated in detailed research. Since those principles are already codified by authoritative pronouncements in the precedents they may be conveniently noted in brief as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
i. establish his case only at a prima facie level,
ii. demonstrate irreparable injury if a temporary injunction is not granted, and
iii. ally any doubts as to (b) by showing that the balance of convenience is in his favour.”
45. On the final issue, Counsel submitted that the Respondent had not met the threshold for grant of a mandatory injunction as there are no special or exceptional circumstances and none had been proven in this case. Moreover, it was submitted that the Respondent had not proved that the Interested Parties had failed in carrying out their mandate.
46. Reliance was placed in Malier Unissa Karim v Edward Oluoch Odumbe [2015] eKLR where it was held that:
“The test for granting a Mandatory Injunction is different from that enunciated in the “Giella v Cassman Brown case which is the locus classicus case of Prohibitory Injunctions. The threshold in Mandatory is higher than the case of Prohibitory Injunction and the Court of Appeal in the case of “Kenya Breweries Ltd v Washington Okeyo [2002] EA 109” had the occasion to discuss and consider the principles that govern the grant of a Mandatory Injunction was correctly stated in Vol. 24 Halsbury Laws of England 4th Edition Paragraph 948 which states as follows:-
“A Mandatory Injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempts to steal a match on the Plaintiff, a Mandatory Injunction will be granted on an Interlocutory application.”
Respondent’s Submissions
47. In relation to the Petition and Cross-Petition, the Respondent filed submissions dated 28th February 2025 through Mongeri Kinyanjui and Company Advocates. Counsel set out the issues as: whether the provisions of Section 96, 97 and 98 of the Companies are in conflict with Article 31 of the Constitution; whether the Petitioner is entitled to the information sought and whether the Petitioner’s request to inspect the register of the Respondent’s members and require copies meets the proper purpose test within Section 96 of the Companies Act.
48. Counsel on an introductory note, stated that prying into personal data without sufficient justification offends the right to privacy. It was argued that in this matter, the impugned Sections do exactly that as require companies to divulge its members’ information to the public. Counsel stressed that these provisions do not also restrict what purposes are acceptable neither define what may be termed as invasive requests. Counsel reasoned thus that a law that unnecessarily, unreasonably, and unjustifiably compels disclosure of personal information, violates Article 31 of the Constitution and thus cannot stand.
49. Counsel submitted that this is in error and likened this case to Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR where it was held that section 194 of the Penal Code was is unconstitutional and invalid for offending Article 33 of the Constitution based on, among other things, the principle of proportionality set by Article 24 of the Constitution.
50. Equal dependence was placed in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and Nubian Rights Forum & Ors v. AG (2020) eKLR.
51. Moving on, Counsel submitted that the Petitioner was not entitled to the sought information. Counsel stressed that the right to access to information can be limited in line with Article 24 of the Constitution and any other law. In this case, Counsel submitted that the Data Protection Act under Section 6 affirms that the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to, among other things, involve the unwarranted invasion of the privacy of an individual.
52. Counsel submitted that in this matter, the information sought contains the name, address, telephone number, e-mail address, member number, dates of registration and of resignation members. In this regard, Counsel stated that this information cannot be divulged without these parties’ consent.
53. Counsel further argued that the Respondent being a registered Data Processor and Data Controller must comply with Section 25 of the Data Protection Act. Likewise, Counsel stated that whilst Section 96 of the Companies Act imposes an obligation to allow register inspection, that obligation is not absolute.
54. On the final issue, Counsel submitted that guided by Section 96 (3) of the Companies Act, the Respondent had the discretion once the information was requested, to accept or decline to issue the information based on the guidelines set out under this provision. According to Counsel, the disclosure framework under Section 96 of the Companies Act does not give an unfettered right to member information, especially where privacy or misuse is a concerned. As such, Counsel argued that Section 96 must be read in light of these limits.
55. Counsel in fact submitted that the Court in Burry & Knight Ltd v. Knight [2014] EWCA Civ 604 affirmed that companies might refuse to disclose member registers if the request is not for a proper purpose. Like dependence was placed in Burberry Group PLC v Fox-Davies [2015] EWHC 222 (Ch).
