REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
HCCOMM NO. 539 OF 2012
KENYA COMMERCIAL BANK LIMITED………………………..PLAINTIFF
-VERSUS-
TAMARIND MEADOWS LIMITED.…………..1ST DEFENDANT/APPLICANT
TAMARIND PROPERTIES LIMITED…...…….2ND DEFENDANT/APPLICANT
KENNEDY OTIENO AGWARO…………….....3RD DEFENDANT/APPLICANT
JOSEPH MUNGAI………………………………4TH DEFENDANT/APPLICANT
DAVID KITAWI NGODA………………………5TH DEFENDANT/APPLICANT
-AND-
THE HONOURABLE ATTORNEY
GENERAL…………………………………...THIRD PARTY/1ST RESPONDENT
CHIEF LAND REGISTRAR………………………………......2ND RESPONDENT
RULING
1. The defendants/applicants filed an Originating Notice of Motion dated 7th November, 2022 pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules and Articles 22, 23 & 35 of the Constitution of Kenya, 2010, seeking the following orders –
i) That this Honourable Court be pleased to order the said 1st and 2nd respondents to supply the defendants/applicants the documents (sic) described in the notice to state for supply of documents under Article 35 of the Constitution, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules dated 15th June, 2022;
ii) That the respondents do supply to the defendants/applicants a copy of the file/register in which a transfer to the 1st respondent/applicant was registered on 28th August, 2008;
iii) That the respondents do supply to the defendants/applicants a copy of the file/register in which was registered on 5th June, 2009 a charge in favour of Savings and Loan Ltd of Kshs. 170 Million;
iv) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the 2nd respondent to issue on 11th August, 2008 a consent to transfer L.R. No. 184/69 to the 1st applicant/respondent;
v) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the Commissioner of Lands on 30th April, 2009 to issue a consent to the 1st respondent to charge L.R. No. 184/69 to Savings and Loan Ltd;
vi) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the Commissioner of Lands on 2nd August, 2010 to issue a letter of consent to the 1st respondent to sell units 1-69 constructed on L.R. No. 184/69; and
vii) That the costs of this application be provided for.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn on 7th November, 2022, 20th January, 2023 and 19th June, 2023, by Robert Darby, a Director of the 1st and 2nd defendants.
3. In opposition thereto, the Third Party filed a replying affidavit sworn on 8th December, 2022 by Charles K. Ng’etich, a Land Registrar working with the Ministry of Lands.
4. The plaintiff filed a replying affidavit sworn on 19th May, 2023 by Lilian Sogo, the Head Counsel Litigation, Legal Services Division at the plaintiff bank.
5. The application was canvassed by way of written submissions. The defendants’ submissions were filed on 20th January, 2023 by the law firm of Kamau Kuria & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kemboy Law Advocates on 18th June, 2023. The Third Party neither filed written submissions nor made any oral submissions in opposition to the instant application.
6. In support of the defendants’ case, Dr. Kamau Kuria (SC), learned Counsel for the defendants cited the case of Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR, where the Court of Appeal held that the State is the custodian of land documents and guarantees the title. He also cited the case of Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company Limited & 2 others [2013] eKLR, where the Court interpreted the provisions of Article 35 of the Constitution of Kenya, 2010 and held that the Court had the power to order the State to supply the applicants therein with the documents they required to enforce their rights.
7. Dr. Kamau Kuria (SC) submitted that under both the Registration of Titles Act, 2012 and the Land Registration Act, 2016, the State is under a duty to supply the defendants with the documents sought herein so as to enable them enforce their rights to a fair and impartial hearing as provided for under Article 50 of the Constitution of Kenya, 2010. He referred to the provisions of Articles 22 & 23 of the Constitution of Kenya, 2010 and submitted that this Court has the requisite jurisdiction to grant the orders sought herein since the defendants are seeking to enforce their rights of access to information enshrined under Article 35 of the Constitution of Kenya, 2010. To this end, Senior Counsel referred to South Africa’s Article 32 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).
8. He cited the provisions of Section 4 of the Access to Information Act and the decisions in Koeleken Sandiko & 2 others v Attorney General & 2 others;Bikatu Ole Saoli & 67 others (Interested Parties) [2020] eKLR and Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) (Constitutional Petition E032 of 2019) [2022] KEHC 368 (KLR) (13 May 2022) (Judgment) which held that public bodies have a constitutional duty to give people access to information so that they can exercise their rights and that the mere request for information held by a public body obliges the Pubic Officer to produce it or to justify withholding it.
9. Counsel for the defendants relied on the case of Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR and stated that there are exceptions from the doctrine of exhaustion such as where there is clear abuse of discretion by such bodies, and where there is arbitrariness, malice and capriciousness. He stated that in this case, the Land Registrar admitted in Machakos ELC No. 226 of 2017, that there existed a file in respect of the 1st defendant’s property and a temporary file was also opened in respect of the same property. Counsel stated that this is a suitable case for the Court to exercise its discretion and grant the orders sought in this application.
10. Dr. Kamau Kuria (SC) further relied on the Court of Appeal case of Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2015] eKLR and the case of Livestock Research Organization v Okoko & another [2022] KEHC 3302, where the Court held that the absence of a resolution to institute a suit or authority to swear an affidavit is not fatal to a suit.
11. He asserted that where an affidavit is sworn by a person authorized by a company, unless the contrary is shown, which is not the case herein, there is no basis for a Court to dismiss a suit. It was submitted by Senior Counsel that despite the fact that the deponent of the defendants’ affidavits is not a Kenyan citizen, he is a shareholder and director of the 1st and 2nd defendants and he also swore the said affidavits on behalf of all the defendants who are Kenyan citizens, thus he is entitled to enforce the rights sought herein. To this end, Counsel relied on the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, where the Court held that a juristic person is a citizen for purposes of Article 35(1)(a) as read with Section 4 of the Access to Information Act and is entitled to seek and have information as a citizen. He submitted that the right of access to information is inviolable because it is neither granted nor grantable by the State but is granted and protected by the Constitution.
