REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NUMBER E001 OF 2024
IN THE MATTER OF ARTICLES 3(1), 22(1) & (2) (c), 23, 48, 50(1) AND 258(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES: 1(1) & 2 , 3(1), 10,19, 20, 21, 24, 73, 75, 96, 174, 175(a), 179(4) & (6), 201(a), 227(1), 232(1) (a), (b), (c), (d), (e), (f) & 2(a) & (b) AND 259(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF THE RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 35 AND 47(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE PARLIAMENTARY SERVICE (SENATE MONITORING AND EVALUATION PROCEDURE FOR MANAGEMENT OF FUNDS) REGULATIONS, 2016
AND
IN THE MATTER OF THE CONTRAVENTION OF SECTION 65 OF THE PUBLIC SERVICE ACT, NO. 10 OF 2017
AND
IN THE MATTER OF SECTIONS 7 AND 9(6) OF THE ACCESS TO INFORMATION ACT, 2016 AND THE ALLEGED CONTRAVENTION OF SECTIONS 3, 4, 5, 6 AND 9(1) THEREOF
AND
IN THE MATTER OF SECTION 7 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND THE ALLEGED CONTRAVENTION OF SECTIONS 3, 4, 5 AND 6 THEREOF
AND
IN THE MATTER OF SECTION 9 OF THE LEADERSHIP AND INTEGRITY ACT, 2012 AND THE ALLEGED VIOLATION OF SECTIONS 3, 4(1), 6, 7, 8, 10, 11 AND 13(1) (a), (b) & (c) THEREOF
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF SECTIONS 7, 8, 9 AND 10 OF THE PUBLIC OFFICER ETHICS ACT (CAP 185 B), SECTION 166(4) (c) OF THE PUBLIC FINANCE MANAGEMENT ACT (CAP 412A) AND SECTION 96(1) OF THE COUNTY GOVERNMENTS ACT (CAP 265)
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLE 19(1) OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS (ICCPR), ARTICLE 19 OF THE UNITED NATIONS UNIVERSAL DECLARATION ON HUMAN RIGHTS (UNDHR), AND ARTICLE 9 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS
AND
IN THE MATTER OF SECTIONS 44 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT (CAP 412C) (PPADA) AS READ TOGETHER WITH SECTIONS 45(2) (b) & (c) AND 46 OF THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, AND SECTION 121 OF THE PUBLIC FINANCE MANAGEMENT ACT (CAP 412A), AND THE ALLEGED VIOLATION OF SECTIONS 3, 4(1), 83, 84, 85, 86, 87(3) AND 96 OF THE PPADA
AND
IN THE MATTER OF THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE PROCUREMENT OF THE CONSTRUCTION OF BUSIA TRAILER PARK BY A PRIVATE DEVELOPER, AND OF THE PROCUREMENT OF NEW KIOSKS AND THEIR DISTRIBUTION TO SMALL SCALE TRADERS IN BUSIA TOWN
AND
IN THE MATTER OF THE ALLEGED GROSS VIOLATION OF THE CONSTITUTION AND THE LAW, GROSS MISCONDUCT, GROSS ABUSE OF OFFICE AND GROSS INCOMPETENCE BY H.E. DR. PAUL NYONGESA OTUOMA, THE GOVERNOR OF BUSIA COUNTY
AND
IN THE MATTER OF THE OBLIGATION AND THE MANDATE EACH SENATOR HAS IN THEIR PERSONAL CAPACITY AS DEMOCRATICALLY ELECTED REPRESENTATIVES OF THE PEOPLE PURSUANT TO ARTICLE 1(2) OF THE CONSTITUTION TO REPRESENT THE SOVEREIGN PEOPLE IN THEIR COUNTIES BY DIRECTLY OVERSIGHTING COUNTY GOVERNMENTS WITHOUT GOING THROUGH THE INSTITUTION OF THE SENATE AS A CORPORATE ENTITY
AND
IN THE MATTER OF THE DOCTRINES OF GOOD GOVERNANCE, RULE OF LAW AND LEGITIMATE EXPECTATIONS
BETWEEN
OKIYA OKOITI OMTATAH ………………………………………….PETITIONER
VERSUS
H.E DR. PAUL NYONGESA OTUOMA
THE GOVERNOR, BUSIA COUNTY………………………...…1 ST RESPONDENT
THE COUNTY EXECUTIVE OF BUSIA……………….……...2 ND RESPONDENT
AND
ATHI LIMITED……………………………………………1 ST INTERESTED PARTY
THE ETHICS & ANTI-CORRUPTION
COMMISSION…………………………………………...2 ND INTERESTED PARTY
THE BUSIA BUSINESS OWNERS ASSOCIATION….3 RD INTERESTED PARTY
ABDIKADIR HASSAN HUSSEIN……………………....4 TH INTERESTED PARTY
FATUMA BILLE……………………………………..……5 TH INTERESTED PARTY
THE SENATE……………………………………..…….…6 TH INTERESTED PARTY
JUDGMENT
INTRODUCTION
1. Pursuant to the orders of 31 st May 2024, on 12 th August 2024, the Honourable Chief Justice empanelled a three (3) judge bench consisting of Musyoka, Kamau, and Bett, JJ., to hear and determine the issues that had been identified in a Ruling that was delivered on 31 st May 2024 by Musyoka J. The expanded bench addressed itself on the following three (3) issues:-
a) Whether the mandate of the Senate to oversight County Governments, under Article 96, as read with Article 1(1) of the Constitution of Kenya, 2010 (hereinafter referred to as “the Constitution”) is, as argued by the Respondents, limited to the corporate mandate of the Chamber, the House relies on annual audit reports of the Auditor General, carries out annual post-mortems on the operations and activities of the County Government; or, as argued by the Petitioner, whether it extends to the work done by an individual Senator, exercising his individual oversight mandate, in his electoral unit, using Senate oversight funds, to monitor and evaluate ongoing projects being implemented by the County Government;
b) Whether, in his official capacity, as a County leader, with obligations and a mandate to represent the people of the County, pursuant to Article 1(2) of the Constitution the individual Senator:-
i. has an obligation and mandate, in his personal capacity, to directly oversight the County Government away from the institution of the Senate as a corporate entity;
ii. is entitled, in the discharge of his oversight obligation and mandate over the County Government, to access official information and documents on the operations and activities of the County Government; and
iii. loses his right as a citizen, under Article 35 of the Constitution, to access information from the County Government.
