RULING
1. The defendants/applicants filed an Originating Notice of Motion dated 2nd March 2024 pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules, 2010 and Articles 22, 23 & 35 of the Constitution of Kenya, 2010. The defendants pray for orders that the respondents be compelled to supply the documents listed in a Notice dated 15th June 2022, pursuant to the provisions of Article 35 of the Constitution, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules, 2010.
2. The documents being sought include a copy of the file/register recording the transfer to the 1st defendant on 28th August 2008, a copy of the file/register recording a charge registered on 5th June 2009 in favour of Savings and Loan Ltd for Kshs.170,000,000/=, a copy of the file/register used by the 2nd respondent to issue consent to transfer LR. No. 18469 on 11th August 2008, a copy of the file/register used by the Commissioner of Lands to issue consent to charge LR. No. 18469 on 30th April 2009 and a copy of the file/register used by the Commissioner of Lands to issue consent to sell units 1– 69 on LR. No. 18469 on 2nd August 2010.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Joseph Mungai, the 4th defendant herein and a member of the Board of Directors of the 2nd defendant. Mr. Mungai sought leave of the Court to refer to the defendants’ Originating Notice of Motion dated 7th November 2022 which was determined by this Court in a Ruling delivered on 15th December 2023.
4. He averred that on 15th June 2022, the defendants requested the 1st respondent to supply specific documents as detailed in a Notice sent to him, but the 1st respondent replied without providing the documents requested for. Mr. Mungai contended that the 1st defendant had previously received documents since 2008 to facilitate the purchase of LR. No. 18469, a loan of Kshs.170,000,000/= secured through a charge on the property and a consent to sell 69 housing units developed on the said land. He stated that these documents are contained in the defendants’ bundles of documents filed on 3rd December 2012 and 5th September 2019 as well as the 1st respondent’s bundle of documents supplied to the defendants on 13th July 2022. Mr. Mungai referred to the witness statements filed in this suit, including one by Mr. Robert Darby where he stated that the value of LR No. 18469 as at 2018 was Kshs.2.7 Billion, emphasizing the significance of the defendants’ interest in this matter and the need for the documents being sought to protect the said investment.
5. In opposition to the application, the Third Party filed a replying affidavit sworn on 27th March 2024 by Mr. George Gitonga, a Land Registrar working with the Ministry of Lands. Mr. Gitonga averred that the 2nd, 3rd & 4th defendants never made a formal request for information from the Third Party, rendering the instant application premature and defective under the Access to Information Act, specifically Section 14, thereof, which requires exhaustion of administrative remedies before approaching the Court. He contended that the defendants failed to seek review before the Commission on Administrative Justice after receiving a response to their request for documents dated 15th June 2022, thereby bypassing the prescribed legal procedure.
6. Mr. Gitonga asserted that the Third Party responded to the 1st defendant’s Notice, providing all the information in its possession. He contended that the defendants already have the documents they are requesting for, as admitted in their own affidavit. He opined that the defendants are attempting to compel the Chief Land Registrar to adopt and/or authenticate fake documents, already deemed invalid by both the Registrar and the Police. He averred that prayers 4 & 5 sought in the application herein cannot be granted since the alleged Title I.R. 71611 for L.R. No. 18469 is a forged document and there is no record or file at the Lands Office for Volta Insurance Consultants Ltd, thus no valid transfer or consent could have occurred. Furthermore, the presentation day book 2792 confirms that the alleged Title I.R. 71611 for L.R. No. 18469 was never registered since any documents related to transfer or consent remain blank or unacted upon.
7. Mr. Gitonga averred that the true Title to L.R. No. 18469 is I.R. 72481, issued to Wibeso (sic) Investments Ltd and not I.R. 71611 as claimed. He further averred that the alleged consents for transfer and charge were not issued by the Lands Office since the references in those documents are mismatched or relate to unrelated parties, which confirms that they are not genuine. He stated that the alleged consent to charge dated 30th April 2009 (Serial No. 1267763) and the alleged consents to sell units on L.R. No. 18469 issued to the 1st defendant on 2nd August 2010 are fake as they were not issued by the Lands Office. He averred that the correct correspondence file for L.R. No. 18469 is CF. 141301, originally opened for Wibeso (sic) Investments Ltd. He asserted that the alleged file reference 266342/1V does not exist in relation to the suit property, and that only Novicome Ltd, the transferee from Wibeso (sic) (since 2003), could validly apply for such consents but it never did. He stated that the referenced file (141301) could not have been used for the 1st defendant.
8. Mr. Gitonga averred that the defendants attempted to introduce and validate fake documents through an indemnity despite the fact that the Chief Land Registrar and the Commissioner of Lands had already informed the 1st defendant that the alleged documents and Title do not exist in the official records. Mr. Gitonga further averred that the Lands Office does not hold or author the documents sought. He asserted that rights under Article 35 do not extend to foreigners in the same way, and the instant application relies on a Notice to produce issued by a person without such standing.