12. He cited the provisions of Section 22 of the Civil Procedure Act and the case of Oracle Productions Limited v Decapture Limited & others [2014] eKLR and contended that the purpose of discovery is to level the litigation field, expedite hearing, reduce costs and allow parties to gauge the case they will face at trial. He also cited the case of Rafiki Microfinance Bank Ltd v Zenith Pharmaceuticals [2016] eKLR, where the Court set out circumstances under which an order for discovery will not be made. Dr. Kamau (SC) contended that in order for the police and the land’s office to conclude that certain documents are forgeries, they would have to have had access to the said documents so as to make comparisons, and that those documents are the ones being sought by the defendants in the instant application.
13. In submitting that a notice to produce is aimed at enabling a party in possession of secondary evidence to rely on it as an exception to the general rule of Section 69 of the Evidence Act that documents must be proved by primary evidence, Senior Counsel relied on the case of Concord Insurance Company Limited (Under Statutory management) v NIC Bank [2020] eKLR. He stated that the defendants are in possession of secondary evidence and are seeking primary evidence which is under the power and possession of the respondents herein, who have neglected, failed and/or refused to provide the said information.
14. He stated that the Chief Land Registrar pursuant to the provisions of Section 7 of the Land Registration Act which establishes the Land Registry is the custodian of the documents sought by the defendants. Further, that the said Land Registrar is required under the provisions of Section 10 of the Land Registration Act to make information in the Register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe. In stating that the defendants are seeking the documents listed in the notice to produce served upon the 2nd respondent as they are relevant to explaining how the charge which is the subject matter of this suit came to exist and explain their challenges thereafter, Counsel referred to the holding by the Court in the case of Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others [2022] KEHC 42 (KLR).
15. Mr. Kemboy, learned Counsel for the plaintiff cited the provisions of Section 22 of the Civil Procedure Act, the Halsbury’s Laws of England, Vol.13, paragraphs 1 & 38, the case of Crown Paints (Kenya) Limited v Dry Associates Limited [2015] eKLR and submitted that the Court will not make any orders for documents which have no significance or relevance to the matter since the purpose for discovery is to level the litigation field and to facilitate the expedition of the trial process as it enables the parties to gauge the case they will be facing at the trial. He relied on the case of Oracle Productions Limited vs. Decapture Limited & Others [2014] eKLR and submitted that discovery should be limited solely to the matters in contention.
16. It was stated by Counsel that the instant application is misconceived as it fails to meet the threshold guiding the laid down considerations in dealing with such applications, being whether the documents sought are relevant and whether they are limited solely to the matters in contention. He further stated that the plaintiff’s claim in this suit is for breach of the loan facility agreement with respect to defaulted amounts on the facility together with interest accrued until payment in full, and that the said claim has nothing to do with the validity or ownership of the title the 1st defendant holds in LR. No. 18469, forgeries alleged over the charge instruments which are evidently the subject of criminal proceeding and/or the Land Registrar’s alleged refusal to register charges and sub-leases.
17. Further, Counsel submitted that a perusal of the plaint dated 23rd August, 2012 which is the sole document that directs the Court to the subject matter of the suit does not reveal any contention that would resonate with the documents sought to be produced. He also submitted that even if the defendants were to rely on their counter-claim dated 3rd September, 2019 to demonstrate that the documents sought are relevant to the matters in contention between the parties to this suit, the said counter-claim save for a mere repetition of the defence does not offer any headway to justify this Court to grant the orders sought by the defendants herein.
ANALYSIS AND DETERMINATION.
18. On consideration of the instant application, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit by the plaintiff and the Third Party, as well as the written submissions by Counsel for the defendants and the plaintiff, the issues that arise for determination are –
i) Whether failure to attach authority and/or a Board resolution authorizing the deponent of the defendants’ affidavit to swear affidavits on their behalf is fatal;
ii) Whether the deponent of the defendants’ affidavits and the 1st & 2nd defendants can enforce the right of Access to information enshrined under Article 35 of the Constitution of Kenya 2010;
iii) Whether the doctrine of exhaustion is applicable to this case; and
iv) If the instant application is merited.
19. The plaintiff in its supporting affidavit sworn by Robert Darby deposed that on 15th June, 2022 the defendants requested the 1st respondent to supply documents which were specified in a notice sent to him but despite the fact that the 1st respondent responded to the said notice, he did not annex the documents requested by the defendants.
20. Robert Darby averred that since the year 2008, the 1st defendant has received documents which facilitated its purchase of L.R No. 184/69, charging of the said parcel of land to obtain a loan of Kshs. 170,000,000/= to construct 69 houses on it and consent to sell the said houses. He further averred that the defendants need the documents sought for purposes of protecting their investment.
21. The plaintiff in its replying affidavit sworn by Lilian Sogo deposed that the instant application seeks an order compelling the Third Party to produce a panoply of documents relating to all that property known as IR No. 72481, Land Reference No. 18469. She averred that from the pleadings filed by the defendants and the Third Party herein, it is evident that there exists a distinct dispute as between the defendants and the Third Party in regard to the veracity of transactions that led to the purchase of all that parcel of land described as IR No. 72481, Land Reference No. 18469.
22. She further averred that at paragraph 5 of the defendants’ affidavit in support of the application herein, it can be deduced that the application herein is meant to protect the defendants’ investment, but this may only be construed within the parameters of the Environment and Land Court and not this Court whose mandate is to adjudicate commercial matters.
23. Mrs. Sogo stated that the application herein though couched under the prism of a constitutional demand under the provisions of Article 35 of the Constitution of Kenya, 2010 on the right to information, is nothing more than an application for discovery and production of documents. She further stated that should the application herein be entertained by this Court, its net effect would be to distort and to substantially alter the plaintiff’s case in its entirety. The plaintiff contended that the suit herein is commercial in nature wherein it seeks to recover Kshs. 199,037,649.00 together with interest and costs being the sum outstanding on the mortgage facility granted by it to the defendants.