c) Whether, as the Chief Executive of a County, pursuant to Article 179(4) of the Constitution a County Governor is the officer:-
i. responsible for releasing information to the public as the information access officer of the County Executive, under Section 7(1) of the Access to Information Act, 2016; and
ii. primarily responsible for ensuring that the County Executive complies with the Public Procurement and Asset Disposal Act, pursuant to Section 44(1) of the Act.
2. In its Ruling of 19 th September 2025, the bench determined as shown hereunder:-
a) Oversight of County Governments is vested in the Senate pursuant to the provisions of Article 96(3) of the Constitution;
b) The Senate’s role, as was evidenced in the provision of Article 96 of the Constitution included exercising oversight over County Governments, but its scope, extent and nature of the oversight role was limited so as not to be intrusive into the functional and institutional integrity of the County Governments;
c) A Senator could only exercise corporate oversight mandate and not individual oversight mandate;
d) Oversight power could only be conferred and exercised within the dictates of the Constitution;
e) The State has a duty to proactively publish information in the public interest and to provide open access to specific information sought subject to limitations set out in Section 6 of the Access to Information Act Cap 7M (Laws of Kenya) as read with Article 24 of the Constitution;
f) The Doctrines of Avoidance and Exhaustion of remedies cannot limit the right to access to information and justice;
g) The Governor is the primary Access to Information Officer as set out in the Access to Information Act which role he could delegate to any other officer in the County;
h) A State Organ or any other public entity is obligated to ensure that contracts for goods and services are done in accordance with a system that is fair, equitable, transparent, competitive and cost-effective as provided in Article 227(1) of the Constitution; and
i) The County Executive Committee was mandated to report to the Governor in the performance of the functions and in exercise of their powers regarding procurement of goods and services as provided under Article 179(6) of the Constitution.
3. Musyoka J was then to determine the following substantive issues:-
i) Whether or not the Petition herein met the threshold in Anarita Karimi Case;
ii) Whether or not the doctrine of exhaustion and constitutional avoidance barred this court from entertaining the Petition herein;
iii) Whether or not the Petitioner was entitled to access all information and documents held by the County Government at all times;
iv) Whether or not the design of the new kiosks was to be subjected to advertisement as well as public participation before they are constructed; and
v) Whether the owners of the old kiosks that were demolished were to be given priority in the allocation of the new kiosks.
4. When the matter was placed before Musyoka J on 28 th October 2025 for directions and/or orders relating to disposal of the aforesaid issues, the Respondents made an application that the pending issues be determined by the bench, which application was not opposed by the Petitioner herein. In a letter dated 8 th December 2025, directions were sought from the Honourable the Chief Justice and in her letter dated 16 th December 2025, she authorised the bench to deal with the matter.
5. This court dealt with the said issues under the following heads.
A. COMPETENCE OF THE PETITION
6. The long-standing principle in constitutional petitions is that a petitioner must identify the constitutional entitlement threatened, infringed or violated and demonstrate with precision the manner of violation. This court had due regard to the case of Anarita Karimi Njeru vs Republic [1979] eKLR where it was held that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important, so as to ensure that justice is done to his case, that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
7. In Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR , the Court of Appeal also stated that although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated, infringed or threatened, a party invoking the aforesaid Article has to show the rights said to be infringed and the basis of his grievance.
8. This was also the holding in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the court emphasised the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. This principle plays a positive role as a foundation of conviction and good faith in engaging the constitutional process of dispute settlement.
9. The Respondents submitted that the Petitioner had only listed a number of constitutional provisions without demonstrating in particularity how they had been contravened or violated.
10. On perusal of Paragraphs 127 to 136 of Part 1 of the Amended Petition dated 15 th April 2024, the Petitioner listed various statutory provisions and Articles of the Constitution which included the right to access information under Article 35 of the Constitution and the provisions of the Access to Information Act. The Petitioner also annexed various letters where he had requested for information from the Respondents and averred that at the time of filing the Petition, the information had not yet been provided. He contended that he had a constitutional and legal right to access that information which he needed to enable him exercise his supervisory mandate as a Senator effectively.
11. The Petitioner also asserted that the Respondents had violated the provisions of Article 10 on the issues of national values and principles of governance relating to public participation and rule of law. He added that the Respondents had also contravened the values and principles of public service as set out in Article 232 (1) (e) and (f) of the Constitution.
12. The Petitioner further contended that as a Senator he was constitutionally mandated to undertake both corporate and individual oversight over the County Government and national revenue allocated to the county governments in accordance with Article 96 of the Constitution in order to protect the interest of the counties and promote transparency and accountability in the manner county affairs are run.
13. The Petitioner also alleged that by failing to divulge information, the Respondents acted contrary to Article 201 of the Constitution on the principles of public finance which decreed that there shall be transparency and accountability including public participation in financial matters.
14. The bench was, therefore, satisfied that the Petitioner had met the threshold for a competent constitutional petition as was set out in the case of Anarita Karimi Njeru vs Republic (Supra).
B. DOCTRINE OF EXHAUSTION OF REMEDIES AND CONSTITUTIONAL AVOIDANCE
15. Notably, the 1 st and the 2 nd Respondents filed a Notice of Preliminary Objection dated 27 th February 2024 on 28 th February 2024, challenging this court’s jurisdiction to hear and determine the present Amended Petition on the ground that the Petitioner had failed to exhaust the available remedies before approaching the court.
