' 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, 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
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE PARLIAMENTARY SERVICE (SENATE MONITORING AND EVALUATION PROCEEDURE 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 SETIONS 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
RULING
INTRODUCTION
In his Amended Petition dated 19 th of April 2024, the Petitioner, who is the Senator of Busia County contended that the Respondents had declined and/or refused to provide him information on the operations and the activities of the County Government of Busia, including information on the financial expenditure of the County, the procurement of County Government services and information on the ongoing projects in the County.
He stated that as the Senator of Busia County, he had individual oversight mandate in his electoral unit, using Senate oversight funds to monitor and evaluate the ongoing projects in the County away from the institution of the Senate as a corporate entity.
He sought several orders which this court summarised pursuant to the questions it had been called to determine. His prayers included a declaration that he and other Senators were entitled to personally access all information and documents held by county governments at all times and that the failure by the 1 st Respondent to provide information sought under Article 35(1) of the Constitution of Kenya, 2010 violated his rights, and an order of mandamus compelling the Respondents to give him, within a period not exceeding twenty-one (21) days from the judgment date, all the information he or his office sought from the 1 st Respondent or his officers.
He also sought that a declaration be made that an individual Senator had the mandate to oversight his/her county government on behalf of the people by monitoring and evaluating its policies, operations and activities and that the said mandate was limited to the Chamber’s corporate mandate, and did not extend to the work done by an individual Senator, exercising his/her oversight mandate, in his/her electoral unit, using Senate Oversight Funds to ‘monitor and evaluate,’ in real time, ongoing projects being implemented by the County Government.
The Petition herein was initially handled by Musyoka J. The Petitioner filed a Motion dated 15 th April 2024 seeking transfer of this matter from the High Court at Busia to Milimani, Nairobi and for empanelment of a bench of an uneven number of Judges. In a Ruling delivered and dated 31 st May 2024, the learned Judge declined to grant the transfer prayer but sought directions from the Honourable Chief Justice on the empanelment of a bench of an uneven number of Judges bench to hear and determine the matter herein and to specifically address the questions framed in the said Ruling pursuant to Article 165(4) of the Constitution..
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 the learned Judge, Kamau and Bett JJ to hear and determine the issues that had been identified in the aforesaid Ruling. The expanded bench gave directions on 22 nd November 2024 for the filing of Written Submissions and on 28 th May 2025, it reserved the Judgment herein.
ISSUES FOR DETERMINATION
In Paragraph 10 of the Ruling dated 31 st May 2024, the questions that were identified for determination by the court were as follows:-
Whether the mandate of the Senate to oversight County Governments, under Article 96, as read with Article 1(1), of 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;
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:-
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;
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
loses his right as a citizen, under Article 35 of the Constitution, to access information from the County Government.
Whether, as the Chief Executive of a County, pursuant to Article 179(4) of the Constitution, a County Governor is the officer:
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
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.
The said issues have been dealt with under distinct and separate headings shown hereinbelow.
OVERSIGHT OF COUNTY GOVERNMENTS
Oversight of County Governments is vested in the Senate pursuant to the provisions of Article 96(3) of the Constitution.
In his Petition and submissions on this issue, the Petitioner contended that elected Senators had clear and distinct functions as individuals within their counties as well as in their capacity as county representatives of the people under Article 1(2) of the Constitution. He averred that Senators had the mandate to oversight their county governments on behalf of the people by monitoring and evaluating their policies, operations and activities and that the said role was mutually exclusive to that of the Senate as a corporate entity.
In support of this assertion, the Petitioner relied on Article 96 and Article 229(7) and (8) of the Constitution and stated that Members of Parliament, Senators, Members of the County Assembly (MCAs) were representatives of constituents in their electoral units and they had a wide range of responsibilities.
In response to the Petition, the 1 st Respondent swore a Replying Affidavit on 28 th February 2024, wherein he protested that the Petitioner had filed this suit against him in person am despite the fact that the issues raised in the Petition concerned the County Government of Busia, which, by dint of Article 176 of the Constitution as read with Section 6 of the County Government Act 265 (Laws of Kenya) , was a juristic person.
He acknowledged that the Petitioner was the Senator for Busia County and equally doubled up as a member of the Senate Public Accounts Committee (hereinafter referred to as “CPAC”), which had the express mandate to exercise oversight over the County Governments and further to summon witnesses, receive evidence and request and receive papers and documents from the Government and the Public.
He was emphatic that the CPAC played a pivotal role in overseeing public bodies by studying public audits, inviting Governors, Cabinet Secretaries, and other government officials for questioning and reporting on their findings after the government budget audit.