24. The plaintiff contended that there exists no dispute as to Title of the property and any grievance the defendants may have against the Attorney General ought to be ventilated by way of a separate suit in the appropriate Court. The plaintiff deposed that the defendants’ request in the instant application is not only entirely misplaced but also takes the suit eight (8) years back to the decision of Hon. Lady Justice Maureen Odera dated 17th December, 2015, when a similar attempt was made by the defendants to distort the true substratum of the suit herein.
25. It was further deposed that from the foregoing, it is evident that the application herein is intended as a medium to resurrect the now concluded suit in Machakos ELC Case No. 226 of 2017- Wibeso Investment Limited and Novicome Limited v Tamarind Meadows & 5 others, in which the Environment and Land Court made a damning determination against the defendants as to the ownership of all that property known as IR No. 72481, L.R No. 18469 which decision the defendants have since elected to appeal against.
26. The Third Party in its replying affidavit sworn by Charles K. Ngetich deposed that the instant application is an abuse of the Court process since the defendants have not complied with the doctrine of exhaustion provided for under Section 14 of the Access to Information Act. He contended that if the defendants were not satisfied with the Third Party’s response dated 13th July, 2022, they had the right to seek for a review of the same before the Commission on Administrative Justice as provided for under the said provisions of the law.
27. Mr. Ng’etich averred that where an alternative special procedure including reliefs have been provided for in law, the same ought to be strictly adhered to. He further averred that before a request for information is granted, the party requesting the information must demonstrate that the State entity has the said information in its possession, but in this case, the Chief Land Registrar affirmed that his office was not the author or maker of the documents sought by the defendants.
28. It was stated by the Third Party that the defendants in their affidavit in support of the application herein have admitted to the fact that they are already in possession of the documents they seek the Third Party to be compelled to produce and/or supply them with. The Third Party further stated that the rights provided for under Article 35 of the Constitution of Kenya, 2010 are substantive rights that must be proved not in interlocutory proceedings but in a substantive hearing on the merits, thus the defendants cannot purport to enforce substantive rights in an interlocutory application.
29. The Third Party averred that Article 35 of the Constitution of Kenya, 2010 is clear that the right to access to information is a right limited to citizens only, and that the 1st and 2nd defendants being corporate entities are not citizens hence they have no right or ability to apply for access to information pursuant to the said provisions.
30. The Third Party contended that there is no authority annexed or signed by the other defendants in support of the allegations contained in paragraph 2 of the defendants’ affidavit in support of the application herein, thus the averments contained therein remain bare allegations. In addition, it was averred that there is no evidence to show that Robert Darby is a citizen of Kenya capable of enforcing the right of access to information.
31. It was deposed that the defendants have been informed severally that the purported grant they claim to hold, that is, I.R. 71611 for L.R No. 184/69 does not exist, was not registered by the Chief Land Registrar, is not a new grant but a Certificate of Title arising from the sub-division of L.R No. 209/11521 on 16th December, 1996 under correspondence file No. CF 185854. Further, that the I.R Register confirms that L.R No. 184/69 was granted to I.R No. 72481 which was under correspondence file No. 141301 opened in respect of Wibeso Investments Limited and the defendants have been provided with the certified I.R Register for L.R No. 184/69 and for I.R No. 71611. The Third Party contended that from the foregoing information, the instant application has no merit.
32. Mr. Ng’etich averred that the Chief Land Registrar does not make or keep any documents in violation of land laws, especially the Registration of Titles Act. He further averred that it is a violation of the Third Party’s rights to seek production of documents that are not within his realm when the defendants know that indeed the documents sought in the instant application are not and have never been, as they were neither issued nor served by the office of the Chief Land Registrar, and they are also forgeries.
33. The defendants in their further affidavits sworn by Robert Darby deposed that the provisions of Section 14 of the Access to Information Act do not apply in this case. He averred that looking at the evidence of Mr. Edwin Wafula, a Land Registrar taken by the Court in Machakos ELC No. 226 of 2017, it is clear that there is a file for the alleged contested Title L.R.No. 186/49, I.R No. 71611/1, and a temporary file was opened in respect of the 1st defendant’s property, upon which transactions such as the charge, transfers and some of the long term leases were registered against. The defendants asserted that the documents sought by the defendants in the instant application would be in those files which are held by the land’s office.
34. Robert Darby stated that whilst he is a British subject, he is a Director and shareholder in the 1st & 2nd defendant companies, and that the 3rd, 4th & 5th defendants are Kenyan citizens and he has authority of the defendants to swear the affidavits before this Court.
35. It was stated by the defendants that they are not compelling the Third Party and the Chief Land Registrar to adduce evidence but merely to provide the documents which are within the latter’s custody or ought to have been within his custody. The defendants contended that the Third Party has annexed a copy of the Title Deed to all that property known as L.R. No. 184/69, thus it is clear that the defendants were not required to annex the said Title since the Third Party already has a copy of the same.
36. The defendants averred that the documents sought by them are necessary for the determination of the dispute before this Court, for the reason that the said documents will demonstrate that at the time of entering into the charge, the Third Party had confirmed that the 1st defendant was the owner of the charged property and it is on that basis that the charge was issued.
37. They further deposed that it is as a result of the change in the position of ownership of the suit property by the Third Party that the plaintiff filed this suit against the defendants who were unable to complete the housing project since they were building the properties on the basis of the loan.
38. Mr. Darby averred that failure of the aforementioned housing project led the defendants to be unable to pay the loan amount thus leading to the institution of the main suit herein. He further averred that questions of ownership of the suit property is subject to an appeal at the Court of Appeal at Nairobi, in Civil Appeal No. E356 of 2020 Tamarind Meadows Limited v Wibesco Investments Ltd & others, and they are not issues before this Court.
39. It was stated by the defendants that the Third Party and the Chief Land Registrar have admitted that there was a temporary file that existed where transactions which included the charge which forms the subject matter of this suit is contained.
40. The defendants contended that neither the defendants nor the respondents have demonstrated any prejudice which will be suffered in supplying the defendants with the documents sought in the application herein.
Whether failure to attach authority and/or a Board resolution authorizing the deponent of the defendants’ affidavit to swear affidavits on their behalf is fatal.