16. Their main objection to the Amended Petition hinged on the doctrine of exhaustion, constitutional avoidance, and the competence of the present proceedings. They placed reliance on the Supreme Court decision in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 KLR on the doctrine of constitutional avoidance and on the case of Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] eKLR on the doctrine of exhaustion.
17. According to the Respondents, the Petitioner failed to exhaust the available statutory remedies before the institution of this Petition. They were emphatic that they had followed the right procedure by adhering to the procurement procedure in the construction of the Mundika Trailer park, and in case the Petitioner was aggrieved, the right recourse would have been the Public Procurement Administrative Board and not the court.
18. On the privatisation of the Mundika Trailer park, they opined that the construction and the lease of the space were done between them and the 1 st Interested Party and as it was privately funded, it was, therefore, not subjected to the procurement process.
19. They further averred that in accordance with Section 22 of the Access to Information Act, the Petitioner should have first lodged his complaint with the Commission on Administrative Justice (CAJ) and that failure to lodge such a complaint was a breach of a statutory requirement under the doctrine of exhaustion, hence this court was devoid of jurisdiction to hear and determine his Petition.
20. On his part, the Petitioner contended that the Respondents’ Preliminary Objection was misplaced. He averred that this court had the jurisdiction to hear and determine the Petition herein pursuant to Article 23 as read with Article 165 (3) of the Constitution, where there was a violation or infringement of a right and fundamental freedom in the Bill of Rights.
21. He opined that this court could grant any relief when the ends of justice and equity demanded, and further that the jurisdiction of tribunals was limited to the matters assigned to them by statute, while courts dealt with the administration of justice and regulated their own procedure and process.
22. To buttress his point, he relied on the case of Republic vs National Environmental Tribunal & 2 Others ex parte Athi Water Services Board [2015] eKLR , where it was held that a judicial or quasi-judicial tribunal had no inherent power and Choitram vs Mystery Model Hair Salon (1972) EA 525 , where it was held that powers must be conferred, not implied.
23. The issue that needed to be addressed herein was whether the Petition violated the doctrine of exhaustion as submitted by the Respondents.
24. Black’s Law Dictionary, 10th Edition , explains “exhaustion of remedies” as follows:-
“The doctrine that if an administrative remedy is provided by statute, a claimant must seek relief from the administrative body before judicial relief is available. The doctrine's purpose is to maintain comity between courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary – also termed the exhaustion of remedies doctrine, exhaustion of administrative remedies; exhaustion doctrine.”
25. The doctrine, also known as the principle of exhaustion of remedies, requires a party seeking judicial intervention to first utilise all available non-judicial remedies before turning to the court. The principle aims to ensure that administrative bodies and other designated authorities have the opportunity to address and resolve issues before they escalate to the court.
26. It is premised on the principle that court should only intervene when all other avenues have been exhausted. The doctrine traces its origin to Article 159(2)(c) of the Constitution, which recognises and entrenches the use of alternative mechanisms of dispute resolution in the following terms:-
“In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution, including resolution, mediation, arbitration, and traditional dispute resolution mechanisms, shall be promoted, subject to clause 3.”
27. The doctrine of exhaustion was comprehensively dealt in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR where it was held that the doctrine of exhaustion serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party in the first instance is diligent in the protection of his own interest within the mechanisms in place for resolution outside the court. It added that this encourages alternative dispute resolution mechanisms in line with Article 159 (2) (c)of the Constitution .
28. Going further, Section 9(1), (2), (3) and (4) of the Fair Administrative Action Act Cap 7L (Laws of Kenya) which operationalise Article 47 of the Constitution on the right to fair administrative action stipulate that an applicant must first exhaust the available internal dispute resolution mechanisms before resorting to court save for exceptional circumstances. The court may exempt a party from first seeking alternative internal dispute resolution if it demonstrates exceptional circumstances.
29. Courts have recognized exceptions to the doctrine of exhaustion of remedies, which exceptions are also provided for under the Section 9 (4) of the Fair Administrative Action Act . This section provides that in exceptional circumstances, and on application by a party, the court may exempt such party from the obligation of exhausting alternative remedies if the court considers such exemption to be in the interest of justice. The exceptional circumstances are not outlined in the Act, thus leaving the courts to exercise discretion when faced with an application for exemption.
30. In that regard, this court associated itself with the case of Krystalline Salt Limited vs Kenya Revenue Authority [2019] eKLR where the court expressed its view on the definition of “exceptional circumstances” as follows:-
“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.”
31. Having said so, where a statute expressly states that the exhaustion of internal remedies is an indispensable condition precedent before launching an application to a court, then that condition has to first be fulfilled.
32. Notably, there was nothing before the court to show that the Petitioner made any effort to invoke the said procedures. Be that as it may, he had alleged a violation of his fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.
33. In that regard, this court relied on the case of Fleur Investments Limited vs Commissioner of Domestic Taxes & Another [2018] eKLR where the Court of Appeal held that whereas courts of law are enjoined to defer to specialised tribunals and other alternative dispute resolution statutory bodies created by Parliament to resolve certain specific disputes, the court could not, being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislation for protection .
34. Having said so, persons charged with statutory powers and duties ought to exercise the same reasonably and fairly as the court was perfectly in order to intervene where there was clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice were manifest.
35. Turning to the issue of the doctrine of constitutional avoidance, although the instant Amended Petition raised constitutional questions, the Respondents had submitted that there were other fora that would have aptly dealt with the issues that the Petitioner had raised apart from a constitutional court. This was what was referred to as constitutional avoidance.
36. They contended that the Senate, the Privatisation Review Board, Commission on the Administrative of Justice and the Public Procurement Administrative Board were best placed to handle the issues raised by the Petitioner before he approached this court.
