1.In their Petition dated 18.6.2020 and filed in the height of the COVID-19 pandemic, the Petitioners seek the following reliefs:a.A declaration be issued that the 1st -6th and 9th respondents’ failure to proactively publish and publicize important information about the pandemic and the State’s response violates the right of access to information as guaranteed under Article 35(3).b.A declaration be issued that the 1st and 4th respondents’ failure to affirmatively provide information about the COVID-19 pandemic and the government’s response violates the right to life as guaranteed under Article 26(1).c.A declaration be issued that the 1st and 4th respondents’ failure to affirmatively provide information about COVID- 19 pandemic and the government’s response violates the right to health as guaranteed under Article 43(1) (a) and the Health Act, 2017.d.A declaration be issued that the 1st -6th and 9th respondents’ failure to affirmatively provide information regarding the pandemic and the State’s response violates Article 10 and 232 of the Constitution.e.A declaration be issued that the 1st -6th and 9th respondents’ failure to provide for information sought by the petitioners violates their right of access to information as guaranteed under Article 35(1) and the Access to Information Act.f.A declaration be issued that the 1st -6th and 9th respondents’ failure to provide the information sought by the petitioners violates their right to freedom of expression as guaranteed under Articles 33(1) (a).g.A declaration be issued that the 1st and 4th respondents’ failure to provide the information sought by the petitioners violates their right to life as guaranteed under Article 26(1).h.A declaration be issued that the 1st and 4th respondents’ failure to provide the information sought by the petitioner violates their right to health as guaranteed under Article 43(1) (a) and the Health Act, 2017.i.A declaration be issued that the 1st -6th and 9th respondents’ can be held criminally liable in their individual capacities for breach of sections 28(4) (b) of the Access to Information Act, 2016.j.A declaration be issued that the 1st and 2nd respondents’ decision to extend mandatory quarantine as communicated via circular by the 2nd respondent violated the 7th and 8th petitioners’ rights to fair administrative action as guaranteed under Article 47 and the Fair Administrative Action Act, 2015.k.A declaration be issued that the 8th respondent has failed to exercise its mandate to provide oversight and ensure the enforcement of the Access to Information Act, 2016 and has resultantly violated Article 35 of the Constitution.l.An order of mandamus be issued compelling the 1st -6th and 9th respondents to provide the petitioners with the information sought in the letters dated 30 March 2020; 6 April 2020; 9 April 2020, 10 April 2020, 15 April 2020, 17 April 2020, 27 April 2020 and 28 April 2020 within 48 hours of this order.m.An order of mandamus compelling the 8th respondent to exercise its statutory mandate under section 21(1) (a) of the Access to Information Act, 2016 to investigate the alleged violations of the Act.n.An order of mandamus compelling the 7th respondent, in consultation with the 8th respondent, to draft and publish regulations within 90 days of this order on:i.The manner in which applications under the Access to Information Act, 2016 may be made;ii.The form in which information requested under the Access to Information Act, 2016 may be supplied; andiii.The measures to be taken by public entities to facilitate the exercise of the right under Article 35 of the Constitution and the implementation of the Access to Information Act, 2016.o.An order of mandamus compelling the 7th respondent, in consultation with the 8th respondent, to draft and publish regulations on the procedures for requesting and supplying information that concerns the life and liberty of a person within 90 days of this order (under section 9 of the Access to Information Act, 2016).p.An order of mandamus compelling the 1st respondent in consultation with the 4th respondent, and other relevant stakeholders, to update and re- publish the Reproductive Maternal and New-born Health Guidelines: A Kenya Practical Guide for Continuity of Reproductive, Maternal, Newborn and Family Planning Care and Services in the Background of COVID 19 Pandemic, to include comprehensive information to health care workers, women and girls on the provision of essential services which includes access to all sexual and reproductive health and rights.q.An order that the 1st respondent pays general damages to the 4th -8th petitioners for the emotional distress these petitioners underwent as a result of the inadequate information received during the mandatory quarantine period.r.That the respondents, within twenty-one (21) days from the date the order, file affidavits with the Court detailing their compliance with these orders.s.Costs of this Petition and any other just and expedient order the Court may deem fit to make.
2.The Petition is founded on Articles 1, 2(1) (4) and (6), 3(1), 10, 19(1), 20(1) (2) and (4), 21(1), 26(1), 27, 28, 29, 33, 35(3), 43(1) (a), 47 and 232 of the Constitution; Articles 3, 7, and 19 of the Universal Declaration of Human Rights (UDHR); Articles 19 and 26 of the International Covenant on Civil and Political Rights (ICCPR); Articles 2, 3 and 12 of the International Covenant of Economic, Social and Cultural Rights; Article 16 of the African Charter on Human and Peoples’ Rights (the Banjul Charter); Article 2 of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), Article 12 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol); sections 4(1)(3), 9(2), 25(1) and (2) and 28(4) of the Access to Information Act, 2016; section 5(1) and 10 of the Health Act; and section 4(3) of the Fair Administrative Action Act, 2015.