He pointed out that consequent to the aforesaid mandate, he was summoned to appear before the CPAC on 28 th October 2023 vide a letter dated 26 th September 2023 where he appeared with the information sought but was turned away. He was scheduled to re-appear before CPAC on 18 th March 2024 following an invitation letter dated 15 th March 2024 in which he was directed to submit to the oversight authority of the Senate.
He further cited Article 195 of the Constitution and quoted the case of Senate vs Council of County Governors & 6 Others(Petition No 24 & 27(Consolidated)[2022] KESC 57 (KLR) where it was held that the County Assemblies exercised first-tier oversight over County Governments while the Senate exercised second-tier oversight over the Counties.
The 3 rd Respondent did not submit on this issue. The 6 th Interested Party herein supported the Petitioner’s position. In its submissions dated 9 th May 2025, it asserted that in line with Articles 96 & 98 of the Constitution, that being representatives of the people at the counties, individual Senators exercised oversight over the county governments so as to ensure the county governments were accountable to the people at the counties.
It pointed out that the oversight role of the Senate was thus not limited to Senate Plenary or the Senate Committees as individual Senators could seek information and/or documentation from County Governments to curb misappropriation of public resources at the counties to the detriment of the people. In support of the foregoing, the 6 th Respondent relied on the decision of the court in the case of Mwinzagu & 5 Others vs Parliamentary service Commission; Onderi (interested party) (petition E340 & E 363 of 2023 (consolidated) (2024) KEHC 4073 (KLR)(Constitutional and Human Rights) (26 April 2024 )(Judgment) .
Since this court was tasked with determining whether an individual Senator could undertake oversight of a County without invoking the structures of Senate, it was imperative to consider the relevant constitutional architecture on this issue.
It was noteworthy the Petitioner predicated his proposition for exercise of powers of oversight on counties by individual Senators on the provisions of Article 1(2) of the Constitution which provides:-
2. The people may exercise their sovereign power either directly or through their democratically elected representatives.
Notably, Article 1(3) of the Constitution delegates sovereign power to the three arms/organs of government namely, legislature, executive and the judiciary and stipulates thus:
3. Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—
Parliament and the legislative assemblies in the county governments;
the national executive and the executive structures in the county governments; and
the Judiciary and independent tribunals.
Article 1(4) of the Constitution on the hand states that the sovereign power of the people is exercised at the national and county levels.
Article 96 of the Constitution provides for the role of the Senate as follows:-
The Senate represents the counties, and serves to protect the interests of the counties and their governments.
The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.
The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.
The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.
The Senate’s oversight role was highlighted in the case of Council of Governors & 3 Others vs Senate & 53 Others [2015] eKLR where a three (3) judge bench observed that the Senate’s role, as was evident from the provisions of Article 96 included exercising oversight over county governments.
The court, however, noted that while the Senate had an oversight role over the county government, the issue in that regard was the scope, extent and nature of the said oversight role. In the case Council of Governors and Others vs The Senate (Supra), the three (3) judge bench adopted the plain English meaning of the word “oversight” as defined in the concise Oxford English Dictionary, 10th Edition as; “the action of overseeing” and that “oversee” had then been defined by the same dictionary as to, “supervise” or “look at from above”.
In the same vein, the Supreme Court in Senate & 2 Others vs Council of County Governors & 8 Others [2022] KESC 7 (KLR) was very clear on the corporate mandate of the Senate. It stated that to discharge its oversight responsibilities, the Senate was not expected to relocate to the counties to exercise supervisory powers at that level as that would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach.
The court further added that the Senate must not be involved in the administrative nitty-gritty details of the counties and further that its oversight and legislative roles, were to be exercised in accordance with the Constitution and the law.
We appreciate that the meaning, scope, nature and extent of oversight was
already settled in the decisions cited above. We find no reason to depart from the findings of the courts above. In as much as the Public Finance Management (Senate Monitoring and Evaluation) Regulations Legal Notice 71 of 2018 empowered individual Senators to recruit an Evaluation and Monitoring Officer to carry out functions necessary to give effect of its objectives and created a fund for purposes, we are of the view that the functions carried out by the Monitoring and Evaluation Officer and the Senator in this regard utilizing the Senate Monitoring and Evaluation Fund could only be exercised under the Corporate oversight mandate of the Senate and not that of the individual Senator owing to our nature of our constitutional architecture. While we acknowledge that pursuant to clause 7 of the said Regulations the object of the Fund is to facilitate a Senator to carry out monitoring and evaluation activities in exercise of the Senate's oversight role over county governments in accordance with Article 96 of the Constitution, we are of the view that the Fund was only conceived to expand the Senate’s oversight role and not necessarily vest oversight powers on individual senators.