2nd Interested Party’s Submissions
56. The 2nd Interested Party filed submissions dated 28th April 2025 through Ngeri, Omiti and Bush Advocates LLP who sought to discuss these issues: whether the Petitioner has breached the right to privacy of the members of the CrossPetitioner, whether the High Court has the power to grant the prayers sought in the Cross-Petition, particularly Prayer (j) directed at the Interested Parties including the ODPC and whether the provisions of Sections 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution.
57. On the first issue, Counsel submitted that for the Respondent’s claim to succeed, it must demonstrate that, the data in question falls under personal data, that processing of the personal data was not in compliance with the Data Protection Act, that there was unauthorized access and use of the personal data and that there was actual or potential harm to the data subject resulting from the data breach.
58. In this matter, Counsel first affirmed that the list of past and present officials and members qualifies as personal data. Relying on the Respondent’s averments that this data was illegally obtained, Counsel stressed that this was contrary to the dictates of the Act with potential harm being multifaceted.
59. To support this case, Counsel relied in Financial Mail (Pty) Ltd vs. Sage Holdings 61993 2 SA 451 (A) 462F where it was observed that:
“Breach of privacy could occur either by way of an unlawful intrusion upon the personal privacy of another; or by way of unlawful disclosure of private facts about a person. The unlawfulness of a (factual) infringement of privacy is adjudged in the light of contemporary bani mores and the general sense of justice of the community as perceived by the court.”
60. Comparable dependence was placed in JMK & Another v Standard Group Limited & Another [2015] eKLR, Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR, Kenya Human Rights Commission v Communications Authority of Kenya & 4 Others [2018] eKLR and Coalition for Restoration of Democracy (CORD) & 2 Others v Republic & 10 Others [2015] eKLR.
61. On the next issue, Counsel submitted that this relief is not tenable. Counsel informed that the Respondent lodged a complaint with the 2nd Interested Party on 2nd August 2024 and soon after filed the instant Cross-Petition seeking a similar relief.
62. Counsel emphasized that the Data Protection Act and the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021 provide an elaborate procedure for handling complaints lodged as the 2nd Interested Party’s mandate gives effect to Article 31(c) and (d) of the Constitution. Counsel noted that the Respondent instead of regularizing the complaint, proceeded to file this Petition snubbing the procedure set out in the Act and its appellate mechanism. Counsel added that the sought relief falls within the jurisdiction of the 2nd Interested Party but the Respondent failed to exhaust the same.
63. Dependence was placed in Geoffrey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 others(2015) eKLR where it was held that:
“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 the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
64. Equal dependence was placed in Okiya Omtatah Okoiti & Another vs Kenya Power and Lightning Company Limited (KPLC) & 4 others [2020] eKLR, Kenya National Examination Council v Republic; Teachers Service Commission (Interested Party) (Civil Appeal E867 of 2022) [2024] KECA 1180 (KLR) and Sammy Ndung''u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR.
65. On the third issue, Counsel opposing the Respondent’s argument submitted that the Data Protection Act provides for the lawful processing of personal data. Counsel observed that the impugned Sections require public disclosure of certain company information and details which may include details that can violate Article 31 of the Constitution. It was noted however that this right is not absolute and can be limited in line with the law. In sum, Counsel submitted that, the requirement in the impugned Section for individuals requesting company information to specify their intent underscores the need to balance these rights.
66. To buttress this point reliance was placed in R vs Oakes [1986] 1 SCR 103 [69]- [70], where it was held that:
“a. The first criterion concerned the importance of the objective of the law. First, the objective, which the measures responsible for a limit on a constitutional right or freedom are designed to serve, must be ''of sufficient importance to warrant overriding a constitutionally protected right or freedom''. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as suff
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1. The Petition dated 25th July 2021 is supported by the Petitioner’s affidavit in support of the even date and a further affidavit dated 12th September 2024.
2. The Petition assails the Respondent’s failure to provide requested information relating to the Admitting Staff Association which the Petitioner avers violates his right under Article 35 of the Constitution.
3. For this reason, the Petitioner seeks the following reliefs:
i. A declaration that the Petitioner''s fundamental rights and freedom as enshrined under Articles 35 (1) (b) of the Constitution of Kenya 2010, have been contravened and Infringed upon by both the Respondent by their refusal to give the Petitioner the Information it requested vide the letter dated 28th June 2024.
ii. A compulsory order compelling the Respondent to release all the documents requested by the Petitioner in the letter dated 28th June 2024, to wit: List of Present and past officials of the Kenya Hospital Association: List of Present: Copies of Rules and Regulations of the Admitting Staff Association; List of present and past members of the Admitting Staff Association; list of present and past officials of the Admitting Staff Association; and copies any other documents ancillary to the a foregoing.
iii. Costs of this suit.
iv. Interests on (iii), above at Court rates until payment in full.
v. Any other relief this Court deems fit and just to grant.
