introduction
1. On record, there are five Notices of Preliminary Objections. They are the 20 th respondent Preliminary Objection dated 17 th January 2025, the 22 nd respondent Preliminary Objection dated 12 th March 2025, the 22 nd respondent Preliminary Objection dated 11 th February 2025 and the 3 rd respondent Preliminary Objection dated 19 th February 2025.
20 th Respondent Preliminary Objection
2. The preliminary objection by the 20 th respondent is based on the grounds that the application is incompetent and ought to be struck out due to misjoinder of parties. The inclusion of Paul Mucai t/a Gitau Paul Mucai & Company Advocates as the applicant in the pleadings is opposed on account of misjoinder as the law firm does not have a substantive legal interest in the matter. It is contended that proper party to the proceedings is Urbanus Reuben Kioko t/a Urbanus K and Associates Advocates and not the law firm representing him.
3. Further it is argued that the Applicant lacks locus standi to institute the instant proceedings as the application is contrary to the established principles and procedures which require that pleadings and applications be brought in the name of the party with the substantive interest in the mater and not the legal representative or law firm.
22 nd Respondent’s Preliminary Objection
4. The 22 nd respondent’s Notice of preliminary objection is based on the grounds that the Application is frivolous, vexatious and an abuse of the court process and has no legal and procedural basis to stand on for lack of a substantive suit upon which it is anchored such as a petition, plaint or originating summons. Further, that the application is premature for failure to comply with section 8, 9 & 10 of Access of Information Act 2016 with regard to request for information. Additionally, that the applicant has no known grievances, complaint or right infringed upon or cause of action against the 22 nd respondent or all the respondents and is non-suited to be a party in the instant proceedings and thus improperly enjoined.
3 rd Respondent’s Preliminary Objection
5. The preliminary objection by the 3 rd respondent is based on the ground that the jurisdiction of the court has been prematurely revoked. Further that the crux of the Application is the alleged refusal of access of information yet Section 8 of the Access to Information Act sets out the procedure to be followed when requesting for information held by a public entity whereas Rule 13 of the Access to Information (General) Regulations 2023 requires a person who wishes to access information held by a public entity to make a request in writing or orally to the Information Access Officer. The 3 rd respondent states that it has not received any application requesting for any information and therefore releasing any information or documents to the Applicant would be improper and not within the legal requirements. Pursuant to Section 14 of the Access to Information Act, if the applicant requested for access to information and the same was denied, he ought to have requested for a review of the decision from the commission which the applicant has not done. Thus, the application offends the doctrine of exhaustion contrary to Section 9(2) of the Fair Administration Act and the principles stipulated in the cases of Robert Khamala
& 8 Others vs Acting Clerk of the Nairobi City Council Assembly [2022] eKLR and William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR . It was thus contended that the application before the Court is premature
23 rd Respondent’s Preliminary Objection
6. The 23 rd respondent’s preliminary objection is based on the grounds analogous to the rest.
7. Parties put in written submissions
The 23 rd Respondent’s Submissions
8. The 23 rd respondent identified two issues for determination which are what is the procedure for accessing information held by a public entity and whether the applicant has exhausted all legal mechanisms before coming to court. The 23 rd respondent submitted that the crux of the application is the alleged refusal of access of information yet Section 8 of the Access to Information Act sets out the procedure to be followed when requesting for information
held by a public entity whereas Rule 13 of the Access to Information (General) Regulations 2023 requires a person
who wishes to access information held by a public entity to make a request in writing or orally to the Information Access Officer. The 23 rd respondent argued that the applicant has not adduced into evidence any letter or request made for such information and therefore it is a total stranger to the information sought.
9. Upon such an application being made, Section 9(4) of the Access to Information Act places the onus on the access information officer or public entity to inform the requester whether their application is successful or not. Further, if the applicant is aggrieved he ought to have lodged a review of the said refusal decision from the commission pursuant to Section 14 of the Access to Information Act. The 23 rd respondent revealed that the applicant has not provided any evidence to indicate that he filed a complaint with the commission against denial of access of information by itself. Reliance was placed in the case of Kahindi Lekalhaile & 4 Others vs Inspector General National Police Service & 3 Others [2013] eKLR where the court stated:-
However in order for this right to be justiciable, it must be established that the person seeking the information has sought the information, and access to such information has been denied….