3.The Petition is supported by the affidavits of Erick Okioma, Esther Nelima, Chris Owalla, CM, FA, KB, MO, EL and Sheila Masinde, the Executive Director of 12th Petitioner all sworn on 18.6.2020; Allan Achesa Maleche (undated); Kelvin Mogeni sworn on 23.6.2020; Christine Nkonge sworn on 30.6.2020; and Achieng Orero sworn on 17.6.2020.
4.The genesis of the matter herein is the declaration by the World Health Organization (WHO) on 30.1.2020 of COVID-19 as a global health emergency of international concern and subsequent declaration as a pandemic on 11.3.2020. The first case of COVID-19 in Kenya was announced by the 1st Respondent on 12.3.2020 and a series of events followed thereafter, to wit, a 7pm-5am nationwide curfew, ban on public gatherings, reduction of the number of passengers in public service vehicles; suspension of international flights with the exception of cargo flights; quarantining of travelers entering the country in government designated facilities; announcement and publication of nationwide curfews; publishing of the Public Health (Prevention, Control and Suppression of COVID-19) Rules 2020 - the ‘Prevention and Control Regulations’; publishing of the Public Health (COVID- 19 Restriction of Movement or Persons and Related Measures) Rules 2020 – the Movement Restriction Regulations; curfew breakers no longer being held in government quarantine facilities and the Inspector General designating a curfew breakers holding place; issuing of the Kenya COVID-19 RMNH Guidelines, A Kenya Practical Guide for Continuity of Reproductive, Maternal, Newborn and Family Planning Care and Series in the Background of COVID 19 Pandemic among others (RMNH).
5.The Petitioners state that the Movement Restriction Regulations imposed broad limitations on individual movement and transportation into and out of and within infected areas during the restriction period. The Regulations further required all persons to wear a mask covering the nose and mouth and maintain a 1-meter distance. Further, businesses were required to provide handwashing are sanitizing facilities and regularly sanitize their facilities. Violation of the regulations attracted a fine of Kshs. 20,000/=, 6 months’ imprisonment or both. The Rules and Regulations also provided guidance on removal and disposal of bodies of persons who died of Covid-19 and limited the numbers of persons to attend burial or cremation, to 15 persons.
6.Subsequent to the aforementioned series of events, the Petitioners wrote a series of letters to the Respondents, requesting information, under Article 35 of the Constitution. These letters are dated 30.3.2020, 6.4.2020, 9.4.2020, 10.4.2020, 15.4.2020, 16.4.2020, 17.4.2020, 18.4.2020, 27.4.2020 and 18.4.2020. The Petitioners sought information on the implementation of the mandatory quarantine; Siaya County’s burial of James Oyugi in the dead of the night without dignity, thereby violating cultural norms and in contravention of the standards of burial during the pandemic; the support that the 1st Respondent was providing to healthcare workers risking their health to protect the community; the 8th Respondent’s obligation to enforce the Access to Information Act, 2016; the rationale for extending quarantine beyond the initial 14 day period; the rationale for mandatory quarantine as punishment for those who allegedly committed curfew offences; and the guarantee on essential reproductive health services during the COVID- 19 pandemic.
7.On 14.4.2020, the 9th, 10th and 12th Petitioners set up a legal and support system to provide pro bono legal advice to those facing human rights violations during the COVID-19. The 10th Petitioner received complaints from the 4th -8th Petitioners, persons, or the family of persons, who were being held in mandatory quarantine. The 4-7th Petitioners complaint was that they arrived into Kenya after the 23.3.2020 travel ban, and at the mandatory quarantine facilities, they were not given information on the protocols and processes to be used during the mandatory quarantine. The 8th Petitioner had to send the Ministrry of Health Quarantine protocols online because her daughter who was travelling had not been given any information and was getting increasingly distressed.
8.On 30.3.2020, the 4th-6th Petitioners wrote to the 1st Respondent requesting that testing takes place and that the results be made available within 24 hours. Further following the concerns raised by the 4th-8th Petitioners, their family members, other individuals in mandatory quarantine, and the media reports on 6.4.2020, the 9th -12th Petitioners together with 23 others organizations and 47 individuals wrote to the 1st Respondent requesting, an explanation as to why the Ministry of Health was reportedly not adhering to its guidelines relating to managing the designated mandatory quarantine facilities; clarification on the circular issued by the 1st Respondent that extended the quarantine, where the extension would apply, why it had been issued, and who would bear the cost of the extension; the total number of designated quarantine facilities as at the date of the letter; the number of health care workers that had been deployed to each of these facilities; the number of people held in quarantine who had been tested and had received their results; the measures being taken to safeguard the health of people in quarantine facilities with pre-existing medical conditions; the time between a positive test and the referral to an isolation facility and whether health care workers and other staff who had contact with people who had tested were also tested and whether healthcare workers and staff had access to personal protective equipment.