37. This court had due regard to the case of Wataari & 11 Others vs Registered Trustees of Telposta Pension Scheme [2023] KECA 1171(KLR) where the court defined the doctrine of constitutional avoidance as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.
38. Additionally, in the case of Wajir Wasco Limited Alias Wajir Water & Sewerage Company & Another vs Mohamed & 2 Others [2024] KECA 937 (KLR) it was held that the doctrine of avoidance was to the effect that, although a court could take up a matter and hear it, it could still decline to do so if there was another mechanism through which the dispute could be resolved.
39. The Supreme Court stated in Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (Supra), that the principle of avoidance meant that a court would not determine a constitutional issue when a matter could properly be decided on another basis.
40. The Petition was centered on the right to access to information which right the Petitioner contended he had been denied by the Respondents. A question, however, arose whether without the information he had sought, the Petitioner would still have been able to apply to the relevant statutory dispute resolution bodies. In our minds, the information sought could have informed his decision on the relevant body to approach.
41. As was held by this court in the Ruling dated 19 th September 2025, these proceedings were founded on the Constitution. A grievant had approached a constitutional court, seeking interpretation of the Constitution, with respect to his rights, within certain contexts. Thus, the doctrine of exhaustion of remedies and constitutional avoidance could not bar this court from entertaining the Amended Petition which it had found hereinabove to have been competent and proper before it.
C. RIGHT OF ACCESS TO INFORMATION
42. The Petitioner submitted that pursuant to Articles 1(3)(a) and 98 of the Constitution, elected senators are representatives of both the people at the counties and their county governments being representatives of their respective counties. He added that the Senators play a crucial role in oversighting the use of national funds allocated to counties. In this regard, he relied on the Supreme Court case of Senate vs Council of County Governors & 6 Others [2022] KESC 57 KLR .
43. He invited the court to find and hold that persons elected as Senators and Members of County Assembly were entitled at any time, upon formal request, if need be, to access any information held by their county governments and that the election to the two (2) public offices did not strip one of their rights as citizens to access information held by the State pursuant to Article 35 of the Constitution as read together with the Access of Information Act.
44. He disputed the Respondents’ arguments that once elected to the legislature, an individual lost their right of access to information under Article 35 of the Constitution. He argued that the said argument was void in law to the extent that it contradicted Article 12(1)(a) of the Constitution on the entitlements of citizens.
45. He was emphatic that there was no written law that could be invoked to strip elected officials of their rights under Article 35 of the Constitution and that as citizens, they were entitled to receive information sought for the purpose of enforcing the right to access the information and for the constitutional oversight role.
46. He further submitted that the right to information was inviolable as it was granted by the Constitution and not the Senate and as such it was everyone’s duty including the State to respect and uphold the right. He relied on Trusted Society of Human Rights Alliance & 3 Others vs Judicial Service Commission [2016] eKLR and the South African case of The President of RSA vs M&G Media (Cct 03/11) (2011) Zacc and stated that the right to information entitled an individual to access information held by public authorities acting on behalf of the State making it a foundational human right upon which other rights flowed.
47. He further asserted that Article 35 of the Constitution did not place any conditions for accessing information and that Section 4 and 5 of the Access to Information Act provided the procedure for access to information and that public entities were to facilitate access to information held by them.
48. He contended that whereas Section 9 of the Act provided that a decision on the request to access information should be made and communicated within twenty-one (21) days, the Respondents were yet to provide him with the information hence violating his right of access to information. In this regard, he relied on Nairobi Law Monthly vs Kenya Electricity Generating Company & 2 Others (citation not provided) and Brummer vs Minister For Social Development (2009) Ii Bclr 1075 (Cc).
49. It was his contention that the refusal to avail the information also violated Article 2(5) and (6) of the Constitution to the extent that it contravened Kenya’s obligations under international law, in particular, Article 19 of the Universal Declaration of Human Rights and Article 9 of the African Charter on Human and People’s Rights.
50. He further argued that the 1 st Respondent had an obligation to uphold the rule of law, and the reasons he gave for denying him access to the information were not anchored in law as the considerations given were irrelevant and unrelated to the subject being dealt with. He placed reliance on Re Hardial Singh & Others (1979) KLR 18 , Re: Kisumu Muslim Association HCMisc (citation not provided) and Republic vs National Police Service Commission Exparte Daniel Chacha [2016] eKLR and contested the Respondents’ assertions that they denied him access to the information due to public interest. He argued that there was no public interest in denying an elected representative of the people, access to information required to discharge his mandate under the law.
51. He contended that the 1 st Respondent’s decision to deny him access to the information was unconstitutional, null and void and quoted the case of Republic vs Kenya National Examination Council Misc Civ App No 328 of 2015 and that of Pastoli vs Kabale District Local Government Council & Others (2008) 2 EA 300 to buttress his position.
52. On their part, the 1 st and 2 nd Respondents argued that whereas Article 35 of the Constitution provided for the right of access to information, the same was subject to the limitations contemplated in Section 6(1)(e) of the Access to Information Act . They contended that the Petitioner’s request for information addressed to the 2 nd Respondent’s departments was complied with as the information was made available to the Petitioner through the Clerk of the 6 th Interested Party by dint of Article 125(2)(b) of the Constitution. They asserted that in addition to the aforesaid disclosure, on 18 th March 2024, the 1 st Respondent appeared before the Senate Public Accounts Committee in which the Petitioner sat as a member and availed the aforesaid information.
53. They averred that the information relating to procurement processes was not provided to the Petitioner for the reason that the same was either privileged and/or qualified information under the dictates of Section 67 of the Public Procurement and Assets Disposal Act Cap 412C (Laws of Kenya) and Section 6(1)(e) of the Access to Information Act.