In the instant case, no request for information has been made to the respondents. The enforcement of the right cannot therefore be said to have crystallized.
10. Further reliance was placed in the case of Andrew Omtatah Okoth vs Attorney General & 2 Others (2011) eKLR where Musinga J (as he then was) stated thus:-
Before an application is made to court to compel the state or another person to disclose any information that is required for the exercise or protection of any right or fundamental freedom, the applicant must first demonstrate that a request for the information required was made to the state or to the other person in possession of the same and the request was disallowed. The court cannot be the first port of call. The petitioner herein does not demonstrate that he requested the JSC to avail to him any information that he considered necessary and the same was not granted. In that regard, prayer 4 of the applicant’s application is rather premature.
11. Thus the 23 rd respondent submitted that the applicant had not followed the due process in order to access information and his application is therefore premature, misconceived and should be dismissed.
12. The 23 rd respondent cited Section 9 of the Fair Administrative Actions Act and the case of Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & Others (Interested Parties) (2020) eKLR where the court discussed the doctrine of exhaustion as follows:-
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all, diligent in the protection of his own interest within the
mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line
with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (IEBC) ex parte National super Alliance (NASA) Kenya and 6 Others [2017] eKLR.
13. The 23 rd respondent argued that the applicant ought to have first and foremost sought relief from the administrative body that is the commission before coming to seek judicial relief in order to maintain comity between the courts and administrative agencies and avoid overburdening the courts unnecessarily. Further, the applicant has failed to demonstrate to the court why he should be exempted from the doctrine of exhaustion rule and thus the court lacks jurisdiction to hear and determine the impugned application.
The 3 rd Respondent’s Submissions
14. The 3 rd respondent identified two issues for determination which are whether the applicant followed the procedural requirements as provided in the Access of Information Act and the Access of Information (General) Regulations, 2023 and whether the applicant offended the doctrine of exhaustion. The 3 rd respondent submitted
that the crux of the matter is that the applicant seeks to access tender documents by the 1 st respondent that are allegedly in the 3 rd
to 42 nd respondents’ possession. They further submitted that the law in Section 8 and 9 of the Access of Information Act 2016 provides for the procedure within which to follow in order to access such information. The 3 rd respondent further cited the cases of Andrew Omtatah Okoth vs Attorney General & 2 Others (2011) eKLR where the court stated:-
Before an application is made to court to compel the state or another person to disclose any information that is required for the exercise or protection of any right or fundamental freedom, the applicant must first demonstrate that a request for the information required was made to the state or to the other person in possession of the same and the request was disallowed. The court cannot be the first port of call. The petitioner herein does not demonstrate that he requested the JSC to avail to him any information that he considered necessary and the same was not granted. In that regard, prayer 4 of the applicant’s application is rather premature.
15. Further reliance was placed in the case of Saniako N. Kibiwot vs Land Control Board Marakwet Division & 2 Others (2019) eKLR where the court provided as follows:-
Violation of right to access to information cannot therefore be deemed to have occurred unless first a request for information is shown to have been made and refused or neglected by the respondents. The request must accord with Section 8(1) of the Access to Information Act which provides that an application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. In my view the letter dated 10 th November 2016 amounts to a proper request under that section. The respondents have not denied having received that letter.
16. The 3 rd respondent submitted that the applicant has not demonstrated to the court that he followed the due process and thus his application ought to fail.
17. On the issue of the doctrine of exhaustion, the 3 rd respondent cited Section 9 of the Fair Administration Action Act and the case of Karani vs Kenya Private Sector Alliance (Civil Case E120
of 2024) [2025] KEHC 3788 (KLR) (Civ) (27 March 2025) (Ruling) where the court held:-
The above brings me to the doctrine of exhaustion which is an administrative remedy that a party ought to seek redress from before proceeding to invoke the jurisdiction of the court as may be provided in legislation in various agencies and authorities. It is mandatory that all available avenues of dispute resolution ought to be pursued before court action.