9.Due to the increasing frustration for the lack of response, the 8th Petitioner wrote a follow up letter dated 8.4.2020 to the 1st Respondent while the 12th Petitioner wrote a letter and 16.4.2020 to the 8th Respondent asking them to comply with the requirements of the Access to Information Act. They stated that following the burial of James Oyugi in Kamalunga village, Simur Kondiek Sub-location, Ukwala on 12.4.2020 the 3rd Petitioner begun to receive enquires from communities in which he was working, who were afraid that the incident would result in a bad omen and that they would be treated similarly if found with Covid 19. Consequently, the 3rd, 10th and 12th Petitioners, together with 1 other person and 12 other organisations, wrote to the 1st and 3rd Respondents seeking information on the undignified burial and violation of the guidelines for handling bodies that were either suspected or confirmed to be infected with COVID-19. The information requested further included an explanation as to the process undertaken to authorize the burial that took place contrary to the Ministry of Health’s’ Guidelines for a safe disposal of human remains of a person who had died from suspected or confirmed COVID-19; the measures put in place to ensure that the act was not replicated; the measures put in place to protect and secure the mental health and wellbeing of James Oyugi’s family and community and to protect them from stigma and measures for the quarantine or isolation of his close contacts.
10.It was further stated that the 1st Petitioner who was working with a community based organisation in Nyalenda, Kisumu County with an experience in advocacy on behalf of those infected with HIV, TB and Malaria, was becoming increasingly frustrated with the lack of information from the County Government of Kisumu. He had not been told, which facilities had been designated COVID-19 facilities, where people could be tested, the resources made available by the county and how the same were being used.
11.Additionally, it was stated that the 10th Petitioner, collaborated with healthcare workers’ unions and conducted 3 surveys to gauge the preparedness of clinical officers, nurses and doctors to respond to COVID-19. Informed by the results of the surveys and lack of information from the 1st Respondent, the 1st and 10th -12th Petitioners, together with 13 other organisations and 14 individuals, wrote to the 1st Respondent on 17.4.2020 seeking information on the provision of support to healthcare workers in response to COVID-19; the number of healthcare workers trained in each designated COVID-19 facility by cadre; evidence of team based approaches in COVID-19 facilities; the number of designated COVID-19 management facilities; their distribution around the country; their capacity to manage severe cases; their capacity to manage critical cases, and laboratory capabilities; the number of personal protective equipment procured and distributed to health care workers and the distribution schedule; the number of healthcare workers tested for COVID-19; and whether health care workers in health facilities treating suspected and confirmed COVID-19 patients were being provided with catering services, accommodation and transport to their accommodation.
12.The 7th petitioner was tested for Covid-19 on 2.4.2020, seven days after he arrived in Nairobi and detained in a mandatory quarantine. He did not receive his results within 24 hours as expected but received oral results after 48 hours. On 7.4.2020, the day his 14-day quarantine period was to end, he and other people in his facility were informed that they were required to stay an additional 14 days because of the positive tests. He wrote to the 1st Respondent on 9.4.2020 seeking an explanation for the extension.
13.Similarly, on learning of the extension of her daughter’s quarantine for a further 14 days, the 8th Petitioner wrote a letter to the 1st Respondent on 9.4.2020 and another dated 10.4.2020 to the 2nd Respondent, seeking information as to why her daughter has not been issued with the personal notification slip confirming she had tested negative for Covid 19; why she was still being held in quarantine facility in violation of the Ministry’s protocols and best practice recommendations issued by WHO; why she had not been told when she would be discharged and the conditions that would be imposed once discharged; why the 1st Respondent had not informed her daughter about the effect of a positive test of another person at her quarantine facility, would have on her and what protocols had been put in place to address positive tests in the facility; who was responsible for ensuring that people who had tested positive were removed from the quarantine facility as soon as reasonably possible and the steps being taken to mitigate the risk to her daughter and others while still protecting the rights to privacy and dignity of those who had tested positive. .
14.The Petitioners further stated that those affected by the circular issued by the 2nd Respondent extending the mandatory quarantine period beyond 28 days, wrote to the 2nd Respondent and copied the 10th and 12th Petitioners requesting explanation as to why the period was extended based on violations of social distancing requirements yet most of those in quarantine had complied; whether ministry of health officials assigned to their quarantine facilities posed a risk to them; why there was a delay in moving people who had tested positive in the quarantine facilities to isolation facilities; and whether the ministry of health would bear the cost of the extended stay. They also raised an issue of inequitable treatment in quarantine facilities.
15.It was further averred that the 2nd Petitioner, a community health advocate based in Mombasa, Kilifi and Kwale counties faced challenges accessing information about the pandemic and government response; that women were not attending ante-natal and post-natal care and others did not know whether or where to access the health services; that many who lived in Kilifi and Kwale counties travelled to Mombasa to receive essential health services; that following the ban to enter Mombasa, she did not know what to tell them and could no longer assist them effectively.
16.On 27.4.2020, the 1st, 2nd and 10th -12th Petitioners, together with 24 other organisations and 26 individuals, wrote to the 1st, 4th, 5th, 6th, 8th and 9th Respondents and the Interested Party seeking information. From the 1st Respondent, they sought information on the use of mandatory quarantine for punitive measures as part of the COVID-19 response; a justification, legal scientific or otherwise, for the use of mandatory quarantine as a punishment; on the actions being taken to ensure that public health measures were in line with human rights. From the 4th Respondent, they sought information on the number of people being held in mandatory quarantine in each county; the number of people that had been tested in various facilities in the counties; the testing schedule for persons being held in quarantine; and the number of people in quarantine for breach of COVID-19 regulations and rules. From the 5th and 6th Respondents, they sought information on whether the police were being used to screen and decide who was suspected to have contracted COVID-19, and if so, the training the officers had been given; the infection, prevention and control protocols the police were using and whether police officers had access to personal protective equipment. From the 9th Respondent, they sought information as to the criteria used to select hotels and facilities as quarantine centres; the checklist for the approval of the facilities as quarantine facilities; a list of places certified as quarantine facilities as at the date of the letter; approved standard operating procedures at quarantine facilities and designated medical personnel responsible for oversight at each centre.