9. The plaintiff in response to the instant application filed a replying affidavit sworn on 19th April 2024 by Ms Lilian Sogo, the Head Counsel-Litigation, and Legal Services Division at the plaintiff bank. She averred that the defendants are using Article 35 of the Constitution to push the Court to investigate the validity of Title IR 72481, L.R. No. 18469, which is outside the jurisdiction of this Court and falls within the exclusive purview of the Environment and Land Court. Ms Sogo contended that the ELC in Machakos ELC Case No. 226 of 2017 had already determined the issue of land ownership between Wibesco, Novicome and Tamarind Meadows, including the status of the Title under the Torrens system, and the defendants have since appealed against the said decision.
10. She contended that the instant application is a veiled attempt to relitigate concluded land issues under the guise of a constitutional rights’ claim, which would alter the nature and scope of the original suit, more so because this suit is a commercial claim for Kshs.199,037,649.00, arising from an unpaid mortgage facility. She averred that there is no dispute over ownership or title to land in the plaintiff’s claim. Ms Sogo averred that the above notwithstanding, the defendants already have access to the relevant documents and were given information by the Government. She contended that granting the orders being sought herein would prejudice the plaintiff, distort the claim, and undermine the efficient resolution of this suit.
11. In a rejoinder, the defendants filed a further affidavit sworn on 1st May 2024 by Mr. Joseph Mungai, the 4th defendant herein and a member of the Board of Directors of the 2nd defendant. He contended that on 15th June 2022, the 4th defendant on behalf of all the defendants issued a formal Notice to Produce Documents seeking files and records which the Chief Land Registrar used in various transactions involving L.R. No. 18469 / I.R. 71611, which documents are essential to establish whether such actions were properly recorded and filed at the Lands Office. Mr. Mungai disputed the applicability of Section 14 of the Access to Information Act stating that Article 35 of the Constitution is supreme and overrides the procedural requirements under statutory law. He asserted that the right to access information is constitutional, not discretionary and the documents being sought are public records under the custody of the State.
12. He insisted that the documents being sought exist, as evidenced by the defendants’ bundles and previous transactions, including consents and a registered charge. He stated that the claim that the documents are forgeries cannot be used to avoid producing them, as this Court should be the one to determine authenticity. He contended that the Lands Office cannot allege forgery without producing the original documents for scrutiny. He averred that the right to access information is not subject to procedural barriers or the whims of a State Official, as it serves transparency and accountability.
13. The application herein was canvassed by way of written submissions. The defendants’ submissions were filed on 30th April 2024 by the law firm of Kamau Kuria & Company Advocates. The plaintiff’s submissions were filed by the law firm of Kemboy Law Advocates on 26th July 2024 and the respondents’ submissions were filed by the Attorney General on 24th May 2024.
14. Dr. Kamau Kuria (SC), learned Counsel for the defendants submitted that the documents in question prove the State's dishonesty and contradict both the State’s and the plaintiff’s claims by showing that the State itself recognized the 1st defendant as the rightful owner of the property it charged to the plaintiff for Kshs.170,000,000/=. He asserted that the instant application is an attempt by the defendants to exercise their constitutional right to access information under Article 35 of the Kenyan Constitution, which is modeled on Article 32 of the South African Constitution, discussed by the South African Constitutional Court in Brummer v Minister for Social Development & Others (CCT 25/09) [2009] ZACC 21; 2009(6) SA 323(CC); 2009 (11) BCLR 1075(CC) (13 August 2009).
15. Senior Counsel cited the Court of Appeal case of Commissioner of Lands & another v Coastal Aquaculture [1997] KECA 409 (KLR), and the Supreme Court case of Attorney General v Zinj Limited [2021] KESC 23 (KLR), which emphasize strict procedural adherence. He contended that the plaintiff and the Third Party misunderstand how property rights are legally protected. He asserted that Article 35 of the Constitution is being used by the defendants as a legitimate tool to seek justice.
16. Mr. Motari, learned Counsel for the respondents relied on the case of Federation of Women Lawyers-Kenya & 28 others v Attorney General & 8 others [2015] eKLR, and submitted that Article 35 of the Constitution is a substantive provision that cannot be enforced by way of an application. He argued that the Access to Information Act provides a clear alternative remedy under Section 14, which the applicants have not exhausted. Mr. Motari emphasized that in the circumstances of this case, this Court's role is appellate under Section 23 of the said Act and the said role only arises after a party is dissatisfied with the Commission's decision.
17. Counsel relied on the Supreme Court case of Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR, and emphasized that the defendants have not used the internal remedy under Section 14, despite the Commission having powers under Section 23(2) of the Access to Information Act to grant the same orders being sought herein. He referred this Court to the decision made in Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another [2020] eKLR, and Paragon Electronics Limited v Njeri Kariuki [2021] eKLR, and submitted that this Court lacks jurisdiction to hear and determine the application herein.