18. Further reliance was placed in Mwangi & Another vs Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) cited with approval the position in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & Others (Interested Parties) (2020) eKLR where the court discussed the doctrine of exhaustion as follows:-
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (IEBC) ex parte National super Alliance (NASA) Kenya and 6 Others [2017] eKLR where the court opined as follows:
This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitovaly stated by the Court of Appeal in speaker of National Assembly vs Karume [1992] KLR 21 in the often repeated words “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
19. In the event of refusal, the 3 rd respondent argued that Section 14 of the Act provides for review of such denial by the commission. The applicant has not shown that he approached the commission therefore violating the doctrine of exhaustion. Reliance was placed in the case of Samuel Cheratsi Munga, James Marangu
M’muketyha & 1750 Others (Civil Appeal 10 of 2016) [2015] KECA 304 where the court held:-
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
20. The court in Mwangi & Another vs Naivasha Hotel t/a Sawela Lodges (supra) further stated:-
I find that the petitioners have not sufficiently demonstrated why the petition ought to be exempted from the exhaustion rule. I am inclined to find that the petition is barred by the doctrine of exhaustion….The preliminary objection dated 12 th August 2021 is hereby upheld and the petition is hereby struck out with costs to the respondent.
21. In light of the above, the applicant failed to demonstrate why the application ought to be exempted from the doctrine of exhaustion.
The 22 nd Respondent’s Submissions
22. The 22 nd respondent cited Order 4 and 37 of the Civil Procedure Rules and submitted that there is no substantive suit such as a plaint, petition or originating summons to support the present application which is then hanging and has no legs to stand on. The 22 nd respondent further cited Sections 8, 9 and 10 of the Access of Information Act 2016 and submitted that the application is premature as the applicant did not follow the elaborate procedure to access information as laid out.
23. The 22 nd respondent further argued that the applicant is wrongfully enjoined in the proceedings as he is not the aggrieved party and has no grievance or interest against it. Further, it has never had any dealings with the applicant or his law firm nor tried to institute a complaint or prosecution of the advocates Urbanus Reuben Kioko. In light of the foregoing, the 22 nd respondent argued that it is improperly joined in the matter.
The Applicant’s Submissions
24. The applicant identified one issue for determination as whether the preliminary objections are merited. Whilst relying on the case of
Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd 1969 EA 696 , he submitted that a preliminary objection should only raise a point of law. The court captured this principle as follows:-
So far as I am aware of a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implications out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. Further the court held: “A preliminary objection is in the nature of what used to be a demure. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or of what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This improper practice must stop.
25. The applicant argued that to determine the veracity of the preliminary objections on the applicability of the doctrine of exhaustion vis a vis the actions taken by himself to have the documents he seeks to be provided by each of the 32 respondents would require parties to present evidence that he did or did not comply with the relevant sections of the Access to Information Act
and Fair Administrative Act. He further submitted that the preliminary objections are premised on a misunderstanding of the difference between documents and what is information held by an institution as defined in the Access to Information Act and documents to which are public documents (procurement tender documents), the respondents are not the authors, nor have any proprietary rights over, which are issues for determination by the court through analysis and evaluation of evidence.
26. On the issue of misjoinder and locus standi, the applicant submitted that evidence should be presented to prove or disprove misjoinder and locus standi. He further submitted that courts have consistently held that lack of formal authority is not fatal at the preliminary stage and if there is a procedural defect it can be cured by seeking leave subsequently or regularizing the pleadings. To buttress that point, the applicant relied on the case of Kenya Bus Services Ltd vs Attorney General & 2 Others [2005] eKLR where the court held that:-
Where a party seeks to enforce the rights of others, or in public interest, such suit should not be struck out merely on technical grounds.
27. Further reliance was placed in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the court emphasized that locus should not be interpreted in a narrower rigid manner especially under the current constitutional dispensation. The issue of whether he has authority to sue involves interpretation of pleadings, assessment of constitutional rights possible evaluation of factual evidence which are not pure points of law.
Analysis and Determination
28. Upon careful perusal of the submissions by the parties, the Court considers the following issues as falling for determination in the instant matter:
a) Whether the preliminary objections meet that threshold.
b) Whether the applicant has locus standi to institute the instant proceedings.
c) Whether the instant Application seeking access to information is premature and barred by doctrine of exhaustion of administrative remedies, given the
Applicant’s failure to first invoke the available statutory mechanisms
d) Whether the application is incompetent for lack of a substantive suit or petition upon which it is anchored rendering it unsustainable in law.
