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JUDGMENT: Khelef Khalifa and Anor v CS Transport and others Petition E032 of 2021 on disclosure of information upheld by the High Court of Kenya

JUDGMENT: Khelef Khalifa and Anor v CS Transport and others Petition E032 of 2021 on disclosure of information upheld by the High Court of Kenya

The Petition was filed by Khelef Khalifa and Wanjiru Gikonyo. Khelef Khalifa wrote letters on his behalf and on behalf of @okoamombasa to different Government Agencies and Ministries requesting the disclosure of information with regards to contracts linked to the Government of Kenya and other entities on the SGR. The government agencies refused to disclose the information and after following up with CAJ who requested the agencies for the disclosure which was denied and waiting for long with no response from the State he approached court seeking disclosure of information and declarations that his right of access to information has been denied.

Court holds the following with respect to access to information of SGR contracts:

  1. On issue that the case was res judicata- the High court disagrees on the basis that previous cases listed by the Respondent did not have similar parties, issues or prayers therefore were distinguishable from the case at hand.
  2. On issue of suing state officers in their personal capacity for refusal to disclose information, Court holds that the petitioners did not prove bad faith on the part of the individually named respondents for them to be sued in their personal capacities.

3.The court held that the Petitioners followed the process set out in the ATI Act to request for information but the respondents refused to disclose the information as per section 9 of ATI Act. They then sought review of the denial of information with Commission on Administration of Justice as per section 14 of ATI. CAJ followed up with the Respondents to disclose the information which the Respondents still refused to disclose. The Petitioner waited 1 year 6 months for information before coming to court seeking remedies for violation of ATI. Therefore the Respondents defense that the Petitioners did not exhaust internal remedies before coming to court does not succeed.

4.The Respondents reliance on Sextions 3(6) and (7) of the Official State Secrets Act to refuse disclosure of information is contrary to the Supreme law of the land- the Constitution specifically Article 35 of the Constitution, as well as Section 29 and Para 4 of the Schedule to the ATI Act. Even if Section 3(6) and (7) was never amended by the ATI Act it would have still been read in conformity with the necessary modifications in line with the Bill of Rights right of access to information.

  1. If the State relies on the defense that they will not disclose information because the information is of national security they must provide evidence for such limitations as per Art 24 of the Constitution. Public institutions must disclose documents or respond and justify why they will not disclose information.

Orders:

  1. Petition is upheld.
  2. Declaration that failure to disclose information to 1st Petitioner in letter dated 16 December 2019 violates Article 35(1) and (3) Of Constitution.
  3. Declaration that failure to disclose information in letter of 16 Dec 2019 violates Article 35(1) and(3) and Article 10 of the Constitution.
  4. Respondents to provide information contained in the letter by the 1st Respondent.
  5. Respondents to provide to the petitioners information in the letters and at the respondents own costs.

Read the full JUDGMENT via https://bit.ly/3walSiu