INTRODUCTION
1. The petitioner moved the Court through a petition dated 25 October 2024, supported by an affidavit sworn on the same date. He states that on 2 May 2024, he formally requested from the respondents copies of the registration certificate and by-laws, the list or register of members, audited accounts for 2022 and 2023, books of accounts including the 2023 cash book, the approved 2024 budget, annual returns for 2022 and 2023, and the assets register of the 1st respondent. According to the petitioner, the 1st respondent neither acknowledged nor responded to this letter. He subsequently lodged a complaint with the Commission on Administrative Justice through a letter dated 3 July 2024, which similarly went unacknowledged.
2. The petitioner contends that the respondents’ actions violate articles 10, 27 and 35 of the Constitution. He seeks the following relief: -
a) A declaration that the respondents have violated articles 2, 3, 10, 20, 27, 28 and 35 of the Constitution
b) A mandatory injunction directing the respondents to avail to the petitioner the following information
c) copies of the registration Certificate and By-Laws of the 1 st respondent;
d) a copy of the list and or register of members of the 1 st respondent;
e) copies of audited accounts for the year ended 31 st December 2022 and 31 st December 2023 of the 1 st respondent;
f) copies of Books of Accounts including Cash Book for year 2023 of the 1 st respondent;
g) a copy of the approved budget for the year 2024 in respect of the 1 st respondent;
h) copies of annual returns for the years 2022 and 2023 for the 1 st respondent;
i) a copy of assets register of the 1 st respondent
j) Compensation and damages for violation of the petitioner’s constitutional rights.
k) Costs of the suit.
SUMMARY OF THE 1 ST RESPONDENT’S RESPONSE
3. The 1 st respondent opposed the petition through a replying affidavit sworn by Joseph Mutisya Kiema on 11 th May 2026. It is contended that the petitioner is not entitled to its records because he is neither a member nor a shareholder.
4. It is deposed that the 2nd respondent conducted an inquiry in July 2017, which revealed that the petitioner was a shareholder of Kinatwa Group Co. Ltd, which fraudulently carried out courier and parcel activities under the 1st respondent’s name, with its director attempting to pass off as members of the 1st respondent.
5. It is deposed that following the inquiry, the 2 nd respondent called for a special general meeting on 9 th September 2017 where the inquiry report was adopted. That after discovery of the fraudulent activities, Kinatwa Group Co. Ltd wrote to the Communications Authority of Kenya and sought to transfer the 1 st respondent’s licence to operate as a courier and for parcel activities to itself, which was done.
6. The 1 st respondent is therefore apprehensive of the petitioner’s interest and intentions in its records on account of its fraudulent involvement in its affairs, given that it had to sue Kinatwa Group Co. Ltd in Milimani MCCC No. 6541 of 2018 to recover the courier licence. It is further posited that the petitioner has no interest in its affairs to warrant access to its books and records of financial information. It is urged that the petition be dismissed with costs.
SUMMARY OF THE 3 RD RESPONDENT’S RESPONSE
7. The 3 rd respondent opposed the petition through grounds of opposition dated 4 th February 2026. It is contended that the petition does not meet the threshold for constitutional petitions; it fails to plead precisely the specific constitutional provisions allegedly violated and to demonstrate how each respondent allegedly violated them.
8. It is pleaded that the petitioner has misapprehended the rights guaranteed under Article 35 of the Constitution as a general discovery mechanism against a private entity, contrary to the constitutional threshold under Article 35(1)(b). Further, the petition does not establish the constitutional nexus between the documents being sought and any identifiable right requiring protection.
9. It is asserted that no violation or threatened violation of the Constitution by the 3rd respondent has been disclosed. The petitioner has failed to exhaust statutory remedies under the Companies Act and ordinary civil process. The petition is therefore premature, misconceived, and an improper invocation of this Court's constitutional jurisdiction.