Petitioner’s Case
4. The Petitioner states that the Respondent who trades as, the Nairobi Hospital has an association called Admitting Staff Association established under Article 38 of the Respondent’s Articles Association. He states that he is registered and a fully paid-up member of the Respondent and the Admitting Staff Association.
5. The Petitioner asserts that in the past, the Respondent has been involved in leadership wrangles as is apparent with several suits that it faces namely: HCCOMM/E293/2024 Dr. Luka Musyimi Musau and Dr. Patrick Olang'' Ragot and 2 Others vs The Nairobi Hospital and Kenya Hospital Association and 3 others and HCCOM/E300 of 2024 Dr. Edwin Kipng''eno Rono And Dr. Agnes Wanjiku Gachoki vs James Nyamongo and Medical Advisory Committee and 3 others.
6. He is concerned that these wrangles will affect the affairs of the Nairobi Hospital which will eventually affect the quality of services.
7. The Petitioner depones that in a letter dated 28th June 2024 and a further follow up on 3rd July 2024, he wrote to the Respondent seeking information regarding its membership and that of the Admitting Staff Association. He claims however that these letters were never responded to by the Respondent, before this Petition was filed.
8. He emphasizes that the information sought does not relate to personal information but information that is entitled to be issued to any member of the Respondent.
9. Furthermore, he states that this is a representative suit as was filed on behalf of the Respondent’s and Admitting Staff Association members.
10. The Petitioner asserts that despite his written requests as required by law, the Respondent has refused and denied to supply him with the requested information contrary to the dictates Article 35 of the Constitution and Section 4 of the Access to Information Act.
Respondent’s Case
11. The Respondent opposing the averments in the Petition filed its Answer to the Petition dated 22nd August 2024.
12. The Respondent avers that the Petitioner on 28th June 2024 wrote a demand letter through his advocates, Ngeresa, Masemgeli and Lungwe Advocates LLP seeking the requested documents.
13. The Respondent asserts that contrary to the Petitioner’s allegations, it replied to the Petitioner’s letter on 18th July 2024 in which it informed the Petitioner that it could not disclose the information sought as it is legally restricted to do so since the information contains personal details of past and current members. Instead, the Respondent states it advised the Petitioner on how to obtain the other relevant information.
14. It is alleged that the Petitioner wrote a further demand letter dated 23rd July 2024 through his new Counsel, Ahmednasir Abdullahi Advocates LLP requesting to inspect the register of members and obtain copies in line with Section 96 of the Companies Act. It is claimed that the Petitioner gave an ultimatum of 24 hours, failure to which he would lodge a complaint with the 4th Interested Party.
15. In a response of equal date, the Respondent informed the Petitioner that the requested information failed to meet the requirements of the cited Section 96 of the Companies Act as well as the Data Protection Act.
16. In light of this, the Respondent denies having violated the Petitioner’s right to access Information.
17. The Respondent further states that the right to access information is limited as is subject to Article 31 of the Constitution, the Data Protection Act and Section 96 of the Companies Act. As such, the Respondent argues that Article 35 of the Constitution in the circumstances of this case is in conflict with Article 31 of the Constitution with reference to the privacy of its members.
18. To this end, the Respondent avers that the Petitioner has not demonstrated he deserves the orders sought.
Others Parties Case
19. The other parties’ response and submissions to the main Petition are not in the Court file or Court Online Platform (CTS).