41. The affidavit sworn on 7th November, 2022 in support of the defendants’ application herein, was sworn by Robert Darby in his capacity as a Director and shareholder of the 1st and 2nd defendant companies and on behalf of the 3rd, 4th & 5th defendants as is evident from paragraph 2 of the said affidavit. He did not however annex to the said affidavit a copy of a Board Resolution from the 1st and 2nd defendant companies and a copy of the authority issued to him by the 3rd, 4th & 5th defendants to swear the said affidavit on their behalf.
42. Order 1 Rule 13 of the Civil Procedure Rules, 2010 states as follows-
“(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case. (emphasis added).
43. It is evident that the 3rd, 4th & 5th defendants did not execute and/or sign any authority allowing Robert Darby to swear the affidavits in support of the application herein and/or otherwise act on their behalf. It is my finding that failure to execute and/or sign any such authority as required under the provisions of Order 1 Rule 13(2) of the Civil Procedure Rules, 2010, renders the affidavits filed in support of the application herein fatally incompetent in respect to the 3rd, 4th & 5th defendants, as the said legal provisions are couched in mandatory terms. In the absence of such authority or a supporting affidavit sworn by the 3rd, 4th & 5th defendants, the instant application in respect to them is a nullity hence no orders can be granted in their favour.
44. As to whether failure by the 1st and 2nd defendants to file a Board resolution authorizing Robert Darby to swear affidavits on their behalf is fatal, the same is not. A simialr issue was addressed in the case of Makupa Transit Shade Limited & another v Kenya Ports Authority & another (supra), where the Court of Appeal held that-
“In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorized by it. It was therefore sufficient for the deponents to state that “they were duly authorized.” It was then up to the appellants to demonstrate by evidence that they were not so authorized”.
45. Similarly, the Court of Appeal in the case of Spire Bank Limited v Land Registrar & 2 others [2019] eKLR, made the following observation with respect to a similar issue. It stated that -
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.” (emphasis added).
46. Being bound by decisions emanating from the Court of Appeal, this Court finds that the absence of a Board resolution and/or authority to swear an affidavit from the 1st and 2nd defendants herein is not fatal because Robert Darby, the deponent of the 1st & 2nd defendants’ affidavits averred that being a Director and shareholder of the said companies, he had their authority to swear the said affidavits. In view of the foregoing and unless the contrary is proved by the plaintiff and/or the Third Party herein, which has not been done, this Court finds that the 1st and 2nd defendants’ affidavits in support of the instant application are properly on record hence that is not a ground to dismiss the application herein.
Whether the deponent of the defendants’ affidavits and the 1st & 2nd defendants can enforce the right to access to information enshrined under Article 35 of the Constitution of Kenya, 2010.
47. As explained hereinabove, Robert Darby, the deponent of the defendants’ affidavits swore the said affidavit in his capacity as a Director and shareholder of the 1st & 2nd defendant companies. This means that the 1st & 2nd defendants are the ones attempting to enforce the right of access to information enshrined under Article 35 of the Constitution of Kenya, 2010 as read with Section 4 of the Access to Information Act and not Robert Darby in his individual capacity. The issue that this Court now has to determine is whether the 1st & 2nd defendant companies being juristic persons can enforce the said right. The right of Access to Information is provided for under Section 4 of the Access to Information Act as read with Article 35(1) of the Constitution of Kenya, 2010, which provides as hereunder –
Section 4 of the Access to information Act- Right to information
“(1) Subject to this Act and any other written law, every citizen has the right of access to information held by -
a) the State; and
b) another person and where that information is required for the exercise or protection of any right or fundamental freedom”. (emphasis added).
Article 35 of the Constitution of Kenya, 2010- Access to information
“(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”. (emphasis added).
48. From the above provisions, it is evident that in the Kenyan context, the right of access to information is only available to Kenyan citizens. Section 2 of the Access to Information Act defines a citizen as any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens. This means that a company whose controlling shareholders are Kenyan citizens is considered a citizen, for purposes of enforcing the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010.
49. In this case, Robert Darby stated that he is a Director and shareholder of the 1st & 2nd defendant companies. He also stated that he is a British Citizen. In regard to the citizenship of the other shareholders of the 1st and 2nd defendants, it is impossible to determine if they are Kenyan citizens since copies of CR-12 in respect of each of two companies were not annexed to any of the affidavits sworn by Robert Darby. In addition, the defendants did not tender any evidence to demonstrate that the 1st & 2nd defendants are controlled by one or more Kenyan citizens to warrant enforcing the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010.
50. In view of the above, this Court finds that the 1st and 2nd defendants are not proper citizens for purposes of Section 4 of the Access to Information Act as read with Article 35(1) of the Constitution of Kenya, 2010, hence they are not entitled to seek and be granted the information they seek.
51. The instant application has been filed pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules and Articles 22, 23 & 35 of the Constitution of Kenya, 2010 and not Section 22 of the Civil Procedure Act, Cap 21 Laws of Kenya and Section 69 of the Evidence Act, Cap 80 Laws of Kenya as contended by the defendants in their further affidavit sworn on 20th January, 2023 and their written submissions. Further, a perusal of the notice to the State for supply of the documents dated 4th March, 2022 issued to the Third Party also reveals that the notice which led to the filing of the instant application was also issued under the provisions of Article 35 of the Constitution of Kenya, 2010, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules, 2010.
52. Having found that the 1st and 2nd defendants have not adduced sufficient evidence to prove that they have the requisite locus standi to enforce the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010, and also having found that no orders from the instant application can be granted in favour of the 3rd, 4th & 5th defendants, this Court finds that as a whole, the orders being sought in the instant application are incapable of being granted.