17.Following the launch of RMNH Guidelines by the 1st Respondent in April 2020, the 13th Petitioner and 12 other organisations that promote access to sexual and reproductive health rights wrote a joint letter on 28.4.2020, raising concerns around the comprehensive nature of the guidelines, seeking clarity and provision of supplementary information on securing sexual and reproductive health rights and a provision of services for women and girls in the country in a manner that was comprehensive and accessible to all.
18.Lastly, the Petitioners stated that as at the date of filing of the Petition, none of the Respondents, had responded to any of the aforementioned letters, save for the 3rd Respondent who only acknowledged receipt but did not provide the information requested. As a result of the aforementioned failure to respond to the letters, the Respondents violated Articles 35(3), 10, 232 (1) (f), 26, 35(1), 29, 27, 47 of the Constitution, Sections 4(1) & (3), 9(2), 20, 21 and 25 of the Accesss to Information Act, 2016, Section 5(1), 6, 7 and 10 of the Health Act, 2017 and Sections 4(1) and (3) of the Fair Administrative Action Act .
19.In his replying affidavit sworn on 26.7.2020, on behalf of the 1st, 2nd, 5th, 6th and 7th Respondents, Dr. Patrick Amoth dismissed the allegation that the said Respondents had failed to proactively publish and publicize important information about the pandemic and State response thereto, as alleged by the Petitioners. On the contrary, since the confirmation of the first case of Covid-19 in Kenya, the State consistently put in place a contingency plan on prevention, surveillance, control and response measures in a bid to stop the rapid spread of the virus in the country. He deposed that all the guidelines and measures undertaken by the government to contain the spread of Covid-19 were published and publicized and were made available to the general public including the Petitioners. Further that the Ministry of Health provided prompt and regular updates to the members of public regarding Covid-19 in the country and advised on the modalities of reporting any suspected cases and accessing medical facilities. He denied that there was breach of the Fair Administrative Action Act and contended that mandatory quarantine and its necessary extension was an acceptable WHO recommended practice globally. It was introduced in the country as a precautionary measure to mitigate the spread of Covid-19 at the formative period and to ensure that persons who may have been exposed to the virus remained isolated for the entire 14-day incubation period of the virus to assure their health status.
20.Dr. Amoth further averred that Section 25 of the Access to Information Act gives the Cabinet Secretary in consultation with the Commission, the discretion to make regulations for the better carrying into effect the provisions of the Act. Hence this Court does not have power to compel the 7th Respondent to publish subsidiary legislation. He stated that the Petitioners failed to demonstrate that they had suffered any prejudice or hardship due to lack of the alleged regulations; they did not also show with precision that bringing into effect the provisions of the Access to Information Act and fulfilment of its objectives failed due to lack of the regulations. Further that the constitutionality of the Access to Information Act is not contended.
21.On his part, the 3rd Respondent, Cornel Rasanga, the Governor of Siaya County swore a replying affidavit on 20.7.2020. He deposed that the issue surrounding the burial of the late James Oyugi was res judicata, the same having been dealt with in Siaya Constitutional Petition 1 of 2020. Further that failure to provide information was due to the fact that the matter was already the subject of an ongoing court process, and County Government of Siaya which had initially formed a taskforce to investigate the matter, had paused its own process to await the final determination of the court. Additionally, the information being sought by the Petitioners was easily accessible online. He urged that in the interests of justice, the Petition as against him be dismissed with costs.
22.The 4th Respondent opposed the Petition vide a replying affidavit sworn by Jacqueline Mogeni, its Chief Executive Officer on 18.1.21. She deposed that pursuant to the declaration of Covid-19 as a global pandemic by the WHO, the guidelines to mitigate its spread, namely wearing of face masks, washing of hands, sanitizing and maintaining physical distance, were being implemented by both the National and the County Governments. Following the spread of the disease locally, the operations in both Government institutions and the private sector were scaled down. Further that a majority of the 4th Respondent’s employees were working from home, pursuant to a directive issued by the President through a circular by the Head of Public Service on 23.4.2020, that where possible, government offices, businesses and companies were to allow employees to work from home, with the exception of those in essential services. As such a lot of the information requested by the Petitioners was not readily available in view of the fact that operations in the 4th Respondent’s offices were not optimal.
