40. It was submitted on behalf of the 1st and 2nd Respondents that there was no statutory
requirement to disclose the composition of the selection panel in the first instance and
secondly, Article 35 of the Constitution gives the State the discretion to publish and publicize
the information the State considers important as affecting the nation and thirdly, that it was
incumbent upon the applicant to seek the information sought which he never did. In any
case, as the composition of the selection panel has been availed in these proceedings, the
order of mandamus would not serve any end.
41. According to the respondents apart from mere allegations, the applicant had not
demonstrated with particularity specific provisions of the Constitution which were breached
and that the only grounds which the Court can consider in these proceedings are the
grounds contained the Statement.
42. As the CAJ’s letter was not addressed to any of the respondents it was submitted that it
cannot be the basis of the orders sought.. In any case the said letter was written after the
Selection Panel had concluded its duties of selecting the members of the Board. As the
Selection Panel is not a respondent to these proceedings, it was contended that to grant the
orders sought herein would breach the principles of natural justice.
43. The Court was urged to decline to issue the orders sought in the exercise of its discretionary
jurisdiction.
44. In support of their submissions, the respondents relied on Khobesh Agencies Limited and
Others vs. Minister of Foreign and International Relations and Others Nairobi JR No. 262 of
2012 [2013] eKLR, Northern Nomadic Disabled Person’s Organisation (Nondo) vs. Governor
County Government of Garissa & Another [2013] eKLR, Republic vs. Judicial Service
Commission exp Pareno [2004] 1 KLR 203, Halsbury’s Laws of England, 4th Edn. Vol. II P 805
Para 1508 and R vs. Kenya National Commission on Human Rights exp Uhuru Kenyatta
[2010] eKLR.
Determinations
45. I have considered the application, the various affidavits filed in support of and in opposition
to the application as well as the submissions filed.
46. Section 6B of the Kenya Information and Communications (Amendment) Act 2013, provides:
(1) Within fourteen days of the occurrence of a vacancy in the office of chairperson or member, the
President or the Cabinet Secretary, as the case may be, shall—
(a) by notice in the Gazette and on the official website of the Ministry, declare a vacancy in the
Board, and invite applications from qualified persons; and
(b) convene a selection panel for the purpose of selecting suitable candidates for appointment as the
chairperson or member of the Board.
(2) The selection panel referred to under subsection (1) shall comprise of persons drawn from the
following organisations—
(a) Media Council of Kenya;
(b) Kenya Private Sector Alliance;
(c) Law Society of Kenya;