18. Mr. Motari contended that the defendants are the makers and custodians of the documents they are requesting from the Third Party, and that they have even already admitted to be in possession of the documents in question, making the application herein redundant. Counsel submitted that the Third Party neither made nor currently possesses most of the requested originals and has already provided certified copies of the documents in its possession. He further submitted that the I.R. Register and presentation day book entries were already shared with the defendants, and that no file was ever opened for Volta Insurance Consultants Ltd.
19. Mr. Kemboy, learned Counsel for the plaintiff relied on the Supreme Court case of Republic v Chengo Kansa & 2 others [2017] KESC 15 (KLR), and submitted that this Court lacks the jurisdiction to entertain the current application as it relates to land ownership, a matter falling under the exclusive jurisdiction of the Environment and Land Court, as per Article 162 of the Constitution. He argued that the instant application is a disguised attempt to conduct discovery on land matters, which are irrelevant to the loan repayment dispute at hand. He argued that whether applying the “predominant purpose” or “predominant issue” test as was held in Suzanne Achieng Butler & 4 others vs Redhill Heights Investments Limited & another [2016] eKLR, and Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] eKLR, the instant application falls outside the jurisdiction of this Court.
20. Counsel referred to the Supreme Court case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), and stated that the issues raised in the current application are res judicata having been conclusively determined by the Court in Machakos ELC Case No. 226 of 2017 and Nairobi HCCC No. 539 of 2012. He stated that in the Machakos case, the ELC made definitive findings which include declaring the documents alleged to be in possession of the Third Party as fake and that the 1st defendant was not entitled to indemnity from the Government, but from the Vendor. Further, that since the defendants have appealed from the ELC decision, this Court lacks jurisdiction to rehear or review the same issues, as it cannot sit on appeal over a decision of the ELC.
ANALYSIS AND DETERMINATION.
21. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof, as well as the replying affidavit by the plaintiff and the respondents, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the supplication herein offends the doctrine of exhaustion;
ii) Whether this application is res judicata; and
iii) If the instant application is merited.
Whether the supplication herein offends the doctrine of exhaustion.
22. The right to access to information is guaranteed under Article 35 of the Constitution of Kenya which states that -
1) 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.
2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
3) The State shall publish and publicize any important information affecting the nation.
23. The enactment of the Access to Information Act operationalized the provisions of Article 35 of the Constitution of Kenya. The Court in the case of Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another (supra) in striking out a petition for being premature held as follows-
PART IV of the Access to Information Act provides for REVIEW OF DECISIONS BY THE COMMISSION. Section 14 of the Act, provides for Review of decisions by the Commission. The Commission, under section 2 of the Act is the Commission on Administrative Justice. (CAJ).
It is important to note that the preamble to Access to Information Act stipulates that it is 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. The Act provides for an elaborate procedure for request for information and in the event that such request is not acceded to, section 14 thereof provides for the remedy in terms of review of the decision of the entity or person that has refused to provide access to the information that is requested.
24. The defendants herein contend that on 15th June 2022, they requested the 1st respondent to supply specific documents as detailed in a Notice sent to it, but the 1st respondent replied without providing the requested documents. It is not disputed that the 1st respondent is a State Organ, and as such, the information being sought by the defendants qualifies as public information for purposes of Article 35 of the Constitution.
25. The respondents however averred that the 2nd, 3rd & 4th defendants never made a formal request for information from the Third Party, rendering the instant application premature and defective under the Access to Information Act, specifically Section 14, which requires exhaustion of administrative remedies before approaching the Court. On perusal of the Notice to State for Supply of Documents dated 15th June 2022, it is evident that it was prepared and served on the 1st respondent on instructions of the 1st, 2nd & 4th defendants. For this reason, I do not agree with the respondents that the instant application is premature and defective under the Access to Information Act for lack of a formal request for information.
26. The defendants’ case is that in as much as the 1st respondent responded to their Notice, it replied without providing the requested documents, thereby necessitating the instant application. The respondents’ position on the other hand is that the defendants failed to seek review of the 1st respondent’s decision before the Commission on Administrative Justice after receiving a response to their request for documents dated 15th June 2022, and that they bypassed the prescribed legal procedure provided for under Section 14 of the Access to Information Act which states as hereunder –
1) 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) a decision refusing to grant access to the information applied for;
b) a decision granting access to information in edited form;
c) a decision purporting to grant access, but not actually granting the access in accordance with an application;
d) a decision to defer providing the access to information;
e) a decision relating to imposition of a fee or the amount of the fee;
f) a decision relating to the remission of a prescribed application fee;
g) a decision to grant access to information only to a specified person; or
h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.
2) An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.
3) The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act.
4) The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission. (Emphasis added).
27. The respondents challenge the competency of the instant application on grounds that the defendants are yet to exhaust all the avenues available to them before approaching this Court. The doctrine of exhaustion is defined in the Black’s Law Dictionary 10th Edition as follows –
Exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.