In this regard, we are of the view that oversight power can only be conferred and exercised within the dictates of the Constitution. Needless to state the decision of the Supreme Court in Senate & 2 Others vs Council of County Governors & 8 Others (Petition 25 of 2019) (Supra) was binding to this court.
A cursory look at the provisions of Article 96 (3) of the Constitution and the decisions cited above leaves no doubt that the Senate was vested with power to oversight county governments. Pursuant to Article 98(1) of the Constitution, the Senate consists of 67 members excluding the Speaker.
Comparatively, in other jurisdictions such as the United States of America, which had a Federal and State Government system, the State Government was headed by a Governor and State Senators represented their individual States in the United States Senate and Congress.
As could be seen in Understanding State Senators: A Comprehensive Guide https://www.officialoffices.com/legislative-branch-state-senators , in the United States of America, Senators did not have any individual oversight powers over the State Government as their oversight mandate was merged with the corporate Senate which focused on the federal government, it’s operations and policies.
On the other hand, a pertinent question that arose was whether under the Kenya Constitution, the oversight powers vested upon the Senate could be exercised individually by a member of the Senate as proposed by the Petitioner? The court thinks not.
Under Article 1(3) of the Constitution, sovereign power was delegated to state organs namely, parliament and the legislative assemblies in the county governments, the national executive the executive structures in the county governments, and the judiciary and independent tribunals. The Oxford Dictionary 12 th Edition defines the word “organ” as “a department or organization that performs a specified function”. The Cambridge Dictionary defines it as “an organization that works as part of a larger organization, for example, a government ”. The Merriam-Webster Dictionary refers to it as “a subordinate group or organization that performs specialized functions -the various arms of government ”. By no stretch of imagination could the term “organ” in Article 1 of the Constitution be construed to refer to an individual. A simple interpretation of Article 1(3) of the Constitution could only mean that the Senate as an organ was the corporate or collective body of Senators and not to individual Senators.
This power had to be exercised within the structures of Senate as prescribed by the Constitution. In any event, Article 2(2) of the Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution.
This position aligned with the decision of the court in Mwinzagu & 5 Others vs Parliamentary service Commission; Onderi (Interested Party) (2024) KEHC 4073 (KLR) where the court therein. held that from a constitutional view point, oversight was exercised by the Senate collectively and indivisibly by the Senators [Emphasis added].
This court found that the use of the term, “collectively and indivisibly” in simple terms meant that power of oversight could not be distributed to each individual Senator but had to be exercised by Senate as a whole through its plenary sessions or committees. In fact, the use of the word “Senate” in Article 96 of the Constitution was intentional as that was an organ that consisted of several Senators.
It must be appreciated that the Senate as a Constitutional Organ had been vested with mechanisms to execute its oversight role. Under Article 124 of the Constitution, the Senate was empowered to establish committees to assist it in the exercise of the oversight mandate.
Moreover, pursuant to Article 125 of the Constitution, the Senate had also been vested with a “coercive” power to ensure the attendance of witnesses as well as compel the production of documents.
Article 125 of the Constitution provides :-
Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.
For the purposes of clause (1), a House of Parliament and any of its committees has the same powers as the High Court -
to enforce the attendance of witnesses and examine them on oath, affirmation or otherwise;
to compel the production of documents; and
c. to issue a commission or request to examine witnesses abroad.
Without such powers the Senate could not be able to execute its oversight role. Needless to state, such role could not in any way be construed to be exercisable by the individual Senators in their personal capacities for they have not been enabled to do so by the Constitution.
Without the specific powers expressly set out under Articles 124 and 125 of the Constitution, individual Senator’s quest to oversight County Governments in their personal capacities would face headwinds.
Courts were enjoined by the provisions of Article 259 of the Constitution of to interpret the Constitution in a manner that promotes its purposes, values, and principles and contributes to good governance.
In this regard, the court took the view that when the people of Kenya adopted the Constitution they intended to “institutionalise” exercise of delegated sovereign power rather than “individualise” it. In reaching this conclusion, this court was alive to the holding of the Supreme Court in Senate & 2 Others vs Council of Governors & 8 Others (Supra) where the court therein held thus :-
“The above limitations must be borne in mind even as the special role of the Senate in the devolved governance system is acknowledged. Under article 96(1), the Senate represents the counties and serves to protect their interests. The Senate participates in the law-making function of Parliament by considering and approving Bills concerning counties. It has the power to determine the allocation of national revenue among counties, and to oversight over the use of those resources. To discharge these responsibilities, the Senate is not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach. It must not be involved in the administrative nitty-gritty details of the counties. Its oversight as indeed its legislative roles, are to be exercised in accordance with the Constitution and the law” [Emphasis added]
It may well be true that there were many well-meaning State Officers but this court was of the considered view that vesting delegated sovereign power within the purview of Article 1(3) of the Constitution on individuals acting outside the structures of state organs posed the hazard of perpetrating unchecked individual power and the attendant excesses of tyranny. Were a Senator to be allowed to exercise individual oversight over the County Government, there would be a breach of the doctrine of separation of powers, more so in light of the fact that the County Assemblies were vested with first tier oversight powers over the same government.