The Cross – Petition
20. The Respondent further filed a Cross – Petition dated 22nd August 2024, which is supported by the Respondent’s affidavit in support sworn by its Company Secretary, Gilbert Nyamweya. The Respondent seeks the following relief:
i. A Declaration be issued that the provisions of Section 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution and are therefore invalid, null and void to the extent of the inconsistency.
ii. In alternative to prayer a above, A declaration be issued that the requests of the Respondent in the Cross - Petition, through his various lawyers, dated the 28th June 2024 and the 23rd July 2024, to inspect the register of the Cross- Petitioner''s members and require copies are invalid and were not sought for a proper purpose within Section 96 of the Companies Act.
iii. A declaration be issued that the quest and means of the Respondent in the Cross - Petition, along with those of other third parties, including SC Ahmednasir''s unnamed clients, to obtain, distribute, and use the Cross - Petitioner''s members'' information other than in accordance with the Data Protection Act is illegal.
iv. An order of permanent injunction be issued restraining the Respondent in the Cross Petition, whether by himself, his agents, and or all other persons, from collating, processing, and storing the Cross-Petitioner’s members'' personal data without the informed written consent of said members.
v. An order of permanent injunction be issued restraining the Respondent in the Cross - Petition, whether by himself, his agents, and or all other persons, from impersonating or otherwise falsely pretending to be officers of the Cross Petitioner, and from calling, texting, emailing, or otherwise contacting members of the Cross - Petitioner using personal data that has been illegally obtained from the Cross - Petitioner or otherwise.
vi. A mandatory injunction be issued directing the Interested Parties to take the necessary measures and steps, including undertaking and/or concluding commenced investigations in a timely manner, to ensure that the Cross-Petitioner''s members'' personal data, within the meaning of Section 2 of the Data Protection Act, is protected and that individuals who have caused any breach are prosecuted accordingly.
vii. Any other relief that this Court may deem fit and just to grant in the interest of justice.
viii. Costs of this Petition.
21. He avers that the Respondent’s register of members is maintained in line with the provisions of the Companies Act and its Articles of Association. This register is said to contain information relating to the members and their families which is defined as personal data under Section 2 of the Data Protection Act.
22. He depones that Petitioner in the letter dated 28th June 2024 requested for the following information:
a) List of present and past officials of the Kenya Hospital Association;
b) List of present and past members of the Kenya Hospital Association;
c) Copies of Rules and Regulations of the Admitting Staff Association;
d) List of present and past members of the Admitting Staff Association;
e) List of present and past officials of the Admitting Staff Association; and
f) Copies any other documents ancillary to the above.
23. Reiterating, the contents of the Respondent’s its Answer to the Petition, he stresses that the information sought failed to meet the requirements of Section 96 of the Companies Act and the Data Protection Act.
24. He depones that certain individuals and members, have made a concerted effort to illegally procure the Respondent’s members personal data and that of the Admitting Staff Association. In view of this, the Respondent reported these attempts to the 2nd Interested Party and issued a warning notice to the members against such attempts.
25. He avers that following this warning notice, the Respondent received a demand letter from Senior Counsel, Ahmednasir Abdullahi on behalf of some unnamed members who had commenced requisition proceedings. In addition, it is alleged that the Senior Counsel threatened the Respondent’s officers with actions such as a criminal prosecution should it fail to issue access to the sought information.
26. He further depones that despite the Respondent’s efforts to protect this information, some of the Respondent’s former staff members who had obtained this information illegally, continue to abuse this data and collate further personal data of members while pretending to be the Respondent’s officers. He informs that this triggered a further warning notice dated 3rd July 2024.
27. He asserts that the Respondent stands the risk of losing its members trust in relation to the custody and maintenance of their personal data including its reputation if this Court does not intervene. He stresses that the Petitioner is guilty of violating Article 31 of the Constitution by illegally procuring personal data relating to the Respondent’s members and the Admitting Staff Association. Further that they violated Articles 2, 3 and 10 by impersonating the Respondent’s officers using false identities and continuing to abuse the same without the said members written consent.
28. He as well states that Section 96, 97 and 98 of the Companies Act is in conflict with Article 31 of the Constitution and Sections 25, 26, 30 and 32 of the Data Protection Act. While this right can be limited, he argues that such a limitation can only be done in accordance with the law and to the extent that it is reasonable and justifiable in an open and democratic society. Equally, that the limitation should ensure the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedoms of others. In light of this, he asserts that the limitation placed on the right to privacy by Sections 96, 97 and 98 of the Companies Act does not meet the test of proportionality set under Article 24 of the Constitution.
Petitioner’s Case
29. The Petitioner in opposition to the Respondent’s Cross-Petition filed his Relying Affidavit sworn on 12th September 2024.
