The High Court has handed senators a major victory after ruling that county governments cannot shut them out of official records, saying governors have no legal basis to deny them information they are entitled to under the Constitution.
In a judgment expected to shape transparency and accountability in counties, the court declared that senators remain entitled to seek public records in their individual capacity, even though oversight of county governments is carried out by the Senate as an institution.
The decision was made by a three-judge bench, which found that election to the Senate does not take away a senator's constitutional right to access information under Article 35. The judges also ruled that Members of County Assemblies (MCAs) enjoy the same right and can personally request county government records whenever they need them.
“A declaration is granted that, given the shared oversight mandate with Senators, Members of County Assemblies (MCAs) are entitled to personally access all information and documents on their county government transactions at all times, and they must be promptly allowed full access to all the information and documents whenever they request for them,” the judges said.
The case arose after Busia Senator Okiya Omtatah moved to court over Busia County Government's refusal to release documents linked to the procurement, financing and expenditure of the Mundika Trailer Park project and the redevelopment of kiosks in Busia town.
Omtatah had made 15 formal requests seeking the records, but the county government failed to provide the information. Following the judgment, the court directed the county to release all the requested documents within 21 days.
“A declaration that the Petitioner and other Senators are entitled to personally access all information and documents held by county governments at all times, and they must be promptly allowed full access to all the information and documents on their county government’s transactions whenever they request for them,” the court said.
While delivering the judgment, the bench made it clear that the constitutional responsibility of overseeing county governments belongs to the Senate and not to individual senators. However, the judges said that position does not prevent any senator from seeking information from a county government in the same way any other citizen would.
“A Senator has the corporate mandate to oversight his or her county government on behalf of the people by monitoring and evaluating its policies, operations and activities,” said the bench comprising Justices William Musyoka, Jacqueline Kamau and Alice Bett.
The judges added that “an individual Senator does not lose his or her rights as a citizen under Article 35 of the Constitution to access information from the county government.”
The court also found that Busia Governor Paul Otuoma's refusal to release the requested records violated Okiya Omtatah's constitutional rights to access information and fair administrative action. It further held that the county government had failed to uphold constitutional values, including transparency, accountability, the rule of law and public participation.
The respondents were ordered to supply every document sought through letters sent by Omtatah between June and November 2023. The judges also issued a mandatory order requiring the county government to comply with the directive within 21 days.
In court, Omtatah argued that he needed the documents to examine county spending, procurement processes and the implementation of projects funded using public money.
The county government opposed the petition, saying some procurement records were protected while others had already been submitted through Senate committees. It also argued that the matter should first have been taken before the relevant statutory bodies instead of being filed in court.
The judges dismissed those arguments, ruling that courts can hear constitutional petitions where a person claims that their fundamental rights have been violated.
They further held that the principles of exhaustion and constitutional avoidance could not stop the court from determining a dispute founded on constitutional rights.
The bench also declined Omtatah's request for a declaration that senators have an independent oversight mandate separate from the Senate. The judges pointed out that they had already ruled in an earlier decision that oversight powers belong to the Senate as a corporate institution.
Even so, they stressed that oversight powers are different from the constitutional right to obtain information.
“The information that he had sought ought to have been availed to him. Whether as a Senator or as a private citizen, the Petitioner had a right to inquire into the dealings of the County Government and the respondents had a legal obligation to supply the information requested,” the court said.
The judges dismissed another part of the petition challenging public participation in the redevelopment of kiosks in Busia town after finding that the county government had produced notices, attendance registers and meeting minutes showing that stakeholders had been consulted.
They also declined to determine whether traders displaced after the demolition of the old kiosks should be given priority when allocating the new ones, ruling that the matter relates to the occupation and use of land and should therefore be handled by the Environment and Land Court.