It follows therefore that exercise of sovereign power by the people through their democratically elected representatives contemplated under Article 1(2) of the Constitution could only be realised through their representation in the Senate.
In the circumstances, this court did not find merit in the Petitioner’s assertion that Senators acting individually could exercise their role of oversighting County Governments.
RIGHT TO ACCESS OF INFORMATION
The second broad question, that the Petitioner called upon this court to answer, was with relation to his right to access information from the Respondents, as a private citizen and as a Senator elected to represent Busia County at the Senate of the Republic of Kenya. With regard to that, the Petitioner submitted that the 1 st Respondent had an obligation to uphold the rule of law, including by giving him the information that he had requested for. He disputed the assertions by the Respondents that they denied him access to the information sought due to public interest, asserting that there was no public interest in denying an elected representative of the people access to information he required to discharge his mandate under the law.
In response to that, the 1 st Respondent averred that the information, allegedly in issue herein, as requested by the Petitioner, was available to any person who requested for it, including the persons stationed at the office of the Petitioner. He further averred that, as for the information and documents sought by the Petitioner, in his official capacity, as Senator of Busia County, in exercise of his oversight mandate over the County Government, to monitor and evaluate the use of public funds and resources in the County, the same had been provided to him through the Office of the Clerk of the Senate, and also through the Senate Public Accounts Committee, of which he was a member.
On its part, the 2 nd Respondent stated that accounting officers were appointed by the County Executive Committee Member for Finance, in accordance with the provisions of Section 148(1) of the Public Finance Management Act, Cap 412A, Laws of Kenya. It was claimed that it, the 2 nd Respondent, had made it easier for citizens, to access the sort of information requested by the Petitioner, by publishing the said information in its website and various notice boards, although some information was too sensitive and confidential to be published. It was further averred that although the right to access information and fair administrative action were constitutional rights, the same were not absolute, as per Article 24 of the Constitution of Kenya and Section 4 of the Access to Information Act, Cap 7M, Laws of Kenya.
It was acknowledged, by the 2 nd Respondent, that the Petitioner had written several letters, to a number of its departments, seeking information, to facilitate his oversight role over the Respondents, but it was argued that that information was available to the Petitioner, through the Senate, of which he was a member. It was averred that the Senate was seized of authority to call for more information, in case clarification was necessary.
The 2 nd Respondent further argued that the Petitioner had prematurely approached the court, for he had not exhausted the other alternative mechanisms, dedicated by the law, for deliberation on the issues that he was raising. It was contended that the legal recourse, open to the Petitioner, if he felt that he had been denied access to information, by the Respondents, was to seek a review before the Commission on Administrative Justice, as provided under Section 14 of the Access to Information Act.
In conclusion, the 2 nd respondent denied the allegations of failure to disclose the information sought, terming the allegations as baseless, and emphasising that the reports sought by the Petitioner were available in the public domain, in that they could be accessed through the Senate Public Accounts Committee.
The 1 st and 2 nd Respondents had raised a Preliminary Objection, on a point of law, with respect to the petition being premature, on the aspect of access to information, on grounds that there had been no exhaustion of alternative modes of dispute resolution. They contended, relying on Owners of Motor Vessel “Lillian S” vs Caltex Oil Kenya Limited [1989] KLR 1653 [1989] eKLR [1989] KECA 48 (KLR) , that there was no jurisdiction, on the part of this court, as the Petitioner had failed to invoke and exhaust the requisite statutory remedies, yet jurisdiction was everything. They submitted that the doctrines of exhaustion and constitutional avoidance were important in determining the issues before us. They asserted that the doctrines required a party to exhaust any alternative dispute resolution mechanism provided by statute or the law, before resorting to the courts, and frowned on the practice of bringing ordinary disputes to the constitutional court.