28. The Court of Appeal in the case of Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR, while speaking to the doctrine of exhaustion held as follows -
...Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...
29. It is now well settled that where the Constitution or a Statute confers jurisdiction upon a Court, Tribunal, person or body or any authority, that jurisdiction must be exercised in accordance with the Constitution or Statute. The Court of Appeal in the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR, held that -
Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.
30. The defendants in their further affidavit averred that the doctrine of exhaustion of remedy under Section 14 of the Access to Information Act is not applicable in this case, and in so disputing emphasize that Article 35 of the Constitution is supreme and overrides the procedural requirements under statutory law.
31. This Court is however cognizant of the fact that pursuant to the provisions of the provisions of Section 9(1)(2),(3) and (4) of the Fair Administrative Action Act, 2015, which Act implements the provisions of Article 47 of the Constitution, an applicant is required to first exhaust all available internal dispute resolution mechanisms before approaching the Court. However, in exceptional cases, the Court may grant an exemption if the applicant formally applies for it. The Court of Appeal in the case of Ndiara Enterprises Ltd v Nairobi City County Government [2018] eKLR, in upholding the judgment of the High Court in Nairobi J.R Misc. Civil Application No. 91 of 2016) Ndiara Enterprises Limited v Nairobi City County Government held that -
Though the High Court can exempt a party from following such clear laid down procedures for redress of grievances before approaching it in the noble interests of justice, the learned Judge rightly found that the appellant had failed to prove there were exceptional circumstances in its case to warrant such exemption. Indeed, there are no apparent exceptional circumstances to justify such exception and which exception was also not sought. The High Court’s power to exercise its jurisdiction under Article 165 of the Constitution was therefore limited or restricted by statute in this instance as found by the Judge…
32. The respondents herein contended that in the circumstances of this case, this Court's role is appellate under Section 23 of the Access to Information Act and that the said role only arises after a party is dissatisfied with the Commission's decision. They argued that the instant application is premature since the defendants have not used the internal remedy under Section 14, despite the Commission having powers under Section 23(2) to grant the same orders that are being sought herein.
33. The powers of the Commission on Administrative Justice are provided for under section 23 of the Access to Information Act which provides as hereunder -
1) In the performance of its functions under this Act, the Commission shall have the power to –
a) issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;
b) question any person in respect of any subject matter under investigation before the Commission; and
c) require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission.
2) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order –
a) the release of any information withheld unlawfully;
b) a recommendation for the payment of compensation; or
c) any other lawful remedy or redress.
3) A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made…
34. It is not disputed that the defendants did not attempt to review the decision of the 1st respondent pursuant to the provisions of Section 14 of the Access to Information Act. On perusal of the provisions of Section 23 of the said Act, I hold that the Commission on Administrative Justice has the jurisdiction to grant the orders being sought herein. Furthermore, the defendants have neither alleged nor demonstrated any exceptional circumstances to warrant this Court to exempt them from the obligation to exhaust the remedy provided for under Section 14 of the Access to Information Act.
35. I concur with the Court’s position in Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another (supra), where the Court stated thus -
The Court of Appeal differently constituted in all the above cases made it clear that it was satisfied that the learned judges did not err by striking out the applicants’/appellants suits and applications which sought to invoke the original jurisdiction of the High Court in circumstances where the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellants the right to access the High Court by way of appeal, which mechanisms the appellants had refused to invoke. The Court of Appeal concluded that “to hold otherwise would, in the circumstances, be to defeat the constitutional objective behind Article 159(2) (c) and the very raison d’etre of the mechanisms provided under the two Acts.
Even where the appellant claimed that the High Court had failed to invoke its inherent jurisdiction or abdicated its jurisdiction, or that the failure to follow the prescribed dispute resolution mechanism was a mere technicality curable under Article 159 (2) (d) of the Constitution, the Court of Appeal held that where the constitutional principle under which the dispute resolution mechanisms provided by the relevant statutes like the Physical Planning Act and the Environment Management Coordination Act are underpinned, it cannot be claimed that lack of compliance with those mechanisms is a mere technicality.
36. In the end, it is my finding that the defendants still have an alternative dispute resolution mechanism available to them under Section 14 of the Access to Information Act which they are yet to utilize. At this juncture, this Court has no jurisdiction to hear and determine the instant application.
37. In view of the above finding, the other issues earlier on identified for determination are moot and do not warrant further consideration by this Court.
38. The upshot that that the instant application offends the doctrine of exhaustion for having been filed prematurely. It is hereby struck out with costs to the plaintiff and the respondents.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 30TH day of JULY
2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Ms Okina holding brief for Mr. Kemboy for the plaintiff/respondent
Mr. Ndungu Kuria holding brief for Dr. Kamau Kuria for the defendants/applicants
Mr. Motari for the Third Party/respondent
Ms B. Wokabi – Court Assistant.