Whether the preliminary objection is sustainable
29. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-
…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
30. Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.
31. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:-
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
32. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-
Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
33. Regarding the value of preliminary objections, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by
litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...”
34. By way of a summary therefore, proper attributes of a preliminary objection are as follows:
a) If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits- meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.
b) It is argued on the assumption that all the facts pleaded by the other side are correct- this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.
c) It cannot be raised if any fact has to be ascertained by evidence- a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.
d) It cannot be raised if what is being sought is the exercise of judicial discretion – if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection.
35. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed
facts, leads to but one conclusion: that the facts are incompatible with that point of law.
36. The objections raise issues of this Honourable Court’s jurisdiction, locus standi by the applicant to bring the suit, the doctrine of exhaustion and the application being incompetent and an abuse of the court process in view of its defective nature. The said issues are anchored on pure points of law and would, if successfully argued, dispose of the Application without a hearing on merits hence satisfy the threshold of raising Preliminary Objection in law.
Whether the Applicant has locus standi to institute the instant proceedings
37. The law on legal standing to institute constitutional petitions is provided for under Article 22 and 258 of the Constitution.
38. Article 22 provides:-
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
a) A person acting on behalf of another person who cannot act in their own name;
b) A person acting as a member of, or in interest of, a group or class of persons;
c) A person acting in the public interest; or
d) An association acting in the interest of one or more of its members.
39. In Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR the court considered the above provision and eloquently stated as follows:
Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22(3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28 th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules 2013 which in view of its long title, we take the liberty to baptize the “Mutunga Rules” to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22(2) and 258 of the Constitution.
40. Further in Mining Temoi & Another vs Governor of County of Bungoma & 17 Others [2014] eKLR , Mabeya J. held thus:-
I am of the view that Article 22(1) and (2) of the Constitution had expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. A literal interpretation of articles 22 and 258 in my view confers upon any person a right to bring action in more than two instances firstly in the public interest and secondly, where breach of the Constitution is threatened in relation to a right of fundamental freedom. Where one purports to enforce the rights of another, it is my view that there must be a nexus between the parties.
41. On perusal of the application the matter primarily revolves around forged stamps belonging to one Urbanus K & Associates Advocates but the said advocate is not a party to the present claim. The applicant is said to be Urbanus Reuben Kioko’s advocate and has brought the claim on his behalf. A cursory glance at the application reveals that no grievances have been made against the applicant. The actual aggrieved party herein is Urbanus Reuben Kioko t/a Urbanus K & Associates Advocates.
42. However, under our Constitution the right to institute court proceedings for enforcement of the Bill of Rights and the Constitution does not serve only as an affirmation of a personal right exercisable by a person in his own interest or personal benefit. It is a collective obligation that every person is entitled to take to defend the Constitution as particularly commanded in Article 3 (1) which provided that ‘Every person has an obligation to respect, uphold and defend the Constitution. ’ A Constitutional remedy unlike a remedy in tort or civil claim is intended to not merely affirm the rights of the person whose rights were violated but also to serve the greater public purpose of communicating the resolute message that any such future violation of fundamental rights of citizens under similar circumstances will not be tolerated. A constitutional remedy is unlike an ordinary personal claim under the civil law; it is a proceeding brought to affirm the constitutional ideals. Any person can seek enforcement of the Bill of Rights even on behalf of another in the defense of the Constitution. The ground of objection based on lack of locus standi where the allegation involves violation of the Constitution or the Bill of Rights is thus untenable.
43. The fact that the Application could not be brought under the said advocate’s name is thus a non-issue where matter implicates a constitutional violation.
Whether the instant Application seeking access to information is premature and barred by doctrine of exhaustion of administrative remedies, given the Applicant’s failure to first invoke the available statutory mechanisms.
44. The application before the court seeks to direct the 3 rd – 42 nd respondents to provide him with hard copies of all tender bid documents by Tridents Insurance Company Ltd in the year 2023/2024.