23.She further averred that the 4th Respondent’s chairman had been delivering weekly press briefings on the preparedness of the county governments to handle Covid-19; the designated Covid-19 amenities in the counties; the total number of trained healthcare workers; the total bnumber of personal protective equipment kits procured; the total number of quarantine facilities and the number of tests carried out in the counties. She further averred that the press statements were usually broadcast in both print and electronic media and could be readily accessed on its website and social media platforms. It was stated that in view of the foregoing, the 4th Respondent has not violated the Petitioners’ right of access to information under Article 35(3) of the Constitution and the Access to Information Act. As such the 4th Respondent cannot be held criminally liable for failure to respond to a request of information under section 28(4)(b) of the Act. Further that Section 28(9), vindicates that 4th Respondent. According to the deponent, Counties have continued to put in efforts towards preparedness to handle Covid-19 and those found to have contracted the same are given the necessary medical care and hence the right to life under Article 26(1) of the Constitution was not violated. The 4th Respondent contended that the Petitioners have not demonstrated how their right to fair administrative action under Article 47 of the Constitution and the Fair administrative Action Act were violated.
24.The 8th Respondent did not file response and submissions to the petition.
25.In his replying affidavit sworn on 6.1.21, the 9th Respondent Daniel Yumbya averred that apart from the Ministry of Health and the Government of Kenya, the medical council provided timeous and accurate information on its role and the actions taken in relation to the Covid-19 pandemic. All this information was accessible at all times to the general public, including the Petitioners, on the Kenya Medical Practitioners and Dentist Council’s website at https://kmpdc.go.ke/. He further deposed that the Kenya Health Professions Oversight Authority developed a checklist for inspection of quarantine units for Covid-19 preparedness and response and the requirements for a quarantine unit so as to ensure quality and ethical case. Further, the list of quarantine facilities which had been selected in Nairobi and Mombasa were operational at a time when there was an increase in the numbers of reported cases of Covid-19 and the said list contained details of the officer in charge of each of the centres. He further deposed that the Ministry of Health had provided the Covid-19 protocols for centres situated in schools and those with shared accommodation. Since 2020 to date, the management of Covid-19 patients had changed drastically and all the quarantine facilities had been closed. Consequently, the health facilities treating and managing the Covid-19 patients had isolation facilities managed by the respective hospitals using the existing protocols.
26.The 9th Respondent further deposed that the use of quarantine facilities at the initial stage was intended to mitigate the spread of Covid-19 during the formative period but with the spread of the disease to the communities across the country the practicability the said facilities became untenable. According to the 9th Respondent, the Petitioners have not exhausted their rights to alternative remedies available under the Access to Information Act that gives the Commission on Administration of Justice the mandate of oversight and enforcement of the Access to Information Act. Further that all the information requested by the Petitioners was in the public domain and the Petition was thus unnecessary as the Medical Council neither withheld nor denied the Petitioners or any person the information it held. Additionally, he denied that he had violated Articles 35, 10, 232, 33(1) (a) of the Constitution, and the provisions of Sections 28 (4) (b) of the Access to Information Act.
27.The 10th Petitioner filed a supplementary affidavit by Allan Achesa Maleche sworn on 4.3.21 in response to the 3rd, 4th, and 9th Respondents’ and denied their allegations in their replying affidavits. He affirmed that this is a matter that ought to be determined by this Court. Further no evidence was provided that the information sought by the Petitioners was easily accessible online and that it was subject to an enquiry by a task force which had since been halted. He further stated that there was no evidence that a large majority of the 4th Respondent’s employees were working from home with restricted access to the office and that the information sought was not readily available due to the operations not being optimal. Also, that the press statements attached as evidence were not made weekly. He dismissed the assertion that the information within the press statements covered what was requested by the 1st–3rd, 10th and 12th Petitioners; that the only information available was the number of people held in quarantine, and the said data was not disaggregated to indicate the numbers in each county as requested by the Petitioners.
28.Further that the information sought was urgent and was not responded to then or as at the date of filing the Petition or at all. He deposed that publicizing information through a press statement did not negate the duty to provide information directly sought from the 4th Respondent who had an obligation to provide information sought and failing to do so for almost 11 months was a violation of the Petitioners’ rights. He further dismissed the 9th Respondent’s assertion that information was readily available and contended that the 9th Respondent did not provide accurate and timeous information or evidence on how the checklist and quarantine list were published, if at all and publicized. It was contended that the list dated 24.3.2020 was not evidence of a response to a request that sought information up to 27.4.2020. Further, that the Kenya Medical Practitioners and Dentists Council as an agent of the State had an obligation to provide information sought from it and failing to do so for almost 11 months was a violation of the Petitioners’ rights. Additionally, that the 9th Respondent has not provided evidence to show that the information sought was within the public domain and cannot willfully ignore a request for same brought by the citizens of Kenya because he feels it is unnecessary to provide the information.
29.The interested party did not file any response or submissions to the Petition.
30.Before I embark on considering the issues for determination, it is necessary to state that I have looked at the entire record and I do not see the identity of the 4th-8th Petitioners. Only their initials were provided. They were described in the Petition as “persons and the family members of persons who were held in mandatory quarantine after they travelled to Kenya.” These Petitioners have been described by their initials and there is nothing on record that discloses their identity to the Court. While the Court appreciates that parties may need to have their identities protected, such parties must disclose their identity to the Court to enable the Court know whose rights are being agitated. The Court has mechanisms for protecting the identity of vulnerable persons who file cases before it or those whose identity may need to be concealed. It is thus not acceptable for parties to move the Court with only their initials. The Court could very well be dealing with and give orders in favour of fictitious persons. In view of the fact that the identity and indeed existence of the 4th- 8th Petitioners cannot be ascertained, the Court will not delve into the question as to whether their rights were violated or their entitlement to general damages as sought.
