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ELCPartially AllowedPetition 380 of 2017· [2022] KEELC 2482 (KLR)

Sandiko & 2 others v Attorney General & 6 others; Saoli & 67 others (Interested Party) (Petition 380 of 2017) [2022] KEELC 2482 (KLR)

Environment and Land Court
7 July 2022
CMC.G Mbogo
2,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered state agencies to hand over gazette notice documents, confirming citizens' unconditional right to access state-held information.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on a notice of motion dated 3rd March, 2022 by the petitioners, seeking review of orders made on the petitioners' notice of motion dated 5th April, 2019 and an order compelling the respondents to supply documents listed at paragraph 38 (a) and (b) of the petition dated 24th April, 2017, which concerned land rights within the Nkareta Adjudication Section. The application was brought under Rules 19 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and supported by the affidavit of Salaton Nandunguenkop. The applicants invoked Article 35 of the Constitution and the Access to Information Act, arguing the documents were necessary for determination of the dispute, and relied on authorities including Nyamogo and Nyamogo Advocates v Kogo to assert an error apparent on the face of the record, noting the Attorney General had undertaken to supply the documents after the ruling of 6th May, 2020 but had not done so. The 1st-4th respondents opposed, contending the review threshold was not met, the documents were already in the petitioners' bundle or obtainable from the government printer, and that the application was an abuse of process. The court, per Mbogo J, restated the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, stressing that a review is not an appeal and is confined to error apparent on the face of the record. Noting the earlier ruling by Justice Kullow allowed the unopposed application as prayed, and affirming the unconditional constitutional right of access to state-held information, the court allowed the application in terms of prayer 3 of the motion dated 5th April, 2019, ordered the respondents to supply the listed documents, and directed each party to bear its own costs.

Key legal issues

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01

Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was met

Holding

The court found an error apparent on the face of the record in that the ruling of 6th May, 2020 allowed the application as prayed, including prayer 3 on production of documents, yet the respondents had not supplied them; the court proceeded to order supply of the documents.

Reasoning

The court reviewed the ruling of 6th May, 2020 by Justice Kullow and noted the application dated 5th April, 2019 was unopposed and allowed as prayed. The applicants contended the Attorney General undertook to supply the documents but had not done so. The court held the review jurisdiction is discretionary and must be exercised judiciously, and that a review is not an appeal but is confined to error apparent on the face of the record.

p. 6
02

Whether the respondents were obliged to supply the documents under Article 35 of the Constitution

Holding

Yes. The court held information held by the state is accessible by citizens on request without conditions, and the respondents, being custodians of the gazette notices emanating from their office, ought to supply them.

Reasoning

The court emphasised the constitutional right of access to information under Article 35 as the foundation for an open, responsive, accountable and democratic government. It found the respondents' referral of the petitioners to the government printer inappropriate, since the gazette notice contents emanated from the respondents' office. Fairness and the interest of justice required the respondents to supply the documents listed in the petition.

p. 7

Legal principles established

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  • Article 35 of the Constitution grants citizens access to information held by the state on request, without conditions, and the information should be availed without delay.
  • The power of review is confined to correction of a patent error on the face of the record; a review is not an appeal.

Court orders

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  1. 1.The respondents to supply to the petitioners the documents listed at paragraph 38 (a) and (b) of the petition dated 24th April, 2017
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Rules 19 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Article 35 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sandiko & 2 others v Attorney General & 6 others; Saoli & 67 others (Interested Party) (Petition 380 of 2017) [2022] KEELC 2482 (KLR)", Case Analysis (2022). Petition 380 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2482/eng@2022-07-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.