53. In the premise, the application dated 7th November, 2022 is hereby struck out with costs to the plaintiff and the Third Party.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 15th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Dr. Kamau Kuria for the defendants/applicants
Mrs. Okina h/b for Mr. Kemboy for the plaintiff
No appearance for the Third Party
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
HCCOMM NO. 539 OF 2012
KENYA COMMERCIAL BANK LIMITED………………………..PLAINTIFF
-VERSUS-
TAMARIND MEADOWS LIMITED.…………..1ST DEFENDANT/APPLICANT
TAMARIND PROPERTIES LIMITED…...…….2ND DEFENDANT/APPLICANT
KENNEDY OTIENO AGWARO…………….....3RD DEFENDANT/APPLICANT
JOSEPH MUNGAI………………………………4TH DEFENDANT/APPLICANT
DAVID KITAWI NGODA………………………5TH DEFENDANT/APPLICANT
-AND-
THE HONOURABLE ATTORNEY
GENERAL…………………………………...THIRD PARTY/1ST RESPONDENT
CHIEF LAND REGISTRAR………………………………......2ND RESPONDENT
RULING
1. The defendants/applicants filed an Originating Notice of Motion dated 7th November, 2022 pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules and Articles 22, 23 & 35 of the Constitution of Kenya, 2010, seeking the following orders –
i) That this Honourable Court be pleased to order the said 1st and 2nd respondents to supply the defendants/applicants the documents (sic) described in the notice to state for supply of documents under Article 35 of the Constitution, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules dated 15th June, 2022;
ii) That the respondents do supply to the defendants/applicants a copy of the file/register in which a transfer to the 1st respondent/applicant was registered on 28th August, 2008;
iii) That the respondents do supply to the defendants/applicants a copy of the file/register in which was registered on 5th June, 2009 a charge in favour of Savings and Loan Ltd of Kshs. 170 Million;
iv) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the 2nd respondent to issue on 11th August, 2008 a consent to transfer L.R. No. 184/69 to the 1st applicant/respondent;
v) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the Commissioner of Lands on 30th April, 2009 to issue a consent to the 1st respondent to charge L.R. No. 184/69 to Savings and Loan Ltd;
vi) That the respondents do supply to the defendants/applicants a copy of the file/register which was used by the Commissioner of Lands on 2nd August, 2010 to issue a letter of consent to the 1st respondent to sell units 1-69 constructed on L.R. No. 184/69; and
vii) That the costs of this application be provided for.
2. The application is premised on the grounds on the face of the Motion and is supported by affidavits sworn on 7th November, 2022, 20th January, 2023 and 19th June, 2023, by Robert Darby, a Director of the 1st and 2nd defendants.
3. In opposition thereto, the Third Party filed a replying affidavit sworn on 8th December, 2022 by Charles K. Ng’etich, a Land Registrar working with the Ministry of Lands.
4. The plaintiff filed a replying affidavit sworn on 19th May, 2023 by Lilian Sogo, the Head Counsel Litigation, Legal Services Division at the plaintiff bank.
5. The application was canvassed by way of written submissions. The defendants’ submissions were filed on 20th January, 2023 by the law firm of Kamau Kuria & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kemboy Law Advocates on 18th June, 2023. The Third Party neither filed written submissions nor made any oral submissions in opposition to the instant application.
6. In support of the defendants’ case, Dr. Kamau Kuria (SC), learned Counsel for the defendants cited the case of Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR, where the Court of Appeal held that the State is the custodian of land documents and guarantees the title. He also cited the case of Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company Limited & 2 others [2013] eKLR, where the Court interpreted the provisions of Article 35 of the Constitution of Kenya, 2010 and held that the Court had the power to order the State to supply the applicants therein with the documents they required to enforce their rights.
7. Dr. Kamau Kuria (SC) submitted that under both the Registration of Titles Act, 2012 and the Land Registration Act, 2016, the State is under a duty to supply the defendants with the documents sought herein so as to enable them enforce their rights to a fair and impartial hearing as provided for under Article 50 of the Constitution of Kenya, 2010. He referred to the provisions of Articles 22 & 23 of the Constitution of Kenya, 2010 and submitted that this Court has the requisite jurisdiction to grant the orders sought herein since the defendants are seeking to enforce their rights of access to information enshrined under Article 35 of the Constitution of Kenya, 2010. To this end, Senior Counsel referred to South Africa’s Article 32 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).
8. He cited the provisions of Section 4 of the Access to Information Act and the decisions in Koeleken Sandiko & 2 others v Attorney General & 2 others;Bikatu Ole Saoli & 67 others (Interested Parties) [2020] eKLR and Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) (Constitutional Petition E032 of 2019) [2022] KEHC 368 (KLR) (13 May 2022) (Judgment) which held that public bodies have a constitutional duty to give people access to information so that they can exercise their rights and that the mere request for information held by a public body obliges the Pubic Officer to produce it or to justify withholding it.
9. Counsel for the defendants relied on the case of Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR and stated that there are exceptions from the doctrine of exhaustion such as where there is clear abuse of discretion by such bodies, and where there is arbitrariness, malice and capriciousness. He stated that in this case, the Land Registrar admitted in Machakos ELC No. 226 of 2017, that there existed a file in respect of the 1st defendant’s property and a temporary file was also opened in respect of the same property. Counsel stated that this is a suitable case for the Court to exercise its discretion and grant the orders sought in this application.
10. Dr. Kamau Kuria (SC) further relied on the Court of Appeal case of Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2015] eKLR and the case of Livestock Research Organization v Okoko & another [2022] KEHC 3302, where the Court held that the absence of a resolution to institute a suit or authority to swear an affidavit is not fatal to a suit.
11. He asserted that where an affidavit is sworn by a person authorized by a company, unless the contrary is shown, which is not the case herein, there is no basis for a Court to dismiss a suit. It was submitted by Senior Counsel that despite the fact that the deponent of the defendants’ affidavits is not a Kenyan citizen, he is a shareholder and director of the 1st and 2nd defendants and he also swore the said affidavits on behalf of all the defendants who are Kenyan citizens, thus he is entitled to enforce the rights sought herein. To this end, Counsel relied on the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, where the Court held that a juristic person is a citizen for purposes of Article 35(1)(a) as read with Section 4 of the Access to Information Act and is entitled to seek and have information as a citizen. He submitted that the right of access to information is inviolable because it is neither granted nor grantable by the State but is granted and protected by the Constitution.