They relied on Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 (KLR) and Geoffrey Muthinja & Another vs Samuel Henry & 1756 Others [2015] eKLR, where it had been held that where a dispute resolution mechanism existed outside the cou
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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, 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
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE PARLIAMENTARY SERVICE (SENATE MONITORING AND EVALUATION PROCEEDURE 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 SETIONS 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
RULING
INTRODUCTION
In his Amended Petition dated 19 th of April 2024, the Petitioner, who is the Senator of Busia County contended that the Respondents had declined and/or refused to provide him information on the operations and the activities of the County Government of Busia, including information on the financial expenditure of the County, the procurement of County Government services and information on the ongoing projects in the County.
He stated that as the Senator of Busia County, he had individual oversight mandate in his electoral unit, using Senate oversight funds to monitor and evaluate the ongoing projects in the County away from the institution of the Senate as a corporate entity.
He sought several orders which this court summarised pursuant to the questions it had been called to determine. His prayers included a declaration that he and other Senators were entitled to personally access all information and documents held by county governments at all times and that the failure by the 1 st Respondent to provide information sought under Article 35(1) of the Constitution of Kenya, 2010 violated his rights, and an order of mandamus compelling the Respondents to give him, within a period not exceeding twenty-one (21) days from the judgment date, all the information he or his office sought from the 1 st Respondent or his officers.
He also sought that a declaration be made that an individual Senator had the mandate to oversight his/her county government on behalf of the people by monitoring and evaluating its policies, operations and activities and that the said mandate was limited to the Chamber’s corporate mandate, and did not extend to the work done by an individual Senator, exercising his/her oversight mandate, in his/her electoral unit, using Senate Oversight Funds to ‘monitor and evaluate,’ in real time, ongoing projects being implemented by the County Government.
The Petition herein was initially handled by Musyoka J. The Petitioner filed a Motion dated 15 th April 2024 seeking transfer of this matter from the High Court at Busia to Milimani, Nairobi and for empanelment of a bench of an uneven number of Judges. In a Ruling delivered and dated 31 st May 2024, the learned Judge declined to grant the transfer prayer but sought directions from the Honourable Chief Justice on the empanelment of a bench of an uneven number of Judges bench to hear and determine the matter herein and to specifically address the questions framed in the said Ruling pursuant to Article 165(4) of the Constitution..
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 the learned Judge, Kamau and Bett JJ to hear and determine the issues that had been identified in the aforesaid Ruling. The expanded bench gave directions on 22 nd November 2024 for the filing of Written Submissions and on 28 th May 2025, it reserved the Judgment herein.
ISSUES FOR DETERMINATION
In Paragraph 10 of the Ruling dated 31 st May 2024, the questions that were identified for determination by the court were as follows:-
Whether the mandate of the Senate to oversight County Governments, under Article 96, as read with Article 1(1), of 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;
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:-
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;
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
loses his right as a citizen, under Article 35 of the Constitution, to access information from the County Government.
Whether, as the Chief Executive of a County, pursuant to Article 179(4) of the Constitution, a County Governor is the officer:
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
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.
The said issues have been dealt with under distinct and separate headings shown hereinbelow.
OVERSIGHT OF COUNTY GOVERNMENTS
Oversight of County Governments is vested in the Senate pursuant to the provisions of Article 96(3) of the Constitution.
In his Petition and submissions on this issue, the Petitioner contended that elected Senators had clear and distinct functions as individuals within their counties as well as in their capacity as county representatives of the people under Article 1(2) of the Constitution. He averred that Senators had the mandate to oversight their county governments on behalf of the people by monitoring and evaluating their policies, operations and activities and that the said role was mutually exclusive to that of the Senate as a corporate entity.
In support of this assertion, the Petitioner relied on Article 96 and Article 229(7) and (8) of the Constitution and stated that Members of Parliament, Senators, Members of the County Assembly (MCAs) were representatives of constituents in their electoral units and they had a wide range of responsibilities.
In response to the Petition, the 1 st Respondent swore a Replying Affidavit on 28 th February 2024, wherein he protested that the Petitioner had filed this suit against him in person am despite the fact that the issues raised in the Petition concerned the County Government of Busia, which, by dint of Article 176 of the Constitution as read with Section 6 of the County Government Act 265 (Laws of Kenya) , was a juristic person.
He acknowledged that the Petitioner was the Senator for Busia County and equally doubled up as a member of the Senate Public Accounts Committee (hereinafter referred to as “CPAC”), which had the express mandate to exercise oversight over the County Governments and further to summon witnesses, receive evidence and request and receive papers and documents from the Government and the Public.
He was emphatic that the CPAC played a pivotal role in overseeing public bodies by studying public audits, inviting Governors, Cabinet Secretaries, and other government officials for questioning and reporting on their findings after the government budget audit.