54. T
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IN THE HIGH COURT OF KENYA AT BUSIA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NUMBER E001 OF 2024
IN THE MATTER OF ARTICLES 3(1), 22(1) & (2) (c), 23, 48, 50(1) AND 258(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES: 1(1) & 2 , 3(1), 10,19, 20, 21, 24, 73, 75, 96, 174, 175(a), 179(4) & (6), 201(a), 227(1), 232(1) (a), (b), (c), (d), (e), (f) & 2(a) & (b) AND 259(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF THE RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 35 AND 47(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE PARLIAMENTARY SERVICE (SENATE MONITORING AND EVALUATION PROCEDURE FOR MANAGEMENT OF FUNDS) REGULATIONS, 2016
AND
IN THE MATTER OF THE CONTRAVENTION OF SECTION 65 OF THE PUBLIC SERVICE ACT, NO. 10 OF 2017
AND
IN THE MATTER OF SECTIONS 7 AND 9(6) OF THE ACCESS TO INFORMATION ACT, 2016 AND THE ALLEGED CONTRAVENTION OF SECTIONS 3, 4, 5, 6 AND 9(1) THEREOF
AND
IN THE MATTER OF SECTION 7 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND THE ALLEGED CONTRAVENTION OF SECTIONS 3, 4, 5 AND 6 THEREOF
AND
IN THE MATTER OF SECTION 9 OF THE LEADERSHIP AND INTEGRITY ACT, 2012 AND THE ALLEGED VIOLATION OF SECTIONS 3, 4(1), 6, 7, 8, 10, 11 AND 13(1) (a), (b) & (c) THEREOF
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF SECTIONS 7, 8, 9 AND 10 OF THE PUBLIC OFFICER ETHICS ACT (CAP 185 B), SECTION 166(4) (c) OF THE PUBLIC FINANCE MANAGEMENT ACT (CAP 412A) AND SECTION 96(1) OF THE COUNTY GOVERNMENTS ACT (CAP 265)
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLE 19(1) OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS (ICCPR), ARTICLE 19 OF THE UNITED NATIONS UNIVERSAL DECLARATION ON HUMAN RIGHTS (UNDHR), AND ARTICLE 9 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS
AND
IN THE MATTER OF SECTIONS 44 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT (CAP 412C) (PPADA) AS READ TOGETHER WITH SECTIONS 45(2) (b) & (c) AND 46 OF THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, AND SECTION 121 OF THE PUBLIC FINANCE MANAGEMENT ACT (CAP 412A), AND THE ALLEGED VIOLATION OF SECTIONS 3, 4(1), 83, 84, 85, 86, 87(3) AND 96 OF THE PPADA
AND
IN THE MATTER OF THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE PROCUREMENT OF THE CONSTRUCTION OF BUSIA TRAILER PARK BY A PRIVATE DEVELOPER, AND OF THE PROCUREMENT OF NEW KIOSKS AND THEIR DISTRIBUTION TO SMALL SCALE TRADERS IN BUSIA TOWN
AND
IN THE MATTER OF THE ALLEGED GROSS VIOLATION OF THE CONSTITUTION AND THE LAW, GROSS MISCONDUCT, GROSS ABUSE OF OFFICE AND GROSS INCOMPETENCE BY H.E. DR. PAUL NYONGESA OTUOMA, THE GOVERNOR OF BUSIA COUNTY
AND
IN THE MATTER OF THE OBLIGATION AND THE MANDATE EACH SENATOR HAS IN THEIR PERSONAL CAPACITY AS DEMOCRATICALLY ELECTED REPRESENTATIVES OF THE PEOPLE PURSUANT TO ARTICLE 1(2) OF THE CONSTITUTION TO REPRESENT THE SOVEREIGN PEOPLE IN THEIR COUNTIES BY DIRECTLY OVERSIGHTING COUNTY GOVERNMENTS WITHOUT GOING THROUGH THE INSTITUTION OF THE SENATE AS A CORPORATE ENTITY
AND
IN THE MATTER OF THE DOCTRINES OF GOOD GOVERNANCE, RULE OF LAW AND LEGITIMATE EXPECTATIONS
BETWEEN
OKIYA OKOITI OMTATAH ………………………………………….PETITIONER
VERSUS
H.E DR. PAUL NYONGESA OTUOMA
THE GOVERNOR, BUSIA COUNTY………………………...…1 ST RESPONDENT
THE COUNTY EXECUTIVE OF BUSIA……………….……...2 ND RESPONDENT
AND
ATHI LIMITED……………………………………………1 ST INTERESTED PARTY
THE ETHICS & ANTI-CORRUPTION
COMMISSION…………………………………………...2 ND INTERESTED PARTY
THE BUSIA BUSINESS OWNERS ASSOCIATION….3 RD INTERESTED PARTY
ABDIKADIR HASSAN HUSSEIN……………………....4 TH INTERESTED PARTY
FATUMA BILLE……………………………………..……5 TH INTERESTED PARTY
THE SENATE……………………………………..…….…6 TH INTERESTED PARTY
JUDGMENT
INTRODUCTION
1. Pursuant to the orders of 31 st May 2024, on 12 th August 2024, the Honourable Chief Justice empanelled a three (3) judge bench consisting of Musyoka, Kamau, and Bett, JJ., to hear and determine the issues that had been identified in a Ruling that was delivered on 31 st May 2024 by Musyoka J. The expanded bench addressed itself on the following three (3) issues:-
a) Whether the mandate of the Senate to oversight County Governments, under Article 96, as read with Article 1(1) of the Constitution of Kenya, 2010 (hereinafter referred to as “the Constitution”) is, as argued by the Respondents, limited to the corporate mandate of the Chamber, the House relies on annual audit reports of the Auditor General, carries out annual post-mortems on the operations and activities of the County Government; or, as argued by the Petitioner, whether it extends to the work done by an individual Senator, exercising his individual oversight mandate, in his electoral unit, using Senate oversight funds, to monitor and evaluate ongoing projects being implemented by the County Government;
b) Whether, in his official capacity, as a County leader, with obligations and a mandate to represent the people of the County, pursuant to Article 1(2) of the Constitution the individual Senator:-
i. has an obligation and mandate, in his personal capacity, to directly oversight the County Government away from the institution of the Senate as a corporate entity;
ii. is entitled, in the discharge of his oversight obligation and mandate over the County Government, to access official information and documents on the operations and activities of the County Government; and
iii. loses his right as a citizen, under Article 35 of the Constitution, to access information from the County Government.