12. He cited the provisions of Section 22 of the Civil Procedure Act and the case of Oracle Productions Limited v Decapture Limited & others [2014] eKLR and contended that the purpose of discovery is to level the litigation field, expedite hearing, reduce costs and allow parties to gauge the case they will face at trial. He also cited the case of Rafiki Microfinance Bank Ltd v Zenith Pharmaceuticals [2016] eKLR, where the Court set out circumstances under which an order for discovery will not be made. Dr. Kamau (SC) contended that in order for the police and the land’s office to conclude that certain documents are forgeries, they would have to have had access to the said documents so as to make comparisons, and that those documents are the ones being sought by the defendants in the instant application.
13. In submitting that a notice to produce is aimed at enabling a party in possession of secondary evidence to rely on it as an exception to the general rule of Section 69 of the Evidence Act that documents must be proved by primary evidence, Senior Counsel relied on the case of Concord Insurance Company Limited (Under Statutory management) v NIC Bank [2020] eKLR. He stated that the defendants are in possession of secondary evidence and are seeking primary evidence which is under the power and possession of the respondents herein, who have neglected, failed and/or refused to provide the said information.
14. He stated that the Chief Land Registrar pursuant to the provisions of Section 7 of the Land Registration Act which establishes the Land Registry is the custodian of the documents sought by the defendants. Further, that the said Land Registrar is required under the provisions of Section 10 of the Land Registration Act to make information in the Register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe. In stating that the defendants are seeking the documents listed in the notice to produce served upon the 2nd respondent as they are relevant to explaining how the charge which is the subject matter of this suit came to exist and explain their challenges thereafter, Counsel referred to the holding by the Court in the case of Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others [2022] KEHC 42 (KLR).
15. Mr. Kemboy, learned Counsel for the plaintiff cited the provisions of Section 22 of the Civil Procedure Act, the Halsbury’s Laws of England, Vol.13, paragraphs 1 & 38, the case of Crown Paints (Kenya) Limited v Dry Associates Limited [2015] eKLR and submitted that the Court will not make any orders for documents which have no significance or relevance to the matter since the purpose for discovery is to level the litigation field and to facilitate the expedition of the trial process as it enables the parties to gauge the case they will be facing at the trial. He relied on the case of Oracle Productions Limited vs. Decapture Limited & Others [2014] eKLR and submitted that discovery should be limited solely to the matters in contention.
16. It was stated by Counsel that the instant application is misconceived as it fails to meet the threshold guiding the laid down considerations in dealing with such applications, being whether the documents sought are relevant and whether they are limited solely to the matters in contention. He further stated that the plaintiff’s claim in this suit is for breach of the loan facility agreement with respect to defaulted amounts on the facility together with interest accrued until payment in full, and that the said claim has nothing to do with the validity or ownership of the title the 1st defendant holds in LR. No. 18469, forgeries alleged over the charge instruments which are evidently the subject of criminal proceeding and/or the Land Registrar’s alleged refusal to register charges and sub-leases.
17. Further, Counsel submitted that a perusal of the plaint dated 23rd August, 2012 which is the sole document that directs the Court to the subject matter of the suit does not reveal any contention that would resonate with the documents sought to be produced. He also submitted that even if the defendants were to rely on their counter-claim dated 3rd September, 2019 to demonstrate that the documents sought are relevant to the matters in contention between the parties to this suit, the said counter-claim save for a mere repetition of the defence does not offer any headway to justify this Court to grant the orders sought by the defendants herein.
ANALYSIS AND DETERMINATION.
18. On consideration of the instant application, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit by the plaintiff and the Third Party, as well as the written submissions by Counsel for the defendants and the plaintiff, the issues that arise for determination are –
i) Whether failure to attach authority and/or a Board resolution authorizing the deponent of the defendants’ affidavit to swear affidavits on their behalf is fatal;
ii) Whether the deponent of the defendants’ affidavits and the 1st & 2nd defendants can enforce the right of Access to information enshrined under Article 35 of the Constitution of Kenya 2010;
iii) Whether the doctrine of exhaustion is applicable to this case; and
iv) If the instant application is merited.
19. The plaintiff in its supporting affidavit sworn by Robert Darby deposed that on 15th June, 2022 the defendants requested the 1st respondent to supply documents which were specified in a notice sent to him but despite the fact that the 1st respondent responded to the said notice, he did not annex the documents requested by the defendants.
20. Robert Darby averred that since the year 2008, the 1st defendant has received documents which facilitated its purchase of L.R No. 184/69, charging of the said parcel of land to obtain a loan of Kshs. 170,000,000/= to construct 69 houses on it and consent to sell the said houses. He further averred that the defendants need the documents sought for purposes of protecting their investment.
21. The plaintiff in its replying affidavit sworn by Lilian Sogo deposed that the instant application seeks an order compelling the Third Party to produce a panoply of documents relating to all that property known as IR No. 72481, Land Reference No. 18469. She averred that from the pleadings filed by the defendants and the Third Party herein, it is evident that there exists a distinct dispute as between the defendants and the Third Party in regard to the veracity of transactions that led to the purchase of all that parcel of land described as IR No. 72481, Land Reference No. 18469.
22. She further averred that at paragraph 5 of the defendants’ affidavit in support of the application herein, it can be deduced that the application herein is meant to protect the defendants’ investment, but this may only be construed within the parameters of the Environment and Land Court and not this Court whose mandate is to adjudicate commercial matters.
23. Mrs. Sogo stated that the application herein though couched under the prism of a constitutional demand under the provisions of Article 35 of the Constitution of Kenya, 2010 on the right to information, is nothing more than an application for discovery and production of documents. She further stated that should the application herein be entertained by this Court, its net effect would be to distort and to substantially alter the plaintiff’s case in its entirety. The plaintiff contended that the suit herein is commercial in nature wherein it seeks to recover Kshs. 199,037,649.00 together with interest and costs being the sum outstanding on the mortgage facility granted by it to the defendants.
24. The plaintiff contended that there exists no dispute as to Title of the property and any grievance the defendants may have against the Attorney General ought to be ventilated by way of a separate suit in the appropriate Court. The plaintiff deposed that the defendants’ request in the instant application is not only entirely misplaced but also takes the suit eight (8) years back to the decision of Hon. Lady Justice Maureen Odera dated 17th December, 2015, when a similar attempt was made by the defendants to distort the true substratum of the suit herein.