He pointed out that consequent to the aforesaid mandate, he was summoned to appear before the CPAC on 28 th October 2023 vide a letter dated 26 th September 2023 where he appeared with the information sought but was turned away. He was scheduled to re-appear before CPAC on 18 th March 2024 following an invitation letter dated 15 th March 2024 in which he was directed to submit to the oversight authority of the Senate.
He further cited Article 195 of the Constitution and quoted the case of Senate vs Council of County Governors & 6 Others(Petition No 24 & 27(Consolidated)[2022] KESC 57 (KLR) where it was held that the County Assemblies exercised first-tier oversight over County Governments while the Senate exercised second-tier oversight over the Counties.
The 3 rd Respondent did not submit on this issue. The 6 th Interested Party herein supported the Petitioner’s position. In its submissions dated 9 th May 2025, it asserted that in line with Articles 96 & 98 of the Constitution, that being representatives of the people at the counties, individual Senators exercised oversight over the county governments so as to ensure the county governments were accountable to the people at the counties.
It pointed out that the oversight role of the Senate was thus not limited to Senate Plenary or the Senate Committees as individual Senators could seek information and/or documentation from County Governments to curb misappropriation of public resources at the counties to the detriment of the people. In support of the foregoing, the 6 th Respondent relied on the decision of the court in the case of Mwinzagu & 5 Others vs Parliamentary service Commission; Onderi (interested party) (petition E340 & E 363 of 2023 (consolidated) (2024) KEHC 4073 (KLR)(Constitutional and Human Rights) (26 April 2024 )(Judgment) .
Since this court was tasked with determining whether an individual Senator could undertake oversight of a County without invoking the structures of Senate, it was imperative to consider the relevant constitutional architecture on this issue.
It was noteworthy the Petitioner predicated his proposition for exercise of powers of oversight on counties by individual Senators on the provisions of Article 1(2) of the Constitution which provides:-
2. The people may exercise their sovereign power either directly or through their democratically elected representatives.
Notably, Article 1(3) of the Constitution delegates sovereign power to the three arms/organs of government namely, legislature, executive and the judiciary and stipulates thus:
3. Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—
Parliament and the legislative assemblies in the county governments;
the national executive and the executive structures in the county governments; and
the Judiciary and independent tribunals.
Article 1(4) of the Constitution on the hand states that the sovereign power of the people is exercised at the national and county levels.
Article 96 of the Constitution provides for the role of the Senate as follows:-
The Senate represents the counties, and serves to protect the interests of the counties and their governments.
The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.
The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.
The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.
The Senate’s oversight role was highlighted in the case of Council of Governors & 3 Others vs Senate & 53 Others [2015] eKLR where a three (3) judge bench observed that the Senate’s role, as was evident from the provisions of Article 96 included exercising oversight over county governments.
The court, however, noted that while the Senate had an oversight role over the county government, the issue in that regard was the scope, extent and nature of the said oversight role. In the case Council of Governors and Others vs The Senate (Supra), the three (3) judge bench adopted the plain English meaning of the word “oversight” as defined in the concise Oxford English Dictionary, 10th Edition as; “the action of overseeing” and that “oversee” had then been defined by the same dictionary as to, “supervise” or “look at from above”.
In the same vein, the Supreme Court in Senate & 2 Others vs Council of County Governors & 8 Others [2022] KESC 7 (KLR) was very clear on the corporate mandate of the Senate. It stated that to discharge its oversight responsibilities, the Senate was not expected to relocate to the counties to exercise supervisory powers at that level as that would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach.
The court further added that the Senate must not be involved in the administrative nitty-gritty details of the counties and further that its oversight and legislative roles, were to be exercised in accordance with the Constitution and the law.
We appreciate that the meaning, scope, nature and extent of oversight was
already settled in the decisions cited above. We find no reason to depart from the findings of the courts above. In as much as the Public Finance Management (Senate Monitoring and Evaluation) Regulations Legal Notice 71 of 2018 empowered individual Senators to recruit an Evaluation and Monitoring Officer to carry out functions necessary to give effect of its objectives and created a fund for purposes, we are of the view that the functions carried out by the Monitoring and Evaluation Officer and the Senator in this regard utilizing the Senate Monitoring and Evaluation Fund could only be exercised under the Corporate oversight mandate of the Senate and not that of the individual Senator owing to our nature of our constitutional architecture. While we acknowledge that pursuant to clause 7 of the said Regulations the object of the Fund is to facilitate a Senator to carry out monitoring and evaluation activities in exercise of the Senate's oversight role over county governments in accordance with Article 96 of the Constitution, we are of the view that the Fund was only conceived to expand the Senate’s oversight role and not necessarily vest oversight powers on individual senators.