c) Whether, as the Chief Executive of a County, pursuant to Article 179(4) of the Constitution a County Governor is the officer:-
i. responsible for releasing information to the public as the information access officer of the County Executive, under Section 7(1) of the Access to Information Act, 2016; and
ii. primarily responsible for ensuring that the County Executive complies with the Public Procurement and Asset Disposal Act, pursuant to Section 44(1) of the Act.
2. In its Ruling of 19 th September 2025, the bench determined as shown hereunder:-
a) Oversight of County Governments is vested in the Senate pursuant to the provisions of Article 96(3) of the Constitution;
b) The Senate’s role, as was evidenced in the provision of Article 96 of the Constitution included exercising oversight over County Governments, but its scope, extent and nature of the oversight role was limited so as not to be intrusive into the functional and institutional integrity of the County Governments;
c) A Senator could only exercise corporate oversight mandate and not individual oversight mandate;
d) Oversight power could only be conferred and exercised within the dictates of the Constitution;
e) The State has a duty to proactively publish information in the public interest and to provide open access to specific information sought subject to limitations set out in Section 6 of the Access to Information Act Cap 7M (Laws of Kenya) as read with Article 24 of the Constitution;
f) The Doctrines of Avoidance and Exhaustion of remedies cannot limit the right to access to information and justice;
g) The Governor is the primary Access to Information Officer as set out in the Access to Information Act which role he could delegate to any other officer in the County;
h) A State Organ or any other public entity is obligated to ensure that contracts for goods and services are done in accordance with a system that is fair, equitable, transparent, competitive and cost-effective as provided in Article 227(1) of the Constitution; and
i) The County Executive Committee was mandated to report to the Governor in the performance of the functions and in exercise of their powers regarding procurement of goods and services as provided under Article 179(6) of the Constitution.
3. Musyoka J was then to determine the following substantive issues:-
i) Whether or not the Petition herein met the threshold in Anarita Karimi Case;
ii) Whether or not the doctrine of exhaustion and constitutional avoidance barred this court from entertaining the Petition herein;
iii) Whether or not the Petitioner was entitled to access all information and documents held by the County Government at all times;
iv) Whether or not the design of the new kiosks was to be subjected to advertisement as well as public participation before they are constructed; and
v) Whether the owners of the old kiosks that were demolished were to be given priority in the allocation of the new kiosks.
4. When the matter was placed before Musyoka J on 28 th October 2025 for directions and/or orders relating to disposal of the aforesaid issues, the Respondents made an application that the pending issues be determined by the bench, which application was not opposed by the Petitioner herein. In a letter dated 8 th December 2025, directions were sought from the Honourable the Chief Justice and in her letter dated 16 th December 2025, she authorised the bench to deal with the matter.
5. This court dealt with the said issues under the following heads.
A. COMPETENCE OF THE PETITION
6. The long-standing principle in constitutional petitions is that a petitioner must identify the constitutional entitlement threatened, infringed or violated and demonstrate with precision the manner of violation. This court had due regard to the case of Anarita Karimi Njeru vs Republic [1979] eKLR where it was held that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important, so as to ensure that justice is done to his case, that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
7. In Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR , the Court of Appeal also stated that although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated, infringed or threatened, a party invoking the aforesaid Article has to show the rights said to be infringed and the basis of his grievance.
8. This was also the holding in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the court emphasised the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. This principle plays a positive role as a foundation of conviction and good faith in engaging the constitutional process of dispute settlement.
9. The Respondents submitted that the Petitioner had only listed a number of constitutional provisions without demonstrating in particularity how they had been contravened or violated.
10. On perusal of Paragraphs 127 to 136 of Part 1 of the Amended Petition dated 15 th April 2024, the Petitioner listed various statutory provisions and Articles of the Constitution which included the right to access information under Article 35 of the Constitution and the provisions of the Access to Information Act. The Petitioner also annexed various letters where he had requested for information from the Respondents and averred that at the time of filing the Petition, the information had not yet been provided. He contended that he had a constitutional and legal right to access that information which he needed to enable him exercise his supervisory mandate as a Senator effectively.
11. The Petitioner also asserted that the Respondents had violated the provisions of Article 10 on the issues of national values and principles of governance relating to public participation and rule of law. He added that the Respondents had also contravened the values and principles of public service as set out in Article 232 (1) (e) and (f) of the Constitution.
12. The Petitioner further contended that as a Senator he was constitutionally mandated to undertake both corporate and individual oversight over the County Government and national revenue allocated to the county governments in accordance with Article 96 of the Constitution in order to protect the interest of the counties and promote transparency and accountability in the manner county affairs are run.
13. The Petitioner also alleged that by failing to divulge information, the Respondents acted contrary to Article 201 of the Constitution on the principles of public finance which decreed that there shall be transparency and accountability including public participation in financial matters.
14. The bench was, therefore, satisfied that the Petitioner had met the threshold for a competent constitutional petition as was set out in the case of Anarita Karimi Njeru vs Republic (Supra).
B. DOCTRINE OF EXHAUSTION OF REMEDIES AND CONSTITUTIONAL AVOIDANCE
15. Notably, the 1 st and the 2 nd Respondents filed a Notice of Preliminary Objection dated 27 th February 2024 on 28 th February 2024, challenging this court’s jurisdiction to hear and determine the present Amended Petition on the ground that the Petitioner had failed to exhaust the available remedies before approaching the court.