10. The Petition was canvassed via written submission as detailed hereunder.
SUMMARY OF PETITIONER’S SUBMISSIONS
11. In his submissions dated 24 th June 2026, the petitioner cites section 14 of the Access to Information Act and the letters of 2nd May 2024, 3rd July 2024 and 2nd August 2024 for the contention that he duly exhausted the mechanisms provided under the said Act before approaching the Court.
12. Regarding the violation of his right of access to information, the petitioner maintains that he has demonstrated that he made a specific and identifiable request for information, as set out in his letter dated 2nd May 2024 addressed to the 2nd and 3rd respondents, who are public entities. That, under sections 4 and 25(10) of the Access to Information Act, the 2nd respondent is the custodian of the information sought. Further, that it is not disputed that the 1st respondent is in possession of the requested information.
13. The petitioner argues that the information sought does not fall within any of the statutory exceptions under section 6 of the Act. Moreover, under article 35(1)(a) of the Constitution and section 4 of the Act, he is under no obligation to disclose any reason, motive or interest for seeking information. Reliance is placed on the decisions in Trusted Society of Human Rights Alliance & 3 others v Judicial Services Commission [2016] eKLR and Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR.
14. Further reliance is placed on Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) for the contention that although the 1 st respondent disputes that he is a member, its averments demonstrate that the petitioner has a clear and identifiable interest in the information sought and that the requested information is necessary for protection and enforcement of other constitutional rights and fundamental freedoms. He therefore urges that the relief sought be granted.
15. The respondents did not file submissions.
ANALYSIS AND DETERMINATION
16. Having considered the Pleadings filed herein along with the submissions on record, I surmise that the following issues arise for determination;
a. Whether the Petition meets the precision test as articulated in the precedent-setting case of Anarita Karimi Njeru vs Republic [1979] KLR 154
b. Whether the Petitioner is entitled to the remedies sought
c. Arising from (a) and (b) above, what are the consequential orders
Whether the Petition meets the precision test as articulated in the precedent-setting case of Anarita Karimi Njeru vs Republic [1979] KLR 154
17. The test for a constitutional petition is premised on satisfaction of the specificity and precision requirement while drafting the petition. This was established by the Court in Anarita Karimi Njeru vs Republic [1979] KLR 154 as follows:
We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
18. This test was affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows:
“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
19. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the Court of Appeal in affirming the decision in the Anarita Case ( Supra) stated;
“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
20. The Anarita Karimi Njeru v Republic case therefore established a two- step precision requirement for constitutional petitions. A petitioner must:
a. First, identify with reasonable precision the specific constitutional right or provision alleged to have been infringed; and
b. Second, plead with equal precision the way the alleged infringement has occurred, including the factual matrix demonstrating the violation
21. The Petitioner alleges that the respondents violated his rights under Articles 10, 27 and 35 of the Constitution. His primary complaint is founded on Article 35. The alleged violations of Articles 10 and 27 are pleaded as consequential claims arising from that alleged breach of Article 35. In support of this position, he seeks to bring his case within the principles stated in Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR) and Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) .
22. It is evident that both decisions affirmed, without equivocation, that the right of access to information is central to constitutional governance and not a peripheral entitlement to be dispensed at whim. They further held that private persons and entities bear a positive obligation to provide information when it is sought, and that the requester is under no duty to justify or explain the reasons for seeking such information.
23. That however is not the end of the matter for Article 35 (1)(b) provides that-
35(1) Every citizen has the right of access to-
(a)….
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom. ( Emphasis supplied)
24. In Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), the Supreme Court distinguished between records held by public bodies and those by entities and made reference to the South African decision in M&G Media Ltd and Others v 2010 FIFA World Cup Organizing Committee South Africa Ltd and another 2011 (5) SA 163 (GSJ) in which that Court observed as follows-
[145] Following the dualistic scheme in s 32(1)(a) and (b) of the Constitution , PAIA provides that if access is sought to a record held by a public body, access must be provided as a matter of right, unless a valid ground of refusal is advanced.
[146] By contrast, if access is sought to a record held by a private body, the requester must establish that he or she requires access to the record in order to exercise or protect a right. Once this has been shown, the requester has a right of access to the records, which may be defeated by a valid ground of refusal.