1. The defendants/applicants filed an Originating Notice of Motion dated 2nd March 2024 pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules, 2010 and Articles 22, 23 & 35 of the Constitution of Kenya, 2010. The defendants pray for orders that the respondents be compelled to supply the documents listed in a Notice dated 15th June 2022, pursuant to the provisions of Article 35 of the Constitution, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules, 2010.
2. The documents being sought include a copy of the file/register recording the transfer to the 1st defendant on 28th August 2008, a copy of the file/register recording a charge registered on 5th June 2009 in favour of Savings and Loan Ltd for Kshs.170,000,000/=, a copy of the file/register used by the 2nd respondent to issue consent to transfer LR. No. 18469 on 11th August 2008, a copy of the file/register used by the Commissioner of Lands to issue consent to charge LR. No. 18469 on 30th April 2009 and a copy of the file/register used by the Commissioner of Lands to issue consent to sell units 1– 69 on LR. No. 18469 on 2nd August 2010.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Joseph Mungai, the 4th defendant herein and a member of the Board of Directors of the 2nd defendant. Mr. Mungai sought leave of the Court to refer to the defendants’ Originating Notice of Motion dated 7th November 2022 which was determined by this Court in a Ruling delivered on 15th December 2023.
4. He averred that on 15th June 2022, the defendants requested the 1st respondent to supply specific documents as detailed in a Notice sent to him, but the 1st respondent replied without providing the documents requested for. Mr. Mungai contended that the 1st defendant had previously received documents since 2008 to facilitate the purchase of LR. No. 18469, a loan of Kshs.170,000,000/= secured through a charge on the property and a consent to sell 69 housing units developed on the said land. He stated that these documents are contained in the defendants’ bundles of documents filed on 3rd December 2012 and 5th September 2019 as well as the 1st respondent’s bundle of documents supplied to the defendants on 13th July 2022. Mr. Mungai referred to the witness statements filed in this suit, including one by Mr. Robert Darby where he stated that the value of LR No. 18469 as at 2018 was Kshs.2.7 Billion, emphasizing the significance of the defendants’ interest in this matter and the need for the documents being sought to protect the said investment.
5. In opposition to the application, the Third Party filed a replying affidavit sworn on 27th March 2024 by Mr. George Gitonga, a Land Registrar working with the Ministry of Lands. Mr. Gitonga averred that the 2nd, 3rd & 4th defendants never made a formal request for information from the Third Party, rendering the instant application premature and defective under the Access to Information Act, specifically Section 14, thereof, which requires exhaustion of administrative remedies before approaching the Court. He contended that the defendants failed to seek review before the Commission on Administrative Justice after receiving a response to their request for documents dated 15th June 2022, thereby bypassing the prescribed legal procedure.
6. Mr. Gitonga asserted that the Third Party responded to the 1st defendant’s Notice, providing all the information in its possession. He contended that the defendants already have the documents they are requesting for, as admitted in their own affidavit. He opined that the defendants are attempting to compel the Chief Land Registrar to adopt and/or authenticate fake documents, already deemed invalid by both the Registrar and the Police. He averred that prayers 4 & 5 sought in the application herein cannot be granted since the alleged Title I.R. 71611 for L.R. No. 18469 is a forged document and there is no record or file at the Lands Office for Volta Insurance Consultants Ltd, thus no valid transfer or consent could have occurred. Furthermore, the presentation day book 2792 confirms that the alleged Title I.R. 71611 for L.R. No. 18469 was never registered since any documents related to transfer or consent remain blank or unacted upon.
7. Mr. Gitonga averred that the true Title to L.R. No. 18469 is I.R. 72481, issued to Wibeso (sic) Investments Ltd and not I.R. 71611 as claimed. He further averred that the alleged consents for transfer and charge were not issued by the Lands Office since the references in those documents are mismatched or relate to unrelated parties, which confirms that they are not genuine. He stated that the alleged consent to charge dated 30th April 2009 (Serial No. 1267763) and the alleged consents to sell units on L.R. No. 18469 issued to the 1st defendant on 2nd August 2010 are fake as they were not issued by the Lands Office. He averred that the correct correspondence file for L.R. No. 18469 is CF. 141301, originally opened for Wibeso (sic) Investments Ltd. He asserted that the alleged file reference 266342/1V does not exist in relation to the suit property, and that only Novicome Ltd, the transferee from Wibeso (sic) (since 2003), could validly apply for such consents but it never did. He stated that the referenced file (141301) could not have been used for the 1st defendant.
8. Mr. Gitonga averred that the defendants attempted to introduce and validate fake documents through an indemnity despite the fact that the Chief Land Registrar and the Commissioner of Lands had already informed the 1st defendant that the alleged documents and Title do not exist in the official records. Mr. Gitonga further averred that the Lands Office does not hold or author the documents sought. He asserted that rights under Article 35 do not extend to foreigners in the same way, and the instant application relies on a Notice to produce issued by a person without such standing.