30. To commence with, he asserts that he does not know the contents of the Respondent’s members register as alleged. He informs that the Respondent’s response to its correspondence was received via email on 26th July 2024, after the Petition had been filed. He states that his correspondence dated 23rd July 2024 requesting the information was written on his behalf and other members hence this Petition is a representative suit.
31. He recaps that the information he seeks is limited to information that he would ordinarily be entitled to as the Respondent’s member and it is not personal data as alleged.
32. He additionally avers that he is a stranger to the allegation that the Respondent’s members’ information was illegally obtained on the contrary he avers that he is procuring the sought information legally.
33. He adds that he has no control over Senior Counsel, Ahmednasir Abdullahi and thus his inclusion in the matter is irrelevant. He additionally faults the Respondent for alluding to the protection of private information yet proceeds to annex copies of private emails which are private and confidential. In his view, none of the Respondent’s rights have been violated as alleged and thus the orders sought should not be granted.
3rd Interested Party’s Case
34. The 3rd Interested Party in response to the Cross – Petition filed Grounds of Opposition dated 4th November 2024:
i. The Petition lacks clarity and precision in setting out the declarations in relation to the 3rd Interested party.
ii. The orders sought are therefore untenable as against the 3rd Interested Party as the Petitioners have not shown how the 3rd Interested Party has a duty in the matters raised.
iii. The 3rd Interested Party is a substantive participant and cannot therefore move the Court unless enjoined as a Respondent.
iv. The 3rd Interested Party is not aware of the matters alleged in the Petition as they do not fall within his constitutional mandate hence the Petitioners ought to direct their inquiry to the proper officers.
v. There is no inquiry file pending before the 3rd Interested Party in respect of the Petitioners or the issues raised in the Petition as the 3rd Interested Party is not seized of the matter at all.
vi. The 3rd Interested Party has not received any formal complaint from the Petitioner to enable him direct the 4th Interested Party under Article 157(4) of the Constitution.
vii. The Petitioners Petition is bad in law and devoid of any merits. The same form a classical description of an abuse of the due process of this Court and should be dismissed with costs.
Other Parties Case
35. The other parties’ response to the Cross - Petition are not in the file or Court Online Platform (CTS).
Petitioners’ Submissions
36. The Petitioner in view of both Petitions, filed submissions dated 25th February 2025 through NML Advocates LLP. Counsel underscored the key issues as: whether Sections 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution, whether the request by the Petitioner in the letter dated 28th June 2024 is merited, whether a permanent injunction should issue against the Respondent Petitioner as sought in the Cross-Petition and whether a mandatory injunction should issue against the Interested Parties as sought in the Petition.
37. On the first issue, Counsel submitted that the impugned Sections allow a public company to keep its register of members and its index of members open for inspection by either a member of the company without charge; or any other person on payment of the fee. Section 98 further makes it an offence punishable by a fine or conviction if a company refuses to allow such inspection.
38. According to Counsel, the Respondent is not a public company but one limited by guarantee as such Section 96 of the Companies Act is not applicable in the circumstances of this case. Counsel noted that the Respondent was also being contradictory, as sought to rely on these Sections whilst arguing that they are inconsistent with the Constitution. It is argued that this argument was solely raised to defeat the Petitioner’s quest to receive the sought information.
39. Nonetheless, Counsel argued that the impugned sections are not in contravention of Article 31 of the Constitution as alleged. This is because this Article protects information relating to their family or private affairs. Counsel submitted that the information in these registers is the names and addresses of members, date on which the person was registered a member and the date on which the person ceased to be a member.
40. On the second issue, Counsel submitted that the request for information is merited as it was made pursuant to Article 35 of the Constitution by the Petitioner as a member of the Respondent and the Admitting Staff Association. Counsel noted that the Petitioner only seeks information on the names of members of the Respondent and the Admitting Staff Association.
41. Counsel even reasoned that the Respondent can provide the information as requested and redact information that is private in nature. It was noted in addition that the Data Protection Act, is clear that data information should be processed in accordance with the right to privacy of the data subject. Despite this, Counsel contended that the Respondent was quick to dismiss the Petitioner’s request to access the information in essence violating the Petitioner’s right under Article 35 of the Constitution.
42. To buttress this point reliance was placed in Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR) where the Court noted as follows:
“It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information.”