25. The Supreme Court then proceeded to conclude-
[119] Section 32 of the Constitution of South Africa is in pari materia with article 35 of our Constitution and we are also persuaded by the decision Cape Metropolitan Council v Metro Inspection Services Western Cape and others (2001) ZASCA 56 the Court stated as follows:
'Information can only be required for the exercise or protection of a right if it will be of assistance in the exercise or protection of the right. It follows that, in order to make out a case for access to information. An applicant has to state what the right is that he wishes to exercise or protect, what the information is which is required, and how that information would assist him in exercising or protecting that right.
[120] In summary, a requester seeking to enforce his right under article 35(1)(b) needs to demonstrate:
a. The right that seeks to be protected; and
b. That access to the information is required to exercise or protect that right.
26. The Petitioner proceeds from the erroneous premise that the right of access to information under Article 35(1)(b) is without limitation. It is not. The right is invoked only where a party demonstrates the specific information sought, and the legal interest or right said to be implicated by its denial. The Petitioner has not established the nature of the right he seeks to exercise or protect. This omission is fatal. His pleadings therefore fall short of the precision requirement articulated in the Anarita Karimi Njeru (supra) decision and codified in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
27. In the result, this Petition fails at the very threshold. Having fallen short of the constitutional and procedural precision required of a litigant invoking Article 35, it cannot proceed to substantive determination. The only appropriate order is that the Petition be dismissed.
28. On the question of costs, the Supreme Court in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) reaffirmed the general principle that costs follow the event, subject only to the Court’s discretion to depart from that rule where the interests of justice so demand. The Court emphasised that such discretion must be exercised judicially, and that departure from the ordinary rule is justified only in exceptional circumstances.
29. In the present matter, no such exceptional circumstances have been demonstrated. The Petition has failed at the threshold, and there is no equitable basis upon which this Court may withhold costs from the respondents, consequently the Petitioner shall meet the costs of this Petition.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17 TH DAY OF SEPTEMBER 2026
1. The petitioner moved the Court through a petition dated 25 October 2024, supported by an affidavit sworn on the same date. He states that on 2 May 2024, he formally requested from the respondents copies of the registration certificate and by-laws, the list or register of members, audited accounts for 2022 and 2023, books of accounts including the 2023 cash book, the approved 2024 budget, annual returns for 2022 and 2023, and the assets register of the 1st respondent. According to the petitioner, the 1st respondent neither acknowledged nor responded to this letter. He subsequently lodged a complaint with the Commission on Administrative Justice through a letter dated 3 July 2024, which similarly went unacknowledged.
2. The petitioner contends that the respondents’ actions violate articles 10, 27 and 35 of the Constitution. He seeks the following relief: -
a) A declaration that the respondents have violated articles 2, 3, 10, 20, 27, 28 and 35 of the Constitution
b) A mandatory injunction directing the respondents to avail to the petitioner the following information
c) copies of the registration Certificate and By-Laws of the 1 st respondent;
d) a copy of the list and or register of members of the 1 st respondent;
e) copies of audited accounts for the year ended 31 st December 2022 and 31 st December 2023 of the 1 st respondent;
f) copies of Books of Accounts including Cash Book for year 2023 of the 1 st respondent;
g) a copy of the approved budget for the year 2024 in respect of the 1 st respondent;
h) copies of annual returns for the years 2022 and 2023 for the 1 st respondent;
i) a copy of assets register of the 1 st respondent
j) Compensation and damages for violation of the petitioner’s constitutional rights.
k) Costs of the suit.
SUMMARY OF THE 1 ST RESPONDENT’S RESPONSE
3. The 1 st respondent opposed the petition through a replying affidavit sworn by Joseph Mutisya Kiema on 11 th May 2026. It is contended that the petitioner is not entitled to its records because he is neither a member nor a shareholder.
4. It is deposed that the 2nd respondent conducted an inquiry in July 2017, which revealed that the petitioner was a shareholder of Kinatwa Group Co. Ltd, which fraudulently carried out courier and parcel activities under the 1st respondent’s name, with its director attempting to pass off as members of the 1st respondent.
