Republic v Town Clerk Municipal Council of Mombasa [2015] KEELC 192 (KLR)
The bottom line
#Kenya's High Court ordered Mombasa's Municipal Council to hand over development approval documents within 60 days, confirming citizens can use Article 35 to demand such records.
What this practically means
#Executive summary
#Key legal issues
#Whether the interested party had met the conditions for access to information under article 35 of the Constitution
The court held that the applicant had met the conditions under article 35 and that the motion dated 26.2.13 had merit; the respondent was ordered to supply the documents within 60 days.
The court reasoned that the information had been requested by letter of 4.2.2012 but not supplied; the documents ought to be in the possession of the respondent as the body required to keep copies; and no suggestion was made that disclosure would violate public interest. The court was also of the view that the documents, particularly item (d), would determine whether approvals were validly given, especially given the respondent's two conflicting affidavits.
Whether the documents sought were necessary for the determination of the issues before the court in the judicial review proceedings
The court found the documents necessary because the notice of demolition alleged construction without approval, a fact denied by the ex-parte applicants, and the respondent's representative swore conflicting affidavits on whether approvals were issued.
The court noted that the ex-parte applicants' two affidavits did not directly oppose the orders sought and annexed none of the listed documents. Since an affidavit is treated as evidence on oath, and the respondent's representative (Mr Mwadime) denied approvals in one affidavit and admitted them in another, supplying the documents would enable the court to know the true position of the respondent.
Legal principles established
#- In judicial review the court considers the procedure used in arriving at a decision, not the merits of the decision.
- Conditions for grant of access to information under article 35: the information must have been requested for, be held by the respondent, and its disclosure must not contravene public interest.
Court orders
#- 1.The respondent (Municipal Council of Mombasa) is ordered to supply the documents listed in the applicant's schedule within 60 days of the date of delivery of the ruling
- 2.In default of compliance, the Court will proceed with the case on the premise that no such documents exist
- 3.Costs of the application ordered in the cause
- Jurisdiction invoked
- Article 35 of the Constitution; sections 3 and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Town Clerk Municipal Council of Mombasa [2015] KEELC 192 (KLR)", Case Analysis (2015). Judicial Review Application (Mombasa) - notice of motion dated 26.2.2013 within the substantive motion dated 28.12.2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/192/eng@2015-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.