43. Counsel in the next issue submitted that the Order for a permanent injunction sought by the Respondent in the Cross - Petition should not be granted. Counsel submitted that in both the response and Cross-Petition, the Petitioner was not mentioned as one of the parties in the purported illegal and un-procedural acquisition of the information. It was observed that there was no evidence connecting the Petitioner to the persons who allegedly had access to the Respondent’s information. Considering this, Counsel submitted that the Respondent had not established any prima facie case against the Petitioner to warrant issuance of this Order.
44. Reliance was placed in the Court of Appeal decision in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) where it was held that:
“There is no scope to confuse between an interlocutory and permanent orders of injunction and since the fundamentals about the implications of the interlocutory orders of injunction are settled, at least for over four decades, since Giella case (supra) they could neither be questioned nor be elaborated in detailed research. Since those principles are already codified by authoritative pronouncements in the precedents they may be conveniently noted in brief as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
i. establish his case only at a prima facie level,
ii. demonstrate irreparable injury if a temporary injunction is not granted, and
iii. ally any doubts as to (b) by showing that the balance of convenience is in his favour.”
45. On the final issue, Counsel submitted that the Respondent had not met the threshold for grant of a mandatory injunction as there are no special or exceptional circumstances and none had been proven in this case. Moreover, it was submitted that the Respondent had not proved that the Interested Parties had failed in carrying out their mandate.
46. Reliance was placed in Malier Unissa Karim v Edward Oluoch Odumbe [2015] eKLR where it was held that:
“The test for granting a Mandatory Injunction is different from that enunciated in the “Giella v Cassman Brown case which is the locus classicus case of Prohibitory Injunctions. The threshold in Mandatory is higher than the case of Prohibitory Injunction and the Court of Appeal in the case of “Kenya Breweries Ltd v Washington Okeyo [2002] EA 109” had the occasion to discuss and consider the principles that govern the grant of a Mandatory Injunction was correctly stated in Vol. 24 Halsbury Laws of England 4th Edition Paragraph 948 which states as follows:-
“A Mandatory Injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempts to steal a match on the Plaintiff, a Mandatory Injunction will be granted on an Interlocutory application.”
Respondent’s Submissions
47. In relation to the Petition and Cross-Petition, the Respondent filed submissions dated 28th February 2025 through Mongeri Kinyanjui and Company Advocates. Counsel set out the issues as: whether the provisions of Section 96, 97 and 98 of the Companies are in conflict with Article 31 of the Constitution; whether the Petitioner is entitled to the information sought and whether the Petitioner’s request to inspect the register of the Respondent’s members and require copies meets the proper purpose test within Section 96 of the Companies Act.
48. Counsel on an introductory note, stated that prying into personal data without sufficient justification offends the right to privacy. It was argued that in this matter, the impugned Sections do exactly that as require companies to divulge its members’ information to the public. Counsel stressed that these provisions do not also restrict what purposes are acceptable neither define what may be termed as invasive requests. Counsel reasoned thus that a law that unnecessarily, unreasonably, and unjustifiably compels disclosure of personal information, violates Article 31 of the Constitution and thus cannot stand.
49. Counsel submitted that this is in error and likened this case to Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR where it was held that section 194 of the Penal Code was is unconstitutional and invalid for offending Article 33 of the Constitution based on, among other things, the principle of proportionality set by Article 24 of the Constitution.
50. Equal dependence was placed in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and Nubian Rights Forum & Ors v. AG (2020) eKLR.
51. Moving on, Counsel submitted that the Petitioner was not entitled to the sought information. Counsel stressed that the right to access to information can be limited in line with Article 24 of the Constitution and any other law. In this case, Counsel submitted that the Data Protection Act under Section 6 affirms that the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to, among other things, involve the unwarranted invasion of the privacy of an individual.
52. Counsel submitted that in this matter, the information sought contains the name, address, telephone number, e-mail address, member number, dates of registration and of resignation members. In this regard, Counsel stated that this information cannot be divulged without these parties’ consent.
53. Counsel further argued that the Respondent being a registered Data Processor and Data Controller must comply with Section 25 of the Data Protection Act. Likewise, Counsel stated that whilst Section 96 of the Companies Act imposes an obligation to allow register inspection, that obligation is not absolute.