31.After considering the pleadings and submissions by the respective parties which were highlighted by the parties’ respective counsel. The following issues arise for determination:i.Whether this Court has jurisdiction to entertain this petition in view of:a.The doctrine of exhaustion.b.The doctrine of res judicata.ii.Whether Articles 35(1) and (3), 26(1), 43(1) (a), 10, 232, 33(1) (a) and 47 of the Constitution were violated by the Respondents.iii.Whether the 1st – 6th and 9th Respondents should be held criminally liable in their individual capacities for breach of Section 28(4)(b) of the Access to Information Act, 2016.iv.Whether the orders sought should be granted.
Whether this Court has the jurisdiction to entertain this suit
32.The 3rd Respondent challenged the jurisdiction of this Court to entertain the Petition on the ground that the Petitioners have not exhausted all available mechanisms under the law. Reliance was placed on the provisions of Section 14 of the Access to Information Act (AIA), which require an applicant aggrieved by the decision of any entity from which he seeks information to seek review of the same by the Commission on Administrative Justice CAJ. Further that by virtue of Section 23(3) of the AIA, this Court is devoid of original jurisdiction in matters relating to access to information.
33.The 9th Respondent also challenged the jurisdiction of the Court to hear the Petition on similar grounds. The 9th Respondent argued that the Petitioners ought to have invoked the provisions of Section 14 of the AIA to request a review of the alleged decision refusing to grant access to information sought. It was submitted that the Petitioners have not provided a copy of the request for review made to the CAJ as set out under Rule 5 of the First Schedule of the Commission on Administrative Justice Regulations, 2013 under the Commission on Administrative Justice Act, 2011. Further that the Petitioners have not demonstrated that there were exceptional circumstances preventing them from requesting the review of the decision of the Respondents. It was additionally submitted that the CAJ is the body mandated to enforce the provisions of the AIA. As such, it is the CAJ that is to determine whether or not the Respondents may be held criminally liable in their individual capacity for any breach of the Act. The Petitioners ought therefore to revert to the CAJ, the body mandated to enforce access to information.
34.For the 1st – 8th, 10th, 12th and 13th Petitioners, it was submitted that no internal mechanisms are available and that the CAJ has been named a respondent in the Petition for failure to exercise its mandate. They urged the Court to be guided by the case of Jawara v the Gambia, in which it was stipulated that for the exhaustion rule to be applicable, the remedy must be available, effective and sufficient. On availability, it was stated that “A remedy is considered available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.”
35.It was further submitted that the 12th Petitioner did on telephone and in writing request the CAJ (8th Respondent) to address the continued and wilful failure by the 1st Respondent to respond to letters requesting information. This was done in line with Part V of the AIA. Additionally, the Petitioners copied and dispatched to the CAJ, all letters of request for information. In response thereto, CAJ wrote to the 1st Respondent on 8.4.2020 requesting that he responds to the letter of 6.4.2020 as required under Sections 9(1) and (4) of the AIA. CAJ further wrote to the 3rd Respondent on 3.6.2020 requesting that he consider the matter in the letter of 17.4.2020 and revert. No further action was however taken by the CAJ. Despite reminders and invitations to participate in this Petition where its conduct and exercise of its mandate have been called into question, CAJ has refused to do so. It was thus submitted that CAJ’s failure to discharge its mandate, the internal remedies are neither available nor effective. The Petition is thus also a prosecution of the 8th Respondent’s conduct or failure to discharge its mandate under the AIA. It was submitted that Section 9(4) of the Fair Administrative Action Act (FAAA) recognises that exceptional circumstances may exist to warrant judicial intervention before exhaustion of internal remedies. The Petitioners thus argued that exceptional circumstances as envisioned in Section 9(4) of the FAAA do exist herein.
36.The 11th Petitioner echoed the submissions of its Co-Petitioners.
37.The Petition herein is anchored on the right of access to information, which the Petitioners claim was violated by the Respondents. The right of access to information is a fundamental right that is guaranteed under Article 35 of the Constitution of Kenya, 2010 as follows:1.Every citizen has the right of access to—a.information held by the State; andb.information held by another person and required for the exercise or protection of any right or fundamental freedom.2.Every person has the right to the correction or deletion of untrue or misleading information that affects the person.3.The State shall publish and publicise any important information affecting the nation.
38.The AIA was enacted to give effect to Article 35 of the Constitution. Section 4 of the Act restates the provisions of Article 35(1) on the right to information as follows:
39.The right of access to information is one of the rights that underpin the values of good governance, integrity, transparency and accountability and the other values set out in Article 10 of the Constitution. It is based on the understanding that without access to information the achievement of the higher values of democracy, rule of law, social justice set out in the preamble to the Constitution and Article 10 cannot be achieved unless the citizen has access to information. These are the words of Majanja, J in the case of Famy Care Limited v Public Procurement Administrative Review Board & another Petition No. 43 of 2012  eKLR.