9. The plaintiff in response to the instant application filed a replying affidavit sworn on 19th April 2024 by Ms Lilian Sogo, the Head Counsel-Litigation, and Legal Services Division at the plaintiff bank. She averred that the defendants are using Article 35 of the Constitution to push the Court to investigate the validity of Title IR 72481, L.R. No. 18469, which is outside the jurisdiction of this Court and falls within the exclusive purview of the Environment and Land Court. Ms Sogo contended that the ELC in Machakos ELC Case No. 226 of 2017 had already determined the issue of land ownership between Wibesco, Novicome and Tamarind Meadows, including the status of the Title under the Torrens system, and the defendants have since appealed against the said decision.
10. She contended that the instant application is a veiled attempt to relitigate concluded land issues under the guise of a constitutional rights’ claim, which would alter the nature and scope of the original suit, more so because this suit is a commercial claim for Kshs.199,037,649.00, arising from an unpaid mortgage facility. She averred that there is no dispute over ownership or title to land in the plaintiff’s claim. Ms Sogo averred that the above notwithstanding, the defendants already have access to the relevant documents and were given information by the Government. She contended that granting the orders being sought herein would prejudice the plaintiff, distort the claim, and undermine the efficient resolution of this suit.
11. In a rejoinder, the defendants filed a further affidavit sworn on 1st May 2024 by Mr. Joseph Mungai, the 4th defendant herein and a member of the Board of Directors of the 2nd defendant. He contended that on 15th June 2022, the 4th defendant on behalf of all the defendants issued a formal Notice to Produce Documents seeking files and records which the Chief Land Registrar used in various transactions involving L.R. No. 18469 / I.R. 71611, which documents are essential to establish whether such actions were properly recorded and filed at the Lands Office. Mr. Mungai disputed the applicability of Section 14 of the Access to Information Act stating that Article 35 of the Constitution is supreme and overrides the procedural requirements under statutory law. He asserted that the right to access information is constitutional, not discretionary and the documents being sought are public records under the custody of the State.
12. He insisted that the documents being sought exist, as evidenced by the defendants’ bundles and previous transactions, including consents and a registered charge. He stated that the claim that the documents are forgeries cannot be used to avoid producing them, as this Court should be the one to determine authenticity. He contended that the Lands Office cannot allege forgery without producing the original documents for scrutiny. He averred that the right to access information is not subject to procedural barriers or the whims of a State Official, as it serves transparency and accountability.
13. The application herein was canvassed by way of written submissions. The defendants’ submissions were filed on 30th April 2024 by the law firm of Kamau Kuria & Company Advocates. The plaintiff’s submissions were filed by the law firm of Kemboy Law Advocates on 26th July 2024 and the respondents’ submissions were filed by the Attorney General on 24th May 2024.
14. Dr. Kamau Kuria (SC), learned Counsel for the defendants submitted that the documents in question prove the State's dishonesty and contradict both the State’s and the plaintiff’s claims by showing that the State itself recognized the 1st defendant as the rightful owner of the property it charged to the plaintiff for Kshs.170,000,000/=. He asserted that the instant application is an attempt by the defendants to exercise their constitutional right to access information under Article 35 of the Kenyan Constitution, which is modeled on Article 32 of the South African Constitution, discussed by the South African Constitutional Court in Brummer v Minister for Social Development & Others (CCT 25/09) [2009] ZACC 21; 2009(6) SA 323(CC); 2009 (11) BCLR 1075(CC) (13 August 2009).
15. Senior Counsel cited the Court of Appeal case of Commissioner of Lands & another v Coastal Aquaculture [1997] KECA 409 (KLR), and the Supreme Court case of Attorney General v Zinj Limited [2021] KESC 23 (KLR), which emphasize strict procedural adherence. He contended that the plaintiff and the Third Party misunderstand how property rights are legally protected. He asserted that Article 35 of the Constitution is being used by the defendants as a legitimate tool to seek justice.
16. Mr. Motari, learned Counsel for the respondents relied on the case of Federation of Women Lawyers-Kenya & 28 others v Attorney General & 8 others [2015] eKLR, and submitted that Article 35 of the Constitution is a substantive provision that cannot be enforced by way of an application. He argued that the Access to Information Act provides a clear alternative remedy under Section 14, which the applicants have not exhausted. Mr. Motari emphasized that in the circumstances of this case, this Court's role is appellate under Section 23 of the said Act and the said role only arises after a party is dissatisfied with the Commission's decision.
17. Counsel relied on the Supreme Court case of Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR, and emphasized that the defendants have not used the internal remedy under Section 14, despite the Commission having powers under Section 23(2) of the Access to Information Act to grant the same orders being sought herein. He referred this Court to the decision made in Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another [2020] eKLR, and Paragon Electronics Limited v Njeri Kariuki [2021] eKLR, and submitted that this Court lacks jurisdiction to hear and determine the application herein.