5. It is deposed that following the inquiry, the 2 nd respondent called for a special general meeting on 9 th September 2017 where the inquiry report was adopted. That after discovery of the fraudulent activities, Kinatwa Group Co. Ltd wrote to the Communications Authority of Kenya and sought to transfer the 1 st respondent’s licence to operate as a courier and for parcel activities to itself, which was done.
6. The 1 st respondent is therefore apprehensive of the petitioner’s interest and intentions in its records on account of its fraudulent involvement in its affairs, given that it had to sue Kinatwa Group Co. Ltd in Milimani MCCC No. 6541 of 2018 to recover the courier licence. It is further posited that the petitioner has no interest in its affairs to warrant access to its books and records of financial information. It is urged that the petition be dismissed with costs.
SUMMARY OF THE 3 RD RESPONDENT’S RESPONSE
7. The 3 rd respondent opposed the petition through grounds of opposition dated 4 th February 2026. It is contended that the petition does not meet the threshold for constitutional petitions; it fails to plead precisely the specific constitutional provisions allegedly violated and to demonstrate how each respondent allegedly violated them.
8. It is pleaded that the petitioner has misapprehended the rights guaranteed under Article 35 of the Constitution as a general discovery mechanism against a private entity, contrary to the constitutional threshold under Article 35(1)(b). Further, the petition does not establish the constitutional nexus between the documents being sought and any identifiable right requiring protection.
9. It is asserted that no violation or threatened violation of the Constitution by the 3rd respondent has been disclosed. The petitioner has failed to exhaust statutory remedies under the Companies Act and ordinary civil process. The petition is therefore premature, misconceived, and an improper invocation of this Court's constitutional jurisdiction.
10. The Petition was canvassed via written submission as detailed hereunder.
SUMMARY OF PETITIONER’S SUBMISSIONS
11. In his submissions dated 24 th June 2026, the petitioner cites section 14 of the Access to Information Act and the letters of 2nd May 2024, 3rd July 2024 and 2nd August 2024 for the contention that he duly exhausted the mechanisms provided under the said Act before approaching the Court.
12. Regarding the violation of his right of access to information, the petitioner maintains that he has demonstrated that he made a specific and identifiable request for information, as set out in his letter dated 2nd May 2024 addressed to the 2nd and 3rd respondents, who are public entities. That, under sections 4 and 25(10) of the Access to Information Act, the 2nd respondent is the custodian of the information sought. Further, that it is not disputed that the 1st respondent is in possession of the requested information.
13. The petitioner argues that the information sought does not fall within any of the statutory exceptions under section 6 of the Act. Moreover, under article 35(1)(a) of the Constitution and section 4 of the Act, he is under no obligation to disclose any reason, motive or interest for seeking information. Reliance is placed on the decisions in Trusted Society of Human Rights Alliance & 3 others v Judicial Services Commission [2016] eKLR and Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR.
14. Further reliance is placed on Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) for the contention that although the 1 st respondent disputes that he is a member, its averments demonstrate that the petitioner has a clear and identifiable interest in the information sought and that the requested information is necessary for protection and enforcement of other constitutional rights and fundamental freedoms. He therefore urges that the relief sought be granted.