45. Section 8 of the Access of Information Act provides as follows:-
1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any o
[...truncated]
1. On record, there are five Notices of Preliminary Objections. They are the 20 th respondent Preliminary Objection dated 17 th January 2025, the 22 nd respondent Preliminary Objection dated 12 th March 2025, the 22 nd respondent Preliminary Objection dated 11 th February 2025 and the 3 rd respondent Preliminary Objection dated 19 th February 2025.
20 th Respondent Preliminary Objection
2. The preliminary objection by the 20 th respondent is based on the grounds that the application is incompetent and ought to be struck out due to misjoinder of parties. The inclusion of Paul Mucai t/a Gitau Paul Mucai & Company Advocates as the applicant in the pleadings is opposed on account of misjoinder as the law firm does not have a substantive legal interest in the matter. It is contended that proper party to the proceedings is Urbanus Reuben Kioko t/a Urbanus K and Associates Advocates and not the law firm representing him.
3. Further it is argued that the Applicant lacks locus standi to institute the instant proceedings as the application is contrary to the established principles and procedures which require that pleadings and applications be brought in the name of the party with the substantive interest in the mater and not the legal representative or law firm.
22 nd Respondent’s Preliminary Objection
4. The 22 nd respondent’s Notice of preliminary objection is based on the grounds that the Application is frivolous, vexatious and an abuse of the court process and has no legal and procedural basis to stand on for lack of a substantive suit upon which it is anchored such as a petition, plaint or originating summons. Further, that the application is premature for failure to comply with section 8, 9 & 10 of Access of Information Act 2016 with regard to request for information. Additionally, that the applicant has no known grievances, complaint or right infringed upon or cause of action against the 22 nd respondent or all the respondents and is non-suited to be a party in the instant proceedings and thus improperly enjoined.
3 rd Respondent’s Preliminary Objection
5. The preliminary objection by the 3 rd respondent is based on the ground that the jurisdiction of the court has been prematurely revoked. Further that the crux of the Application is the alleged refusal of access of information yet Section 8 of the Access to Information Act sets out the procedure to be followed when requesting for information held by a public entity whereas Rule 13 of the Access to Information (General) Regulations 2023 requires a person who wishes to access information held by a public entity to make a request in writing or orally to the Information Access Officer. The 3 rd respondent states that it has not received any application requesting for any information and therefore releasing any information or documents to the Applicant would be improper and not within the legal requirements. Pursuant to Section 14 of the Access to Information Act, if the applicant requested for access to information and the same was denied, he ought to have requested for a review of the decision from the commission which the applicant has not done. Thus, the application offends the doctrine of exhaustion contrary to Section 9(2) of the Fair Administration Act and the principles stipulated in the cases of Robert Khamala
& 8 Others vs Acting Clerk of the Nairobi City Council Assembly [2022] eKLR and William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR . It was thus contended that the application before the Court is premature
23 rd Respondent’s Preliminary Objection
6. The 23 rd respondent’s preliminary objection is based on the grounds analogous to the rest.
7. Parties put in written submissions
The 23 rd Respondent’s Submissions
8. The 23 rd respondent identified two issues for determination which are what is the procedure for accessing information held by a public entity and whether the applicant has exhausted all legal mechanisms before coming to court. The 23 rd respondent submitted that the crux of the application is the alleged refusal of access of information yet Section 8 of the Access to Information Act sets out the procedure to be followed when requesting for information
held by a public entity whereas Rule 13 of the Access to Information (General) Regulations 2023 requires a person
who wishes to access information held by a public entity to make a request in writing or orally to the Information Access Officer. The 23 rd respondent argued that the applicant has not adduced into evidence any letter or request made for such information and therefore it is a total stranger to the information sought.
9. Upon such an application being made, Section 9(4) of the Access to Information Act places the onus on the access information officer or public entity to inform the requester whether their application is successful or not. Further, if the applicant is aggrieved he ought to have lodged a review of the said refusal decision from the commission pursuant to Section 14 of the Access to Information Act. The 23 rd respondent revealed that the applicant has not provided any evidence to indicate that he filed a complaint with the commission against denial of access of information by itself. Reliance was placed in the case of Kahindi Lekalhaile & 4 Others vs Inspector General National Police Service & 3 Others [2013] eKLR where the court stated:-
However in order for this right to be justiciable, it must be established that the person seeking the information has sought the information, and access to such information has been denied….