40.Section 8 of the AIA stipulates the procedure for an application for access to information. Such request shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. Inability to make a written request for information is not a hinderance. The law makes appropriate provision and requires that an applicant who is unable to make a request for in writing is facilitated to make a request in manner that meets their needs.
41.Section 9 makes provision for the processing of such application as follows:
42.Section 9(1) provides that a decision on an application for access to information shall be made as soon as possible, but in any event, within 21 days of receipt of the application. Subsection (2) provides that where the information sought concerns the life or liberty of a person, such information shall be provided within 48 hours of request. Under Subsection (6), an application in respect of which no response has been received within the stipulated period shall be deemed to have been rejected. In the procedure as set out, an applicant may apply to the CAJ for a review of the decision of an entity in relation to a request for access to information. Such application is to be made within 30 days from the date the decision in question is notified to the applicant.
43.The Respondents being public entities are bound by the provisions of Article 35(1) of the Constitution and the provisions of the AIA and the obligation to disclose is placed upon them. The Petitioners’ complaint is that they sought information from the indicated Respondents, which information was not forthcoming within the period stipulated, and indeed at the time of filing the Petition. By dint of the provisions of Section 9(6) therefore the application is deemed to have been rejected. Following this rejection, the Petitioners were at liberty to invoke the provisions of Section 14 of the AIA which provide a remedy as follows:
44.It is easily discernible from the above provisions that the AIA has provided a remedy and the procedure to be followed, in the event an application for access to information is rejected. To begin with, an application will only be deemed to have been rejected if no response is received within 21 days. Thereafter an applicant is to apply within 30 days to the CAJ for a review of the rejection of the application for information. A person aggrieved by the decision of the CAJ may then appeal to the High Court within 21 days of the date of the decision. Put differently, the jurisdiction of this Court may only be invoked by a party aggrieved by an order made by the CAJ. Section 23(3) of the AIA provides as follows:
45.It is the Respondents’ case that the Petitioner ought to have exhausted the remedy available to them before moving to this Court. They argue that this Court does not have original jurisdiction to enforce the provisions of the AIA. The Petitioners countered this by contending that the remedy provided in the AIA was not available or effective on account of the failure by the CAJ to discharge its statutory mandate. As such, this Court has the requisite jurisdiction to hear and determined the Petition.
46.The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others  eKLR the Supreme Court succinctly stated:
47.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which provides as follows:(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; ande.any other jurisdiction, original or appellate, conferred on it by legislation.(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration
48.The unlimited original jurisdiction of the High Court in civil and criminal matters includes the jurisdiction to hear any question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, or whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution. It is not in doubt that Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in civil and criminal matters, including the jurisdiction to hear any question with respect to the interpretation of the Constitution. In particular and relevant to the matter herein, under Article 23 this Court has jurisdiction in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
49.The jurisdiction of this Court may however be limited by the Constitution and statute in certain instances. The Court may thus only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. There is a long line of judicial authorities where our superior courts have stated that where an alternative sufficient and adequate forum exists for resolving a dispute, then such forum should be pursued before invoking the court process.
50.In the case of Eliud Wafula Maelo v Ministry of Agriculture & 3 others  eKLR, the Court of Appeal considered the question of limitation of the jurisdiction of the High Court and stated as follows:11.The jurisdiction of the High Court in particular matters or instances can be ousted or restricted by statute. In Halsbury’s Laws of England, Volume 10 at paragraph 319, the learned authors state:12.In Narok County Council V Trans-mara County Council (supra) this Court held that:13.In determining whether a court has jurisdiction in a particular matter, a court cannot consider the provisions of the Constitution only. Regard must also be taken of relevant statutes. That is what was stated by the Supreme Court in The Matter Of The Interim Independent Electoral Commission  eKLR:14.Similarly, in Suleiman Ibrahim V Awadh Said  E. A. 179, Windham, C. J. held that section 33 of the Rent Restriction Act of Tanzania excluded concurrent jurisdiction of the High Court in respect of a matter which could be handled by the Rent Restriction Board.
51.What I understand from the cited authority is that the jurisdiction of this Court does not extend to matters that a statute has directed should be done by another entity. The jurisdiction of the Court is ousted where statute has conferred exclusive jurisdiction on an entity to deal with claims arising therefrom.
52.The filing of constitutional petitions where other dispute resolution mechanisms are available has been the subject of many a court case. In Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others  eKLR, relied on by the 1st and 2nd Respondents, Asike-Makhandia, J. (as he then was) stated:
53.As can be seen, the failure by an entity or an organ to comply with the law does not necessarily entail a contravention of a right or fundamental freedom requiring redress by the constitutional court.
54.Our courts have repeatedly stated that where a clear sufficient and adequate legal avenue and procedure for redress has been provided by law, such procedure must be followed to the letter. In the case of Speaker of the National Assembly v James Njenga Karume  eKLR where the Court of Appeal stated:
55.The AIA has made adequate provision for redress where a party’s application for information has been rejected, leading to violation of the right to information. A party aggrieved by an organ from which information is sought is required to invoke the mechanisms set out in AIA for redress before moving to the High Court.