15. The respondents did not file submissions.
ANALYSIS AND DETERMINATION
16. Having considered the Pleadings filed herein along with the submissions on record, I surmise that the following issues arise for determination;
a. Whether the Petition meets the precision test as articulated in the precedent-setting case of Anarita Karimi Njeru vs Republic [1979] KLR 154
b. Whether the Petitioner is entitled to the remedies sought
c. Arising from (a) and (b) above, what are the consequential orders
Whether the Petition meets the precision test as articulated in the precedent-setting case of Anarita Karimi Njeru vs Republic [1979] KLR 154
17. The test for a constitutional petition is premised on satisfaction of the specificity and precision requirement while drafting the petition. This was established by the Court in Anarita Karimi Njeru vs Republic [1979] KLR 154 as follows:
We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
18. This test was affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows:
“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
19. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the Court of Appeal in affirming the decision in the Anarita Case ( Supra) stated;
“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
20. The Anarita Karimi Njeru v Republic case therefore established a two- step precision requirement for constitutional petitions. A petitioner must:
a. First, identify with reasonable precision the specific constitutional right or provision alleged to have been infringed; and
b. Second, plead with equal precision the way the alleged infringement has occurred, including the factual matrix demonstrating the violation
21. The Petitioner alleges that the respondents violated his rights under Articles 10, 27 and 35 of the Constitution. His primary complaint is founded on Article 35. The alleged violations of Articles 10 and 27 are pleaded as consequential claims arising from that alleged breach of Article 35. In support of this position, he seeks to bring his case within the principles stated in Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR) and Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) .
22. It is evident that both decisions affirmed, without equivocation, that the right of access to information is central to constitutional governance and not a peripheral entitlement to be dispensed at whim. They further held that private persons and entities bear a positive obligation to provide information when it is sought, and that the requester is under no duty to justify or explain the reasons for seeking such information.
23. That however is not the end of the matter for Article 35 (1)(b) provides that-
35(1) Every citizen has the right of access to-
(a)….
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom. ( Emphasis supplied)
24. In Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), the Supreme Court distinguished between records held by public bodies and those by entities and made reference to the South African decision in M&G Media Ltd and Others v 2010 FIFA World Cup Organizing Committee South Africa Ltd and another 2011 (5) SA 163 (GSJ) in which that Court observed as follows-
[145] Following the dualistic scheme in s 32(1)(a) and (b) of the Constitution , PAIA provides that if access is sought to a record held by a public body, access must be provided as a matter of right, unless a valid ground of refusal is advanced.
[146] By contrast, if access is sought to a record held by a private body, the requester must establish that he or she requires access to the record in order to exercise or protect a right. Once this has been shown, the requester has a right of access to the records, which may be defeated by a valid ground of refusal.
25. The Supreme Court then proceeded to conclude-
[119] Section 32 of the Constitution of South Africa is in pari materia with article 35 of our Constitution and we are also persuaded by the decision Cape Metropolitan Council v Metro Inspection Services Western Cape and others (2001) ZASCA 56 the Court stated as follows:
'Information can only be required for the exercise or protection of a right if it will be of assistance in the exercise or protection of the right. It follows that, in order to make out a case for access to information. An applicant has to state what the right is that he wishes to exercise or protect, what the information is which is required, and how that information would assist him in exercising or protecting that right.
[120] In summary, a requester seeking to enforce his right under article 35(1)(b) needs to demonstrate:
a. The right that seeks to be protected; and
b. That access to the information is required to exercise or protect that right.
26. The Petitioner proceeds from the erroneous premise that the right of access to information under Article 35(1)(b) is without limitation. It is not. The right is invoked only where a party demonstrates the specific information sought, and the legal interest or right said to be implicated by its denial. The Petitioner has not established the nature of the right he seeks to exercise or protect. This omission is fatal. His pleadings therefore fall short of the precision requirement articulated in the Anarita Karimi Njeru (supra) decision and codified in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
27. In the result, this Petition fails at the very threshold. Having fallen short of the constitutional and procedural precision required of a litigant invoking Article 35, it cannot proceed to substantive determination. The only appropriate order is that the Petition be dismissed.
28. On the question of costs, the Supreme Court in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) reaffirmed the general principle that costs follow the event, subject only to the Court’s discretion to depart from that rule where the interests of justice so demand. The Court emphasised that such discretion must be exercised judicially, and that departure from the ordinary rule is justified only in exceptional circumstances.
29. In the present matter, no such exceptional circumstances have been demonstrated. The Petition has failed at the threshold, and there is no equitable basis upon which this Court may withhold costs from the respondents, consequently the Petitioner shall meet the costs of this Petition.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17 TH DAY OF SEPTEMBER 2026