In the instant case, no request for information has been made to the respondents. The enforcement of the right cannot therefore be said to have crystallized.
10. Further reliance was placed in the case of Andrew Omtatah Okoth vs Attorney General & 2 Others (2011) eKLR where Musinga J (as he then was) stated thus:-
Before an application is made to court to compel the state or another person to disclose any information that is required for the exercise or protection of any right or fundamental freedom, the applicant must first demonstrate that a request for the information required was made to the state or to the other person in possession of the same and the request was disallowed. The court cannot be the first port of call. The petitioner herein does not demonstrate that he requested the JSC to avail to him any information that he considered necessary and the same was not granted. In that regard, prayer 4 of the applicant’s application is rather premature.
11. Thus the 23 rd respondent submitted that the applicant had not followed the due process in order to access information and his application is therefore premature, misconceived and should be dismissed.
12. The 23 rd respondent cited Section 9 of the Fair Administrative Actions Act and the case of Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & Others (Interested Parties) (2020) eKLR where the court discussed the doctrine of exhaustion as follows:-
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all, diligent in the protection of his own interest within the
mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line
with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (IEBC) ex parte National super Alliance (NASA) Kenya and 6 Others [2017] eKLR.
13. The 23 rd respondent argued that the applicant ought to have first and foremost sought relief from the administrative body that is the commission before coming to seek judicial relief in order to maintain comity between the courts and administrative agencies and avoid overburdening the courts unnecessarily. Further, the applicant has failed to demonstrate to the court why he should be exempted from the doctrine of exhaustion rule and thus the court lacks jurisdiction to hear and determine the impugned application.
The 3 rd Respondent’s Submissions
14. The 3 rd respondent identified two issues for determination which are whether the applicant followed the procedural requirements as provided in the Access of Information Act and the Access of Information (General) Regulations, 2023 and whether the applicant offended the doctrine of exhaustion. The 3 rd respondent submitted
that the crux of the matter is that the applicant seeks to access tender documents by the 1 st respondent that are allegedly in the 3 rd
to 42 nd respondents’ possession. They further submitted that the law in Section 8 and 9 of the Access of Information Act 2016 provides for the procedure within which to follow in order to access such information. The 3 rd respondent further cited the cases of Andrew Omtatah Okoth vs Attorney General & 2 Others (2011) eKLR where the court stated:-
Before an application is made to court to compel the state or another person to disclose any information that is required for the exercise or protection of any right or fundamental freedom, the applicant must first demonstrate that a request for the information required was made to the state or to the other person in possession of the same and the request was disallowed. The court cannot be the first port of call. The petitioner herein does not demonstrate that he requested the JSC to avail to him any information that he considered necessary and the same was not granted. In that regard, prayer 4 of the applicant’s application is rather premature.
15. Further reliance was placed in the case of Saniako N. Kibiwot vs Land Control Board Marakwet Division & 2 Others (2019) eKLR where the court provided as follows:-
Violation of right to access to information cannot therefore be deemed to have occurred unless first a request for information is shown to have been made and refused or neglected by the respondents. The request must accord with Section 8(1) of the Access to Information Act which provides that an application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. In my view the letter dated 10 th November 2016 amounts to a proper request under that section. The respondents have not denied having received that letter.
16. The 3 rd respondent submitted that the applicant has not demonstrated to the court that he followed the due process and thus his application ought to fail.
17. On the issue of the doctrine of exhaustion, the 3 rd respondent cited Section 9 of the Fair Administration Action Act and the case of Karani vs Kenya Private Sector Alliance (Civil Case E120
of 2024) [2025] KEHC 3788 (KLR) (Civ) (27 March 2025) (Ruling) where the court held:-
The above brings me to the doctrine of exhaustion which is an administrative remedy that a party ought to seek redress from before proceeding to invoke the jurisdiction of the court as may be provided in legislation in various agencies and authorities. It is mandatory that all available avenues of dispute resolution ought to be pursued before court action.