In this regard, we are of the view that oversight power can only be conferred and exercised within the dictates of the Constitution. Needless to state the decision of the Supreme Court in Senate & 2 Others vs Council of County Governors & 8 Others (Petition 25 of 2019) (Supra) was binding to this court.
A cursory look at the provisions of Article 96 (3) of the Constitution and the decisions cited above leaves no doubt that the Senate was vested with power to oversight county governments. Pursuant to Article 98(1) of the Constitution, the Senate consists of 67 members excluding the Speaker.
Comparatively, in other jurisdictions such as the United States of America, which had a Federal and State Government system, the State Government was headed by a Governor and State Senators represented their individual States in the United States Senate and Congress.
As could be seen in Understanding State Senators: A Comprehensive Guide https://www.officialoffices.com/legislative-branch-state-senators , in the United States of America, Senators did not have any individual oversight powers over the State Government as their oversight mandate was merged with the corporate Senate which focused on the federal government, it’s operations and policies.
On the other hand, a pertinent question that arose was whether under the Kenya Constitution, the oversight powers vested upon the Senate could be exercised individually by a member of the Senate as proposed by the Petitioner? The court thinks not.
Under Article 1(3) of the Constitution, sovereign power was delegated to state organs namely, parliament and the legislative assemblies in the county governments, the national executive the executive structures in the county governments, and the judiciary and independent tribunals. The Oxford Dictionary 12 th Edition defines the word “organ” as “a department or organization that performs a specified function”. The Cambridge Dictionary defines it as “an organization that works as part of a larger organization, for example, a government ”. The Merriam-Webster Dictionary refers to it as “a subordinate group or organization that performs specialized functions -the various arms of government ”. By no stretch of imagination could the term “organ” in Article 1 of the Constitution be construed to refer to an individual. A simple interpretation of Article 1(3) of the Constitution could only mean that the Senate as an organ was the corporate or collective body of Senators and not to individual Senators.
This power had to be exercised within the structures of Senate as prescribed by the Constitution. In any event, Article 2(2) of the Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution.
This position aligned with the decision of the court in Mwinzagu & 5 Others vs Parliamentary service Commission; Onderi (Interested Party) (2024) KEHC 4073 (KLR) where the court therein. held that from a constitutional view point, oversight was exercised by the Senate collectively and indivisibly by the Senators [Emphasis added].
This court found that the use of the term, “collectively and indivisibly” in simple terms meant that power of oversight could not be distributed to each individual Senator but had to be exercised by Senate as a whole through its plenary sessions or committees. In fact, the use of the word “Senate” in Article 96 of the Constitution was intentional as that was an organ that consisted of several Senators.
It must be appreciated that the Senate as a Constitutional Organ had been vested with mechanisms to execute its oversight role. Under Article 124 of the Constitution, the Senate was empowered to establish committees to assist it in the exercise of the oversight mandate.
Moreover, pursuant to Article 125 of the Constitution, the Senate had also been vested with a “coercive” power to ensure the attendance of witnesses as well as compel the production of documents.
Article 125 of the Constitution provides :-
Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.
For the purposes of clause (1), a House of Parliament and any of its committees has the same powers as the High Court -
to enforce the attendance of witnesses and examine them on oath, affirmation or otherwise;
to compel the production of documents; and
c. to issue a commission or request to examine witnesses abroad.
Without such powers the Senate could not be able to execute its oversight role. Needless to state, such role could not in any way be construed to be exercisable by the individual Senators in their personal capacities for they have not been enabled to do so by the Constitution.
Without the specific powers expressly set out under Articles 124 and 125 of the Constitution, individual Senator’s quest to oversight County Governments in their personal capacities would face headwinds.
Courts were enjoined by the provisions of Article 259 of the Constitution of to interpret the Constitution in a manner that promotes its purposes, values, and principles and contributes to good governance.
In this regard, the court took the view that when the people of Kenya adopted the Constitution they intended to “institutionalise” exercise of delegated sovereign power rather than “individualise” it. In reaching this conclusion, this court was alive to the holding of the Supreme Court in Senate & 2 Others vs Council of Governors & 8 Others (Supra) where the court therein held thus :-
“The above limitations must be borne in mind even as the special role of the Senate in the devolved governance system is acknowledged. Under article 96(1), the Senate represents the counties and serves to protect their interests. The Senate participates in the law-making function of Parliament by considering and approving Bills concerning counties. It has the power to determine the allocation of national revenue among counties, and to oversight over the use of those resources. To discharge these responsibilities, the Senate is not expected to relocate to the counties to exercise supervisory powers at that level. That would be intrusive into the functional and institutional integrity of the county government and unacceptable overreach. It must not be involved in the administrative nitty-gritty details of the counties. Its oversight as indeed its legislative roles, are to be exercised in accordance with the Constitution and the law” [Emphasis added]
It may well be true that there were many well-meaning State Officers but this court was of the considered view that vesting delegated sovereign power within the purview of Article 1(3) of the Constitution on individuals acting outside the structures of state organs posed the hazard of perpetrating unchecked individual power and the attendant excesses of tyranny. Were a Senator to be allowed to exercise individual oversight over the County Government, there would be a breach of the doctrine of separation of powers, more so in light of the fact that the County Assemblies were vested with first tier oversight powers over the same government.