18. Mr. Motari contended that the defendants are the makers and custodians of the documents they are requesting from the Third Party, and that they have even already admitted to be in possession of the documents in question, making the application herein redundant. Counsel submitted that the Third Party neither made nor currently possesses most of the requested originals and has already provided certified copies of the documents in its possession. He further submitted that the I.R. Register and presentation day book entries were already shared with the defendants, and that no file was ever opened for Volta Insurance Consultants Ltd.
19. Mr. Kemboy, learned Counsel for the plaintiff relied on the Supreme Court case of Republic v Chengo Kansa & 2 others [2017] KESC 15 (KLR), and submitted that this Court lacks the jurisdiction to entertain the current application as it relates to land ownership, a matter falling under the exclusive jurisdiction of the Environment and Land Court, as per Article 162 of the Constitution. He argued that the instant application is a disguised attempt to conduct discovery on land matters, which are irrelevant to the loan repayment dispute at hand. He argued that whether applying the “predominant purpose” or “predominant issue” test as was held in Suzanne Achieng Butler & 4 others vs Redhill Heights Investments Limited & another [2016] eKLR, and Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] eKLR, the instant application falls outside the jurisdiction of this Court.
20. Counsel referred to the Supreme Court case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), and stated that the issues raised in the current application are res judicata having been conclusively determined by the Court in Machakos ELC Case No. 226 of 2017 and Nairobi HCCC No. 539 of 2012. He stated that in the Machakos case, the ELC made definitive findings which include declaring the documents alleged to be in possession of the Third Party as fake and that the 1st defendant was not entitled to indemnity from the Government, but from the Vendor. Further, that since the defendants have appealed from the ELC decision, this Court lacks jurisdiction to rehear or review the same issues, as it cannot sit on appeal over a decision of the ELC.
ANALYSIS AND DETERMINATION.
21. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof, as well as the replying affidavit by the plaintiff and the respondents, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the supplication herein offends the doctrine of exhaustion;
ii) Whether this application is res judicata; and
iii) If the instant application is merited.
Whether the supplication herein offends the doctrine of exhaustion.
22. The right to access to information is guaranteed under Article 35 of the Constitution of Kenya which states that -
1) 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.
2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
3) The State shall publish and publicize any important information affecting the nation.
23. The enactment of the Access to Information Act operationalized the provisions of Article 35 of the Constitution of Kenya. The Court in the case of Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another (supra) in striking out a petition for being premature held as follows-
PART IV of the Access to Information Act provides for REVIEW OF DECISIONS BY THE COMMISSION. Section 14 of the Act, provides for Review of decisions by the Commission. The Commission, under section 2 of the Act is the Commission on Administrative Justice. (CAJ).
It is important to note that the preamble to Access to Information Act stipulates that it is 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. The Act provides for an elaborate procedure for request for information and in the event that such request is not acceded to, section 14 thereof provides for the remedy in terms of review of the decision of the entity or person that has refused to provide access to the information that is requested.
24. The defendants herein contend that on 15th June 2022, they requested the 1st respondent to supply specific documents as detailed in a Notice sent to it, but the 1st respondent replied without providing the requested documents. It is not disputed that the 1st respondent is a State Organ, and as such, the information being sought by the defendants qualifies as public information for purposes of Article 35 of the Constitution.
25. The respondents however averred that the 2nd, 3rd & 4th defendants never made a formal request for information from the Third Party, rendering the instant application premature and defective under the Access to Information Act, specifically Section 14, which requires exhaustion of administrative remedies before approaching the Court. On perusal of the Notice to State for Supply of Documents dated 15th June 2022, it is evident that it was prepared and served on the 1st respondent on instructions of the 1st, 2nd & 4th defendants. For this reason, I do not agree with the respondents that the instant application is premature and defective under the Access to Information Act for lack of a formal request for information.
26. The defendants’ case is that in as much as the 1st respondent responded to their Notice, it replied without providing the requested documents, thereby necessitating the instant application. The respondents’ position on the other hand is that the defendants failed to seek review of the 1st respondent’s decision before the Commission on Administrative Justice after receiving a response to their request for documents dated 15th June 2022, and that they bypassed the prescribed legal procedure provided for under Section 14 of the Access to Information Act which states as hereunder –
1) 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) a decision refusing to grant access to the information applied for;
b) a decision granting access to information in edited form;
c) a decision purporting to grant access, but not actually granting the access in accordance with an application;
d) a decision to defer providing the access to information;
e) a decision relating to imposition of a fee or the amount of the fee;
f) a decision relating to the remission of a prescribed application fee;
g) a decision to grant access to information only to a specified person; or
h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.
2) An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.
3) The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act.
4) The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission. (Emphasis added).
27. The respondents challenge the competency of the instant application on grounds that the defendants are yet to exhaust all the avenues available to them before approaching this Court. The doctrine of exhaustion is defined in the Black’s Law Dictionary 10th Edition as follows –
Exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.