18. Further reliance was placed in Mwangi & Another vs Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) cited with approval the position in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & Others (Interested Parties) (2020) eKLR where the court discussed the doctrine of exhaustion as follows:-
The question of exhaustion of administrative remedies arises when a litigant aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (IEBC) ex parte National super Alliance (NASA) Kenya and 6 Others [2017] eKLR where the court opined as follows:
This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitovaly stated by the Court of Appeal in speaker of National Assembly vs Karume [1992] KLR 21 in the often repeated words “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
19. In the event of refusal, the 3 rd respondent argued that Section 14 of the Act provides for review of such denial by the commission. The applicant has not shown that he approached the commission therefore violating the doctrine of exhaustion. Reliance was placed in the case of Samuel Cheratsi Munga, James Marangu
M’muketyha & 1750 Others (Civil Appeal 10 of 2016) [2015] KECA 304 where the court held:-
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
20. The court in Mwangi & Another vs Naivasha Hotel t/a Sawela Lodges (supra) further stated:-
I find that the petitioners have not sufficiently demonstrated why the petition ought to be exempted from the exhaustion rule. I am inclined to find that the petition is barred by the doctrine of exhaustion….The preliminary objection dated 12 th August 2021 is hereby upheld and the petition is hereby struck out with costs to the respondent.
21. In light of the above, the applicant failed to demonstrate why the application ought to be exempted from the doctrine of exhaustion.
The 22 nd Respondent’s Submissions
22. The 22 nd respondent cited Order 4 and 37 of the Civil Procedure Rules and submitted that there is no substantive suit such as a plaint, petition or originating summons to support the present application which is then hanging and has no legs to stand on. The 22 nd respondent further cited Sections 8, 9 and 10 of the Access of Information Act 2016 and submitted that the application is premature as the applicant did not follow the elaborate procedure to access information as laid out.
23. The 22 nd respondent further argued that the applicant is wrongfully enjoined in the proceedings as he is not the aggrieved party and has no grievance or interest against it. Further, it has never had any dealings with the applicant or his law firm nor tried to institute a complaint or prosecution of the advocates Urbanus Reuben Kioko. In light of the foregoing, the 22 nd respondent argued that it is improperly joined in the matter.
The Applicant’s Submissions
24. The applicant identified one issue for determination as whether the preliminary objections are merited. Whilst relying on the case of
Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd 1969 EA 696 , he submitted that a preliminary objection should only raise a point of law. The court captured this principle as follows:-
So far as I am aware of a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implications out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. Further the court held: “A preliminary objection is in the nature of what used to be a demure. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or of what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This improper practice must stop.
25. The applicant argued that to determine the veracity of the preliminary objections on the applicability of the doctrine of exhaustion vis a vis the actions taken by himself to have the documents he seeks to be provided by each of the 32 respondents would require parties to present evidence that he did or did not comply with the relevant sections of the Access to Information Act
and Fair Administrative Act. He further submitted that the preliminary objections are premised on a misunderstanding of the difference between documents and what is information held by an institution as defined in the Access to Information Act and documents to which are public documents (procurement tender documents), the respondents are not the authors, nor have any proprietary rights over, which are issues for determination by the court through analysis and evaluation of evidence.
26. On the issue of misjoinder and locus standi, the applicant submitted that evidence should be presented to prove or disprove misjoinder and locus standi. He further submitted that courts have consistently held that lack of formal authority is not fatal at the preliminary stage and if there is a procedural defect it can be cured by seeking leave subsequently or regularizing the pleadings. To buttress that point, the applicant relied on the case of Kenya Bus Services Ltd vs Attorney General & 2 Others [2005] eKLR where the court held that:-
Where a party seeks to enforce the rights of others, or in public interest, such suit should not be struck out merely on technical grounds.
27. Further reliance was placed in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the court emphasized that locus should not be interpreted in a narrower rigid manner especially under the current constitutional dispensation. The issue of whether he has authority to sue involves interpretation of pleadings, assessment of constitutional rights possible evaluation of factual evidence which are not pure points of law.
Analysis and Determination
28. Upon careful perusal of the submissions by the parties, the Court considers the following issues as falling for determination in the instant matter:
a) Whether the preliminary objections meet that threshold.
b) Whether the applicant has locus standi to institute the instant proceedings.
c) Whether the instant Application seeking access to information is premature and barred by doctrine of exhaustion of administrative remedies, given the
Applicant’s failure to first invoke the available statutory mechanisms
d) Whether the application is incompetent for lack of a substantive suit or petition upon which it is anchored rendering it unsustainable in law.