54. On the final issue, Counsel submitted that guided by Section 96 (3) of the Companies Act, the Respondent had the discretion once the information was requested, to accept or decline to issue the information based on the guidelines set out under this provision. According to Counsel, the disclosure framework under Section 96 of the Companies Act does not give an unfettered right to member information, especially where privacy or misuse is a concerned. As such, Counsel argued that Section 96 must be read in light of these limits.
55. Counsel in fact submitted that the Court in Burry & Knight Ltd v. Knight [2014] EWCA Civ 604 affirmed that companies might refuse to disclose member registers if the request is not for a proper purpose. Like dependence was placed in Burberry Group PLC v Fox-Davies [2015] EWHC 222 (Ch).
2nd Interested Party’s Submissions
56. The 2nd Interested Party filed submissions dated 28th April 2025 through Ngeri, Omiti and Bush Advocates LLP who sought to discuss these issues: whether the Petitioner has breached the right to privacy of the members of the CrossPetitioner, whether the High Court has the power to grant the prayers sought in the Cross-Petition, particularly Prayer (j) directed at the Interested Parties including the ODPC and whether the provisions of Sections 96, 97 and 98 of the Companies Act are in conflict with Article 31 of the Constitution.
57. On the first issue, Counsel submitted that for the Respondent’s claim to succeed, it must demonstrate that, the data in question falls under personal data, that processing of the personal data was not in compliance with the Data Protection Act, that there was unauthorized access and use of the personal data and that there was actual or potential harm to the data subject resulting from the data breach.
58. In this matter, Counsel first affirmed that the list of past and present officials and members qualifies as personal data. Relying on the Respondent’s averments that this data was illegally obtained, Counsel stressed that this was contrary to the dictates of the Act with potential harm being multifaceted.
59. To support this case, Counsel relied in Financial Mail (Pty) Ltd vs. Sage Holdings 61993 2 SA 451 (A) 462F where it was observed that:
“Breach of privacy could occur either by way of an unlawful intrusion upon the personal privacy of another; or by way of unlawful disclosure of private facts about a person. The unlawfulness of a (factual) infringement of privacy is adjudged in the light of contemporary bani mores and the general sense of justice of the community as perceived by the court.”
60. Comparable dependence was placed in JMK & Another v Standard Group Limited & Another [2015] eKLR, Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR, Kenya Human Rights Commission v Communications Authority of Kenya & 4 Others [2018] eKLR and Coalition for Restoration of Democracy (CORD) & 2 Others v Republic & 10 Others [2015] eKLR.
61. On the next issue, Counsel submitted that this relief is not tenable. Counsel informed that the Respondent lodged a complaint with the 2nd Interested Party on 2nd August 2024 and soon after filed the instant Cross-Petition seeking a similar relief.
62. Counsel emphasized that the Data Protection Act and the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021 provide an elaborate procedure for handling complaints lodged as the 2nd Interested Party’s mandate gives effect to Article 31(c) and (d) of the Constitution. Counsel noted that the Respondent instead of regularizing the complaint, proceeded to file this Petition snubbing the procedure set out in the Act and its appellate mechanism. Counsel added that the sought relief falls within the jurisdiction of the 2nd Interested Party but the Respondent failed to exhaust the same.
63. Dependence was placed in Geoffrey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 others(2015) eKLR where it was held that:
“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 the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
64. Equal dependence was placed in Okiya Omtatah Okoiti & Another vs Kenya Power and Lightning Company Limited (KPLC) & 4 others [2020] eKLR, Kenya National Examination Council v Republic; Teachers Service Commission (Interested Party) (Civil Appeal E867 of 2022) [2024] KECA 1180 (KLR) and Sammy Ndung''u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR.
65. On the third issue, Counsel opposing the Respondent’s argument submitted that the Data Protection Act provides for the lawful processing of personal data. Counsel observed that the impugned Sections require public disclosure of certain company information and details which may include details that can violate Article 31 of the Constitution. It was noted however that this right is not absolute and can be limited in line with the law. In sum, Counsel submitted that, the requirement in the impugned Section for individuals requesting company information to specify their intent underscores the need to balance these rights.
66. To buttress this point reliance was placed in R vs Oakes [1986] 1 SCR 103 [69]- [70], where it was held that:
“a. The first criterion concerned the importance of the objective of the law. First, the objective, which the measures responsible for a limit on a constitutional right or freedom are designed to serve, must be ''of sufficient importance to warrant overriding a constitutionally protected right or freedom''. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as suff
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