16. Their main objection to the Amended Petition hinged on the doctrine of exhaustion, constitutional avoidance, and the competence of the present proceedings. They placed reliance on the Supreme Court decision in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 KLR on the doctrine of constitutional avoidance and on the case of Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] eKLR on the doctrine of exhaustion.
17. According to the Respondents, the Petitioner failed to exhaust the available statutory remedies before the institution of this Petition. They were emphatic that they had followed the right procedure by adhering to the procurement procedure in the construction of the Mundika Trailer park, and in case the Petitioner was aggrieved, the right recourse would have been the Public Procurement Administrative Board and not the court.
18. On the privatisation of the Mundika Trailer park, they opined that the construction and the lease of the space were done between them and the 1 st Interested Party and as it was privately funded, it was, therefore, not subjected to the procurement process.
19. They further averred that in accordance with Section 22 of the Access to Information Act, the Petitioner should have first lodged his complaint with the Commission on Administrative Justice (CAJ) and that failure to lodge such a complaint was a breach of a statutory requirement under the doctrine of exhaustion, hence this court was devoid of jurisdiction to hear and determine his Petition.
20. On his part, the Petitioner contended that the Respondents’ Preliminary Objection was misplaced. He averred that this court had the jurisdiction to hear and determine the Petition herein pursuant to Article 23 as read with Article 165 (3) of the Constitution, where there was a violation or infringement of a right and fundamental freedom in the Bill of Rights.
21. He opined that this court could grant any relief when the ends of justice and equity demanded, and further that the jurisdiction of tribunals was limited to the matters assigned to them by statute, while courts dealt with the administration of justice and regulated their own procedure and process.
22. To buttress his point, he relied on the case of Republic vs National Environmental Tribunal & 2 Others ex parte Athi Water Services Board [2015] eKLR , where it was held that a judicial or quasi-judicial tribunal had no inherent power and Choitram vs Mystery Model Hair Salon (1972) EA 525 , where it was held that powers must be conferred, not implied.
23. The issue that needed to be addressed herein was whether the Petition violated the doctrine of exhaustion as submitted by the Respondents.
24. Black’s Law Dictionary, 10th Edition , explains “exhaustion of remedies” as follows:-
“The doctrine that if an administrative remedy is provided by statute, a claimant must seek relief from the administrative body before judicial relief is available. The doctrine's purpose is to maintain comity between courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary – also termed the exhaustion of remedies doctrine, exhaustion of administrative remedies; exhaustion doctrine.”
25. The doctrine, also known as the principle of exhaustion of remedies, requires a party seeking judicial intervention to first utilise all available non-judicial remedies before turning to the court. The principle aims to ensure that administrative bodies and other designated authorities have the opportunity to address and resolve issues before they escalate to the court.
26. It is premised on the principle that court should only intervene when all other avenues have been exhausted. The doctrine traces its origin to Article 159(2)(c) of the Constitution, which recognises and entrenches the use of alternative mechanisms of dispute resolution in the following terms:-
“In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution, including resolution, mediation, arbitration, and traditional dispute resolution mechanisms, shall be promoted, subject to clause 3.”
27. The doctrine of exhaustion was comprehensively dealt in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR where it was held that the doctrine of exhaustion serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party in the first instance is diligent in the protection of his own interest within the mechanisms in place for resolution outside the court. It added that this encourages alternative dispute resolution mechanisms in line with Article 159 (2) (c)of the Constitution .
28. Going further, Section 9(1), (2), (3) and (4) of the Fair Administrative Action Act Cap 7L (Laws of Kenya) which operationalise Article 47 of the Constitution on the right to fair administrative action stipulate that an applicant must first exhaust the available internal dispute resolution mechanisms before resorting to court save for exceptional circumstances. The court may exempt a party from first seeking alternative internal dispute resolution if it demonstrates exceptional circumstances.
29. Courts have recognized exceptions to the doctrine of exhaustion of remedies, which exceptions are also provided for under the Section 9 (4) of the Fair Administrative Action Act . This section provides that in exceptional circumstances, and on application by a party, the court may exempt such party from the obligation of exhausting alternative remedies if the court considers such exemption to be in the interest of justice. The exceptional circumstances are not outlined in the Act, thus leaving the courts to exercise discretion when faced with an application for exemption.
30. In that regard, this court associated itself with the case of Krystalline Salt Limited vs Kenya Revenue Authority [2019] eKLR where the court expressed its view on the definition of “exceptional circumstances” as follows:-
“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.”
31. Having said so, where a statute expressly states that the exhaustion of internal remedies is an indispensable condition precedent before launching an application to a court, then that condition has to first be fulfilled.
32. Notably, there was nothing before the court to show that the Petitioner made any effort to invoke the said procedures. Be that as it may, he had alleged a violation of his fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.
33. In that regard, this court relied on the case of Fleur Investments Limited vs Commissioner of Domestic Taxes & Another [2018] eKLR where the Court of Appeal held that whereas courts of law are enjoined to defer to specialised tribunals and other alternative dispute resolution statutory bodies created by Parliament to resolve certain specific disputes, the court could not, being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislation for protection .
34. Having said so, persons charged with statutory powers and duties ought to exercise the same reasonably and fairly as the court was perfectly in order to intervene where there was clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice were manifest.
35. Turning to the issue of the doctrine of constitutional avoidance, although the instant Amended Petition raised constitutional questions, the Respondents had submitted that there were other fora that would have aptly dealt with the issues that the Petitioner had raised apart from a constitutional court. This was what was referred to as constitutional avoidance.