25. It was further deposed that from the foregoing, it is evident that the application herein is intended as a medium to resurrect the now concluded suit in Machakos ELC Case No. 226 of 2017- Wibeso Investment Limited and Novicome Limited v Tamarind Meadows & 5 others, in which the Environment and Land Court made a damning determination against the defendants as to the ownership of all that property known as IR No. 72481, L.R No. 18469 which decision the defendants have since elected to appeal against.
26. The Third Party in its replying affidavit sworn by Charles K. Ngetich deposed that the instant application is an abuse of the Court process since the defendants have not complied with the doctrine of exhaustion provided for under Section 14 of the Access to Information Act. He contended that if the defendants were not satisfied with the Third Party’s response dated 13th July, 2022, they had the right to seek for a review of the same before the Commission on Administrative Justice as provided for under the said provisions of the law.
27. Mr. Ng’etich averred that where an alternative special procedure including reliefs have been provided for in law, the same ought to be strictly adhered to. He further averred that before a request for information is granted, the party requesting the information must demonstrate that the State entity has the said information in its possession, but in this case, the Chief Land Registrar affirmed that his office was not the author or maker of the documents sought by the defendants.
28. It was stated by the Third Party that the defendants in their affidavit in support of the application herein have admitted to the fact that they are already in possession of the documents they seek the Third Party to be compelled to produce and/or supply them with. The Third Party further stated that the rights provided for under Article 35 of the Constitution of Kenya, 2010 are substantive rights that must be proved not in interlocutory proceedings but in a substantive hearing on the merits, thus the defendants cannot purport to enforce substantive rights in an interlocutory application.
29. The Third Party averred that Article 35 of the Constitution of Kenya, 2010 is clear that the right to access to information is a right limited to citizens only, and that the 1st and 2nd defendants being corporate entities are not citizens hence they have no right or ability to apply for access to information pursuant to the said provisions.
30. The Third Party contended that there is no authority annexed or signed by the other defendants in support of the allegations contained in paragraph 2 of the defendants’ affidavit in support of the application herein, thus the averments contained therein remain bare allegations. In addition, it was averred that there is no evidence to show that Robert Darby is a citizen of Kenya capable of enforcing the right of access to information.
31. It was deposed that the defendants have been informed severally that the purported grant they claim to hold, that is, I.R. 71611 for L.R No. 184/69 does not exist, was not registered by the Chief Land Registrar, is not a new grant but a Certificate of Title arising from the sub-division of L.R No. 209/11521 on 16th December, 1996 under correspondence file No. CF 185854. Further, that the I.R Register confirms that L.R No. 184/69 was granted to I.R No. 72481 which was under correspondence file No. 141301 opened in respect of Wibeso Investments Limited and the defendants have been provided with the certified I.R Register for L.R No. 184/69 and for I.R No. 71611. The Third Party contended that from the foregoing information, the instant application has no merit.
32. Mr. Ng’etich averred that the Chief Land Registrar does not make or keep any documents in violation of land laws, especially the Registration of Titles Act. He further averred that it is a violation of the Third Party’s rights to seek production of documents that are not within his realm when the defendants know that indeed the documents sought in the instant application are not and have never been, as they were neither issued nor served by the office of the Chief Land Registrar, and they are also forgeries.
33. The defendants in their further affidavits sworn by Robert Darby deposed that the provisions of Section 14 of the Access to Information Act do not apply in this case. He averred that looking at the evidence of Mr. Edwin Wafula, a Land Registrar taken by the Court in Machakos ELC No. 226 of 2017, it is clear that there is a file for the alleged contested Title L.R.No. 186/49, I.R No. 71611/1, and a temporary file was opened in respect of the 1st defendant’s property, upon which transactions such as the charge, transfers and some of the long term leases were registered against. The defendants asserted that the documents sought by the defendants in the instant application would be in those files which are held by the land’s office.
34. Robert Darby stated that whilst he is a British subject, he is a Director and shareholder in the 1st & 2nd defendant companies, and that the 3rd, 4th & 5th defendants are Kenyan citizens and he has authority of the defendants to swear the affidavits before this Court.
35. It was stated by the defendants that they are not compelling the Third Party and the Chief Land Registrar to adduce evidence but merely to provide the documents which are within the latter’s custody or ought to have been within his custody. The defendants contended that the Third Party has annexed a copy of the Title Deed to all that property known as L.R. No. 184/69, thus it is clear that the defendants were not required to annex the said Title since the Third Party already has a copy of the same.
36. The defendants averred that the documents sought by them are necessary for the determination of the dispute before this Court, for the reason that the said documents will demonstrate that at the time of entering into the charge, the Third Party had confirmed that the 1st defendant was the owner of the charged property and it is on that basis that the charge was issued.
37. They further deposed that it is as a result of the change in the position of ownership of the suit property by the Third Party that the plaintiff filed this suit against the defendants who were unable to complete the housing project since they were building the properties on the basis of the loan.
38. Mr. Darby averred that failure of the aforementioned housing project led the defendants to be unable to pay the loan amount thus leading to the institution of the main suit herein. He further averred that questions of ownership of the suit property is subject to an appeal at the Court of Appeal at Nairobi, in Civil Appeal No. E356 of 2020 Tamarind Meadows Limited v Wibesco Investments Ltd & others, and they are not issues before this Court.
39. It was stated by the defendants that the Third Party and the Chief Land Registrar have admitted that there was a temporary file that existed where transactions which included the charge which forms the subject matter of this suit is contained.
40. The defendants contended that neither the defendants nor the respondents have demonstrated any prejudice which will be suffered in supplying the defendants with the documents sought in the application herein.
Whether failure to attach authority and/or a Board resolution authorizing the deponent of the defendants’ affidavit to swear affidavits on their behalf is fatal.