It follows therefore that exercise of sovereign power by the people through their democratically elected representatives contemplated under Article 1(2) of the Constitution could only be realised through their representation in the Senate.
In the circumstances, this court did not find merit in the Petitioner’s assertion that Senators acting individually could exercise their role of oversighting County Governments.
RIGHT TO ACCESS OF INFORMATION
The second broad question, that the Petitioner called upon this court to answer, was with relation to his right to access information from the Respondents, as a private citizen and as a Senator elected to represent Busia County at the Senate of the Republic of Kenya. With regard to that, the Petitioner submitted that the 1 st Respondent had an obligation to uphold the rule of law, including by giving him the information that he had requested for. He disputed the assertions by the Respondents that they denied him access to the information sought due to public interest, asserting that there was no public interest in denying an elected representative of the people access to information he required to discharge his mandate under the law.
In response to that, the 1 st Respondent averred that the information, allegedly in issue herein, as requested by the Petitioner, was available to any person who requested for it, including the persons stationed at the office of the Petitioner. He further averred that, as for the information and documents sought by the Petitioner, in his official capacity, as Senator of Busia County, in exercise of his oversight mandate over the County Government, to monitor and evaluate the use of public funds and resources in the County, the same had been provided to him through the Office of the Clerk of the Senate, and also through the Senate Public Accounts Committee, of which he was a member.
On its part, the 2 nd Respondent stated that accounting officers were appointed by the County Executive Committee Member for Finance, in accordance with the provisions of Section 148(1) of the Public Finance Management Act, Cap 412A, Laws of Kenya. It was claimed that it, the 2 nd Respondent, had made it easier for citizens, to access the sort of information requested by the Petitioner, by publishing the said information in its website and various notice boards, although some information was too sensitive and confidential to be published. It was further averred that although the right to access information and fair administrative action were constitutional rights, the same were not absolute, as per Article 24 of the Constitution of Kenya and Section 4 of the Access to Information Act, Cap 7M, Laws of Kenya.
It was acknowledged, by the 2 nd Respondent, that the Petitioner had written several letters, to a number of its departments, seeking information, to facilitate his oversight role over the Respondents, but it was argued that that information was available to the Petitioner, through the Senate, of which he was a member. It was averred that the Senate was seized of authority to call for more information, in case clarification was necessary.
The 2 nd Respondent further argued that the Petitioner had prematurely approached the court, for he had not exhausted the other alternative mechanisms, dedicated by the law, for deliberation on the issues that he was raising. It was contended that the legal recourse, open to the Petitioner, if he felt that he had been denied access to information, by the Respondents, was to seek a review before the Commission on Administrative Justice, as provided under Section 14 of the Access to Information Act.
In conclusion, the 2 nd respondent denied the allegations of failure to disclose the information sought, terming the allegations as baseless, and emphasising that the reports sought by the Petitioner were available in the public domain, in that they could be accessed through the Senate Public Accounts Committee.
The 1 st and 2 nd Respondents had raised a Preliminary Objection, on a point of law, with respect to the petition being premature, on the aspect of access to information, on grounds that there had been no exhaustion of alternative modes of dispute resolution. They contended, relying on Owners of Motor Vessel “Lillian S” vs Caltex Oil Kenya Limited [1989] KLR 1653 [1989] eKLR [1989] KECA 48 (KLR) , that there was no jurisdiction, on the part of this court, as the Petitioner had failed to invoke and exhaust the requisite statutory remedies, yet jurisdiction was everything. They submitted that the doctrines of exhaustion and constitutional avoidance were important in determining the issues before us. They asserted that the doctrines required a party to exhaust any alternative dispute resolution mechanism provided by statute or the law, before resorting to the courts, and frowned on the practice of bringing ordinary disputes to the constitutional court.
They relied on Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 (KLR) and Geoffrey Muthinja & Another vs Samuel Henry & 1756 Others [2015] eKLR, where it had been held that where a dispute resolution mechanism existed outside the cou
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