36. They contended that the Senate, the Privatisation Review Board, Commission on the Administrative of Justice and the Public Procurement Administrative Board were best placed to handle the issues raised by the Petitioner before he approached this court.
37. This court had due regard to the case of Wataari & 11 Others vs Registered Trustees of Telposta Pension Scheme [2023] KECA 1171(KLR) where the court defined the doctrine of constitutional avoidance as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.
38. Additionally, in the case of Wajir Wasco Limited Alias Wajir Water & Sewerage Company & Another vs Mohamed & 2 Others [2024] KECA 937 (KLR) it was held that the doctrine of avoidance was to the effect that, although a court could take up a matter and hear it, it could still decline to do so if there was another mechanism through which the dispute could be resolved.
39. The Supreme Court stated in Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (Supra), that the principle of avoidance meant that a court would not determine a constitutional issue when a matter could properly be decided on another basis.
40. The Petition was centered on the right to access to information which right the Petitioner contended he had been denied by the Respondents. A question, however, arose whether without the information he had sought, the Petitioner would still have been able to apply to the relevant statutory dispute resolution bodies. In our minds, the information sought could have informed his decision on the relevant body to approach.
41. As was held by this court in the Ruling dated 19 th September 2025, these proceedings were founded on the Constitution. A grievant had approached a constitutional court, seeking interpretation of the Constitution, with respect to his rights, within certain contexts. Thus, the doctrine of exhaustion of remedies and constitutional avoidance could not bar this court from entertaining the Amended Petition which it had found hereinabove to have been competent and proper before it.
C. RIGHT OF ACCESS TO INFORMATION
42. The Petitioner submitted that pursuant to Articles 1(3)(a) and 98 of the Constitution, elected senators are representatives of both the people at the counties and their county governments being representatives of their respective counties. He added that the Senators play a crucial role in oversighting the use of national funds allocated to counties. In this regard, he relied on the Supreme Court case of Senate vs Council of County Governors & 6 Others [2022] KESC 57 KLR .
43. He invited the court to find and hold that persons elected as Senators and Members of County Assembly were entitled at any time, upon formal request, if need be, to access any information held by their county governments and that the election to the two (2) public offices did not strip one of their rights as citizens to access information held by the State pursuant to Article 35 of the Constitution as read together with the Access of Information Act.
44. He disputed the Respondents’ arguments that once elected to the legislature, an individual lost their right of access to information under Article 35 of the Constitution. He argued that the said argument was void in law to the extent that it contradicted Article 12(1)(a) of the Constitution on the entitlements of citizens.
45. He was emphatic that there was no written law that could be invoked to strip elected officials of their rights under Article 35 of the Constitution and that as citizens, they were entitled to receive information sought for the purpose of enforcing the right to access the information and for the constitutional oversight role.
46. He further submitted that the right to information was inviolable as it was granted by the Constitution and not the Senate and as such it was everyone’s duty including the State to respect and uphold the right. He relied on Trusted Society of Human Rights Alliance & 3 Others vs Judicial Service Commission [2016] eKLR and the South African case of The President of RSA vs M&G Media (Cct 03/11) (2011) Zacc and stated that the right to information entitled an individual to access information held by public authorities acting on behalf of the State making it a foundational human right upon which other rights flowed.
47. He further asserted that Article 35 of the Constitution did not place any conditions for accessing information and that Section 4 and 5 of the Access to Information Act provided the procedure for access to information and that public entities were to facilitate access to information held by them.
48. He contended that whereas Section 9 of the Act provided that a decision on the request to access information should be made and communicated within twenty-one (21) days, the Respondents were yet to provide him with the information hence violating his right of access to information. In this regard, he relied on Nairobi Law Monthly vs Kenya Electricity Generating Company & 2 Others (citation not provided) and Brummer vs Minister For Social Development (2009) Ii Bclr 1075 (Cc).
49. It was his contention that the refusal to avail the information also violated Article 2(5) and (6) of the Constitution to the extent that it contravened Kenya’s obligations under international law, in particular, Article 19 of the Universal Declaration of Human Rights and Article 9 of the African Charter on Human and People’s Rights.
50. He further argued that the 1 st Respondent had an obligation to uphold the rule of law, and the reasons he gave for denying him access to the information were not anchored in law as the considerations given were irrelevant and unrelated to the subject being dealt with. He placed reliance on Re Hardial Singh & Others (1979) KLR 18 , Re: Kisumu Muslim Association HCMisc (citation not provided) and Republic vs National Police Service Commission Exparte Daniel Chacha [2016] eKLR and contested the Respondents’ assertions that they denied him access to the information due to public interest. He argued that there was no public interest in denying an elected representative of the people, access to information required to discharge his mandate under the law.
51. He contended that the 1 st Respondent’s decision to deny him access to the information was unconstitutional, null and void and quoted the case of Republic vs Kenya National Examination Council Misc Civ App No 328 of 2015 and that of Pastoli vs Kabale District Local Government Council & Others (2008) 2 EA 300 to buttress his position.
52. On their part, the 1 st and 2 nd Respondents argued that whereas Article 35 of the Constitution provided for the right of access to information, the same was subject to the limitations contemplated in Section 6(1)(e) of the Access to Information Act . They contended that the Petitioner’s request for information addressed to the 2 nd Respondent’s departments was complied with as the information was made available to the Petitioner through the Clerk of the 6 th Interested Party by dint of Article 125(2)(b) of the Constitution. They asserted that in addition to the aforesaid disclosure, on 18 th March 2024, the 1 st Respondent appeared before the Senate Public Accounts Committee in which the Petitioner sat as a member and availed the aforesaid information.
53. They averred that the information relating to procurement processes was not provided to the Petitioner for the reason that the same was either privileged and/or qualified information under the dictates of Section 67 of the Public Procurement and Assets Disposal Act Cap 412C (Laws of Kenya) and Section 6(1)(e) of the Access to Information Act.
54. T
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