28. The Court of Appeal in the case of Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR, while speaking to the doctrine of exhaustion held as follows -
...Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...
29. It is now well settled that where the Constitution or a Statute confers jurisdiction upon a Court, Tribunal, person or body or any authority, that jurisdiction must be exercised in accordance with the Constitution or Statute. The Court of Appeal in the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR, held that -
Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.
30. The defendants in their further affidavit averred that the doctrine of exhaustion of remedy under Section 14 of the Access to Information Act is not applicable in this case, and in so disputing emphasize that Article 35 of the Constitution is supreme and overrides the procedural requirements under statutory law.
31. This Court is however cognizant of the fact that pursuant to the provisions of the provisions of Section 9(1)(2),(3) and (4) of the Fair Administrative Action Act, 2015, which Act implements the provisions of Article 47 of the Constitution, an applicant is required to first exhaust all available internal dispute resolution mechanisms before approaching the Court. However, in exceptional cases, the Court may grant an exemption if the applicant formally applies for it. The Court of Appeal in the case of Ndiara Enterprises Ltd v Nairobi City County Government [2018] eKLR, in upholding the judgment of the High Court in Nairobi J.R Misc. Civil Application No. 91 of 2016) Ndiara Enterprises Limited v Nairobi City County Government held that -
Though the High Court can exempt a party from following such clear laid down procedures for redress of grievances before approaching it in the noble interests of justice, the learned Judge rightly found that the appellant had failed to prove there were exceptional circumstances in its case to warrant such exemption. Indeed, there are no apparent exceptional circumstances to justify such exception and which exception was also not sought. The High Court’s power to exercise its jurisdiction under Article 165 of the Constitution was therefore limited or restricted by statute in this instance as found by the Judge…
32. The respondents herein contended that in the circumstances of this case, this Court's role is appellate under Section 23 of the Access to Information Act and that the said role only arises after a party is dissatisfied with the Commission's decision. They argued that the instant application is premature since the defendants have not used the internal remedy under Section 14, despite the Commission having powers under Section 23(2) to grant the same orders that are being sought herein.
33. The powers of the Commission on Administrative Justice are provided for under section 23 of the Access to Information Act which provides as hereunder -
1) In the performance of its functions under this Act, the Commission shall have the power to –
a) issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;
b) question any person in respect of any subject matter under investigation before the Commission; and
c) require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission.
2) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order –
a) the release of any information withheld unlawfully;
b) a recommendation for the payment of compensation; or
c) any other lawful remedy or redress.
3) A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made…
34. It is not disputed that the defendants did not attempt to review the decision of the 1st respondent pursuant to the provisions of Section 14 of the Access to Information Act. On perusal of the provisions of Section 23 of the said Act, I hold that the Commission on Administrative Justice has the jurisdiction to grant the orders being sought herein. Furthermore, the defendants have neither alleged nor demonstrated any exceptional circumstances to warrant this Court to exempt them from the obligation to exhaust the remedy provided for under Section 14 of the Access to Information Act.
35. I concur with the Court’s position in Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another (supra), where the Court stated thus -
The Court of Appeal differently constituted in all the above cases made it clear that it was satisfied that the learned judges did not err by striking out the applicants’/appellants suits and applications which sought to invoke the original jurisdiction of the High Court in circumstances where the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellants the right to access the High Court by way of appeal, which mechanisms the appellants had refused to invoke. The Court of Appeal concluded that “to hold otherwise would, in the circumstances, be to defeat the constitutional objective behind Article 159(2) (c) and the very raison d’etre of the mechanisms provided under the two Acts.
Even where the appellant claimed that the High Court had failed to invoke its inherent jurisdiction or abdicated its jurisdiction, or that the failure to follow the prescribed dispute resolution mechanism was a mere technicality curable under Article 159 (2) (d) of the Constitution, the Court of Appeal held that where the constitutional principle under which the dispute resolution mechanisms provided by the relevant statutes like the Physical Planning Act and the Environment Management Coordination Act are underpinned, it cannot be claimed that lack of compliance with those mechanisms is a mere technicality.
36. In the end, it is my finding that the defendants still have an alternative dispute resolution mechanism available to them under Section 14 of the Access to Information Act which they are yet to utilize. At this juncture, this Court has no jurisdiction to hear and determine the instant application.
37. In view of the above finding, the other issues earlier on identified for determination are moot and do not warrant further consideration by this Court.
38. The upshot that that the instant application offends the doctrine of exhaustion for having been filed prematurely. It is hereby struck out with costs to the plaintiff and the respondents.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 30TH day of JULY
2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Ms Okina holding brief for Mr. Kemboy for the plaintiff/respondent
Mr. Ndungu Kuria holding brief for Dr. Kamau Kuria for the defendants/applicants
Mr. Motari for the Third Party/respondent
Ms B. Wokabi – Court Assistant.