Whether the preliminary objection is sustainable
29. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-
…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
30. Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.
31. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:-
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
32. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-
Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
33. Regarding the value of preliminary objections, the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by
litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...”
34. By way of a summary therefore, proper attributes of a preliminary objection are as follows:
a) If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits- meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.
b) It is argued on the assumption that all the facts pleaded by the other side are correct- this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.
c) It cannot be raised if any fact has to be ascertained by evidence- a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.
d) It cannot be raised if what is being sought is the exercise of judicial discretion – if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection.
35. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed
facts, leads to but one conclusion: that the facts are incompatible with that point of law.
36. The objections raise issues of this Honourable Court’s jurisdiction, locus standi by the applicant to bring the suit, the doctrine of exhaustion and the application being incompetent and an abuse of the court process in view of its defective nature. The said issues are anchored on pure points of law and would, if successfully argued, dispose of the Application without a hearing on merits hence satisfy the threshold of raising Preliminary Objection in law.
Whether the Applicant has locus standi to institute the instant proceedings
37. The law on legal standing to institute constitutional petitions is provided for under Article 22 and 258 of the Constitution.
38. Article 22 provides:-
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
a) A person acting on behalf of another person who cannot act in their own name;
b) A person acting as a member of, or in interest of, a group or class of persons;
c) A person acting in the public interest; or
d) An association acting in the interest of one or more of its members.
39. In Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR the court considered the above provision and eloquently stated as follows:
Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22(3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28 th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules 2013 which in view of its long title, we take the liberty to baptize the “Mutunga Rules” to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22(2) and 258 of the Constitution.
40. Further in Mining Temoi & Another vs Governor of County of Bungoma & 17 Others [2014] eKLR , Mabeya J. held thus:-
I am of the view that Article 22(1) and (2) of the Constitution had expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. A literal interpretation of articles 22 and 258 in my view confers upon any person a right to bring action in more than two instances firstly in the public interest and secondly, where breach of the Constitution is threatened in relation to a right of fundamental freedom. Where one purports to enforce the rights of another, it is my view that there must be a nexus between the parties.
41. On perusal of the application the matter primarily revolves around forged stamps belonging to one Urbanus K & Associates Advocates but the said advocate is not a party to the present claim. The applicant is said to be Urbanus Reuben Kioko’s advocate and has brought the claim on his behalf. A cursory glance at the application reveals that no grievances have been made against the applicant. The actual aggrieved party herein is Urbanus Reuben Kioko t/a Urbanus K & Associates Advocates.
42. However, under our Constitution the right to institute court proceedings for enforcement of the Bill of Rights and the Constitution does not serve only as an affirmation of a personal right exercisable by a person in his own interest or personal benefit. It is a collective obligation that every person is entitled to take to defend the Constitution as particularly commanded in Article 3 (1) which provided that ‘Every person has an obligation to respect, uphold and defend the Constitution. ’ A Constitutional remedy unlike a remedy in tort or civil claim is intended to not merely affirm the rights of the person whose rights were violated but also to serve the greater public purpose of communicating the resolute message that any such future violation of fundamental rights of citizens under similar circumstances will not be tolerated. A constitutional remedy is unlike an ordinary personal claim under the civil law; it is a proceeding brought to affirm the constitutional ideals. Any person can seek enforcement of the Bill of Rights even on behalf of another in the defense of the Constitution. The ground of objection based on lack of locus standi where the allegation involves violation of the Constitution or the Bill of Rights is thus untenable.
43. The fact that the Application could not be brought under the said advocate’s name is thus a non-issue where matter implicates a constitutional violation.
Whether the instant Application seeking access to information is premature and barred by doctrine of exhaustion of administrative remedies, given the Applicant’s failure to first invoke the available statutory mechanisms.
44. The application before the court seeks to direct the 3 rd – 42 nd respondents to provide him with hard copies of all tender bid documents by Tridents Insurance Company Ltd in the year 2023/2024.
45. Section 8 of the Access of Information Act provides as follows:-
1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any o
[...truncated]