41. The affidavit sworn on 7th November, 2022 in support of the defendants’ application herein, was sworn by Robert Darby in his capacity as a Director and shareholder of the 1st and 2nd defendant companies and on behalf of the 3rd, 4th & 5th defendants as is evident from paragraph 2 of the said affidavit. He did not however annex to the said affidavit a copy of a Board Resolution from the 1st and 2nd defendant companies and a copy of the authority issued to him by the 3rd, 4th & 5th defendants to swear the said affidavit on their behalf.
42. Order 1 Rule 13 of the Civil Procedure Rules, 2010 states as follows-
“(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case. (emphasis added).
43. It is evident that the 3rd, 4th & 5th defendants did not execute and/or sign any authority allowing Robert Darby to swear the affidavits in support of the application herein and/or otherwise act on their behalf. It is my finding that failure to execute and/or sign any such authority as required under the provisions of Order 1 Rule 13(2) of the Civil Procedure Rules, 2010, renders the affidavits filed in support of the application herein fatally incompetent in respect to the 3rd, 4th & 5th defendants, as the said legal provisions are couched in mandatory terms. In the absence of such authority or a supporting affidavit sworn by the 3rd, 4th & 5th defendants, the instant application in respect to them is a nullity hence no orders can be granted in their favour.
44. As to whether failure by the 1st and 2nd defendants to file a Board resolution authorizing Robert Darby to swear affidavits on their behalf is fatal, the same is not. A simialr issue was addressed in the case of Makupa Transit Shade Limited & another v Kenya Ports Authority & another (supra), where the Court of Appeal held that-
“In our view, the Authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorized by it. It was therefore sufficient for the deponents to state that “they were duly authorized.” It was then up to the appellants to demonstrate by evidence that they were not so authorized”.
45. Similarly, the Court of Appeal in the case of Spire Bank Limited v Land Registrar & 2 others [2019] eKLR, made the following observation with respect to a similar issue. It stated that -
“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.” (emphasis added).
46. Being bound by decisions emanating from the Court of Appeal, this Court finds that the absence of a Board resolution and/or authority to swear an affidavit from the 1st and 2nd defendants herein is not fatal because Robert Darby, the deponent of the 1st & 2nd defendants’ affidavits averred that being a Director and shareholder of the said companies, he had their authority to swear the said affidavits. In view of the foregoing and unless the contrary is proved by the plaintiff and/or the Third Party herein, which has not been done, this Court finds that the 1st and 2nd defendants’ affidavits in support of the instant application are properly on record hence that is not a ground to dismiss the application herein.
Whether the deponent of the defendants’ affidavits and the 1st & 2nd defendants can enforce the right to access to information enshrined under Article 35 of the Constitution of Kenya, 2010.
47. As explained hereinabove, Robert Darby, the deponent of the defendants’ affidavits swore the said affidavit in his capacity as a Director and shareholder of the 1st & 2nd defendant companies. This means that the 1st & 2nd defendants are the ones attempting to enforce the right of access to information enshrined under Article 35 of the Constitution of Kenya, 2010 as read with Section 4 of the Access to Information Act and not Robert Darby in his individual capacity. The issue that this Court now has to determine is whether the 1st & 2nd defendant companies being juristic persons can enforce the said right. The right of Access to Information is provided for under Section 4 of the Access to Information Act as read with Article 35(1) of the Constitution of Kenya, 2010, which provides as hereunder –
Section 4 of the Access to information Act- Right to information
“(1) Subject to this Act and any other written law, every citizen has the right of access to information held by -
a) the State; and
b) another person and where that information is required for the exercise or protection of any right or fundamental freedom”. (emphasis added).
Article 35 of the Constitution of Kenya, 2010- Access to information
“(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”. (emphasis added).
48. From the above provisions, it is evident that in the Kenyan context, the right of access to information is only available to Kenyan citizens. Section 2 of the Access to Information Act defines a citizen as any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens. This means that a company whose controlling shareholders are Kenyan citizens is considered a citizen, for purposes of enforcing the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010.
49. In this case, Robert Darby stated that he is a Director and shareholder of the 1st & 2nd defendant companies. He also stated that he is a British Citizen. In regard to the citizenship of the other shareholders of the 1st and 2nd defendants, it is impossible to determine if they are Kenyan citizens since copies of CR-12 in respect of each of two companies were not annexed to any of the affidavits sworn by Robert Darby. In addition, the defendants did not tender any evidence to demonstrate that the 1st & 2nd defendants are controlled by one or more Kenyan citizens to warrant enforcing the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010.
50. In view of the above, this Court finds that the 1st and 2nd defendants are not proper citizens for purposes of Section 4 of the Access to Information Act as read with Article 35(1) of the Constitution of Kenya, 2010, hence they are not entitled to seek and be granted the information they seek.
51. The instant application has been filed pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 51 Rules l, 2 & 3 of the Civil Procedure Rules and Articles 22, 23 & 35 of the Constitution of Kenya, 2010 and not Section 22 of the Civil Procedure Act, Cap 21 Laws of Kenya and Section 69 of the Evidence Act, Cap 80 Laws of Kenya as contended by the defendants in their further affidavit sworn on 20th January, 2023 and their written submissions. Further, a perusal of the notice to the State for supply of the documents dated 4th March, 2022 issued to the Third Party also reveals that the notice which led to the filing of the instant application was also issued under the provisions of Article 35 of the Constitution of Kenya, 2010, Section 4 of the Access to Information Act and Order 11 of the Civil Procedure Rules, 2010.
52. Having found that the 1st and 2nd defendants have not adduced sufficient evidence to prove that they have the requisite locus standi to enforce the right of access to information under Section 4 of the Access to Information Act, as read with Article 35(1) of the Constitution of Kenya, 2010, and also having found that no orders from the instant application can be granted in favour of the 3rd, 4th & 5th defendants, this Court finds that as a whole, the orders being sought in the instant application are incapable of being granted.
53. In the premise, the application dated 7th November, 2022 is hereby struck out with costs to the plaintiff and the Third Party.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 15th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Dr. Kamau Kuria for the defendants/applicants
Mrs. Okina h/b for Mr. Kemboy for the plaintiff
No appearance for the Third Party
Ms B. Wokabi – Court Assistant.