56.Similarly, in the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille  eKLR the Court of Appeal considered the doctrine of exhaustion and expressed itself thus:
57.And in the case of Charles Apudo Obare & another v Clerk, County Assembly of Siaya & another  eKLR, Aburili, J stated:52. Most recently in Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another  eKLR, Weldon Korir J observed as follows, persuasively but authoritatively, and I have no reason to differ from the learned Judge’s findings and holding:
58.From the cited authorities it can be seen that this Court does not have original jurisdiction to deal with matters relating to access to information. In this regard, I agree with Korir, J. (as he then was), who stated that it could not have been the intention of Parliament when enacting the AIA to confer both original and appellate jurisdiction on the High Court in matters where the CAJ has been given jurisdiction under the Act.
59.While acknowledging the process set out in the AIA for redress, the Petitioners submitted that they wrote to and copied to the CAJ letters to the Respondents seeking the information in question, but did not get any relief. As such, the remedy is neither available nor effective.
60.Section 14(4) of the AIA provides that procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission. Section 22 provides:
61.It is quite evident that the CAJ has not prescribed any form or particulars for lodging a request for a review by, or a complaint with the Commission. This notwithstanding, Section 14 of the AIA stipulates that an aggrieved person may apply in writing to the CAJ requesting a review of a decision of an entity in relation to a request to access information. The provision contemplates an application in writing for review of a decision complained of. In light of this, the act of copying to the CAJ, letters to the Respondents requesting information as the Petitioners did, cannot be said to be an application in writing for review of the Respondents’ decisions. I have also looked at the exhibited letter dated 16.4.2020 addressed to the CAJ by the 12th Petitioner. What was sought in that letter was that CAJ indicate to us in writing and within 48 hours, what actions and the timelines for the actions the Commission will take in line with the Provisions of Part V of the Access to Information Act to ensure that this information is received within 48 hours. To my mind, this cannot be said to be an application for review as contemplated in the Act, and even if it were, the Petitioners could only move this Court by way of appeal in line with the provisions of Section 23(3) of the AIA.
62.The Respondents’ failure to provide information to the Petitioners is an administrative decision within the meaning in Section 2 of the FAAA which provides:
63.Section 9 of the FAAA sets out the procedure for judicial review of an administrative action as follows:
64.Section 9(2) of the FAAA is explicit that courts shall not review an administrative action or decision unless all the mechanisms for appeal or review and all remedies available under any other written law are first exhausted. This is the doctrine of exhaustion and accords with Article 159(2)(c) of the Constitution, which recognizes and entrenches the use of alternative dispute resolution mechanisms in the following terms:(2)In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
65.The doctrine of exhaustion encourages disputants to seek other means of resolving their conflicts rather than, or before, moving to Court. The jurisdiction of the Court should only be invoked when all other means of dispute resolution fail or are exhausted. This was the holding in the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others  eKLR wherein the Court of Appeal stated:
66.It is noted that situations do arise in which a court may exercise its discretion to exempt a party from the obligation to exhaust all available remedies before applying to the Court for judicial review of any administrative action. Parliament recognized this and enacted Section 9(4) of the FAAA which provides:
67.In the case of Republic v Firearms Licensing Board & another Ex parte Boniface Mwaura  eKLR, Mativo, J. (as he then was) considered the factors to be considered to determine the existence of exceptional circumstances contemplated under Section 9(4) of the FAAA and stated:
68.Exceptional circumstances exist where a remedy is unavailable, ineffective or inadequate. The remedy set out in the AIA is that an applicant aggrieved by the decision of an entity from whom information has been requested, may apply to the CAJ for review of such decision. If aggrieved such applicant may then appeal to this Court. This in my view is a remedy that is available, efficacious and adequate. The Petitioners herein have pleaded that the remedy provided in the AIA was unavailable and ineffective and relied on the case of Jawara v the Gambia (supra) to support their submission. As indicated earlier, there was no demonstration of an application made to the CAJ for review of the decision of the Respondents and even if there was such application and the Petitioners were unhappy, then they ought to have come to this Court by way of appeal.
69.For the Court to exercise its discretion in favour of a party, it must be demonstrated that exceptional circumstances exist to warrant such exemption and that such exemption is in the interest of justice. Further, such exemption is made on application by the party desiring the same. The Petitioners herein have not demonstrated the existence of exceptional circumstances to warrant a waiver and further there is no application on record by the Petitioners for exemption from the mandatory provisions of Section 9(2) of the FAAA. Accordingly, the discretion of the Court is not available to the Petitioners.
70.Jurisdiction is everything. Jurisdiction is what gives a court the power, authority and legitimacy to entertain a matter before it. The locus classicus on jurisdiction is the oft cited case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd  KLR 1., where Nyarangi, JA. famously stated:
71.After carefully analysing the matter, the law and the authorities cited, this Court has found that by dint of Section 9(2) of the FAAA, it lacks the jurisdiction to entertain the Petition herein. The Court must therefore decline jurisdiction and down its tools. Without jurisdiction, the Court will not delve into the merits of the remaining issues raised in the Petition.
72.Having declined jurisdiction, the Petition is hereby struck out. The circumstances herein do not call for an award of costs.